author: Clement, Ch. J.

text:
    The People, Resp'ts, v. The Equity Gas Works Construction Co. et al., Impl'd, App'lts.

      (City Court of Brooklyn. General Term,

      Filed April 3, 1893.)

    'Corporations Forfeiture of charter— Restraint from exercising CORPORATE POWERS NOT GRANTED.
    The Equity Gas Company was organized in 1874, and was given three years in which to organize and commence business by a special act of that year which bound it to furnish gas for two dollars a thousand feet. It did not commence business for ten years and not until after the price of gas was fixed at $L50,_when it contracted with the defendants to lay its pipes. Eela, vaa,t the Equity Gas Company by its delay in commencing business forfeited its charter and its corporate powers ceased, and that an action to restrain the defendants from laying its pipes in the streets of the city could be maintained under sub. 3 of § 1948 of the Code, as an action to restrain them trom exercising corporate rights not granted by the law of the state.
    Appeal from interlocutory judgment overruling demurrer to the complaint.
    Action to restrain the laying of pipes of the Equity Gas Company in the streets of Brooklyn on the ground that the corporate powers of the company have ceased and been forfeited by operation of law.

      Simon Rosendale, att'y gen'l, for resp'ts; Sullivan & Cromwell

      (Wheeler H. Peckham, of counsel), for app'lt, Construction Company; William A. Poste, for app'lt, Devlin.
   Clement, Ch. J.

This is an appeal from an interlocutory judgment overruling the demurrer of the defendants, who content! that the complaint does not set forth facts sufficient to constitute a cause of action. In the complaint the plaintiffs allege, inter alia," that the city of Brooklyn is a municipal corporation and that its streets are public high wavs-of the state of New York and of the plaintiffs; that the Equity Gras Light Company, a defendant in this action, but not an appellant, was duly organized by articles of association filed in the office of the secretary of state in January, 1874, pursuant to chap. 37 of the Laws of 1848, which, at that time, was the general law for the incorporation of gas companies ; that an act of the legislature affecting said company was passed and is designated as chap. 144 of the Laws of 1874; that said company has no right or franchise to lay gas pipes in this city for the reason that the corporate powers of said company have ceased: that the said company was subject to a provision of the Revised Statutes, that the corporate powers of any corporation should cease which should not organize and commence the transaction of its' business within one year from the date of its incorporation.

After some hesitation, I conclude that this action can be maintained against the appellants under subdivision 3 of § 1948 of the Code of Civil Procedure. Whether or not the action can be upheld against the Equity Gas Light Company is not before us. The counsel for the appellant, Devlin, admits, in his brief, that, on the facts, an action could be brought under said § 1948, but contends, on the authority of the Attorney General v. Utica Ins. Co., 2 Johns. Ch., 371, and Attorney General v. Bank of Niagara, Hopkins, 354, that no action in equity well lie to enjoin the exercise of corporate powers. The court of chancery had no such jurisdiction up to the adoption of the Revised Statutes. By § 31, 2 R. S., 462, the chancellor was empowered to restrain, by injunction; a corporation or individuals from exercising any corporate rights not granted by law. See People v. Ballard, 134 N. Y., 269, note, 276; 48 St. Rep., 166. On the adoption of the new Code, the sections in point of the Revised Statutes were repealed and reincorporated in §§ 1948 (see § 432 of old Code) and 1955. I am of opinion that this action may be treated as brought to restrain the appellants from exercising corporate rights not granted to them by the law of the state.

The legislature passed an act that the Equity Gas Light Company should have three years to organize and commence the transaction of its business. The general provision is, that if a company does not organize and commence the transaction of its business within one year from its incorporation its corporate powers shall cease. ‘The Equity Company did not commence the transaction of business for over ten years. When the act of 1874 was passed, gas was selling in Brooklyn at three dollars per 1,000 feet. The company in question, by an act presumed to be drawn in its interest, agreed to furnish gas within three years (1877) at two dollars per thousand. Nothing was done under the act until the price of gas was, by statute, fixed at $1.50 per thousand. The public would have been benefited if the company had complied with its charter. As it is now, a stale charter is revived for the benefit of its stockholders, who have failed to keep their contract with the people.

If a self-executing forfeiture can exist in a charter, it seems to me that it should be so held in this case. In the Winfield R. R. case, 72 N. Y., 245; 75 id., 335, it was provided that, ‘‘the corporate existence and powers shall cease; ” and in the Steam Transit case, 78 N. Y., 524, the words in point were, “this act and all the powers, rights and franchises herein and hereby granted shall be deemed forfeited and terminated.” In the case before us, the words “ its corporate powers shall cease ” are plain, and the legislature intended that if gas was' not furnished at two dollars per thousand feet in 1877, then that the Equity Company should pass out of existence.

Judgment affirmed, with costs.

Yah Wyok, J., concurs.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Mary Day, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Bailboad—Elevated—Lessees of abutting pbopebty.
    A lessee of premises abutting on an elevated road, whose lease contains covenants of renewal, is entitled to recover the diminished rental value caused by the construction and operation of the road until the expiration of the first term demised.
    Appeal from judgment directed in favor of plaintiff by trial judge at equity term,

      J. T. Davies and R. L. Maynard, for app'lts; E. D. Hawkins, for resp't.
   McAdam, J.

The judgment restrains the defendants from maintaining their elevated railway structure in front of No. 1009 Third avenue until February 1,1894, unless they pay the plaintiff $1,250, etc. The claim for past damages was waived, and the plaintiff was allowed the value to the end of the first term of the plaintiff’s lease, February 1, 1894, of so much of plaintiff’s easements of light, air and access to said premises as have been taken by the defendants, such value being computed from the commencement of the action. The plaintiff is the owner of the building, and the lease contains covenants of renewal, but these were not taken into consideration in the allowance made by the trial court. As lessee the plaintiff was entitled to recover the diminished rental value caused by the construction and operation of the defendants’ road until the expiration of the first term demised. Bank v. R. R. Co., 53 N. Y. Superior Ct., 511; a ff'd 108 N. Y., 660; Kearney v. R. R. Co., 129 id., 76; 41 St. Rep., 119. This value was assessed upon legal principles, and the amount fixed is not excessive. The judgment provides for the usual injunction in such cases, which is not to take effect until sixty days after service of a copy of the judgment, and requires the execution of the necessary releases by the plaintiff upon tender of the $1,250, with interest.

We find no errors in the rulings or in the judgment appealed from, which must be affirmed, with costs.

Freedman, J., concurs.


text:
    Henry Goldberger et al., App'lts, v. The Manhattan Railway Co., Resp't.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Referee—Removal.
    In an action against an elevated railroad the plaintiffs moved for the removal of a referee who had been appointed with their consent, on the ground that he had, in other actions against the defendant, been paid his per diem compensation by the defendant at the end of each month, and that he had sued a client of plaintiffs’ attorneys for his fees. It appeared that such payment was made by acquiescence of the parties, and that the person sued was the prevailing party and liable for the fees. Held, that while such methods of payment of fees are not to be approved, the explanation of the charges are satisfactory, and that the discretion of the court was not abused by declining to remove the referee.
    Appeal by plaintiffs from order made at special term declining to remove one of the referees heretofore appointed to determine the issues.

      Cannon & Atwater, for app'lts; Davies, Short & Townsend, for resp't.
   McAdam, J.

The person sought to be removed is one of three referees appointed by the court upon consent of the parties to the action to hear, try and determine the issues therein.

The referee is a respectable member of the bar. No charge or insinuation has been made against his general character or ability. The removal is demanded because in certain proceedings by other parties against the defendants he received from them his per diem compensation as referee at the end of each month, and next, because he brought an action against one Hirsch to recover his fees as referee in an action prosecuted by the attorneys of the present plaintiffs, who were also the attorneys for Hirsch. These ■charges have been elaborated, magnified and all the changes rung upon them, but they bear satisfactory explanation.

It was apparently assumed, in all the litigations against the elevated roads by abutting owners, that some damages would be recovered, and by'general acquiescence the railway company paid monthly, as the trials progressed, the fees which, in any event, they would have to pay in the end. While we strongly disapprove the method as introducing a dangerous feature into the referee system, which should be at once discontinued, no one can be heard in complaint thereof who, by acquiescence or otherwise, has consented to such departure from prescribed and more becoming practice. Morse on Arb., 103; Fox v. Hazelton, 10 Pick., 275. The first objection seems answered by the fact that the referee was appointed on the nomination of the plaintiffs’ attorneys, followed by the consent of all the parties, and with knowledge of the methods which they now denounce. Conse?isus tollit errorum. The second is answered by the fact that the referee had the legal right to invoke the aid of the courts in collecting his just demands against Hirsch. who was clearly the prevailing party in that action, and liable as such for the referee’s fees therein. The proceedings against Hirsch in no manner concerned the plaintiffs herein; did not disqualify the referee from acting in their cause, and furnished no just ground for imputing bias or unfriendly relations between their attorneys and the referee. The construction placed by said attorneys upon the stipulation as to referee’s fees in the Hirsch case is so at variance with the plain import of that document, that it is consistent only with an apparent desire on their part to find some available cause for the referee’s removal, when, in truth and in fact, the real ground of the complaint was that the referee had not awarded Hirsch as large an amount of damages as he and they thought he should have allowed.

