text:
    HUGH F. McLACHLIN and CLAUDE McLACHLIN, Respondents, v. JAMES E. BRETT and Others, Appellants.

      Purchase of property from a factor — what facts will charge the purchaser with notice of the rights of the true owner.

    The defendants agreed to purchase a certain amount of lumber from the firm of Hall & Co., at Montreal, and the same was delivered to the defendants at Hunter’s Point, L. I., at various times between October nineteenth -and the early part of November. The lumber belonged to the plaintiffs, and was sold by Hall & Co., as their agents, on commission, but this fact was, at the time of the sale, unknown to the defendants. Hall & Co. failed on September thirtieth. Before any of the lumber was received, an attachment, issued in an action against Hall & Co., was served upon the defendants, and they informed one of the firm of Hall & Co. of that fact, whereupon he said they would ship the lumber as agents. On October eleventh Hall & Co. wrote to the defendants, referring to the attachment, stating that the lumber was sold on commission and that to save annoyance they shipped as agents. In all the bills, except the first, the lumber was stated to have been shipped by them as agents.

      Held, that these facts were sufficient to put the defendants upon inquiry as to the ownership of the lumber, and that they could not claim to set off a debt due to them from Hall & Co. against the plaintiffs’ claim for the purchase-price thereof.
    Appeal from a judgment in favor of the plaintiffs, entered upon the ver diet, of a jury, and from an order denying a motion for-a new trial made upon the minutes of the justice before whom the action was tried.

      Joseph W. Howe, for the appellants.

      A. J. Vanderpoel and Edward O. James, for the respondents.
   Daniels, J.:

The action was commenced by John H. McLachlin and Edward McLachlin, who were engaged in business as partners at Arnprior, in Ganada, for the recovery of the sum of $4,881.49, being the balance claimed to be owing to them from the' defendants upon the sale and deliveiy of 900,000 feet of lumber. The purchase-price amounted to the. sum of $9,881.49, and upon that they had received the sum of $5,000. ' During the pendency of the suit each of the partners departed this life and the present plaintiffs acquired their interests and the action was revived, and has since been prosecuted in their names. The lumber was shown to have been owned by the original plaintiffs, as partners, but it was neither sold nor delivered by themselves to the defendants. That was done through the agency of a firm engaged in business in Montreal under the name of Hall & Go. This firm failed on the 30th of September, 1875. At the time of their failure they were largely indebted to the defendants upon business transactions which had previously taken place between them.

The contract for the purchase of the lumber was made by the defendants with an agent of the firm of Hall & Co., to the extent of 600,000 feet, and the residue was ordered directly from Hall & Co. by the defendants. It was laden on boats 'at Brockville, on the St. Lawrence river, where it had been received by railway from the oi-iginal plaintiffs, who were its owners. These boats proceeded to Montreal, where the bills of lading were changed by Hall & Co., the consignees named in them; and other bills of lading taken consigning the lumber to the defendants. Under these bills of lading it proceeded to its final destination, and was afterwards delivered to the defendants at Hunter’s Point on Long Island. The first arrival was on the 19th of October, 1875. The others followed during the-latter part of the month and the early days of November. But the defendants declined to pay the balance in controversy for the alleged reason that they had purchased the lumber from Hall & Co., who were largely indebted to them upon preceding similar transactions, and by way of defense in the action relied upon their indebtedness as a set-off or counter-claim against the demand made for payment of the balance of the price of the lumber. And whether this defense was maintained by the evidence is the controlling point required to be considered upon the appeals.

The lumber was sold by Hall & Co., in their own name to the defendants, and they relied upon that circumstance, and their alleged ignorance of the fact that Hall & Co. were not its owners, to sustain their defense. If the proof maintained these facts the defense would appear to be complete, for, as a. general legal proposition, it seems to be settled that if a “ factor should sell in his own name as owner .and not disclose his principal and act ostensibly as the real and sole owner, the principal may, nevertheless, afterwards bring his action upon the contract against the purchaser. But the latter, if he bona fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor in answer to the demand of the principal.” (2 Kent Com. [11th ed.], 841 [632*]; Hogan v. Shorb, 24 Wend., 458; Wright v. Cabot, 89 N. Y., 571; Miller v. Lea, 35 Md., 396; Bliss v. Bliss, 7 Bosw., 339; Henry v. Marvin, 3 E. D. Smith, 71; Huntington v. Knox, 7 Cush., 371.) But before any of the lumber had been received by the defendants an attachment had been issued and served upon them in an action brought against Hall & Co. This is stated by one of the defendants to have preceded the eleventh day of October, and within a day or two after the service was made, he stated that they told Louis A. Hall, of the firm of Hall & Co., that “ this attachment had been served on us, and then he says that hereafter they would ship the lumber as agents to prevent it being attached here, and prevent any trouble.” And, on the eleventh day of October, they are also shown to have written this letter to the defendants :

Montreal, October 11, 1875.
Messrs. Brett, Son & Co., New York:
Hear Sirs. — Inclosed please find B. L. and invoices of lumber, per boat G-. S. Clark. ¥e understand that parties are attaching in New York lumber shipped by us; also any funds due us. As this lumber is sold by us on commission, of course, it will do those ■attaching no good.
To save annoyance we have made inclosed papers shipped by ns s agents.
Yonrs truly, HALL & CO.,
Pope.

"Which was in-all ¿probability received by them before the first load of lumber arrived at their wharf. In the bills of lading succeeding the one accompanying the first cargo the statement was made that the lumber had been shipped “ by Hall & Co., agents.” And upon the effect of this letter and these statements in the bills of lading, it was held by the court that the defendants had been so far informed of the fact that Hall & Co. were not the owners of the lumber as to render it their duty to inquire who did own it, and failing to do so that they were chargeable with the information they would have acquired if they had pursued that inquiry. The letter with these statements contained constructive information that Hall & Co. were not acting for themselves or in their own behalf in the sale and delivery of the lumber. They indicated that some other person or persons not disclosed were its proprietors, and this information was received by the defendants before any of the lumber had been placed in their possession. The information in this respect was unequivocal, and it could have been attended with but one result, and that was the unmistakable inference that Hall & Co. were not the owners of the lumber, and that prevented the defendants from making use of their debt against Hall & Co. as a set-off or counterclaim in the action. This point was considered in Hogan v. Shorb (supra), where it was said, to prevent the purchasers from relying upon the set-off, that “it must appear from the nature of the transaction, or from something which transpired before the contract was completed, that the vendee had good reason to believe he was dealing with an agent. In a commercial community no rule short of this will afford sufficient protection to purchasers.” And this principle was also sanctioned in Wright v. Cabot (supra). But the notice or information acquired will be sufficient when it indicates the propriety of further inquiry as to the facts which may be supposed from it to have an existence. A general notice of this description is all that can be exacted under the rule. (Judson v. Stillwell, 26 How., 513.) And it will be effectual when it shall be received before the purchaser has acquired the property, or upon the faith of its purchase placed himself in a position which he will after-wards prove incapable of changing. No objection of that description can be taken to the effect of the information communicated by Hall & Co. to the defendants, for no change in their situation took place after the contract for the lumber was made and before this information was received. Even in the conversation proved by one of the defendants no intimation was given that the lumber was to be shipped by Hall & Co., as agents, as an unfounded pretense or device to protect their property against the lawful claims of their debtors. Such a shipment of it, if the lumber belonged to them, could not have been attended with that result. For it was only for' the reason that they acted as agents, and were not the owners of the lumber, that a shipment of it in that form would protect it against liability to seizure under attachments. If the defendant relating the conversation had entertained doubt as to the motive of Hall in the statement made by him, a further inquiry should have been made or explanation required, but that was not done. The statement was left without enlargement, by which the information was given that the lumber would be shipped by Hall & Co., as agents, to prevent trouble and avoid its attachment. This conversation, as well as the letter and the bills of lading, contained the information that Hall & Co. were acting as agents in the sale and shipment of the lumber, and prevented the defendants from after-wards receiving and paying for it by applying for that purpose the debt owing to them by Hall & Co.

This view of the case was clearly presented by the court to the jury, and the law, as it has been stated in the latest authority, was read to them as their guide in the investigation which they were to make. At the close of the charge several propositions were embodied by the defendants’ counsel in requests which the court was asked to submit to the jury, but they were mainly denied for the reason that they related to the state of the defendants’ information at the time when the lumber was ordered, and not at the time when it was received by them. These propositions could not consistently be charged by the court. For even if the defendants had previously dealt with Hall & Co. as owners, without any disclosure or intimation on their part that they were acting on behalf of others, to and including the time when this lumber was ordered. and the impression so created was corrected before any of the lumber was received, they could not -afterwards accept it and avail themselves of the balance of the indebtedness of the then known insolvent firm of Hall & Co. as a payment or set-off against the purchase-price. The jury could not have been misled by the use of the word “ completed ” in the directions they were bound to consider. What was meant to be conveyed by that term was’ the completion of the sale by the delivery of the lumber. There could be no misunderstanding as to that being the design, for all the evidence which was given tended to prove that the information conveyed concerning the agency of Hall & Co. had preceded the delivery of the first boat load of lumber. Besides that, the language made use of was identical with that receiving the approbation of the court in Hogan v. Shorb (supra). Neither of the propositions presented by the defendants could have been submitted to the jury for their control or government, but those brought to their attention by the court were all that could regularly be requested under the facts of the case for that purpose.

