author: Bradley, J. Follett, Ch. J.

text:
    E. Willard Boies, Resp’t, v. Sarah Benham, Impl’d, App’lt.

      (Court of Appeals, Second Division,

      Filed October 13, 1891.)

    Mortgage—Priority.
    Plaintiff sold to one G. certain- premises and took back a mortgage for, a part of the purchase price. At the same time G. gave a mortgage to defendant, who advanced him the money to make the payment for the property. It was found that it was agreed that the deed and mortgages should be recorded at the same time. Held, that upon the facts found plaintiff did not necessarily waive any rights which the relation of vendor and grantor gave him, and that his mortgage was entitled to priority over that given to defendant.
    (Follett, Ch. J., dissents.)
    Appeal from judgment entered on order of the general term of the supreme court in the third judicial department, affirming judgment entered upon report of referee.
    The ■ plaintiff by contract with Purple Gardner agreed to sell and convey to the latter certain premises in Schoharie county for $1,800. Afterwards, on March* 11, 1884, the plaintiff received $1,000, made deed of conveyance to Gardner and took from him his bond for $800, the balance of the purchase money, secured by mortgage on the premises. This action was brought to foreclose that mortgage. The defendant Benham held a mortgage made to her upon the land to secure the payment of $1,000. The plaintiff alleged that the lien of the Benham .mortgage was subsequent to that of his mortgage. This she denied and alleged that the lien of hers was synchronous with that of the plaintiff’s mortgage. The referee determined that issue against her, and by his report found that the two bonds and mortgages were made at the same time by Gardner, who then in. the presence of the plaintiff borrowed of Benham the $1,000; that the two mortgages were recorded at the same time; that the plaintiff neither parted or intended to part with his equitable lien; and that the lien of his mortgage was prior to that of the defendant, Benham. And upon the request of the defendant, the referee further found that before the conveyance was made it was agreed between the plaintiff, Gardner and Benham, that Gardner was to execute to her a mortgage on the premises for $1,000, and this money to be paid by Benham directly to the plaintiff; that Gardner was also to execute to the plaintiff another mortgage on the premises for $800; that the deed and the two mortgages should be recorded at the same time; and that according to the agreement the deed and mortgages were executed and delivered at the same time as part of the same and one transaction, and the payment was made by Benham directly to the plaintiff. The referee refused to find that the two mortgages were equal liens, and the defendant Benham excepted.

      E. Countryman, for app’lt; G. M. Palmer, for resp’t

       Affirming 34 N. Y. State Rep., 940.

   Bradley, J.

The plaintiff had an equitable lien for the purchase money unpaid until the substitution for it of the legal lien of the mortgage taken by him to secure the payment of the balance of the purchase money. Fish v. Howland, 1 Paige, 20 ; Payne v. Wilson, 74 N. Y., 348. And the conveyance having been made, and the mortgage taken by him in the same transaction, the former will be deemed made subject to the latter, and in practical effect the grantee took by the deed the equity of redemption only. Stow v. Tifft, 15 Johns., 458 ; Jackson v. McKenny, 3 Wend., 233 ; Rawson v. Lampman, 5 N. Y., 456 ; Dusenbury v. Hulbert, 59 id., 541; Coutant v. Servoss, 3 Barb., 128. And subject to a mortgage made at the time of conveyance,, by the grantee to a third person who advances the purchase money, are dower (although the mortgage is made by the husband alone) and previous judgments against him. 1 R. S., 740, § 5; id., 749, § 5 ; Code, § 1254; Jackson v. Austin, 15 Johns., 477 ; Kittle v. Van Dyck, 1 Sand. Ch., 76; Cuuningham v. Knight, 1 Barb., 399 ; Clark v. Munroe, 14 Mass., 351.

But by reason of the pre-existing equitable lien of the vendor and grantor, which continues until the substitution for it of the legal lien of the mortgage to secure the unpaid purchase money, the mortgage so taken by him has priority over that of such thiid person taken at the same time from the grantee. Clark v. Brown, 3 Allen, 509 ; Turk v. Funk, 68 Mo., 18; 30 Am. R., 771; Appeals of Williamsport Nat. Bk., 91 Penn. St., 163. As to the former the continuity of the lien is not broken, but merely changed in character from 'an equitable to a legal one perfected by the mortgage to him for the balance of the purchase money. Stafford v. Van Rensselaer, infra; Payne v. Wilson, supra. And this is not dependent on the statute. It is unnecessary to inquire whether any different question may have arisen in the present' case if no equitable title in the vendee and no equitable lien of the vendor had preceded the time of the execution and delivery of the deed and mortgage.