Referees are judicial officers charged with a responsible trust ; they take the place of the jury as well as of the court, and their finding upon the facts is generally accepted as conclusive. Like jurors or arbitrators, they should be persons entirely unbiased and indifferent between the parties, or their competency to act may, in like manner, be challenged, and any secret understanding as to receiving fees in advance from one party, Russell on Awards, 129 ; Morse on Arb., 536; Redmond on Awards, 93, or any other act of misconduct calculated to bias or influence any one of the referees in his conduct or to prejudice either party, is generally regarded as ample cause for removal, and for setting aside the award when made. For examples of the stringency of this rule see Forrest v. Forrest, 3 Bosw., 650; Dorlon v. Lewis, 9 How. Pr., 1; Yale v. Gwinits, 4 id., 253; Livermore v. Bainbridge, 44 id., 362: aff'd 47 id., 354; Marie v. Garrison, 1 How., N. S., 32; Devlin v. Mayor, 7 Daly, 466; Carroll v. Lufkins, 29 Hun, 17; Burrows v. Dickinson, 35 id., 492; O'Brien v. Long, 49 id., 80; 17 St. Rep., 510. Misconduct or bias upon the part of. referees may be of two kinds, either positive, as by some act that can be directly proved; or inferential, where the circumstances so strongly point to undue influence that the presumption alone will be taken as conclusive. We find no such evidence here.

Referees are under the control of the court at all times; and may be removed in its discretion for cause shown. Ford v. Ford, 53 Barb., 525. They are not to be summarily removed, however, without some substantial legal ground, calling for the ■exercise of the summary power of discipline, and there is no grievance of that substantial character which calls for judicial interference in this instance. To remove a referee for cause is to impeach him as unworthy of the trust confided, an injury more damaging to his reputation than any number of references can compensate. In matters of such a delicate nature, fraught with consequences of so far reaching a tendency, the court should protect its officer when legally right, condemn and remove him when at fault and guilty of misconduct befitting the punishment, to be inflicted.

The present referee system is open to the objection that the main inducements to accept the office are the emoluments which-accompany it in the shape of fees. We must deal with it as it is, not what it ought to be and might perhaps be made by judicious reformatory legislation.

The court below appreciated the delicate character of the motion and treated it with that caution its importance demanded. A careful reading of the voluminous appeal book, in connection with the points discussed, satisfies us that the discretion vested in the court was not abused by the order declining to remove the-referee and that it should be affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concur.


author: McAdam. J.

text:
    Mary L. Trippe, Adm'rx, Resp't, v. The Provident Fund Society, App'lt.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Insurance (Accident)—Notice oe injury.
    The certificate in question insured against bodily injuries through external, violent and accidental means, provided that it should not apply to a disappearance or injury of which there was no visible sign on the body of the insured, and required notice of any injury with full particulars of the injury and declared that a failure to give such notice within ten days from the injury or death should invalidate any claim thereunder. The insured occupied a store in a building that fell, and as he was missing search was made and his body was found in the ruins three days after the accident. No one knew that he was in the building, but suspicions were aroused by his disappearance. Held, that under these circumstances a notice served within ten days from the finding of the body was sufficient, as no proofs could be made out or facts ascertained until the body was found.
    Appeal from judgment entered on verdict in favor of plaintiff,, and from order denying motion for new trial.

      J. L. Hill, for app'lt; Arnoux, Ritch & Woodford, for resp't.
   McAdam. J.

The action is by the plaintiff as administratrix of her deceased husband, on a certificate membership, called a policy, issued by defendant, an accident insurance company upon the co-operative or assessment plan, whereby the company insured Frederick W. Trippe against bodily injuries, through external, violent and accidental means, and providing for weekly indemnity in case of mere injury, and for the payment of $5,000 to his legal representatives in case death resulted from such-injuries.

It appears that on February 12, 1889, the insured applied to-the American Accident Indemnity Association for membership, stating that his occupation was that of a “wholesale drug merchant,” and that the duties required of him were “ office,- selling and traveling. ” Thereupon said association on that day issued a certificate designating him as a “ merchant.” On March 13,1891, said association merged its business with the defendant, which re-insured the risks taken, and on April 13, 1891, issued the certificate to the insured on which the action is founded.

The policy provided that the insurance was subject to the bylaws of the company and the conditions indorsed on the policy. The consideration of the contract was, in part, the warranties contained in the application to the American Accident Indemnity Company, the importance of which is that the occupation of the insured determined the class in which he was entitled to be insured in defendant’s company. The defendant claimed in defense that the insured has misrepresented his occupation, and there was consequently a breach of the warranty in that regard, but the jury found that there was no misrepresentation, and, therefore. no breach of the warranty, and their finding is amply sustained by the evidence. Several other objections of a technical character were interposed, but the defenses respecting them signally failed, and the only one requiring serious" notice is that which arises under the condition of the policy which provides that “ notice of any accidental injury, for which claim is to be made under this certificate, shall be given in writing, addressed to the president of the society at New York, stating the full name, occupation and address of the injured member, with full particulars of the accident and injury, and failure to give such written notice within ten days from the date of either injury or death,.shall invalidate any and all claims under this certificate.” In order to determine the application of this condition to the present contention, a brief review of the facts relating to the accident and cause of death becomes necessary. It appears that the insured did business on Park place, this city, in a building the first floor of which was divided into four stores, one of which (Ho. 72) was used by the intestate as a place of business. On Saturday, August 22, 1891, the entire building fell, and the event has since passed into history as the “ Park place disaster.” The intestate was buried in the debris. -The building came down in a crash, so that there was no time for preparation or learning details, and it was many days before it was known how many and what particular individuals were buried under the fallen walls.

After the disaster the intestate was missing, and it was naturally supposed that he was buried in the ruins. Search was made for the body, and it was discovered and taken from the fallen mass about ten o’clock on the morning of August 25th. Ho one saw him injured; no one knew that he was injured, or indeed was even near the accident at the time it happened. It was in consequence of his disappearance, and the fact that he occupied one of the stores in the building, that it was suspected and believed that he was under the ruins; but no one had any knowledge on the subject. Hotice of injury and death, in the form required by the condition, was served September 2, 1891, eleven days after the accident, and eight days after the body was found. The question is whether service at this time complies with the condition before recited.

Another condition of the policy provides that “ The insurance under this contract shall not extend to or cover disappearance or injury, whether fatal or non-fatal, of which there is no visible mark on the body of the insured. There were visible marks on the dead body of the deceased when it was found, but these had been invisible till that time. Construing these two conditions together, it must be apparent that no one could take any action respecting the injury, or serve the notice required, until the recovery of the body. It had disappeared, no one knew where. No one knew whether he was dead or alive, injured or uninjured, or whether there was any visible mark of injury upon him or not, so that “ the full particulars of the accident and injury ” required by the condition to be stated in the notice were not in the possession of any living being until the recovery of the body, and could not before that time be communicated in any reliable form to the company, or even to the family of the victim. The fact that an accident occurred in Park Place was of no concern whatever to the defendant, unless some one insured by it was injured therein, so that the mere circumstance that a fatality occurred thereat on a certain day cannot be said to fix the time when the ten days notice contemplated by the condition commenced to run. The notice required is not of a possible or probable injury or death, but of an existing and known fact, not a mere suspicion, however probable the cause upon which it was based. In view of the peculiar facts related, service of the notice on August 22d was an impossible thing, made so by circumstances beyond human control, and was excusable. Lex non cogit ad impossibilai.

It is clear, therefore, that the legal effect of the condition is, that notice served wichin ten days after August 25, 1891, was within the time required by the policy, hence the service made September 2d entitles the plaintiff to sustain the recovery had. It is no doubt settled law that when the time within which notice of injury or death must be given is specified definitely, it must be complied with or no recovery can be had. Striking examples of this rule will be found in Gamble v. Accident Co., 4 Irish R, C. L., 204, and Patton v. Emp. L. Co., 20 L. R., Irish, 93, wherein it was held that the omission to give the notice within the prescribed time, even when death was instantaneously caused by an accident, was a complete answer to any claim made on the policy.

Those were cases of accidental drowning, and are distinguishable from the present by the important feature, that the fact of death was known immediately following the accident; here it was absolutely unknown to any one until the finding of the body on August 25, 1891. No one could knowingly say that the death was instantaneous or exactly when or how it was occasioned except as one of the sequences of the accident. The facts respecting the accident and death being undisputed, the question of what construction should be given to the condition was one purely of law for the court It would have been idle to have submitted to the jury for determination the question as to when the intestate died.

No one knew how long he lived after the accident or when death ensued, and to attempt to fix the period with precision would be nothing better than a guess or conundrum which, as yet, is an insufficient foundation for a finding of fact.

If there was any reasonable doubt as to the proper construction, to be placed upon the condition, we would adopt a reasonable one consistent with justice, Warren’s Blackstone, 2d London ed., 505, and if necessary apply the rule applicable to a deed poll, that the words shall be taken in their strict sense against the grantor and liberally in favor of the other party. Bishop on Cont., § 600; 2 Parsons on Cont., 506 ; Broom’s Legal Maxims, 594; Jones on Const, of Com. Cont., § 228.