One of the defendants, in the course of his examination, was asked by their counsel whether they ever had any business transactions with Hail & Co. as the agents of McLachlin Brothers, and the answer to this was evidently excluded for the very obvious reason that' it was merely an inquiry for the conclusion or opinion of the witness. The court also overruled the inquiries as to whom the witness understood to be the owners of the lumber and the principals in the transaction at the time of its sale and delivery. And the further question whether the witness ever knew, supposed or suspected that Hall & Co. were not the principals in this transaction, and whether they would have purchased the lumber if they had known or supposed that Hall & Co. were the agents of McLachlin Brothers. But, while the first of these questions was not allowed to be directly answered by the witness, the evidence given by the witness did in fact include it. For his' detailed statement, as to the manner in which the business had been done, rendered it evident that in all his dealings with Hall & Co., to and including the time when this lumber was ordered, he understood and believed them to be the principals in these transactions. The same answer is equally as proper, to the exception relied upon as to the second of these questions; and as to the third it could not have been material to know whether they would or would not have entered into the contract for the purchase of the lumber if they had known or supposed that Hall & Co. were acting as agents of the McLachlins. And the other inquiry can in like manner also be disposed of. It may be under the authority of Gutchess v. Gutchess (66 Barb., 483) and Carr v. Breese (81 N. Y., 584, 592), that these questions could in no legal view be required to be answered. But the point considered in these cases arose in a different manner from that in which it was presented at the trial. The knowledge or information received by the defendants was a material inquiry, and the rule certainly was very strictly applied which excluded.the direct answers intended to be elicited from the witness. But as the effect of his evidence, as it was given, was clearly to bring the facts to the notice of the jury by excluding his more direct answers to these qnestions, no legal harm was done. The defendant who testified could not excuse himself from the effect of the letter by asserting his misunderstanding of its import. It was entirely plain and free from any ambiguity, and its force would not have been diminished in the least if he had been allowed to state what he understood from the letter. It may also with propriety be said as to each of these exceptions that the evidence left no substantial ground for doubt as to the fact that the defendants did receive information, before any part of the lumber came to them, that Hall & Co. were acting as agents in its sale and delivery. And that fact legally prevented them from relying upon their own indebtedness as an answer to the action brought against them for the balance of the lumber account.

Whether, as a matter of fact, the $6,000 received by Hall & Go. from the defendants in the month of November was remitted, as it was stated to have been by the witness Hall, to McLachlin Brothers, was in no manner material to the disposition of the case. Whether the remittance had been so made or not the plaintiffs, under the evidence, were at least entitled to have the case submitted as it was to the jury, and the defendants sustained no legal injury by the refusal of the court to strike out the testimony of Hall concerning the remittance. Upon the evidence submitted to them the jury were well warranted in rendering their verdict in favor of the plaintiffs for the balance of the price of the lumber claimed in the action, together with the interest which had accrued upon it, and the judgment and order should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    EUGENE A. HOFFMAN and Others, Executors, etc., of SAMUEL V. HOFFMAN, Deceased, Appellants, v. PHILIP SMITH and Others, Respondents.

      Undertaking on appeal — when invalidated try the refusal of the sureties to justify— Code of Civil Proeedu/re, see. 1335.
    An undertaking to stay proceedings upon a judgment during the pendency of an appeal to the General Term, having been served upon the plaintiffs, the sufficiency of the sureties was excepted to. The sureties having failed to appear and justify, the proceedings were twice adjourned. After the second adjournment the attorneys for the plaintiffs were notified that the sureties had understood that the undertaking was only for the costs, and that they did not intend to justify.
    The plaintiffs’ attorneys then served a notice withdrawing their notice of exception and waiving justification.

      Sold, that the failure of the sureties to justify rendered the undertaking inoperative, and that no action would lie thereon by the plaintiffs.
    Appeal from a judgment recovered on the dismissal of the plaintiffs’ complaint at the circuit.

      Wheeler H. PeoTcham, for the appellants.

      James M. Smith, for the respondents.
   Daniels, J.:

The action was upon an undertaking given upon an appeal from a judgment, in an action for the foreclosure of a mortgage, to the General Term of this court, where the judgment was afterwards affirmed. The undertaking was given in the form required to stay proceedings upon the judgment while the appeal should be pending. Notice of exception to the sufficiency of the sureties was served by the plaintiffs, and that was followed by a notice for their justification.' At the time fixed for that purpose the sureties did not attend to justify and the proceedings were adjourned, and at the adjourned day a still further adjournment was agreed upon by the counsel. After that had taken place, and during the same morning, the attorney for the plaintiffs was informed by the defendants’ attorney that the sureties understood the undertaking to be a bond only for costs and that they did not propose to justify. The next day after this information was communicated, the attorneys for the plaintiffs served a notice withdrawing their notice of exception and waiving the justification, of the sureties; but the court at the trial held that the sureties had at that time been discharged from their liability upon the undertaking and dismissed the plaintiffs’ complaint.

The practice prescribed for this proceeding has been directed by section 1335 of the Code, and it has been provided where the sureties shall justify, “ if the judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof; and a notice of the allowance must be' served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given.” The effect of a failure to justify by the sureties was held, in Manning v. Gould (90 N. Y., 476), to relieve them from liability upon the undertaking and to entitle the respondent to proceed upon the judgment the same as though no undertaking had in fact been given. And this authority seems to control the disposition which should be made of this appeal, for before the notice withdrawing the exception and waiving the justification of the sureties was served, they had positively refused to justify. That refusal proceeded upon their discovery of a previous misapprehension as to the nature of the obligation they had entered into and it was entitled to the effect, under this provision of the Code, of relieving them from farther liability. When the notice was served excepting to their sufficiency, and it was followed by a notice for their justification, and a time had been designated for that purpose, the sureties upon discovering the true nature of the undertaking refused to go any farther in the proceeding, and that placed them, under this provision of the Code, in the same condition as if the undertaking had not in fact been given. It discharged them, in other words, from the liability previously assumed, and the attorneys for the plaintiffs in the action could not deprive them of this discharge by afterwards serving a notice withdrawing the exception and waiving their justification; for the facts which had previously transpired had relieved the sureties from their obligation, and their liability could not be restored without their consent by any act whatever on the part of the attorneys for the plaintiffs. To have that effect the notice should have been served before the sureties in fact refused to justify. As much as that was intimated, though not decided, in the ease already mentioned. '

The judgment was justified by the evidence, and it should be affirmed.

Davis, P. J"., and Brady, J., concurred.

Judgment affirmed.


text:
    HENRY BRAM, Respondent, v. GEORGE ADAM BRAM and CLARA BRAM, Appellants.

      Deed to husband and wife — they become seized of the entirety — failure of considera?tion — a judgment binds only privies and parties — in actions of foreclosure only subsequent lienors should be made defendants.

    This action was brought to foreclose a mortgage given by one George A. Bram to Jacob and Babeta Bram to secure the purchase-price of real estate conveyed by them to him; they subsequently assigned the mortgage to the plaintiff. The land had theretofore been conveyed to Jacob and Babeta, who were husband and wife. Prior to the execution of the deed to George, Babeta had executed a deed conveying one-half of the property to one Zorntlein.

      Held, that the action could not be defended, upon the ground of a failure of consideration, for the reason that as the husband and wife were seized of the entirety, and as the husband by virtue of his marital rights was entitled to the possession of the property during his life, the prior deed of the wife was inoperative and conveyed no present interest to the grantee.
    That as the only interest Zorntlein could acquire in the property by his deed wotuld arise in the contingency of the wife’s surviving her husband, and as no evidence was given to show to what extent this would diminish the value of the property no basis was presented for making any deduction from the amount of the mortgage.
    After the execution of the mortgage Zorntlein brought an action and procured a judgment therein declaring him to be the owner of an undivided one-half inte rest in the land.

      Held, that as the plaintiff was not made a party to the action his rights under the mortgage were not affected thereby.

      That as the deed was given before the mortgage it was proper not to make the grantee a party to this action to foreclose the mortgage.
    Appeal from a judgment in favor of the plaintiff, recovered on a trial at Special Term.

      A. J. Dittenhoef&r and David Gerber, for the appellants.

      H. M. Gesehiedt, for the respondent.
   Daniels, J.:

The judgment recovered in the action was for the foreclosure of - a mortgage and the sale of mortgaged property. The mortgage was given for the purchase-price of the property described in it. It had been conveyed to and was owned by Jacob Bram and Babeta Bram, who were husband and wife, and they executed and delivered a full covenant warranty deed of the property on the 30th of /September, 1881, to George Adam Bram, and he, to secure the purchase-price at the same time, executed and delivered to them the mortgage in suit, and they thereupon assigned it to the plaintiff. It has been urged in support of the appeal that the mortgage was given to secure the purchase-price of property sold in violation of the terms of the statute, forbidding any person to sell any pretended right or title to lands or tenements, of which the grantor has not been in possession for the space of one year before the grant, but no evidence whatever is contained in the case which would render it subject to the control of this statutory provision. The facts, on the contrary, indicate that the grantors in the deed were in the actual possession of the property, and that such possession had been enjoyed by the grantee since it was executed and delivered to him.