A grantor may, however, by agreement waive such prior right or estop himself from asserting it, and thus subject the lien of his to the preference of that taken by another at the same time on the property, or place it on an equal footing with it ■

The question at the trial was whether that was done in the present case. Such may have been the intention of the parties, and it may be that the evidence would have warranted that finding by the referee. But the facts found by him did not require such' conclusion. While there was evidence on the part of the defendant tending to prove that such was the purpose of the parties at the time of the transaction, that of the plaintiff was to the contrary. The evidence and the inferences derivable from it presented in that respect a question of fact for the referee, whose determination must here be deemed conclusive upon that issue.

The understanding of the parties as found, that the deed and mortgages were to be, and accordingly were, made and recorded at the same time, did not necessarily, and as matter of law, place the lien of the two mortgages on an equality, as would have been the case if neither of the mortgagees had been the vendor and grantor of the premises. Upon the facts so found he did not necessarily waive any rights which the relation of vendor and grantor gave him. The inquiry as to the purpose of the understanding that the mortgages should be made and recorded at the same time was for the consideration of the referee upon the evidence ; and whether it was intended to confer greater rights upon the defendant, Benham, than would arise from the mere fact that they were so made and recorded, was for him to determine. He found that the plaintiff did not waive, or intend to waive, his equitable lien. By this he meant to be understood that the plaintiff neither waived, or intended to waive or surrender, any of the rights which the equitable lien existing in his favor up to the time of taking his mortgage afforded him. This was the right of preference of his lien, presumptively arising from his equitable lien merged in the legal lien of his mortgage. Stafford v. Van Rensselaer, 9 Cow., 316. The defendant’s lien having been founded upon the security given for that amount of the purchase money advanced by her for the grantee, was secondary only to that of the plaintiff's mortgage.

In Potter v. Crandall, Clarke, 120, all the mortgagees were grantors of the premises, and in that respect their rights and consequently, as between themselves, the liens of the mortgages stood on equality. In the case at bar the defendant’s claim rests upon an alleged agreement with the plaintiff to place her mortgage in such relation with that of the plaintiff. As that position is not supported by the findings of the referee, the liens of the two mortgages must here be treated as having the relation in which the law placed them. While it is true, as suggested, that the defendant is entitled to the benefit of the findings of the referee most favorable to her, if there is any material conflict between them, there is no inconsistency in,the findings for the application of that rule to substantially aid the defendants. Kelly v. Leggett, 122 N. Y., 633; 33 N. Y. State Rep., 264.

The judgment should be affirmed.

Follett, Ch. J.

(dissenting.)—Since 1805 the statutes of this state have provided that the lien of a mortgage given on land to secure the payment of its purchase price is superior to the lien of a nrior judgment against the grantee. Chap. 99, Laws 1805; 1 R L., 714, § 15; 1 R S., 749, § 5; Code Civ. Pro., § 1254. Since 1828 the statutes havé provided that the lien of a mortgage in which the wife does not join, given on land purchased during coverture, to secure the payment of its purchase price, is superior-to the claim of the widow of the mortgagor to dower in the premises. 1 R. S., 740, § 5.

It has been frequently held under these statutes that a mortgage executed by a grantee simultaneously with his grant, on the subject of the grant, to a person other than the grantor, to secure the payment of money loaned with which to pay the purchase price, and which is so applied, is entitled to the same priority over a prior judgment, and also over the widow of the mortgagor, as a mortgage to secure the purchase price, executed by a grantee to the grantor. Jackson v. Austin, 15 Johns., 477; Hay wood v. Nooney, 3 Barb., 643 ; Ray v. Adams, 4 Hun, 332; Stow v. Tifft, 15 Johns., 458; Kittle v. Van Dyck, 1 Sandf. Ch., 76; McGowan v. Smith, 44 Barb., 232; 4 Kent’s Com., 39; 2 Pom. Eq. Juris., § 725; 1 Jones Mort., § 464.