The court must give practical and reasonable effect to all parts of the contract, not only those affecting one party, but all parties. As the limitation of ten days tends to a forfeiture, which is not favored in law, it must not be shortened by construction to deprive the beneficiary of any of the time allowed by the contract for the protection of her rights. The policy of the law is to maintain contracts and enforce rights thereunder, when this can be done without offending the ascertained intention of the contracting parties or some legal principle. The trial judge disposed of the questions of law properly. Substantial justice has been done to all concerned.

We find no errors in the record, and the judgment and order appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurs.


text:
    Frederick P. Forster et al., Pl'ffs, v. Richard M. Winfield, Def't.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Will—Gift of net residue to executors after payment of debts.
    One F., who died leaving a wife and two children, by his will made plaintiffs his executors, and authorized- them to sell all and every part of his real estate, to pay all debts out of the proceeds, the will concluding: “And the net residue, after payment of all such debts, I give to my executors and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval.” Held, that the gift of the net proceeds of the real estate, after payment of debts, was an absolute gift to plaintiffs as individuals, and was a gift of the net proceeds of the whole of such real estate, after payment of debts, and the plaintiffs could convey a good title as individuals by tendering a short form full covenant warranty deed.
    Case agreed upon in a controversy submitted without action, pursuant to § 1279 of the Code.

      Forster & Speir, for pl'ffs; Edward E. Sprague, for def't.
   McAdam, J.

It appears by the facts agreed upon in this case, It that in the year 1888 George H. Forster was the owner of a lot of land in the Twenty-fourth ward of the city of New York, besides much other property, and on that day he made his will in and by which he appointed these plaintiffs executors, and authorized and empowered them to sell and convey all and every part of the real estate of which he should die seised, to pay all his debts out of the proceeds, and concluded the provision for the disposition of the residue as follows :

“ And the net residue after payment of all such debts, I give to my said executors, and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as under the circumstances, were I alive and to be consulted, they know would meet my approval.”

On November 8, 1888, the said George H. Forster die seised of the lot in question.

Frederick P. Forster, one of the executors, alone qualified and letters testamentary were issued to him.

The testator left a widow and two children surviving him.

On November 19, 1892, the plaintiffs individually made an agreement with the defendant to sell to him the lot in question, in fee simple, free and clear of all incumbrances, for $550, fifty dollars to be paid, and which was paid on delivery of the contract, the balance, $500, to be paid on the 20th of December, 1892, when the deed was to be delivered.

The defendant refused to accept the deed offered him by the plaintiffs, claiming that they got no title by the will; they on the contrary claiming that the property was given to them individually, and that having a right to the proceeds or residue of the estate after payment of debts, they had the right to retain it and hold it unsold as real estate.

Thus differing, the parties submitted for the determination of the court the following questions:

1. Is the gift of the net proceeds of the testator’s real estate, after the payment of debts and mortgages, an absolute gift to the plaintiffs as individuals ?

2. Is the gift of the net proceeds of the sale of the testator’s real estate a gift of the net proceeds of the sale of the whole of the testator’s real estate after paying debts and mortgages, or only a gift of the net proceeds, if any, of any such real estate as is necessarily sold to pay debts and mortgages, over the amount of such debts and mortgages ?

3. Are the plaintiffs entitled to collect the $500 from the defendant upon tendering him a short form warranty deed of the lot described in the agreed case, or is the defendant entitled to the return of the deposit of fifty dollars, and the cancellation of his contract to purchase the lot in question ?

We think the gift to the plaintiffs of the net proceeds of the testator’s real estate, after the payment of his debts and mortgages, was an absolute gift to them as individuals. It is true that where the language of a will is capable of two constructions, one of which will operate to disinherit a lineal descendant of the testator, while the other would not, the latter should be preferred, but that is only in cases where the language is capable of two constructions. Wood v. Mitcham, 92 N. Y., 379, and cases cited; Matter of Brown, 93 id., 295. In this case the language is clear and unambiguous.

In the construction of wills and deeds, we are required by statute, 1 E. S., 748, § 2, to ascertain and carry into effect the intention of the parties, so far as such intention can be collected from the instrument, and is consistent with the rules of law. We are to resort to that first, and if there is no ambiguity, or if the language is plain, we are limited to the instrument itself, and must assume that the testator or grantor meant what he said.

The authority to sell the land is given by the will to the executors as such, and the one executor who qualified might have sold, and possibly might yet convey, in that capacity, under 1 R. S., 737, § 124; a conveyance by him without reciting the power would convey the fee; but such a question is not left to us by the submission, and we, therefore, limit our consideration and decision to the question whether, as individuals, the plaintiffs have and can convey to the defendant a good title. The testator named and appointed these plaintiffs as the executors of his will, and then, after directing them what disposition to make of so much of his estate as was necessary to pay bis debts, he gave to his executors, and to the survivor of them, the residue or remainder.

By the ordinary rule of construction of wills, the word survivor, in such a case, means one who should survive the death of the testator.

As neither of them died during the lifetime of the testator, the word survivor becomes of no importance.

According to the language of the will, the gift is to the two persons named by him as executors. The testator’s expression of confidence in them that they would do with the residue so given them what they knew would meet his approval if alive, does not limit or restrict .them in any use or disposition they may wish to make of it, nor does it create a trust. The proceeds of the sale they were to receive as trustees in trust to pay whatever debts the testator owed; and when these debts were all paid therefrom, the object or purpose of the trust was accomplished, and whatever remained of the estate after that he gave to his executors. All property in the hands of executors, to be used or expended as directed by the will, is held in trust; but what is left over after the trust is accomplished, and given to the trustee individually, is not thereafter held in trust. It has then passed to the donee or beneficiary, and the trust has ceased.

The expression by the testator of a wish, hope or confidence that the legatee or donee will, or a desire in such a case to have him use or expend it in a certain way, is never held to create a trust, or to impose on the donee, legatee or devisee any duty binding on him. Campbell v. Beaumont, 91 N. Y., 464; Clarke v. Leupp, 88 id., 228, and cases cited; Foose v. Whitmore, 82 id., 405. It ought to have been, but is not, stated in the submission whether or not the debts have been paid, but as more than three years have elapsed since letters testamentary were granted upon the estate, it no longer remains liable to be sold by order of the surrogate for the payment of debts, Code, § 2750; Slocum v. English, 62 N. Y. 494, nor was the real estate charged with the payment of the debts. Matter of City of Rochester, 110 N. Y., 159; 17 St. Rep., 146; Matter of Bingham, 127 N. Y., 314; 38 St. Rep., 765. The executors were authorized and empowered to sell the real estate, but were not imperatively or peremptorily required to do so, and the real estate is not, therefore, to be deemed converted into personalty, or to be accounted for or disposed of as personal property. Parker v. Linden, 113 N. Y., 28; 22 St. Rep., 614; Chamberlain v. Taylor, 105 N. Y., 185; 7 St. Rep., 517; White v. Howard, 46 N. Y., 162; Gourley v. Campbell, 66 id., 169; Matter of Bingham, 127 id., 314; 38 St. Rep., 765. Where executors are authorized or even directed to sell real estate for the purpose of paying debts, or for some other purpose required by the provisions of the will, and having no other interest in the property, and the debts are otherwise paid, or the other purposes accomplished without a sale, the heirs or devisees who have the fee may elect to retain the property as land or sell and convey it themselves, and so defeat the power of sale or render its execution unnecessary. Prentice v. Janssen, 79 N. Y., 478; Hetzel v. Barber, 69 N., Y., 11; Armstrong v. McKelvey, 104 N. Y., 183, 184; 5 St. Rep., 611; Reed v. Underhill, 12 Barb., 113. In this case it is evident from the language used by the testator that he did not require the executors if they should sell the land to sell it all, unless it should be necessary to raise sufficient to pay the debts. He gave them power to sell all and any part of his real estate, which must be read as all or any part of the real estate of which he should die seised, and out of the proceeds realized by them from such sale or sales to pay his debts, and the net remainder,after paying said debts, he gives to bis executors, or the survivor of them, as joint tenants. If he had given to his executors the residue of said net proceeds the will would have a different construction, and we should be of the opinion that he gave them nothing except so much of the proceeds as were left after a sale and conversion of the land into money and the payment of the debts therefrom, but after making the only specific provisions which he makes of his property, he gives the net residue to his executors. If the testator had made any provision requiring the expenditure of money for any other purpose, it might have shown an intention to give them nothing but what might be left from the proceeds of the sale or sales that might be made, and in such a case the testator would not have been likely to have authorized them to sell any more than was necessary to pay the debts, at least it is not to be presumed that he would have authorized his executors to sell all of the land and pay his debts from the proceeds and keep the balance, if he had not intended that they should have for themselves the remainder of all of his property after the payment of his debts. If he had intended to give them only such surplus as might remain after selling so much as might be sufficient to pay his debts, he would have so limited the sales to be made for that purpose ; as it is, he allowed them to sell all or any part of his land. He required them to pay his debts out of the proceeds, and the residue or whatever was not necessary to pay his debts he gave to them. We are clearly of the opinion that by the word residue he meant the residue of the property he authorized them to sell, whether sold or unsold, and that being so it follows that the questions submitted must be answered as follows:

1. The gift of the net proceeds of the testator’s real estate after the payment of his debts and mortgages is an absolute gift to the-plaintiffs as individuals.