It was proved on behalf of the defendants that Babeta Bram, one-of the grantors,in the deed to George Adám Bram, on the 23d of September, 1881, executed and delivered to William Zorntlein a < deed for one-half the property afterwards conveyed to George Adam Bram, and for that reason it has been objected that the consideration for the mortgage had in part at least failed, as the entire property was intended to be conveyed by the terms of the deed executed and delivered to him. But as this deed was executed by the wife alone, whose interest in the property was created by a joint deed to herself and her husband, it was inoperative in the way of conveying any present interest whatever to the grantee named in it. "Where a deed is executed and delivered to a husband and wife, as this deed to them was, the husband by virtue of his marital rights becomes entitled to the possession of the property during his life, and that possessory right he may dispose of by deed. But subject to that qualification, as neither the husband nor the wife is severally seized of any interest in the property, each is incapable by means of his or her sole deed to convey any present right or interest in the property to his or her grantee. Both are required to join in the conveyance, otherwise it can have no effect, unless it may be by way of estoppel in ease the grantor shall prove to be the survivor of the two. The rule upon this subject is that “ they are both seized of the entirety and can neither sell without the consent of the other, and the survivor takes the whole. This species of tenancy arises from the unity of husband and wife and it applies to an estate in fee or for life.” "(2 Kent Com. [7th ed.j, 110.) In Jackson v. Stevens (16 Johns., 110) the rule was stated, “to be well settled that if an estate be given to a man and his wife, they take neither as joint tenants, nor as tenants in common; for, being considered as one person in law, they cannot take by moieties, but both are seized of the entirety; the consequence of which is that neither of them can dispose of any part without the assent of the other, but the whole goes to the survivor.” (Id., 115.) And it has since been sustained by the following additional authorities: Doe v. Howland (8 Cow., 277, 283); Barber v. Harris (15 Wend., 616, 618); Jackson v. McConnell (19 id., 175); Farmers & Mechanics’ Bank v. Gregory (49 Barb., 155, 162; 1 Washburn on Real Estate [4th ed.], 332, § 9, pp. 672, 673). And as this deed from Babeta Brain to-. William Zorntlein conveyed no interest whatever in the property to him, it followed that the conveyance in which both the husband and the wife joined .to the mortgagor conveyed the title to the properly to him, under which he became seized of it and entitled to its full and complete enjoyment, subject only to the possible contingency that the wife shall survive her husband. This possibility would, of course, diminish the value of the property, but to what extent that might be the result was not proved, nor attempted to be proved, by any evidence in the case, and no ground therefore was presented for making any deduction from the amount of the mortgage on account of this contingency.

It did appear, however, that Zorntlein after the execution and delivery of the deed executed by Babeta Bram to him brought an action in the Superior Court for the partition of the property, upon the allegation that he had become the owner of an undivided half interest in it by virtue of the deed to him. The action was sustained and a judgment recovered in it to that effect, and on appeal this judgment was affirmed. This probably proceeded upon the effect of the case of Meeker v. Wright (76 N. Y., 262), where a very decided opinion was expressed that a deed executed to a husband and wife made them tenants in common of the property affected by it. But the point was not definitely decided'by the court. It was afterwards directly presented for consideration in Bertles v. Nunan (92 N. Y., 152), where it was held that the statutes enacted for the benefit of married women had not abrogated or changed this principle of the common law, and the opinion expressed in the preceding case was overruled. This decision was made in the year 1883, and the former in 1879. And it was during this intermediate period that the action was prosecuted and terminated in the final judgment in the Superior Court, and it was probably deemed to be authorized by the opinion expressed in the case previously decided by the Court of Appeals. The plaintiff was not made a party to that action, and he is therefore not bound by that judgment. Neither can his.interest in the property as the assignee of the mortgage be in any form affected by it. He is entitled to have that interest maintained as the_,law secured it to the mortgagor at the time when the mortgage was executed and delivered, and he was correctly allowed to enforce his mortgage, by sale of the mortgaged property, by the judgment from which the appeal has been taken.

A further objection was taken that Zorntlein should have been made a party to the action for the foreclosure of the mortgage. But as the deed under which he claimed the undivided half was delivered to him before the mortgage itself was executed, he could not be made a party to the foreclosure suit to determine his right or exclude him from the claim under his deed in the property, for only such persons are required to be parties to a foreclosure suit as have acquired rights or interests, or claim to have done so, subsequent to. the execution and delivery of the mortgage. • (Emigrant Industrial Savings Bank v. Goldman, 75 N. Y., 127, 131.) If he had any interest under his deed his right could not be considered or determined in this action. If he had none, then nothing remained to be tried so far as he might be concerned. In neither view could he have regularly been joined as a defendant in the suit. The execution of the mortgage, and the fact that it became due and payable, together with the sum owing, were not denied, but admitted by the defendants’ answer. That settled the extent of the plaintiff’s right, as assignee of the mortgage, conclusively in the case. Those facts were not in dispute, and it was not necessary, therefore, that a statement should be made of. them in the decision of the court. They were not facts proved by evidence, but admitted by the pleadings and entirely beyoncfdispute. And they were so considered in the judgment which was entered, ■ for that definitely adjudged and determined the amount due upon ■ the mortgage as it was admitted by the defendants’ answer.

There was no error in the ruling of the court by which the witness was prevented from answering the question whether his father asked for any mortgage. It was an immaterial inquiry, which, if answered, could have had no bearing upon any portion of the case. It did not follow, from the ruling excluding the answer to it, that the defendants were prevented from proving the consideration of the mortgage. The question did not suggest, in even the remotest manner, the object on the part of the defendants to be to give such proof. Neither did they offer any evidence tending to establish that fact. If that had been the design it should have been so stated to the court, for there was nothing from which it could be by possibility suspected, from the question not permitted to be answered.

At the opening of the cáse the defendants claimed the affirmative of the issue, as their answer had admitted all the material allegations contained in the plaintiff’s complaint. That was denied by the court and they excepted to the decision denying their application. "Whether the rule which has been applied in the trial of. causes before juries should be held to be applicable to a foreclosure suit tried before the court, it is not necessary now to determine, for as their was no defense in any form made out by the proof, the right to open and close the case was one of no possible importance. TJpon the facts as they were established the plaintiff was entitled to recover the judgment entered in his favor. There could be no controversy on the subject, and the denial of the right to open and close the case in no way prejudiced him in the least degree. ■

All the facts necessary for the determination of the action which were not admitted by the answer, and even many of those which were, were found and stated by the court. There was no material deficiency in any respect, and the additional findings proposed by the defendants were not important for the consideration of any point arising upon the facts proved. No error intervened, either in the trial or the disposition of the case, which was prejudicial in any respect to the defendants, and the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    CHARLES F. WILLIS, Appellant, v. BENJAMIN F. DAWSON, Respondent.

      Specific performance of a contract for the sale of land — when enforced althouah the plaintiff has not complied with all the terms of the agreement.

    On June twenty-third the plaintiff entered into a c®ntract whereby he agreed to-purchase from the defendant a piece of land for $18,000; of which $500 was then paid, and $5,500 was to be paid on the delivery of the deed, on July first, at 12 m., the remainder being paid by the assumption of a mortgage on the land. On the day named the parties met at the time and place named, and the defendant was ready to deliver a deed but the plaintiff refused to take it, alleging that he had endeavored to obtain a search of the title, but had been unable to procure it, and asking further time that he might do so. The defendant refused to give further time, and the parties separated. In the latter part of July the-plaintiff brought this action to compel a specific performance of the contract:

      Held, that he was entitled thereto.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered upon a trial before the court without a jury.

      William Settle, for the appellant.