In Massachusetts, where there is no such statute, a mortgage taken by a third person to secure the payment of money loaned and applied to the payment of the purchase price of the mortgaged property has the same priority over the widow’s right of dower as though the mortgage had been given directly to the grantor. Clark v. Munroe, 14 Mass., 351. The statutes cited do not, in terms, include nor exclude mortgages taken by third persons, and the cases referred to rest upon the theory that a person advancing money to pay the purchase price of land, and which is so applied, has the same equity, and is entitled to the same security as the grantor has under a mortgage to him for the payment of the purchase money. The plaintiff in this action (who was the grantor), by extending the time for the payment of part of the purchase money and taking a mortgage therefor^ with knowledge that the remainder of the purchase price was to be raised by a mortgage to Mrs. Benham, exchanged his equitable lien for a legal one. Payne v. Wilson, 74 N. Y., 348 ; Fish v. Howland, 1 Paige, 20; Bond v. Kent, 2 Vern., 281; Capper v. Spottiswoode, Taml., 21; Young v. Wood, 11 B. Mon., 123; Camden v. Vail, 23 Cal., 634; Machreth v. Symmons, 15 Ves., 329; S. C., 1 Wh. & T. L. C., 235, 263.

The referee found that it was agreed between Boies, the grantor, Gardner, the grantee, and Mrs. Benham, that the deed and both mortgages should be executed, delivered and recorded at the same time, and that, pursuant to this agreement, they were so executed, delivered and recorded; but he refused to find whether it was agreed that the mortgages should be concurrent liens, or that one should have priority over the other.

Eighteen hundred dollars was the purchase price of the land; the payment of $800 was secured by the mortgage to the plaintiff, and the remainder, $1,000, was paid to him in cash furnished by Mrs. Benham, the payment of which was secured by her mortgage; and in the absence of an agreement to the contrary, she stands in his shoes as to this sum, her equity being equal to his in every respect. I am unable to see how the plaintiff, with Mrs. Benham’s money in his pocket, obtained in this way, by his concurrence, can be said to have an equity superior to hers.

Hnder the decisions last cited, if Mrs. Benham had loaned Gardner $1,800 for the purpose of paying the whole of the purchase money to the grantor, and it had been so applied, and she had taken a mortgage for her security on the land, she would have stood in the place of the grantor, and have been entitled to every equity that he would have been entitled to had he taken the mortgage. Instead of advancing the whole purchase price, she advanced but part, and received her mortgage, and why she is not pro tanto in the place of the grantor, and invested with all his equities, it is difficult to see.

Had there been an outstanding judgment against Gardner when these mortgages were given, Mrs. Benham’s mortgage would have had the same priority over the judgment as the plaintiff’s mortgage, and in case of Gardner’s death her mortgage would be prior to the claim of his widow to dower in the mortgaged premises, the same as the plaintiff’s mortgage.

In Clark v. Brown, 85 Mass., 509, two mortgages were executed on the same day and recorded at the same time. One was to secure the payment of part of the purchase price of the mortgaged land, but the other does not appear to have been to secure money applied in payment of the remainder of the purchase money. The mortgage for the purchase money was held the prior lien.

In the case of the City National Bank and York County National Bank, 91 Penn. St., 163, land was contracted to be sold by Hall to Nichols, who afterwards contracted to sell it to Potter and Wonderly for $40,000. At this time there was due Hall from Nichols $16,000 on contract. Hall conveyed the land to Potter and Wonderly, receiving from them their bonds for $16,000 due him, secured by a mortgage on the property. On the same day Potter and Wonderly gave to Nichols bonds for $24,000, secured by a mortgage on the premises. The deed and mortgages were executed and recorded on the same day. It was asserted that the mortgages were concurrent liens, but it was held that the one to Hall was prior, because given to him in payment of the purchase price. He had a clear equity against Nichols and his assignee, because Nichols owed him the $16,000, the purchase price of the land, which he was bound to pay before he could acquire title, or before he could become entitled to his profit of $24,000 arising from his sale to P. and W., to secure which he received his mortgage. As was said by the court in discussing this question: “ Thus, substantially and in effect, the mortgage to Hall was for the purchase money due him on his legal title, and the mortgage to Nichols was for the value of his equitable interest in the land. * * * Nichols could not assert any equity to defeat the superior right of the mortgage given to Hall.”