2. The gift of the net proceeds of the sale of the testator’s real estate is a gift of the net proceeds of the sale of the whole of the-testator’s real estate after paying debts and mortgages.

3. The plaintiffs on tendering a short form full covenant warranty deed of the lot described in the agreed case are entitled to-collect $500, the balance of the purchase money.

The submission is imperfect and prevents the court from pronouncing upon certain questions in the case on which the rights of the parties depend, but limiting our decision to the questions submitted in the form they are submitted, we are of the opinion that the plaintiffs are owners of the fee and can give good title to the lot in question and that the plaintiffs are entitled to specific: performance of the contract.

Sedgwick, Oh. J., and Freedman, J., concur.


text:
    Emma Reiner, Appl't, v. Robert Owen Jones, Resp't.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Bill of particulars—Time when events occurred.
    In an action for rent under a lease from May 1, the answer set up a breach of covenant to keep the roof in repair, alleging that between the-first of January and the date of answer the roof leaked and injured defendant’s goods; that notice was given to plaintiff, but he failed to observe the same or his covenant. Reid, that a request for a bill of particulars as-to the particular days when the damage was caused and the date of the notice to plaintiff should have been granted, as the times when these occurred were material under the circumstances of this case.
    Appeal by plaintiff from order made at special term denying motion for bill of particulars of defendant’s counterclaim.

      Adams & Hyde, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   McAdam, J.

The action is for rent of premises 272 Eighth avenue, demised for three years from May 1, 1892. The defendant pleads that the lease contained a covenant on the part of the landlord to keep the roof in good repair during the term, and as breach thereof, that between the first of January, 1892, and the present time, December 8, 1892, the roof leaked and in consequence the defendant’s goods were damaged to the extent of $538.-18, for which sum the defendant demands judgment. The answer also alleges notice to the landlord of the defect in the roof and a request that it be put in proper order, and the failure of the landlord to observe such notice or his covenant to keep in order as aforesaid. The plaintiff moved for a bill of particulars of the alleged counterclaim, and on the hearing of the motion items of the damages claimed were furnished by the defendant and these answer all requirements in that regard.

The plaintiff desired further information, to wit: A statement of the particular days upon which the damage was caused, and the date upon which notice of the defective condition of the roof was given to the plaintiff. This portion of the plaintiff’s motion was refused, and the denial thereof is before us for review. We are of the opinion that the additional information required ought to have been given. Time is sometimes an important element in a cause of action or counterclaim and should, as a rule, be alleged with reasonable certainty. The term commenced May 1, 1892, and the alleged damages are said to have commenced in the previous January. Clearly no liability coulduattaeh on the covenant in question until May 1, 1892, when the lease became operative. Next, the time when notice was given of the defect is material, because no liability attached to the landlord for breach of his covenant until after knowledge or notice of the defect complained of. Thomas v. Kingsland, 108 N. Y., 616; 12 St. Rep., 800. This information was necessary to enable the plaintiff to prepare to meet the counterclaim and avoid surprise at the trial. A bill of particulars is a mere amplification of the pleading of the party, and where it omits to state with proper particularity the time which important events occur and these form an essential part of the cause of action or counterclaim, the pleader may be required to make his pleading more definite and certain in that regard, Code, § 546; Bliss on Code, PL, §§ 282, 283, Gould’s PL, § 63; People v. Ryder, 12 N. Y., 433, or be compelled to furnish a bill of particulars in aid of the objectionable pleading, a course frequently adopted. People v. Nolan, 10 Abb. N. C., 477. The order appealed from will be modified in the respects aforesaid, and as modified affirmed, without costs.

Sedgwick, Ch. J.—I concur, limiting, however, to this case the rule given as to requiring time to be stated in a bill of particulars.


author: Peckham, J.

text:
    Charles P Bowditch, Trustee, Resp't, v. Florence Ayrault, by Guardian, App'lt.

      (Court of Appeals,

      Filed April 25, 1893.)

      ' Vul—Construction of—Vesting of legacies.
    The will of testator provided for the creation of several separate and independent trusts, to commence at the time of the testator’s death, and which might last in some cases for the full term permitted by the statute. By the 25th clause the residuary estate was given to a trustee who was directed to convert the same into money and as fast as practicable to divide two-thirds thereof between the children of testator's brothers and sisters, “whomay be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed; said two-thirds of said residuary estate to be divided between all said children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion which their parent would, if living at such distribution, be entitled under this provision.” Held, that the gift in substance is to the children living at testator’s decease and it then vested, subject to be divested at the death of any child and by the substitution of his or her descendants if any were left. And if there were no such descendants, then the property remained vested in the child and upon his death formed part of his estate subject to be disposed of as the law or his will provided.

      Appeal from judgment of the supreme court, general term, fifth department, modifying and affirming an interlocutory judgment.

      John P. Bowman, for app'lt; James C. Smith and John Rorbach, for resp't.

       Modifying 43 St. Rep., 583.

   Peckham, J.

The sole question for our determination arises upon the construction to be given to the twenty-fifth clause in the will of Allen Ayrault, who died February 4,1861, then being a resident of the county of Livingston in this state. The will was duly admitted to probate, and everything being in readiness for a final closing up and accounting by the trustee under the will of all matters pertaining thereto, such trustee has brought this action to obtain a construction of the clause in the will above mentioned, and to make a final distribution of the funds in his hands pursuant to the decree of the court.

The will provided for the creation of several separate and independent trusts, to commence at the time of the testator’s death, and which might last in some cases for the full term permitted by, the statute. The following is that portion of the twenty-fifth section which is material to be considered: “ I give, devise and bequeath the rest, residue and remainder of my estate, both personal and real, not hereinbefore disposed of, and such portions of the same as shall remain after the trusts herein provided for are fully discharged and fulfilled, and the legacies lieréin given are paid in full, to my said trustee, to be by him disposed of as follows : I direct him to sell and convey all such estate, real and personal, and convert the same into money, or available means for such purpose, and dispose thereof as follows: I direct him as fast as practicable to divide two-thirds of said residuary estate between all the children of my brother John Ayrault, and my sister Mary Smith, widow of Sparrow Smith, and of my deceased brothers Nicholas Ayrault, Boswell Ayrault, and Lyman Ayrault, and of my ■deceased sister, Emily Griffith, who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed ; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled under this provision.”

The balance of the section provides for the disposition of the remaining one-third of the residuum of the estate. The question argued here relates to the vesting of the property to be distributed under the twenty-fifth section.

There is no question that the property is to be regarded as personal and that the rules applicable to that species of property are to be applied here.

The realty is directed to be sold by the trustee and converted into money and to be disposed of as directed in the will. There have been several distributions of portions of the residuum of the estate made by the trustee as from time to time he realized funds for that purpose, and upon accounting made by him before the surrogate of Livingston county, and such distributions have heretofore been made upon the theory that these legacies did not vest until each actual distribution of the estate which might from time to time be made, and in the event of the death of anyone who, if living atthetime of of the distribution, would have been entitled to a share of the property distributed, his descendants would be entitled to his share, but if he died before a particular' distribution was made, without leaving any descendants, his interest passed to the survivors and did not descend to the personal representatives or assignees of the legatee so dying.

The appellant Florence Ayrault is a daughter of Walter Ayrault, deceased, who was a son of the testator’s deceased brother Richolas mentioned in the twenty-fifth clause. She is one of the next of kin of certain nephews and one niece, wha have died since the testator without leaving any descendants, and whose estates have not been recognized by the trustee as entitled to any further share in the distribution of the residuum, and their share has been upon former distributions divided among all the legatees who were entitled at that time to a portion of the residuum then divided, whereas it is now claimed on her- behalf that the shares which would have gone to these deceased nephews and niece had they lived should now be divided among their •next of kin, they having died intestate and without descendants. In such case the share coming to the appellant would be larger than if the other basis of division were adopted.

There now remains a sum slightly exceeding $38,000 to be distributed, and the rule which shall govern therein is "now to be decided.

The general rule is acknowledged by the parties that the law favors the vesting of legacies as soon as possible after the death of the testator. It is, however, a question of intention as to what the will really means, and while it is the inclination of courts to adopt a construction which would permit such vesting, yet they must construe the will as actually made, and not attempt to make one which may seem to them better or wiser than that made by the testator. It is claimed on the part of the plaintiff that the language of this will brings the case strictly within what he states to be the general rule, that where in the case of personalty there is no gift except by way of a direction to the executor or trustee to pay, or to divide and pay at a future time, the vesting of the property in the beneficiary will not take place until that time arrives.

The cases cited by the learned counsel for the plaintiff do not show that there is an absolute and unvarying rule which prohibits the vesting where the language does not in terms make a gift directly to the legatee, and where the direction is to divide and pay at some future time. The intention of the testator is still the guide, and the intention must be sought from the language actually employed.