      William JD. Leonard, for the respondent.
   Daniels, J.:

The action was brought for the specific performance of an agreement for the sale of land situated in the twelfth ward of the city of New York. By the terms of the agreement the defendant agreed to pay the sum of $18,000 for the land, $500 at the execution of the contract, and which he in fact paid; $5,500 on the delivery of the deed, which it was agreed should take place on the 1st day of July, 1882, at twelve o’clock, at the office of Gilbert S. Beekman, No. 5£ Bine street, and the remaining $12,000 by assuming a mortgage for that amount at the time on the property. The agreement was made on the 23d day of June in the year 1882, and at the time mentioned for its performance the parties met at the place appointed for that purpose, and the defendant was 'present with a deed which he was ready 'to deliver to the plaintiff, but the plaintiff had been previously endeavoring to obtain a search of the title to the property and had been unable to procure it, and for that reason declined to receive the deed and requested further time to enable him to ascertain the condition of the title. This was declined by the defendant and performance exacted at that time. The plaintiff was then unwilling to receive the deed and pay the residue of the purchase-money, and the parties thereupon separated. The plaintiff afterwards and during the latter part of the month of July, brought this action to obtain the specific performance of the agreement, alleging that he was then ready and desirous of carrying out the contract, but that the defendant was unwilling to perform it. And the fact that he declined to perform the agreement after the time of the interview at Mr. Beekman’s office on the first of July, was not denied. The court considering that the plaintiff was in default in declining to accept the deed when it was ready for delivery to him on the first of July, held that he was not entitled to maintain the action. But while the contract contained no agreement concerning the procurement of a search, or the production or exhibition of an abstract of the title, it was only a reasonable precaution on the part of the plaintiff to endeavor to obtain a search himself before he completed the performance of the agreement. Ordinarily, a purchaser may require to be furnished with an abstract prepared in the usual way, even though he had agreed to accept the title.” (Dart on V"endors and Purchasers, 130.) And this principle, though perhaps not strictly applicable to agreements for the sale of real estate in this State, would sanction and sustain the right of the purchaser to obtain a search of the title at his own expense before completing the purchase by the payment of the money and the acceptance of a deed. Certainly the step would be one so prudent in its character as not to render him chargeable with laches during the time necessary for that purpose, if he exerted himself with all proper diligence to obtain the requisite search of the title. And that the defendant did make such exertions was reasonably clear from the evidence given in the case. Efforts were made to obtain a search, but it could not be procured by the time mentioned in the agreement for its performance by the delivery of the deed and the payment of the purchase-price. It was entirely reasonable, therefore, for the plaintiff to ask such further indulgence as had become necessary to enable him to obtain a search of the title to the property. The defendant was not required to furnish it, but all that was desired was that an adequate opportunity should be afforded the plaintiff to enable him to obtain it for himself. That was all that was desired by the plaintiff and as long as no change is alleged in any form to have taken place in the condition of the property or in the affairs of the defendant himself, by reason of the plaintiff declining to accept the deed without a search, it was unreasonable to refuse his request for further time. If the property was in danger of depreciating in value, or any other adequate reason could be assigned for it, the case would be different, but no fact intervened or was apprehended excusing the denial of the plaintiff’s request, other than the defendant’s determination that the contract should be performed at the time designated for that purpose, or it should be abandoned. This conduct was not such as to commend itself to the approval of a court of equity, for where time has not been made essential by the contract, and it was not by the agreement in suit, there an excusable default on the part of the purchaser will not justly subject him to a forfeiture of his rights where he has failed to perform on the specified day. On this subject it has been said that, “ courts of equity have regard to time, so far as it respects the good faith and diligence of the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or if he comes reoenti fado, to ask for a specific performance, the suit is treated with indulgence, and generally with favor, by the court. But then, in such cases, it should be clear that the remedies are mutual; that there has been no change of circumstances affecting the character or justice of the contract: that compensation for the delay can be fully and beneficially given; that he who asks a specific performance is in a condition to perform his own part of the contract; and that he has shown himself ready, desirous, prompt and eager to perform the contract.” (1 Story Eq. Jur. [12th ed.], § 776.)

The plaintiff’s ease is within this statement of the equitable rule which is sustained very generally by the authorities, for circumstances of a reasonable nature did disable him from a strict compliance with the contract at the time specified for its performance. He had not then been able to obtain a search of the title which it would have been imprudent for him to have received without the search. And all the delay that intervened, between the making of the contract and the commencement of the action, seems to have been probably consumed in obtaining the necessary information to enable him to determine whether he should accept the title or not. And after reaching the conclusion that the title was one which could be safely accepted he did come immediately after the fact to the court to ask for a specific performance of the agreement, and that ought, under the circumstances, to have entitled him to relief. The case in this respect is quite similar in several of its leading attributes to that of Hubbell v. Von Schoening (49 N. Y., 326), where it was said that “ when time has not been made essential * * * if the delay is excused, and the situation of the parties or of the property is not changed so that injury will result, and the party is reasonably vigilant, the court will relieve him from the consequences of the delay and grant a specific performance.” (Id., 331.) And the same principle was further sanctioned in Delevan v. Duncan (Id., 485,488), where the court approved of the equitable principle as it had been stated in Taylor v. Longworth (14 Peters [U. S.], 172), where it was said that “relief will be given to a party who seeks it if he has not been grossly negligent and comes within a reasonable time, although he has not complied with the -strict terms of the contract. But in all such cases the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances equitable, and to account, in a reasonable manner, for his delay and apparent omission of his duty.” (Id., 488, 489.) All these requirements were observed by the plaintiff in this action for he did apply within a reasonable time for the benefit of his contract. An ample excuse was presented and sustained for declining to perform at the date mentioned in the agreement, and it was evident that no circumstances had intervened affecting either the situation of the defendant or of the property rendering it inequitable to afford the relief applied for by the plaintiff. Merchants' Bank v. Thomson (55 N. Y., 7) has also followed the same rule. It was there stated that “ the true rule must be that, if the delay of itself is unreasonable and unexcused, it is enough to relieve the unwilling party from the contract, and that delay, though not in itself unreasonable, if it has made way for an intermediate and material change of circumstances, detrimental to the interests of defendant if obliged to perform, will have the same effect, but that in the latter case it must so appear to the court from the facts shown in the case.” (Id., 16.) As already observed the delay was not unreasonable and it was fully excused, and no change whatever was shown to have taken place during the time either in the condition or situation of the property or in the affairs of the defendant himself. And no different principle was suggested or applied in the later case of Lawrence v. Miller (86 N. Y., 131). The plaintiff was at all times desirous of obtaining the title to the property under the contract entered into with the defendant, provided that could be done with safety to himself. Whether it could or not, could only be determined by a search of the title, there was no omission of diligence on his part in endeavoring to obtain such a search, and all the delay requested by him was so much only as would enable him to obtain it. This was entirely reasonable in itself. It was no more than a safe and proper precaution on his part, and as long as it could have been conceded without any detriment or injury to the defendant or the property, and compensation for it could be provided by adding interest to the purchase-money, it should have been conceded by the defendant. His conduct in this respect was harsh and unreasonable, and it should not be so far approved by a court proceeding upon equitable principles as to enable him to relieve himself from the performance of this agreement under the circumstances made to appear. The entire delay did not exceed the period of about three weeks, and justice to his own interests, as well as prudence in his own conduct, justified the plaintiff in requesting this short period of delay.

The case was one in which the plaintiff’s complaint should- not have been dismissed, but a specific performance of the agreement should have been directed by a proper judgment to be entered in the action. That cannot be done on this appeal, for the facts, although proved by the evidence, have not been found by the judge before whom the trial .took place establishing the plaintiff’s right to such a performance.'

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

Davis, P. J., and Beady, J., concurred.

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


author: Brady, J.: Davis, P. J.

text:
    MARGARETTA PFEFFELE, as Administratrix, etc., of CHRISTIAN PFEFFELE, Deceased, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Bequests to charge — when, a refusal to allow a request to be made is error.

    In this action, brought to recover damages for an alleged wrongful act of the defendant which occasioned the death of the plaintiff's intestate, the liability of the defendant depended upon whether or not the connection rod of a brake broke before the car reached the top of a hill or at the top thereof. Many requests to charge were handed to the judge before he charged the jury, and exceptions were taken to his charge as delivered. Just before the jury retired the counsel for the defendant requested the court to charge that if the jury believed the connection rod broke at the top of the hill, the defendant was entitled to a verdict. The court having answered, “I have charged your request in that respect,” the counsel said, “ I ask your honor to charge it in that language.” The court replied, “I will not accept any request now, the counsel having already presented his requests to charge.” When the counsel excepted to its refusal the court refused to allow any exception to he taken, upon the ground that the counsel had already presented their requests.

      Held, error. (Davis, P. J., dissenting.)
    Appeal from a judgment, entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Austen G. Fox, for the appellant.

      Scmwel TTntermyer, for the respondent.
   Brady, J.:

This action was brought to recover damages for the alleged wrongful act of the defendants in causing the death of the plaintiffs intestate. The deceased 'was employed by Olausen & Son, and on the 26th of August, 1882, was engaged in driving one of their beer trucks across the track of the defendants at Forty-seventh street in Second avenue, when the truck was struck by one of the defendants’ cars, the effect of which was to throw him to the street, and his horses turning pulled the wheels of the truck over his body, causing his death almost immediately. He approached the track from the east. The car was going north and down a steep hill, near the bottom of which the accident occurred. The car seems to have been beyond the control of the driver, the front connection rod having been broken. The plaintiff claimed there was some evidence showing that the connection rod broke before the car reached the top of the hill and the court seems to have sustained that claim. The cause has been thrice tried, resulting twice in a verdict for the plaintiff and once in a disagreement of the jury. Many requests to charge were handed to the learned judge before he began to express his views to the jury, and many exceptions to his charge as delivered were taken.

After the learned judge had expressed himself and had passed upon the requests presented on behalf of the defendants, but before the jury retired, and immediately upon his concluding, the counsel for the defendants requested him to charge the jury that if they believed the connection rod broke at the top of the hill the defendants were entitled to a verdict. To which the court responded: “ I have charged your request in that respect.” The fearned counsel then said: I ask your honor to charge it in that language. ” To which the court said: I will not accept any request now, the counsel having already presented his requests to charge.” Whereupon the counsel for the defendants excepted to the refusal of the court to charge and to its refusal to accept any request. The court then said decidedly it would not allow any exception to a refusal to charge, because the court had already asked counsel to present their requests; that they had done so, and the court having charged the jury, refused to accept another request. This we think was error.