In Turk v. Funk, 68 Mo., 18, the plaintiff sold land to the defendant by an executory contract for $2,200, of which $500 was to be paid on the execution of the deed, and the remainder, $1,700, was to be secured to be paid by a mortgage on the premises. The purchaser, before receiving his deed, borrowed $500 of a third person, to secure the payment of which a mortgage was given and placed on record. Subsequently the $500 was applied in payment of part of the purchase price, a deed was given, and a purchase money mortgage to secure the $1,700 was executed. It was held that the mortgage for $1,700 was prior to the one for $500, upon the ground that the mortgagor, when he executed the mortgage for $500, had no title to the land, and could only give a lien upon his then existing interest in it. The grantor did not know of the execution of the mortgage to the third person until after he had conveyed and recorded his mortgage.

The three cases last cited do not seem to me decisive of the one at bar, nor are they nearly related to it.

It is not asserted, and under the facts found it cannot be successfully maintained that the holder of either mortgage had acquired a legal preference over the other. Under the decisions, which rest upon the principles of natural equity, the equities of these mortgages are equal, each holding a security for the payment of parts of the purchase price of the mortgaged premises. In Granger v. Crouch, 86 N. Y., 494, two mortgages were given by the grantee to the grantor to secure the payment of part of the purchase price of the mortgaged land. Both were executed and recorded at the same time. One, the smallest, and the first to fall due, was assigned and the assignee claimed priority. It was held that both being given for the purchase price, the equities were equal, and that in the absence of an agreement that one should have priority over the other, they were concurrent liens. The presumption being that the mortgages in the case at bar were concurrent liens, the burden of establishing that one was prior to the other rested on the party alleging it, and the referee having failed to find an agreement that the plaintiff’s mortgage was to be prior' to Mrs. Benham’s, he cannot sustain this judgment. On a retrial it will undoubtedly be determined whether it was agreed that either mortgage, and if so, which, was to have priority. The parties have the right to have this issue determined.

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

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., dissenting, and Haight and Parker JJ., absent.


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    The Crown Point Iron Company, App’lt, v. The Ætna Insurance Company, Resp’t. The Crown Point Iron Company, App’lt, v. The Boatman’s Fire & Marine Ins. Co., Resp’t. The Crown Point Iron Company, App’lt, v. The Pennsylvania Ins. Co. of Pittsburgh, Resp’t. The Crown Point Iron Company, App’lt, v. The Hamburg Bremen Fire Ins. Co.," Resp’t. The Crown Point Iron Company, App’lt, v. The Lancashire Ins. Co., Resp’t. The Crown Point Iron Company, App’lt, v. The Peoples’ Insurance Co., Resp’t.

      {Court of Appeals, Second Division,

      Filed October 13, 1891.)

    1. Insurance (Fire)—Cancellation op policy.
    The surrender of a fire policy with a request that it he terminated operates as a cancellation without any action on the part of the insurer.