In reading this will, it seems to us quite plain that the words used by the testator import a gift primarily to the children of his brothers and sisters “ who may be living at the time of ” his decease. The formal gift is made to the trustee, but it is made in ■order that he may convert testator’s residuary estate into money, and as fast as practicable divide two-thirds of it among the children of his brothers and sisters who may be living at the time of his death. Understanding, of course, the uncertainties of life, ho provides for a substitution of the descendants of those children who may be deceased when the estate, or any part, is to be distributed, the descendant to take the share which the parent would have taken if living. The gift is, however, in substance to the children living at his decease, and we think it then vested, subject to be divested by the death of any child and by the substitution of his or her descendants, if any were left. _ If there were no such descendants, then the property remained vested in the child, and upon his death formed part of his estate, subject to be disposed of as the law or his will provided.

We do not think that futurity is annexed to the substance of this gift within the meaning of the expression as cited by Jar-man. 1 Jarman on Wills, 760. The cases cited by that learned author, and commented upon in the brief of counsel for the plaintiff herein, do not present features at all similar to the will here in question.

The gift in reality is not in the future. It is to the children at the time of testator’s death, and if any should die before the distribution, in that event the substitution of his descendants takes place. It is only in the event of his dying leaving descendants that any such substitution is provided for, and if he die before the divis’on and without descendants the will makes no provision for bhe contingency, and the legacy which had vested in him upon the death of the testator goes in that case in the same way as any other vested interest would go, either to his next of kin or to his assignees or legatees.

In brief, we think this case is not one for the application of the rule referred to by counsel, because the meaning of the will is, as it seems to us, quite plainly the other way.

The fact that the residuum of this estate consisted partly of property tied up by trusts created by the testator, which would not probably fall in for some time, does not in our judgment call for a different construction of the clause in question. Many cases ■might be cited and commented upon in the further discussion of this case, but we think no useful purpose would be subserved. We have looked at those cited by counsel for the plain biff and have come to our conclusion as to the true meaning of this will in the light given us by reference to such cases.

Each will must, to a certain extent, be the guide to its own construction, and when as here we have language used which appears to us upon the whole case to import a present gift to these children with a possible substitution of their descendants in their place in case of their death, it is our part to provide for the carrying out of the obvious intent of the testator, so long as no rule is violated which has been laid down and followed by courts in the course of the many decisions upon the subject. We do not think we violate any canon of construction or rule of law by this decision, but on the contrary we will carry out what seems to us to be the intention of the testator as expressed in this clause.

The part payments made by the trustees upon the several past accountings made by them must remain unaffected by our decision herein. Those accountings have been approved by the surrogate and must be regarded as conclusive upon all past transactions and payments covered by them. They form no bar, however, to the proper decision of the question now presented as to the distribution of the property now in the hands of the trustee.

The judgment of the general term of the supreme court must be modified in accordance with the views herein expressed, with costs to the plaintiff and also to the appellant payable out of the fund, and without costs to any of the other parties in this court. If the form of the judgment is not agreed upon, it may be submitted to this court upon notice.

Judgment accordingly.

All concur.


author: Andrews, Ch. J.

text:
    The Hanover Fire Insurance Co., App'lt, v. The Germania Fire Insurance Co., Impl'd, Resp't.

      (Court of Appeals,

      Filed May 2, 1893.)

    1. Costs—Extea allowance—Appeal.
    The propriety of an extra allowance under § 3252 of the Code may be reviewed by the general term on appeal from the judgment, and a formal exception need not be taken to enable that court to review the discretion or the legal right of the court below to make the award. And the court of appeals can, on an appeal from the decision of the general term, pass upon the question of the legal right involved.
    2. Same.
    An action was brought in equity to restrain defendant from interfering with ti±e closing up by one S. of the business of “ The New York Underwriters’ Agency,” pursuant to an agreement between that company and plaintiff. Defendant, in its answer, alleged that said name was used to represent the joint business of the two companies, and the joint property of both, and was worth $50,000, and was appropriated by plaintiff and S. This was denied in the reply, and although there was no evidence of the value of the right before the court, it granted defendant judgment, with an extra allowance of $2,000. Held, error; that as the value was not shown, and no evidence, admission or proof given from which the court could arrive at any conclusion as to value, no allowance could be made.
    Appeal from judgment of the supreme court, general term, first department, reversing so much of the judgment in favor of jilaintiff as adjudged that plaintiff recover an extra allowance of $2,000.
    This was an action in equity to restrain the defendant, the Germania Fire Insurance Company, from interfering with the closing up by one Stoddart of the business of “ The New York Underwriters Agency,pursuant to an agreement between that company and the plaintiff, the Hanover Fire Insurance Company. The Germania Company in its answer among other things alleged that “ The New York Underwriters Agency" was a name used to represent the joint business of the two companies, and was the joint property of both, and was of the pecuniary value of $50,000, and further alleged that the name had been appropriated by the plaintiff and Stoddart to a new business, in conjunction with the Citizens’ Insurance Company, without making any compensation to the Germania Company, whereby the latter company had been deprived of all use and benefit therefrom, and that its interest therein is being rendered valueless; and the answer demands affirmative relief by injunction against the Hanover Company and Stoddart
    The Hanover Company served a reply denying the allegations in the answer. The case came on for trial at special term, and upon the pleadings and proof of records and proceedings in former actions between the parties, and without any oral evidence, the case was submitted. The trial judge made findings of facts and law, and directed judgment to be entered for the plaintiff against the Germania Company, enjoining it from interfering with the closing up of the business of the “New York Underwriters Agency ” by Stoddart, and awarded costs against the Germania Company, and an extra allowance as follows: “And that the plaintiff have judgment for its costs, to be taxed, and two thous- and dollars as extra allowance.”
    Judgment having been entered pursuant to the direction of the special term, the Germania Company appealed to the general term from that part of the judgment awarding an extra allowance. The general term reversed the part of the judgment appealed from, for want of power in the special term to award an extra allowance, and from that order of reversal the Hanover Company appeals to this court. There was no evidence presented to the special term as to the value of the property right in the name “The New York Underwriters Agency,” outside of the pleadings.
    Ho formal exception was taken to the award of an extra allowance.

      George W. Cotterill, for app'lt; Ernest Hall, for resp't.

       Affirming 43 St. Rep., 454.

   Andrews, Ch. J.

We think the question of the power of the court to grant an extra allowance was brought before the general term by the appeal from that part of the judgment by which the award was made.

The granting of an extra allowance under § 3252 of the Code can never be demanded as a legal right, but is in the discretion of the court. Whether an allowance shall be made in cases coming within the section is a question which arises after the trial and determination of the issues. The court may determine the question upon the facts disclosed on the trial, or brought to its attention by affidavits. When an allowance is made it enters into the judgment and is collectible by force of the judgment.

The propriety of the allowance may be reviewed by the general term on appeal from the judgment, and we think it is not a case where a formal exception must have been taken to enable the general term to review the discretion or the legal right of the court below to make the award. And we are also of the opinion that this court can, on an appeal from the decision of the general term, pass upon the question of the legal right involved. The case is anomalous, but there seems to be no good reason why, for the purpose of reviewing the allowance, the same rule should not prevail as on appeals from orders in respect to the absence of an exception. The allowance is in substance an order incorporated in the judgment.

Upon the merits we are of the opinion that there was no basis in the facts before the trial judge for fixing an allowance in this case. The allowance to be made under § 3253 is a percentage on “ the sum recovered or claimed, or the value of the subject-matter involved.” The allowance in this case was based on the value of the right to the use of the name by the Germania Company. The answer in connection with the allegation that the name was the property of the two companies, alleges “ that the said name possessed and possesses a pecuniary value of $50,000.” The Germania Company based its demand of affirmative relief upon the allegation of a joint right to the use of the name, and that it had been deprived of the benefit thereof. The right to the use of the name “New York Underwriters Agency” was a “subject-matter ” involved in the issue presented by the Germania Company in its answer. But the difficulty in maintaining the award of the special term arises from the fact that there was no evidence of the value of the right before the court. The averment of value contained in the answer was denied in the reply. Upon the pleadings, therefore, the fact was as though no averment of value had been made. The averment on one side was neutralized by the denial on the other, and the pleadings contained the only information as to value before the court. If extrinsic proof had been given a different question would have been presented. It is not sufficient to sustain the allowance that the case was one where there may have been a pecuniary value to the “ subject-matter ” involved in the litigation. If the value was not shown and no evidence, admission or proof given from which the court could arrive at any conclusion as to value, no allowance could be made.

We think the order of the general term should be affirmed.

Order affirmed, with costs.

All concur.


text:
    Patrick S. Cassidy, Resp't, v. The Brooklyn Daily Eagle, App'lt.

      (Court of Appeals,

      Filed May 2, 1893.)

    Libel—Pleading—Evidence .
    Where the libel complained of was that plaintiff “ is as big a rascal as * Red Jim' McDermott, and a bigger rascal,” proof of what kind of a rascal McDermott was in the estimation of defendant is an enlargement of the libel itself, and in order to be admissible should be averred in the complaint.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon a verdict in favor of plaintiff at circuit.