The refusal to accept a request to charge is a fatal error in the conduct of a trial. (Chapman v. McCormick, 86 N. Y., 479.) It is true in that ease no requests to charge had been presented prior to the commencement of the charge. It seems to be quite apparent that in principle it makes no difference whether the requests to charge are presented before or after the charge is delivered. In Raymond v. Richmond, the right to ask after the charge' additional directions was recognized and sustained. (See 88 N. Y. Rep., 671, and Case, Ct. of App. Cas., N. Y. City Bar Ass’n, vol. 16.) While it is quite apparent that in many instances the charge itself may present an unforeseen view and create ah unforeseen necessity which may demand from counsel, in the careful conduct of their case and in the protection of their client’s rights, the preparation of other requests, a necessity which may arise from the manner in which -the previous requests had been disposed of or treated by the justice presiding at the trial, by his refusal to acquiesce in some and his treatment of others, and the expression of original views of the facts, circumstances and law of the case; yet it is impossible for counsel to anticipate what disposition of their requests will be made, or what views may be expressed with regard to them or of the case itself. In any, and indeed in all, of these emergencies the necessity for further requests may exist, and it is not only a right but the duty of counsel to make such requests in the discharge of his - professional obligations, not only to his client but to the court, as the emergency demands. It is not to be denied that requests to charge very often assist in the administration of justice, either by preventing the enforcement of a rule not applicable to the case, or by preventing the omission of one which is controlling.

For these reasons, although we confess with very great reluctance, it seems to be necessary to grant a new trial in this case.

Daniels, J., concurred.

Davis, P. J.

(dissenting):

I should concur with my brethren if requests had been presented which arose out of anything said in the course of the charge, making in the estimation of counsel further explanation necessary, or out of the rulings on the requests already presented ; but in this case the request was substantially a repetition of one already presented and on which the learned judge had already charged, and it was presented for the purpose of asking the court to charge in its exact language. To refuse to do that was no error. The judge had already charged on the subject and was not bound to take his words from the mouth of the counsel. The judge said it is true, that he would receive no further requests and that remark was excepted to, but that exception raises no material question because no further requests were offered. The declaration of the court did the defendant no injury because it is not shown that he desired to present any further requests beyond the one just refused. If erroneous the remai'k was under the circumstances harmless and the exception to it of no value.

To make such a refusal ground of error it must appear that further requests were presented, and what they were, and that they were material to the issue, or some issue of the case, or to correct some misapprehension or mistake of the court, or to save some right of exception to the charge important to the party.

The exception in this case to the general refusal raises only a question of general practice, not one of particular injury, and ought not, therefore, to be settled at the expense of the plaintiff.

1 think the exception not well taken and that the judgment should be affirmed.

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


author: Brady, J.:

text:
    In the Matter of the Sale of Real Estate of ELIZABETH MAHONEY, Deceased. DENNIS CORBETT, Administrator, Respondent, v. WILLIAM FERNSCHILD, Purchaser at Sale, Appellant.

      Sale of real estate to pay the debts of a decedent— fhe provisions of the ¡statute must be strictly complied with — what errors may not be disregarded or cured under section 2784 of the Code of Civil Procedure.

    After real estate of a decedent had been sold for the payment of his debts under a decree of the Surrogate’s Court, it appeared that a guardian ad litem for two infant heirs-at-law had not been properly appointed, and that the general notice to creditors, required to be given by publication by section 2754 of the Code of Civil Procedure, had not been given. An order was thereupon made requiring the infants to appear and show cause, at a day named, why a decree of sale should not be made, and why all the proceedings theretofore had should not be approved and confirmed, and why special guardians should not be appointed for them; and by the same order a supplemental citation was directed to be served upon the general creditors by publication. Upon the return day an order was made appointing a special guardian and declaring that the order should be entered and filed as of the return day of the original citation.

      Held, that the orders so made did not cure the-defects in the prior proceedings, and that a purchaser at the sale should not be compelled to accept the title.
    Appeal from an order of the surrogate directing a purchaser to take property sold, under title 5 of chapter 18 of the Code of Civil Procedure.

      W. Z. Learned, for the appellant.

      J. O. Quinn, for the respondent.
   Brady, J.:

The administrator of Elizabeth Mahoney applied for a decree directing the sale of certain real estate to pay debts and charges which the personal estate was not sufficient to meet, and was successful. The property was sold under the decree, but the purchaser declined to take, upon the advice of counsel, for various objections. Some of them were declared by the learned surrogate to have been well taken, and a supplementary decree was made by which it-was supposed the defects were cured and the sale made effectual. The sale was made on the 27th December, 1883, the supplemental decree on the 29th of April, 1884. It appeared that John Mahoney, Jr., and Hannah Sweeny, both infants, were entitled to notice as heirs-atJaw of the intestate, and it was contended that, although a guardian had been appointed for them, he had not been appointed in accordance with the provisions of sections 2531 and 2536, and further, that the original citation addressed to specific creditors and all other creditors, as required by section 2754 of the Code, was not served upon the class included in “ all other creditors,” by publication, and that such publication was requisite. The result was a citation, dated the 30th April, 1884, long after the sale was made, requiring the infants named, and others, to appear before the surrogate on the 20th June, 1884, to-show cause why a decree should not be made authorizing the administrator to sell the real property of the deceased, and why all proceedings theretofore had for that purpose should not be in all respects approved, ratified and confirmed, and why special guardians should not be appointed for any and all such parties cited as were imams and had no general guardian or failed to have a guardian appointed before the return day mentioned. And the supplemental decree, bearing date the 29th April, 1884, directed the service of the supplemental citation for creditors generally, forming a class, by publication for six weeks. On the 20th June, 1884, an order was made appointing a special guardian for John Mahoney, Jr., and Hannah Sweeny, such appointment to take effect as of the 14th June, 1883, the return day of the original citation, and declaring that the order thus made be entered and filed as of June 14, 1883. These proceedings having been taken with others affecting other defects, an order was made requiring the purchaser at the sale to show cause why he should not complete his purchase and he was required to do so against his objection and protest. It seems to be enough to state the conceded defects and the modes adopted to overcome them, to show that the order appealed from should be set aside. The surrogate derives the power to sell real estate for the payment of debts from the statute, and its provisions must be observed. (Code, § 2749 et passim.) The parties interested are entitled to notice of the proceeding? before the sale, and for the obvious reason that they may have the opportunity to protect their interests by securing a proper price for the property, either by purchase themselves or by others overbidding them until a fair consideration is offered. And the heirs may contest the necessity of applying the property to the payment of debts, or the validity of a debt represented as existing against the decedent, or the reasonableness of the funeral expenses; and may interpose any defense to the whole or part, thereof. (Sec. 2755.)

The .class of creditors to be notified by publication had no opportunity to appear at the sale, and the infants Maloney, Jr., and Hannah Sweeny were not properly and fully before the court -not only when the sale took place but when the decree of sale was made. The significance of this fact must be appreciated, when by section 2759 it is declared that a decree disposing of real property can be made only after certain facts shall have been established to the satisfaction of the surrogate, the first of which is that the proceedings have been in conformity to the title. (Title 5, chap. 18.) It is conceded that they were not. The surrogate has power, doubtless, under section 2781 of the Code, to disregard errors or defects that go to the form and not to the substance, but he has not the authority to dispense with any absolute prerequisite. The section does not declare that any such error may 'be disregarded. The first subdivision relates to an omission, defect or irregularity occurring between the return of the citation and the making of the decree, but this only applies to cases where the petition is presented and “ the proper persons duly cited,” which, as we have seen, is not this case; and the second subdivision, to omissions after the order directing the execution of the decree, of any act necessary to authorize the surrogate to make an order of confirmation. It is •very clear that the purchaser, with such a record as here presented, would not get an indisputable title, and he should not be left, on receiving a deed, to the uncertainty of a doubtful title or the hazard of a contest which might affect the value of the property if he desired to sell it. (Jordon v. Poillon, 77 N. Y., 518.) The title should in all cases be beyond reasonable doubt and free from dangerous uncertainties, particularly when, as said, the courts have applied with great strictness the familiar rule that to divest a person of his property by a special statutory proceeding, every direction of the statute must be strictly complied with. (Redfield on Surrogate’s Courts, 604.)

For these reasons the order appealed from should be reversed, but with ten dollars costs and disbursements of the,appeal.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    ANDREW McLEAN, Appellant, v. JAMES H. PRENTICE and Others, Respondents.

      Judgment-creditor’s action — it cannot be brought after a general assignee-has distributed the debtor’s estate under a decree of the Oouniy Oowrt — 1877, cha/p. 466.
    It is a complete defense to an action brought by a judgment-creditor to set aside as fraudulent a general assignment for the benefit of creditors, to show that, prior to the commencement of the action, the whole of the assigned estate had been distributed under a decree of the County Court, and that the assignee had been absolutely discharged upon the accounting, authorized by the statute, 1877, chapter 466.
    Appeal from a judgment of the Special Term, dismissing the complaint upon the merits.