      2. Same.
    Plaintiff's a¿ent mailed certain fire policies to the agent of the company with a request that they be cancelled, but they were returned the following morning, a fire having occurred in the meantime. In actions on said policies in which their cancellation was set up as a defense, it was not clearly shown and the referee refused to find that the policies reached ihe agent before the fire. Held, that the burden of showing that fact was on defendants, and that the defense was not made out.
    Appeals, in each, of these actions, from an order of the general term of the supreme court of the third judicial department, reversing a judgment in favor of the plaintiff, entered on the report of a referee.
    Each action was based on a policy of fire insurance issued by the defendant against whom it was brought, upon a quantity of charcoal belonging to the plaintiff. The defense, aside from a specific denial of certain allegations in the respective complaints, was that prior to the fire the 'plaintiff surrendered the several policies for cancellation, and thereby terminated the insurance thereunder. The actions were tried and argued together, and only one appeal book was laid before the court.
    During the year 1886 George Page was the agent of the .¿Etna Insurance Company at Crown Point, and Meredith B. Little was the agent of the other defendants at Glens Falls. Each was authorized by the company that he represented to issue policies, accept policies for cancellation, and terminate insurance at the request of the insured. Page issued the policy in behalf of the .¿Etna, and, as the agent of the plaintiff, procured Little to issue the others. Alvin L. Inman was the general manager, and Henry L. Beed the assistant general manager of the plaintiff, and the name and position of each was printed on the letter-heads used by that corporation and its officers.
    On July 26, 1886, the plaintiff had twelve policies of insurance, including the six issued by the defendants, amounting to $14,000, upon a quantity of charcoal that it used in its business of manufacturing iron. About that time Inman and Beed visited the mines of the plaintiff, and there learned that its stock of charcoal was much reduced, whereupon Inman told Beed to cancel some of the policies, and, if ■ he could procure a return of the unearned premiums pro rata, to cancel them all; but in any event to cancel some.
    July 28, Beed, as assistant general manager, wrote to Page as follows: “ Herewith I send you insurance policies on charcoal for cancellation; our stock is nearly used up. We should be allowed for the unexpired time pro rata on amount paid. * * *
    Please attend to it at once."
    The names, numbers, amounts and dates of expiration of nine insurance policies, including the six in question, were enumerated in the letter and the policies themselves were enclosed therewith in an envelope and sent by mail to Page, who received the package July 29, at 1: 30 P. M. Page made no reply to this letter, but laid aside the .¿Etna policy, and about four o’clock that afternoon mailed the others to Little at Glens Falls with a letter in which he stated: “ I enclose the following policies for cancellation, as the stock of charcoal is used up.” After giving the names, etc., of the eight policies, he continued: “ Make the rebate as high as you can. * * * Please make out a bill stating the amount
    you can allow on each policy for me to show Mr. Eeed, the agent of the Crown Point Iron Company.” Three of the policies thus enclosed, but including none involved in this action, were not issued by Little, but were procured by him at the request of Page acting for the plaintiff. The other five were the policies in suit, that issued by the .¿Etna excepted.
    During the evening of the 29th or the morning of the 30th, the referee failed to determine which, Little took the package containing these policies from his drawer in the post office, opened it and found it contained policies of the plaintiff which he supposed were sent to him for cancellation. Being on his way home he re^ placed the package in the drawer, locked it and went home. Between nine and ten o’clock in the morning of the 30th he took the package from the post office to his own office, and after reading the letter from Page laid it 'down with other letters to be answered in its turn.
    About two hours later he received a telegram from Page to “return all policies to-day sent you last night on charcoal,” and he at once mailed the policies and the dispatch to Page, who received them the next day. ' In the meantime, at half-past ten on the evening of the 29th the coal shed containing the charcoal was struck by lightning, and a fire resulted that injured the property in question to the amount of $4,681.29. Little had not heard of the fire when he mailed the policies to Page, but both Page and Eeed knew of it when the former at the request of the latter sent the telegram to Little. When Page received the policies back he delivered them, together with the .¿Etna policy, to the plaintiff, but a day or two afterward Eeed returned the latter to him at his request and upon his assurance that it would not affect the liability of the parties, and he wrote “ cancelled opposite the entry thereof on Ins policy register. When he made his next monthly report he forwarded it to the home office. Page did not assume to terminate the policy issued to him, except in the manner stated, and Little took no action whatever toward terminating the policies that he issued. The plaintiff made no attempt to surrender three of the twelve policies that covered the charcoal on the 28th of July, when Eeed wrote the letter of that date to Page. It was conceded that those three policies, covering the charcoal to the amount of $2,833.34, were in force at the time of the fire.

      Richard L. Hand, for app’lt; A. H. Sawyer, for resp’ts.

       Affirming 25 N. Y. State Rep., 728.

       Reversing 26 N. Y. State Rep., 983.

   Vann, J.

The question presented by these appeals is whether the policies were cancelled or terminated before the fire occurred.

Tlie statute regulating the cancellation of fire insurance policies provides that “ any * * * corporation transacting the business of fire * * * insurance in this state shall cancel any policy of insurance hereafter issued or renewed at any time by request of the party insured.” Laws 1880, chap. 110, § 3.

The command of the statute is clear, and no discretion or option is left to the company. The sole requirement to set the command in motion is a request by the insured, and after that request is made the further continuance of the contract would be in contravention of the statute.