      Wm. N. Dykman, for app’lt; Edwin R. Leavitt, for resp’t.

       Reversing 46 St. Rep., 334.

   Peckham, J.

The plaintiff commenced this action to recover damages for three separate libels published of and concerning him by the defendant. The complaint contained a separate count for each libel. Upon the first and second counts the defendant had a verdict. Upon the third count the plaintiff obtained a verdict. The third count alleged that the defendant published the libel on the 6th day of July, 1887, and set it forth as follows:

“ Timely Talk.
O'Donovan Rossa not in a Retracting Mood.
“ O’Donovan Bossa.—I have not denied that I have described Patrick Sarsfield Cassidy as being as big a rascal as 1 Bed Jim f McDermott. I did say such a thing, and I stand by it. I have reason to think that this Cassidy is as big a rascal as ‘ Bed Jim ’ McDermott, and a bigger rascal.”

Upon the trial the plaintiff was permitted to prove, under objection, certain articles published in the defendant’s newspaper some years anterior to the article in question, in which the defendant animadverted in strong terms upon the character of McDermott. The objection was that the testimony was incompetent, immaterial and irrelevant; that it had not been averred in the complaint as to what McDermott’s character was, and there was no averment therein of any extrinsic fact making it proper to intro duce such articles in evidence. The court admitted the evidence because, as he said, the libelous article contained an allegation that plaintiff was a greater rascal than McDermott, and the natuural force of the expression was that McDermott was a rascal, and that plaintiff was a greater rascal than McDermott, and the kind of rascal that McDermott was the defendant disclosed in these articles, and the court held it was not such new matter that required to be pleaded.

The original article complained of by plaintiff was without doubt libelous. As the court remarked, the natural meaning of the language used was that McDermott was a rascal, and that plaintiff was a bigger rascal than McDermott. Plaintiff had made out his cause of action when he proved the publication of the article by defendant.

The plaintiff desired to go further, and to prove what kind of a rascal McDermott was in the estimation of defendant. This was, as it seems to us, an enlargement of the libel itself, and in order to be admissible should have been averred in the complaint. If the plaintiff did not choose to rest alone upon the libelous eharacfer of the article as it was published, but wished to show what kind of a rascal the defendant charged McDermott was, it appears to us that the complaint should have contained such an averment in order to let in the proof.

It was not admissible upon the question of malice or damages without being pleaded. If the prior articles showed that the defendant had stigmatized McDermott as being a traitor, murderer, thief or assassin, they did not in and of themselves have any bearing upon the plaintiff or his character. It was only when read in connection with the article counted upon as libelous that they would appear to have any connection with the plaintiff. And in such case the only effect of such proof would be to show what in fact was the character of the libel counted upon. And unless pleaded, evidence amplifying and enlarging the libel itself would be in such case given, while no averment existed charging or setting forth the real libel upon which damages were sought to be recovered.

It is not like the case of proving the repetition of a slander similar to that counted upon in a complaint, but at times not therein set forth.

The rule in such cases is that the same or similar words counted on in the complaint, and spoken before the commencement of the-action, may be given in evidence. The words must be the same or similar to those counted on. Howard v. Sexton, 4 N. Y., 157; Frazier v. McCloskey, 60 id., 337; Daly v. Byrne, 77 id., 182; Root v. Lowndes, 6 Hill, 518, The prior publications contained no libel upon the plaintiff, and did not refer to him directly or indirectly. To allow proof of them for the purpose of showing malice would be, as I have said, no more than enlarging by proof the character of the libel, while making no averment in regard to it, or, in other words, it is an effort to enhance damages by showing other publications against a third person in order to show how big a rascal McDermott was in the estimation of defendant.

I think that to admit such proof under a pleading which simply sets forth the libelous article complained of would be unjust to the defendant, because it would naturally be a surprise to him. It would be trying a matter of which the plaintiff had not complained, and in regard to which the defendant ought not to be called upon to defend.

It is true the plaintiff by this evidence only seeks to prove the kind of rascal that defendant had itself charged against Mc-Dermott. But the charges against McDermott were separate articles which had been published years before the one complained of, and at that time had no relation to plaintiff.

If plaintiff should desire to aggravate his damages _ by proof which in effect goes to enlarge the character of the libel itself, there is no injustice in compelling him to apprise defendant of such intention in his pleading.

He ought not to be allowed in effect to add to the natural and legal effect of the libel as it appears on its face, by this kind of proof, without setting up the facts which form a basis for such addition. 1 do not see that this rule is at all altered by the fact that the article as published was libelous per se. In publications which are not thus defamatory, and become so only upon reference to some facts outside, those facts must be averred. When a publication is defamatory upon its face, if the plaintiff desire to enlarge its scope and aggravate "its meaning by proof of facts tending in that direction, it seems to us that such facts should be set forth, upon the same principle which compels such averment when the article in and of itself is not libelous. In the one case facts are to be shown which render the publication actionable, while in the other facts are offered in proof for the purpose of enlarging the scope of an article, and making it more strong than it appears on its face. The same rule should apply.

For this error we think the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Andrews, Ch. J., not voting.


author: Maynard, J.

text:
    Benedickt Fischer et al., Resp'ts, v. Berthold Blank, App'lt.

      (Court of Appeals,

      Filed May 2, 1893.)

    1. Trade-mark—Package—Name descriptive oe color.
    The adoption of a package of a particular form or color cannot confer any proprietary right to its use, nor can the assumption of a name which is simply descriptive of the color of the package, such as “ Black Package Tea,” be lawfully protected from use by others.
    2. Same.
    Neither can an injunction be upheld which restrains defendant in the use of circular disks, upon which is printed the quality of tea, its quantity and price, or diamond-shaped business labels, upon any hind of a package.

    8. Same.
    The form of a package alone will not be an adequate ground for the grant of equitable relief; nor size; nor color; nor the general decoration of the panels; nor disks of the same size and color arranged in the same way; nor a label of the same shape and color attached to the same part; nor the use of the same name to designate the kind or quality of tea. But when all or a number of these distinguishing features are combined in a single package, and so arranged and exhibited that when they strike the eye of the intending purchaser, possessed of ordinary intelligence and judgment, the false impression is likely to be produced that the goods of the plaintiffs are offered, it is the province of equity to interfere for the protection of the purchasing public as well as of the plaintiffs, and for the suppression of unfair and dishonest competition.
    4. Same.
    The true test is, whether the resemblance is such that it is calculated to deceive, and does, in fact, deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates.
    Appeal from judgment of the supreme court, general term, first department, affirming interlocutory judgment in favor of plaintiff restraining defendant from infringing plaintiffs' trademark.

      Charles Goldzier, for app'lt; Rowland Cox, for resp’ts.

       Modifying and affirming 46 St. Rep., 101.

   Maynard, J.

We think the interlocutory judgment recovered in this action is too comprehensive in its scope. Some of its provisions are not authorized by the pleadings, proofs and findings as they must be construed and applied under the rules of law which prevail in this class of cases. The injunction granted restrains defendant from making use of the form of package adopted by plaintiffs, and from using £he name Black Package Tea ” in the sale of tea not selected and put upon the market by plaintiffs. The plaintiffs have no proprietary right to this form of package, and are not entitled to its exclusive use. It is a convenient form in which to inclose merchandise of this character when -offered for sale, and all who are engaged in the traffic in the commodity are free to use it without incurring the risk of liability for an infringement of the plaintiffs’ rights. It has been too often reiterated to be now questioned, that under ordinary circumstances the adoption of packages of a peculiar form and color alone, having no distinguishing symbol, letter, sign or seal, is not sufficient to constitute a trade-mark. Brown on Tr. M., §§ 89, 6, 137; Moorman v. Hoge, R. Cox, 373; Harrington v. Libbey, id., 538. Under this judgment the defendant is debarred from using the oblong form of package described, although it may be entirely plain and destitute of any of the plaintiffs’ distinguishing marks and devices, and even if it should be of a different color. Such a trade restriction is not reasonable and cannot be upheld.

So.with respect to the term “Black Package Tea,” we do not think it is such a distinctive appellation as will entitle the plaintiffs to its exclusive use in their business. It manifestly has reference either to the quality of the article, or the color of the package in which it is sold. In either case it cannot be made the subject of individual appropriation. If the adoption of a package of a particular form or color cannot confer any proprietary right to its use, it is difficult to perceive how the assumption of a name which is simply descriptive of the color of the package can be lawfully protected from use by others.

It was held by this court (Second Division), in Koehler v. Sanders, 122 N. Y., 73; 33 St. Rep., 267, that there can be no exclusive right to a trade-mark which represents an idea, nor an exclusive appropriation of that which is descriptive of the articles to which they are attached, or which indicates their ingredients, mode of composition, characteristic qualities, properties or nature ; and that in order to have the right of a trade-mark it must be some arbitrary term or figure, not suggestive of the nature of the article to which it is affixed.