      G. Baánbridge Smith, for the appellant.

      Douglas Campbell, for the respondents.
   Brady, J.:

This is a proceeding by a judgment creditor to set aside a voluntary assignment executed by James H. Prentice. It appeared upon the trial, however, that the fund arising from the sale of the assigned estate had been distributed under the deepee of the County Court of Kings county, several months prior to the commencement of this action. This is deemed a complete answer to the action.

The decree of the county judge of Kings county discharged the assignee absolutely, which he was authorized to do upon an accounting under the statute of 1877, chapter 466, to be found in Laws of that year, page 543. ’ Section 22 of that act expressly provides that all orders or decrees in the proceedings designated shall have the same force and effect, and may be entered, docketed and enforced, and appealed from, tbe same as like orders or decrees of a county court in an original action brought therein. And by section 25 it is provided also that any proceeding under the act, including a review by appeal or otherwise, should be deemed for all purposes one had in a court as a court of general jurisdiction, and further, that after the filing or recording of an assignment under the act, the court might exercise the powers of a court of equity in reference to the trust and any matters involved therein. The effect of the distribution was the same at common law. (Ames v. Blunt, 5 Paige, 13, 22, 23; Tomkins v. Wheeler, 16 Peters, 106; Burrill on Assignments [4th ed.], 752, 699.)

The appellant seeks to overcome the effect of this statute and common-law principle by the fact that the assignment bears date the 21st of September, 1880, and some portions of the stock' are inventoried on the twenty-second of September, the day following, and the proposition growing out of that circumstance that the decree only relates to the matters included in the accounting and does not, therefore, embrace the property had on the 21st of September, 1880. This is ingenious and doubtless correct in principle, but here is not available. The finding of the learned justice in the court below is that the whole of the assigned estate was distributed, which means all the property that the assignor had at the time of the assignment. The assignment appears to have been executed on the afternoon of the twenty-first of September* and possession taken the next morning. Our attention has not been called to any evidence, and we find none, in the case showing that there was any property on the twenty-first of September, belonging to the estate, which was not inventoried on the morning-of the twenty-second, when possession .was taken under and by virtue of the assignment. In the absence of such evidence, and as against the finding that the whole of the assigned estate had been distributed the proposition of the defendant’s counsel cannot prevail. It may be' that if the appellant were not met in limine by the decree mentioned some good reason could be found, springing-out of the evidence, for a successful assault upon the assignment; but it is not necessary, however, to pursue this subject further, the decree discussed having the force and effect of a judgment which •must protect the" assignee, the estate having been distributed in virtue of its direction. The judgment appealed from should, for ¡these reasons, be affirmed, with costs.

Davis, P. J., concurred.

Present Davis, P. J., and Brady, J.

Judgment affirmed, with costs.


author: Brady, J.: Daniels, J.: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. OSGOOD, Executor, and ELIZA V. OSGOOD, Executrix of GEORGE A. OSGOOD, Deceased, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK.

      .Assessment for personal property — right to home debts deducted tlm’efrom — claims presented to and contested by an executor cannot be deducted.

    The relators having been assessed, as executors of one Osgood, for the sum of $650,000 for the year 1884, applied,' in February, 1884, to the commissioners of taxes to have the assessment canceled. An affidavit was submitted by them stating that in December, 1883, a decree had been made upon an accounting had before the surrogate, and that prior to December thirty-first the entire estate of the deceased had been paid over to the persons entitled to receive it, with the exception of the sum of $484,268.61, which remained deposited in trust companies and banks, under a provision of the decree which directed “ that the residue of the said estate remain in the hands of the said executor and executrix, subject to the further order of this court, reserved for the payment of disputed and other claims and the further expenses of administration.” The affidavit also stated that the debts presented against the estate exceeded the said sum, but that the said debts rested upon contested claims.

      Meld, that as no admitted debts were proved, the commissioners properly refused to make any deduction from the amount of the assessment on account of the contested claims. (Brady, J., dissenting.)
    Certiorari to review the decision of the commissioners of taxes .and assessments, imposing an assessment for personal property upon the relators. A statement of the facts will be found in the following opinion of Brady, J.
    . John M. Bowers, for the relators.

      Albert L. dole, for the respondents.
   Brady, J.:

The relators were originally assessed for the year 1884 in the sum of $650,000 for personal estate held by them as executors, etc., of George A. Osgood, deceased. In February, 1884, they made application to the respondents for a correction of the assessment and demanded that the same should be canceled.

In support of the application an affidavit was submitted in which it was stated that in December, 1883, they had accounted to the surrogate of this county and that a decree had been made upon such accounting, and that prior to the 31st of December, 1883, in accordance with a decree of the surrogate, the entire estate of the deceased was paid over to the persons entitled to it with the exception of the sum of $484,268.61, which remained deposited in trust companies and banks, in accordance with a provision of the decree mentioned, as follows: “ It is further adjudged that the residue of the said estate remain in the hands of the said executor and executrix subject to the further order of this court, reserved for the payment of disputed and other claims and the further expenses of administration.”

It was also stated in the affidavit that -the debts presented against the estate exceeded the said sum, which debts, however, rested upon claims contested. The statute provides for the assessment made in this proceeding, but declares that the just debts due from the executor, in his representative character, shall be deducted from the personal property. (2 R. S. [7th ed.], 989, 991.) If the relators desired' to avail themselves of the right to have the just debts deducted from the amount of the personal property subject to taxation, it was their duty undoubtedly to have presented facts which would have justified such deduction. (People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y., 160.)

It is contended on behalf of the respondents that the affidavit submitted to the tax commissioners does not meet the requirement; in other words it does not show that the just debts exceed the .amount of the property in their possession, or indeed what is the amount of the just debts if any exist. It simply states that the debts have been presented against the estate. No liability for any of the claims presented is admitted or asserted. Although this view is technically correct, yet it does not commend itself to the -consideration of the court. The sum mentioned in the decree of the surrogate is oue which is wholly in custodia legis, subject to the further order of the court. It is not, therefore, any longer under the immediate control of the executors, and whether it would be necessarily appropriated to the payment of claims established against the estate does not appear and cannot be made known until after the requisite investigation of their validity and that of each of them shall have been made and the result declared. The statute should have a reasonable construction. If the sum reserved by the surrogate (and which we must assume to have been reserved upon proper evidence warranting such reservation) is due to the creditors of the estate, then the taxes were improperly imposed. If not, then they were properly imposed upon the whole amount if it shall remain intact, or on such an amount of it as may exist after the payment of the debts.

It is thought, therefore, that the commissioners should review their taxation and place it upon the whole sum mentioned, in case it shall not be diminished by the payment of just debts out of it, and upon such sum as may remain after the payment of existing debts by due process of law, if any be so ascertained to exist.

Daniels, J.:

No debts whatever were proven by the affidavit or otherwise to exist against the fund, reserved only to meet the contingency of asserted but contested claims -being established as debts. In the end the fund may not be reduced to the extent of a single dollar by either of these claims. No probability that either will be established as a liability against the estate has been shown. Until that has been done it cannot be held that any just debts remain to be deducted.

As the facts appeared. the assessment seems to have been in accordance with what the statute has required, and it should be affirmed.

Davis, P. J.:

I concur with my brother Daniels. The title of the reserved fund remains in the executors. It is clearly subject to assessment and taxation unless the statutes of the State exempt it. The just debts ” which the relators owe in their representative capacity may be deducted; but disputed and contested claims are not just debts within the meaning of the law. It must be assumed that they are properly contested, and it cannot of course be presumed from any facts shown in these papers that they will be established and recovered.

The legislature has made no provision for such a contingency. It1 does not come within any of the exemptions of the statute. And in that condition of things there seems to me to be no doubt that the fund is assessable and taxable.

The order, I think, should be affirmed.

Order affirmed.


text:
    PETER GROTH, Appellant, v. THOMAS J. WASHBURN, Respondent.

      Statute of limitation — am action by a husbamd to recover damages for injury sustained, by Ms wife is goven'ned by the sice years’ limitation — Gode of Oivil Procedwre, sec. 382.
    An action by a husband to recover damages sustained in consequence oí injuries inflicted upon his wife by the defendant’s negligence, where such damages ' consist in the loss of the services of the wife, and of moneys expended for necessary medical aid and attendance upon her during her illness and in employing other persons to render the services which she had therefore performed, is an action to recover damages for an injury to'property, and not for a personal injury, and it may, therefore, be brought within six years from the time it arises, as provided in section 382 of the Code of Civil Procedure.
    Appeal from a judgment dismissing the complaint, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before ^whom the action was tried.

      J. H. Whittlegge, for the appellant.
    Thornton, Earle & Kiendl, for the respondent.
   Brady, J.:

This action was brought to recover damages sustained by the plaintiff in consequence of injuries inflicted upon his wife through ' the carelessness of the defendant’s servant, such damages arising from the loss of the services of his wife, moneys expended for necessary medical aid and attendance upon her during her illness, and for expenditures in the employment of one or more persons to do the service which she did for him. The action was not commenced until the expiration of more than three years from the time the plaintiff’s wife received the injuries which form the basis of his demand. Upon the trial such fact being conceded, and the statute of limitations having been set up as a defense, the learned justice presiding at the circuit dismissed the complaint and directed a verdict for the defendant, upon the ground that the action should have been brought within three years, as required by the provisions of section 383 of the Code of Civil Procedure. In this disposition of the case it is thought an error was committed.