The use of such a name in connection with the particular form, style, color and embellishment of package set out in the complaint :and findings might properly be restrained. Probably it was only to this extent that the injunction was intended to go, but, as it ■stands, it enjoins the defendant from using the name generally, and a prohibition so unrestricted is not permissible. The injunction is also too broad in the restraint which it imposes upon the defendant in the use of the circular disks, upon which is printed the quality of the tea, the quantity and price, and the words in Eussian, “ Genuine Eussian Tea," which are similar in form, color .•and general appearance to the disks used upon plaintiffs’ packages, ■except that the latter have upon them the Eussian words for “Eussian Caravan Tea.” The defendant is prohibited from the use of these disks upon any kind of a package, when the injunction should have been limited to the packages described in the complaint and findings.

There is nothing upon the disks which of itself constitutes a trade-mark. The plaintiffs are compelled to admit, in order to avoid exposure to the imputation of fraud, that the words “ Russian Caravan Tea” have become conventionalized, and are now used to denote a particular grade or quality of the article, like the phrase “ English Breakfast Tea,” and if so, they are not capable of a specific appropriation by him to the exclusion of the rest of the commercial world.

The same objection exists, but with greater force, to the retention of that part of the judgment which absolutely forbids the use of the defendant’s diamond-shaped business label, which has upon it only his name, occupation and place of business. There can be no grounds upon which its use by the defendant may be inhibited, except upon the packages described in the complaint. Elsewhere in his business such labels can be freely and lawfully used.

For the same reasons that part of the judgment which requires both the disks and labels to be destroyed by the referee cannot be retained. As there is a lawful use to which the defendant may put them, he has a property right in them of which he cannot be deprived by their seizure and destruction without compensation. It is sufficient for the plaintiffs’ purpose if he is restrained from unlawfully using them to their injury.

We cannot review the findings of fact of the trial judge if there is any evidence which legitimately tends to support his conclusions. After a careful perusal of the testimony in the record, and an inspection of samples of the packages put upon the market by the parties respectively, we are not prepared to say that the evidence is insufficient to sustain any material fact found by the trial court. The plaintiffs have, we think, acquired an exclusive right to the use of packages of the shape, style and dimensions in which they expose their goods for sale, with the emblems, devices and other distinctive features delineated or impressed upon them, and the name which they have adopted to represent their contents; and there are so many points of resemblance between the defendant’s packages as described in the complaint and findings, and those of the plaintiffs that there is danger that the one may be mistaken for the other, and the proof is and the court has found that such mistakes have occurred in the trade to the detriment of the plaintiffs and to the deception of the public.

Under such circumstances the plaintiffs are subjected to the infliction of a wrong, which authorizes them to invoke some preventive remedy. It must be admitted that there is no single point of resemblance or imitation which would of itself be regarded as adequate grounds for the grant of equitable relief. Form alone would not be sufficient; nor size; nor color; nor the general decoration of the panels; nor disks of the same size and color arranged in the same way ; nor a label of the same shape and color attached to the same part, nor the use of the same name to designate the kind or quality of tea. Each one of these distinguishing features might be separately used and no harm result. But when all, or a number of them, are combined in a single package, and so arranged and exhibited that when they strike the eye of the intending purchaser, possessed of ordinary intelligence and judgment, the false impression is likely to be produced that the goods of the plaintiffs are offered, it is the province of equity to interfere for the protection of the purchasing public as well as of the plaintiffs, and for the suppression of unfair and dishonest competition. The true test, we think, is whether the resemblance is such that it is calculated to deceive, and does in fact deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates. Franks v. Weaver, 10 Beav., 297; Amoskeag Man. Co. v. Spear, 2 Sand. S. C., 599; Colman v. Crump, 70 N. Y., 573; McLean v. Fleming, 96 U. S., 245; Lawrence Man. Co. v. Tenn. Man. Co., 138 id., 537. Ho inflexible rule can be laid down. Each case must, in a measure,be a law unto itself. The authorities bearing upon the general question are numerous and diverse, and a further citation of them would not be profitable.

The judgment must be modified in accordance with the views here expressed, and, as modified, affirmed, without costs to either party in this court.

All concur.


author: Maynard J.

text:
    Fraser C. Fuller, Resp't, v. Edward Kemp, Jr., App'lt.

      (Court of Appeals,

      Filed May 2, 1893.)

    Accord and satisfaction.
    Upon presentation of a bill for professional services for which no rate of compensation had been previously agreed upon, defendant sent a check for a less amount, in the usual form, accompanied by a letter stating that it was in full satisfaction of the claim. Plaintiff cashed the check and retained the proceeds, and rendered a bill for the former amount, crediting the amount of the check and insisting on payment of the balance. Defendant again wrote plaintiff, calling his attention to the fact that he had sent the check as payment in full, and requesting him to keep the money on that condition or return it by first mail, to which plaintiff made no reply. Held,.that, there was in law an accord and satisfaction of plaintiff’s claim and no recovery could be lawfully predicated upon it.
    Appeal from judgment of the New York common pleas, general term, affirming judgment for plaintiff, a physician, in an action brought to recover for professional services.

      R. Floyd Clarke, for app'lt; Henry Thompson, for resp't.

       Reversing 40 St. Rep., 672.

   Maynard J.

has suit to recover a balance claimed to be due for his services as a physician, and the defendant relies solely upon the defense of an accord and satisfaction. The parties have agreed upon a statement of facts embracing the entire issue raised by the pleadings, and we are required to determine whether, upon the facts stipulated, the defendant has, as matter of law, established his defense. The plaintiff’s demand was unliquidated, but he alleged that his services were worth $670, and rendered a bill for that amount without, specifying any items. The defendant acknowledged the receipt of the bill by letter, and expressed surprise at its magnitude, and Ins belief that there must be some mistake about it, and requested plaintiff to look into it and send a corrected bill, as he was anxious to settle the matter at once. The plaintiff then sent an itemized bill, showing 126 visits in forty-nine days, for each of which a charge of five dollars was made, and four consultations, at the rate of ten dollars each, making a total of $670 as originally claimed. The defendant then wrote the plaintiff, inclosing a check for $400, which he stated was in full satisfaction of the plaintiff’s claim for professional services against him to that date; and also saying that the deductions he had made were in the instance where five, four and three visits per day had been charged at full rates; and that he trusted the plaintiff would view the matter in the same spirit which he did, which was to fix a figure which would be entirely just to both parties; and that he had arrived at this conclusion after careful and earnest thought. The plaintiff received the letter and check, indorsed the latter and collected the money upon it, which he retained, and again sent his bill to the defendant, charging $670 for his services and crediting upon it $400 received by check.

The defendant thereupon again wrote the plaintiff, calling his attention to the express condition upon which he had forwarded the check, and that it was sent as payment in full satisfaction of the plaintiff’s claim for professional services to date; that he did not recognize the plaintiff’s right to retain the amount so offered, and repudiate the condition of the offer, and requesting the plaintiff either to keep the money upon the condition named, or return it to him by first mail. To this letter the plaintiff made no reply, but kept the amount of the check, and after the expiration of nearly a year brought this action for the recovery of $270, the balance of his account after applying the $400 received, in which he has recovered the sum of $170, which it was stipulated upon the trial should be the amount of the judgment if he was entitled to recover at all.

Upon these conceded facts, we think it must be held that there was in law an accord and satisfaction of the plaintiff’s claim, and that no recovery could be lawfully predicated upon it It is unquestionably true, as the respondent’s counsel contends, and as the general term, in its opinion, very clearly states, that in order to establish a defense of this character there must be present in the transaction upon which it rests all the elements of a complete agreement, a lawful subject matter, a sufficient consideration, and the aggregatio mentium, or mutual assent of the parties. The original contract, which the law implied, was an agreement on the part of the defendant to pay the plaintiff what his services were reasonably worth. From the veiy nature of the case, a further agreement must be reached by the parties fixing the value of the services, or else resort must be had to a judicial determination for that purpose. The plaintiff accordingly sent his bill, in which he expressed his own views as to the amount of compensation which he ought to have. Had the defendant retained it without objection, it would in time have become an account stated, which is a species of implied contract, and the law would have presumed a promise on his part to pay the sum charged in the bill.

But the defendant, while not disputing the rendition of the services, objected to the amount of the plaintiff’s charges and declined to pay the bill rendered, but sent a check for $400, stating that it was to be in full satisfaction of the plaintiff’s claim, and in substance expressing the hope that the plaintiff would, upon reflection, agree with him that it was the reasonable value of his services. The plaintiff received and used the check, and had he remained silent it would have been conclusively presumed that he assented to the defendant’s proposition and had agreed to receive and had received the sum tendered in discharge of his debt. But the tenor of the defendant’s letter was such as to invite a reply, and while the plaintiff kept the check, he sent another bill for the same amount, upon which he credited the amount of the check as a part payment, leaving a balance, which he still claimed to be due. The just inference to be drawn from this communication was that he declined to accept the check in full payment, but had appropriated it as a partial payment of his claim, and the defendant undoubtedly so understood it. Had he then remained silent it might have been presumed that he assented to the, use which the plaintiff had made of the check, and in time would have become bound to pay the balance as upon an account stated. But the defendant at once notified the plaintiff that he had sent the check upon condition that it should be received in full payment of his bill, and that he could not assent to any other application of the money, and that the plaintiff must either keep it upon that condition or immediately return it. .

It is of no significance in this case that the remittance was by check. Both parties treated it as money, and upon the receipt of this letter the plaintiff had but a single alternative presented for his action, the prompt restoration of the money to his debtor or the complete extinguishment of the debt by its retention. The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of his act

Where the demand is liquidated, and the liability of the debtor is not in good faith disputed, a different rule has been applied. In such cases the acceptance of a less sum than is the creditor’s due will not of itself discharge the debt, even if a receipt in full is given. The element of a consideration is lacking, and the obligation of the debtor to pay the entire debt is not satisfied. There are many authorities which enforce this proposition, but they have no relevancy to a case like the present, where the debt was unliquidated and there was a bona fide disagreement in regard to the extent of the debtor’s liability. The law favors the adjustment of such controversies without .judicial intervention, and will not permit the creditor to accept and retain money which has been tendered by way of compromise, and then successfully litigate with his debtor for the recovery of a greater sum. There have been some cases in our own courts where this principle has been applied, but in none that we have examined has the question arisen in the exact form here presented. Palmerton v. Huxford, 4 Den., 166; Looby v. Village of West Troy, 24 Hun, 78; Hills v. Sommer, 53 id., 392; 25 St. Rep., 1003. In other states there are many decisions directly in point, where the facts were not distinguishable from those appearing in this record. McDaniels v. Lapham, 21 Vt., 222; Preston v. Grant, 34 id., 201; Towslee v. Healey, 39 id., 522; Boston Rubber Co. v. Peerless Wringer Co., 58 id., 553; Bull v. Bull, 43 Conn., 455; Potter v. Douglass, 44 id., 541; Reed v. Boardman, 20 Pick, 441; Donohue v. Woodbury, 6 Cush., 148; Hilliard v. Noyes, 58 N. H., 312; Brick v. Plymouth Co., 63 Iowa, 462; Hinkle v. Minneapolis, etc., R. R. Co., 31 Minn., 434. In Preston v. Grant, supra, the supreme court of Vermont very sharply, and, as we think, correctly, defined the line of discrimination which separates this class of cases from those where the defense fails.

Judge Pierpont, delivering the opinion, of the court at page 203, says: “To constitute an accord and satisfaction, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such condition. When a tender or offer is thus made,, the party to whom it is made has no alternative but to refuse it, or accept it upon such condition. If he takes it, his claim is canceled, and no protest, declaration or denial of his, so long as the condition is insisted on, can vary the result. The principle is too well settled in this state to require either argument or the citation of authorities to support it.”

To make out the defense, the proof must be clear and unequivocal that the observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered in case he did not assent to the condition upon which it was offered.

The defendant here has brought his case clearly within the rule, and is entitled to have the judgments of the general and special terms reversed, and the complaint dismissed upon the stipulated facts, without costs to either party in any court, pursuant to the stipulation in the record.

All concur.


text:
    Thomas Farmer, Resp't, v. The National Life Association of Hartford, Conn., App'lt.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Service—Foreign insurance companies—Waiver of defects.
    The summons in this case was mailed to the superintendent of the insurance department,- who admitted service thereof. Thereafter defendant procured a removal of the cause to the federal court, but it was subsequently remanded. Held, that by procuring such removal the defendannecessarily submitted itself to the jurisdiction of the state court, and waived any defect in the service of the summons.
    3. Same.
    Where a defendant becomes an actor in the suit and institutes a proceed ing which has for its basis the existence of an action to which he must be a party, he thereby submits himself to the jurisdiction of the court, and no disclaimer which be may make on the record, that he does not intend to do so, will be effectual to defeat the consequences of his act.
    Appeal from order of the supreme court, general term, second •department, affirming order denying motion to set aside service of a summons.

      Roger Foster, for app'lt; James P. Judge, for resp't.

       Affirming 51 St. Rep., 183.

   Maynard, J.

The defendant, a foreign life insurance corporatipn, as a condition of its admission to do business in this state under chapter 846 of the Laws of 1884, appointed, in writing, the superintendent of insurance as its attorney, upon whom all legal process against it might be served with the same effect as if it was a domestic corporation, and empowered him as its attorney to receive and accept service of such process, and declared that such •service should be deemed valid personal service upon it.

On December 1, 1891, the attorney for the plaintiff issued the summons and complaint in this action, brought to recover for a •death loss upon one of the defendant’s policies, and sent it to the -superintendent of insurance, by mail, with a request that he admit service thereof. On December 8, the superintendent returned the papers to the plaintiff, with the statement that he admitted service of process on him as attorney for the defendant, made by the plaintiff’s attorneys in behalf of plaintiff, and that he had sent to the defendant, by registered mail, a copy of the papers served on him.

On December 21st the defendant filed the petition and bond and took the other proceedings required by the federal judiciary act for the removal of the cause into the United States circuit court for the eastern district of New York, and thereupon the record was removed into that court, and filed with its clerk, and the action was pending therein until January 8,1892, when it was remanded to the state court. On April 15th the defendant moved to set aside the service of the summons and complaint, on the ground that it had not been personally served on the superintendent of insurance, and upon the further ground that his admission of service was fatally defective, because it did not comply with the essential requirements of § 434 of the Civil Code, which prescribes the contents of a valid admission. The general term, has affirmed the denial of this motion by the special term, and the defendant has appealed to this court.

It is unnecessary to consider what force, if any, the objections to the mode of service of process in this case and to the sufficiency ■of the admission of service might have had if they had been seasonably made, for we think it must be held that the defendant necessarily submitted itself to the jurisdiction of the state court and waived any defect there may have been in the procedure to acquire jurisdiction of its person, by the proceeding which it initiated and consummated for the removal of the action into the United States circuit court. There could be no transfer of the cause from the state to the federal jurisdiction unless there was an action pending. The federal statute required it, and the petition must so allege and must also aver that the petitioner is a party to the action. The legal consequences of this acknowledgment of and submission to the jurisdiction of the state court cannot be avoided by the declaration which the defendant’s attorney made while engaged in the act, that his appearance was special and only for the purpose of effecting the removal of the cause into the federal court.

There are undoubtedly cases where the right of a defendant to' move to vacate service of process upon him may be saved by a special or qualified appearance for the purpose of making some motion or taking some step in the action which does not amount to a recognition of the jurisdiction of the court of his person; but the rule adopted in such cases has no application where the defendant becomes an actor in the suit and institutes a proceeding which has for its basis the existence of an action to which he must be a party. He thereby submits himself to the jurisdiction of the court, and no disclaimer which he may make upon the record, that he does not intend to do so, will be effectual to defeat the consequences of his act. As was held in Ballard v. Burrowes, 2 Robt., 206, under such circumstances the limitation which he attempts to place upon the effect of his conduct is void, because incompatible with the purpose of his act

We are aware that there are many cases in the federal circuit courts which hold that after removal the defendant may move to dismiss the action because of defective service of process in the state court, and that his appearance there for the purpose of taking the necessary proceedings to remove the action is not a waiver of his right to make the motion, especially if he has not appeared generally in the state court. But these decisions apparently rest upon the ground that, by the provisions of the act of congress, when the removal is effected the federal court is authorized to proceed with the action as if it had originally been brought in that court, and that the defendant has a right to have every question which involves the authority of the plaintiff to implead him determined in the federal jurisdiction.

If this were not so, it is urged that it would be within the power of the state court to confer jurisdiction of the person upon the federal court by an improper service of process, and the defendant would be precluded from obtaining the judgrnent of the; federal court upon that question. It is thought that the integrity of the federal jurisdiction requires the enforcement of such a rule of practice. But the reasons for the rule cease to exist when the question arises in the state court, and it cannot there be observed consistently with a proper respect for its own authority.

But the federal courts have by no means been unanimous upon this point. Bushnell v. Kennedy, 9 Wall, 387-393; Sweeney v. Coffin, 1 Dill, 73-75; Sales v. N. W. Ins. Co., 2 Curtis C. C., 212. In the most recent reported case on the subject, of McGillin v. Claflin, 52 Fed. R., 657, Judge Eicks says that it is “ a question, as to which there has been great diversity of opinion in the reported cases from the various circuit courts of the United States.”" In Sales v. N. W. Ins. Co., supra, Judge Curtis denied a motion to dismiss the action for defective service in the state court, making use of this language: “ The defendant comes in, becomes the actor, treats the suit as one properly instituted, removes it to another court, and enters it there, and then says he was not obliged, to appear at all, and the state court in effect had no suit before it.. This, I am of opinion, he cannot do. * * * The act of congress allows defendants to remove actual and legally-pending suits from the state courts. If this were not such a suit, he should not-have brought it here. By bringing it here he voluntarily treats-it as properly commenced and actually pending in the state court, and he cannot, after it is entered here, treat it otherwise.” The principle thus formulated is, we think, sound, reasonable and just. It cannot be tolerated that a defendant shall question the jurisdiction of a state tribunal over his person after he has effected a transfer of the cause to another court, by placing upon its records an affirmation under oath of the pendency of the action, and of his relation to it as a party, and obtained the approval of the court of the bond required as a condition of its removal. If the cause is subsequently remanded, he cannot be heard to say that his own proceedings have in effect been coram non judice.

The order must be affirmed, with costs.

All concur.