This is not an action to recover for a personal injury. It is one to recover damages for an injury to property, and is controlled, therefore, by the provisions of section 382, which prescribes the time for the commencement of such an action as six years. The respondent is not assisted, in the effort to establish a different view of the' question presented, by reference to subdivision 9 of section 3343 of the Code, and by which the personal injury is said to include libel, slander, criminal conversation,'seduction and malicious prosecution, also an assault and battery, false imprisonment or other actionable injury to the person either of the plaintiff or another, and for the very palpable reason that this is not an action to recover for injuries to the person either of the plaintiff or another. The personal injury sustained by the wife of the plaintiff was one for which she could maintain an action. Here a personal injury is stated as an element only of the- plaintiff’s case, and by which damages resulted to which the plaintiff was subjected. He is, in other words, in this action not to be compensated for the personal suffering of his wife, or for any loss occasioned to her by diminution of her capacity in any respect, or any disability created by the effect of the injury sustained upon her health, which woüld necessarily enter into the composition of an award of damages for the personal injury contemplated by the Code, not only in reference to the three-year limitation, but the ninth subdivision of section 3343. The plaintiff seeks to recover for the result of an injury upon his rights, interests and property. For the personal injury the action would not survive, but the plaintiff’s action is one which would survive. The following cases illustrate the distinction which is tere drawn, and establish tbe right of the plaintiff to recover irt this action if he shall establish the facts alleged in his complaint: Cregin v. Brooklyn Crosstown Railroad Company (19 Hun, 342) Woodward v. Washburn (3 Denio, 369); Fried v. New York Central Railroad Company (25 How., 285); Haight v. Hayt (19 N. Y., 464); Cregin v. Brooklyn Crosstown Railroad Company (supra; in Court of Appeals, 75 N. Y., 192); Scott v. Brown (24 Hun, 620 [in this department]).

For these reasons the judgment should be reversed and a new trial granted, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

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


text:
    HUGH N. CAMP, as Temporary Administrator, etc., of GEORGE F. KELLER, Deceased, Respondent, v. WILLIAM. H. BUXTON, Appellant.

      General assignment — defeats in the certifkates of acknowledgment — they may be' * subsequently corrected,.

    January 17,1884, one Keller made a general assignment for the benefit of creditors. It was properly acknowledged by him before a notary public on that day, and' by the assignee on the next day. Bach of the certificates of acknowledgment made by the notary were defective. Keller died on February 22, 1884. On March seventh certificates in proper form were made by the notary and the assignment was recorded. On June twenty-sixth the plaintiff was appointed temporary administrator of Keller, and thereafter brought this action to set aside the assignment and restrain the assignee from acting.

      Held, that the action could not be maintained, as even if it were conceded that the assignment had no validity until a proper certificate of acknowledgment had been made, yet as soon as such corrections had been made therein as were necessary to render it conformable to the statute, the assignment became valid and conferred upon the assignee all the powers which such an instrument grants.

      Smith v. Boyd (Daily Keg., Feb. 7, 1884), distinguished and criticised.
    Appeal from ■ an order made at a Special Term, granting an injunction and appointing a receiver.

      John E. Pwrsons, for the appellant.

      A. H. Ammidon, for the respondent.
   Brady, J.:

■ The plaintiff sought to set aside an assignment made for the benefit of creditors, by George F. Keller, dated January 17, 1884. It seems to have been acknowledged by Keller on the day of its date, and on the day following by the assignee. The acknowledgment of the seventeenth was irregular in form, because it stated that George F. Keller was known to the notary public to be one of the individuals described in and who executed the assignment, and then stated, “who severally acknowledged to him that they executed the same for the purposes therein expressed,” and the acknowledgment of the eighteenth was incomplete because it did not contain a statement that the assignee acknowledged he executed the instrument.

Mr. Keller died on the 22d of February, 1884. On the seventh of March following, certificates in due form as to the assignor and assignee were made by the notary public, and the assignment left to be recorded. On the twenty-sixth of June following the plaintiff was .appointed the temporary administrator of Keller, and in July following moved for a receiver and an injunction • to restrain the assignee from proceeding under the assignment and asked that a receiver of the assigned property should be appointed.

The respondent bases his right to the order made, and from which an appeal has been taken, upon the proposition that the assignment was not duly acknowledged, and not having been duly acknowledged could not be recorded, and being neither acknowledged nor recorded it was absolutely void. It must be admitted that it has been so held by the Court of Common Pleas of this city at a General Term, in the case of Smith v. Boyd, and reported in the Daily Register of February 7, 1884. It is conceded, however, in that case, that if no rights intervened the assignee might obtain a proper certificate and have the assignment recorded, his title vesting from the time of such record. The question presented in this case, therefore, is not whether the assignment is void by reason of the imperfect character of the original acknowledgments, but whether they have not been cured in the respects in which they were defective, and whether having been cured, and the assignment recorded, that instrument is not valid.

The fact is that the acknowledgments wei’e properly made in the first instance, as appears from the record, but such fact did not appear by the acknowledgments themselves, in consequence of the clerical error committed by the notary public or the person who prepared the form of the acknowledgment. It is not pretended that the acknowledgment was not made as required by the statute, but that the evidence of it was defective. The assignment, it will have been observed, after the form of the acknowledgment was made to correspond with the fact, was recorded in March. The plaintiff acquired whatever rights he may possess in reference to the personal estate of Keller in June, and consequently no right that he possesses intervened prior to the proper record of the assignment. According to the case of Smith v. Boyd, to which reference has been made, this would be regular. The decision in that case is adopted only so far as it suggests the feasibility of making corrections in the acknowledgment and then recording the assignment to which the acknowledgment relates.

It is not deemed necessary in the consideration of the appeal to examine any other question, because, conceding that the assignment had no validity until the proper acknowledgment was made, it is intended to be asserted as a rule of law that-such corrections having been made in the acknowledgment of the assignment as were necessary to make it conform to the statute in reference to such papers, it became valid, and from the time of its record conferred upon the assignee all the power which such an instrument grants.

For these reasons it is thought that the order appealed from should be reversed and the motion denied, but without costs to either party.

Davis, P. J., and Daniels, J.,' concurred.

Order reversed and motion denied without costs to either, party.


author: Beaut, J.:

text:
    ALBERT DELAFIELD and Others, Individually and as Trustees, etc., of RICHARD DELAFIELD, Deceased, Respondents, v. RICHARD DELAFIELD SHIPMAN and EDGAR J. SHIPMAN, Individually and as Executor, etc., Appellants, Impleaded with Others.

      Will — when a dense to several, will he treated as a danse to them as a class — whm the survivors take the entire income of the fund.

    The plaintiffs’ testator died leaving a widow and six children, the latter ranging in age from twenty-four to thirty-seven years. By his will he gave and devised to his executors and trustees all the rest, residue and remainder of his estate ‘in trust, to apply and manage the same for the benefit, support and comfort of my wife and children in the manner following, to wit: in the first place to provide, during the life of my wife, a furnished house as a home for my wife and children, and out of the income of my estate to provide for the expense of keeping said house, so as to enable my said family to live in the manner they have been accustomed to, said house and the keeping of the same to be under the control and direction of my wife, as head of the establishment; secondly, to keep the house and furniture in good repair, and .from time to-time to renew the worn out furniture; thirdly, to pay all taxes and assessments on the property, and, fourthly, either semi-annually or quarterly to make a dividend of the residue of the income, after satisfying the objects hereinbefore provided for, equally between my wife and my six children aforesaid, so as to give each of said children and my wife an equal share of the whole, and each one is to defray, out of his or her share of said income,, his or her personal expenses, such as for wearing apparel, traveling,” etc. After the death of his wife his estate was to be divided between the children then living, and the descendants of any deceased child:

      Held, that the widow and children took the surplus income as a class, during-the life of the widow, and that upon the death of one of the children during her life the survivors took the whole of such income, and no portion thereof passed to the descendants of a deceased child or to her devisee.
    Appeal from a judgment, construing tbe will of the late Richard Delafield, entered at the Special Term.
    On the 5th of November, 1813, Richard Delafield, then a resident of this State, died, leaving a last will and testament, dated the seventeenth of January of the same year. His family consisted of his wife and six adult children, none of whom were then married. The wife of the testator was sixty-two years of age at the time of his death, and the ages of the children ranged from twenty-four to-thirty-seven. Prior to the death of General Gelafield, his family had been accustomed to live during the winter at his residence in I street, "Washington, and during the summer at the family residence in "West Eighteenth street, New York; and the family have since his death followed this custom.
    The will was admitted to probate in November, 1873, and in January, 1875, the plaintiffs became seized and possessed of the property of the testator, upon the trusts contained in two clauses of his will. Such property consisted of certain lots of land in New Orleans, of the value of about $2,000; a dwelling-house in Washington valued at about $25,000; a dwelling-house and certain tenement property in the city of New York valued respectively at $30,000 and $6,000. The bulk of the estate, however, consisted of personal property, securities, etc., and amounted in value to over $300,000. The income from the personal estate is about $21,000 per annum. The net income from the real property, of which he-died seized, is about $350 per annum. About $7,000 of the income-of $21,000 derived from the personal estate, is required to defray the expenses of maintaining the home directed by the testator to be-kept up in the clause of his will below quoted. A balance of such income of about $14,000, is, therefore, left to be disposed of by the trustees as also directed in such clause, which is as follows :
    “All the rest, residue and remainder of my estate of every description and wheresoever situated, I give, devise and bequeath to my executors and trustees hereinafter named, in trust, to apply and manage the same for the benefit, support and comfort of my wife and children in the manner following, to wit: In the first place, to provide, during the life of my wife, a furnished house as a home for my wife and children, and out of the income of my estate to provide for the expense of keeping said house, so as to enable my said family to live in the manner they have been accustomed to; said house and the keeping of the same to be under the control and direction of my wife, as head of the establishment; secondly, to keep the house and furniture in good repair, and from time to time to renew the worn-out furniture; thirdly, to pay all taxes and assessments on the property; and fourthly, either semi-annually or quarterly to make a dividend-of the residue of the income, after satisfying the objects hereinbefore provided for, equally between my wife and my six children aforesaid, so as to give each of said children and my wife an equal share of the whole, and each one is to defray, out of his or her share of said income, his or her personal expenses, such as for wearing apparel, traveling,” etc. The will further provides:
    “ Upon the death of my wife, I direct that my executors and trustees shall make an equal division of my whole estate, not herein specifically otherwise disposed of, among ana between my children then living, and the descendants of any deceased child who may have married and died leaving issue, so that such descendants of any deceased child shall receive the same share which their parent would have received if living.”
    The plaintiffs, as trustees, are still performing the duties of the trusts defined in the first-quoted clause in the will, as the testator’s wife, now about seventy-three years of age, is still living, as also are all the children of the testator except his daughter Harriet Cecil, who died in June, 1882, leaving a last will and testament. Prior to her death, and in November, 1880, said daughter had intermarried with the defendant Edgar J. Shipman, and the issue of such marriage was the infant defendant Richard Delafield Ship-man, now about two years old. By her will the testatrix bequeathed all her property to her husband for life, and, on his death, to their surviving children.
    Under such will the defendant, Edgar J. Shipman, claims the dividend in the residue of incomes to which said Harriet Cecil Shipman would have been entitled if living, and on the part of the infant, his guardian contended that such dividend should be paid to said infant, and that the corpus vested in him on the death of his mother.
    The plaintiffs, as trustees, thereupon commenced this suit to obtain a judicial construction of said will. The questions, therefore, are:
    1. Whether or not the children of General Delafield took as a class under the will, and the survivors alone are entitled to share in the surplus of income.
    2. Whether such surplus of income was bequeathable and so passed under the will, or whether it descended to the child of Harriet Cecil Shipman

      The construction of the two clauses in the will of General Delafield, above quoted, is the subject of the present controversy.

      Charles A. Sunk, for the. appellant Edgar J. Shipman.

      William C. Beecher, guardian ad litem, for Richard Delafield Shipman.

      Charles M. Da Costa, for the respondents.
   Beaut, J.:

In the construction of a will the .intention of a testator is the first and great object of inquiry, and to this technical rules, to a certain extent, are made subservient. (Per Church, Ch. J., in Hoppock et al. v. Tucker et al., 59 N. Y., 209.) The intention should be controling. (Kelso v. Iorillard, 85 N. Y., 177, per Miller, J.)

In the first clause of the will of Mr. Delafield recited, he ¿Erected the executors and trustees to pay the whole of his income to the maintenance of his wife and his children during her life in the same household. He imposed upon them the duty of providing during the life of his wife a furnished house as a home for her and the children, and of providing for the expense of keeping it so as to enable his family to live in the same manner as that to which they had been accustomed, the house and the keeping of it to be under the control and direction of his wife as its head, and after the accomplishment of that object, by the p#oper application of the income, then to pay over to his children and his wife an equal share of the residue thereof, each one of whom, out of the portion of such residue, was to defray individual personal expenses, such as for wearing apparel, traveling, etc. The ages of his children ranging from twenty-four to thirty-seven years, and being all adults, he doubtless entertained the impression that they might remain together and treated them as a class who were to receive equal consideration in the application of the income. He did not contemplate the intervention, in the application of the income of the estate as directed, of any other persons than those named.

The predominating idea evidently was the maintenance of a household such as he had provided during his existence for his wife and children, and in the same manner as to numbers, and. for no •other person or persons; his children alone, together with their mother, being the exclusive objects of his bounty in the use of the income of his estate, and he made this disposition of his income evidently contemplating the marriage of one or more of his children, because by the second clause recited he provides for that contingency upon the distribution of the whole of his estate after the death of his wife. And the difference between the disposition of the income, therefore, and the corpus of the estate seems to be conclusive evidence of his intention to make a distinction between the two, giving the former to his wife and children as a class, and to them only, and the latter to such of his children as were living upon the death of the mother, and the descendants of such as might have married and died leaving issue. If he had not intended to preserve this distinction, contemplating as he did the marriage of one or more of his children, it is quite clear that he would have made a proper disposition of the share of any child that might die leaving issue, by directing such share to be applied to the maintenance of his grandchild or children. Not having done so confirms the existence of the scheme in his mind of providing for a family mansion, under the roof of which his wife and children should be gathered during her life, and their union thus perpetuated, so far as it could be, through its instrumentality.

The elaborate briefs of the respective counsel engaged in the presentation of this case to this court have been duly considered and the cases referred to examined, but it is not deemed necessary to make any particular reference to them or to the principles enunciated by them. Search has been made in vain for a case presenting similar features to the one in hand, and although in a case of such interest as this it may be a source of regret, nevertheless having discovered with reasonable certainty and perhaps more than reasonable certainty the intention of the testator, which is the guiding star in controversies of this kind, there is no difficulty in pronouncing the ultimate judgment which should control in the distribution of the estate.

The views of the learned justice presiding in the court below, briefly and tersely expressed upon rendering judgment, are suffi eiently expressive of the proper result, and after due deliberation are adopted, therefore, as conclusive of the question presented.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.


text:
    JOHN L. SUTHERLAND and Another, as Executors, etc., of LOTT C. CLARK, Deceased, Respondents, v. ALONZO BRADNER, Appellant, Impleaded with DAVID McNAIR.

      Attachment — on a motion to vacate, upon the original papers, no affidavits sustaining it can he read— Code of Qivil Procedure, sec. 683.
    After an attachment had been granted, and before any motion to vacate it had been made, an order.was made by the justice who granted the attachment allowing the plaintiff to file additional papers in support of the attachment, nunepro tunc, as of the day the attachment was granted, and with the same force and effect as if they had been read on the motion therefor. Thereafter, upon the hearing of a motion made by the defendant to have the attachment vacated upon the papers upon which it was granted, the plaintiff was allowed to read the additional affidavits so filed.

      Held, that this was forbidden by the express provision of section 683 of the Code of Civil Procedure.
    That the direction that the affidavits be filed nunc pro tunc was of no effect, as the court had no authority to give such direction.
    Appeal from au order denying a motion to vacate an attachment, made upon tbe papers upon wbicb it was granted.
    The attachment was granted on May 24, 1884. On June fourth the justice, by whom the attachment was granted, made an ex parte order allowing the plaintiff to file additional affidavits, ‘\mmo pro tune, as of the 26th day of May, 1884, with the papers on which the warrant of attachment herein was granted, in the office of the clerk of this court, with the same force and effect as if the same had been read on the motion for said attachment.” At that time no notice of a motion to vacate or set aside the attachment had been made. On June ninth an order to show cause why it should not be vacated was made, returnable June twenty-third. On the hearing the additional affidavits were read in behalf of the plaintiff.

      Henry Thompson, for tbe appellant.

      Stephen P. Nash, for the respondents.
   Brady, J.:

The motion to vacate the attachment was founded upon the original affidavits, that is, those upon which it was granted. On the motion to vacate, the learned justice presiding permitted an affidavit made several days after the attachment was granted to be read in support of the process. This could not be done under the provisions of section 683 of the Code. Its language is clear and positive on that subject, and the court of last resort has so declared. (Steuben County Bank v. Alberger, 75 N. Y., 179, 183.) The attempt to overcome this statute law by a direction to file the subsequent affidavit nunc pro tuno, as of the prior date was one to accomplish indirectly what could not be done directly. It is impossible even in these days of extraordinary triumphs in ingenuity and skill to say with truth that a paper not in existence at the time an attachment was granted formed a part of the proofs, and to satisfy the judicial mind that it should issue. It was not, however, in any view that can be presented of this appeal a paper in any way connected with the granting of the attachment, and, therefore, was prohibited, as we have seen, from consideration when the motion was made. Under these circumstances the order appealed from must be reversed and the papers remitted to the Special Term for a proper hearing. Ten dollars costs and disbursements of this appeal allowed to the appellant.

Davis, P. J., and Daniels, J., concurred.

Order reversed and papers recommitted to Special Term for proper hearing; ten dollars costs and disbursements to appellant