Each of the policies in question contains a provision that the ■“ insurance may be. terminated at any time at the request of the assured.” While the method of terminating the insurance, upon the motion of the insured, is not specified except that the insured party is to request it, the language of the contract indicates that 'the subject is within his control and that the terminating act is to be done by him alone-without any concurrent or supplemental act on the part of the company. The word “ may ” is the language of the insurer used for the benefit of the insured, and should receive a liberal construction to that end. As thus used it is not permissive, but imperative, and is in the nature of u must ” or “ shall.” Otherwise, thq provision in which it occurs is useless, because the parties who made the contract could, of course, terminate it by mutual consent without any such stipulation. But while it takes two to make a contract, one may end it, if the contract so provides. Thus, by the next sentence of the policies, provision is made for the termination of the insurance, on motion of the insurer, in these words: “ The insurance may •also be terminated at any time, at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term.” Here the method of effecting the termination is specified by requiring the insurer to give notice to the assured and return the unearned premium. Griffey v. N. Y. Central Ins. Co., 100 N. Y., 417; Van Valkenburgh v. Lenox Fire Ins. Co., 51 id., 465. No consent of the insured is essential. No meeting of minds is required. No act on his part is necessary. The contract, through the force of its own provisions, is ended by the action of the insurer only. Stone v. Franklin Fire Ins. Co., 105 N. Y, 543; 8 N. Y. State Rep., 25.

Although the language of the policies is at the “ request ” of the assured in the one instance and on “ notice ” to the assured in the other, we think that in both it is within the power of the party desiring to end the contract to do so without either consent or action on the part of the other. When the insured surrenders the jDolicy and requests that it be cancelled, he can do no more. Unless that ends the contract he is powerless to end it, and the company, while able itself to hang on or let go as it wishes, can hold him against his will. An insolvent insurer by refusing to cancel would prevent the insured from procuring other insurance.

The right of action for the unearned premium would not be complete without the assent of the insurer, and that, in effect, would be a new agreement. It was not necessary, as we think, that there should be any action on the part of the company. No formal cancellation or physical defacement of the policy was required, because by virtue of the contract and the statute the surrender of a policy with a request that it be terminated operates as a cancellation, even if the insurer absolutely refuses to permit it to be cancelled.

In Train v. Holland Purchase Ins. Co., 62 N. Y., 598; S. C., 68 id., 208, it was held that a surrender of a policy by the insured .and the acceptance of it by the authorized agent of the insurer with the intention on the part of both that it should no longer be a contract, was in effect a cancellation of it. In that case, which arose prior to the passage of the statute, it did not appear on either occasion when it was before this court, as an examination of both appeal books shows, that the policy surrendered contained any provision upon the subject of surrender or cancellation. Hence the decision proceeded upon the theory of a new arrangement involving a meeting of minds, but even then nothing was required to be done by the company to terminate the contract. See, also, Atlantic Ins. Co. v. Goodall, 35 N. H., 328, 336; Walters v. St. Joseph Fire & Marine Ins. Co., 39 Wis., 489.

In order to terminate the insurance it was necessary that the 11 request ” required by the statute and the contract should be made by one authorized to act in the matter in behalf of the Ílaintiff to one having adequate authority from the defendants. 'he act of Eeed in surrendering the policies was the act of the plaintiff, because, aside from the authority plainly to be implied from the position he held, he was expressly authorized to surrender some of the policies covering the charcoal, and as he surrendered but part, the act came within the authorization. So the acts of Page and Little in receiving the policies for cancellation were the acts of the respective defendants whom they represented, as it was conceded on the trial that they “had authority to accept policies of insurance for cancellation, and to terminate insurance at the request of the insured.” As to the JEtna policy, therefore, the case stands as if the insured had handed it to the insurer and had stated, as Eeed wrote to Page on July 28, 1886, that it was “ for cancellation. Our stock is nearly used up. We should be allowed for the unexpired time pro rata, on amount paid. * * * Please attend to it at once.” Thus we have an absolute surrender of the policy with an unqualified request that it be cancelled “at once,” because it was no longer needed. No condition was involved, for neither surrender nor request was dependent on the rate of the return premium. The writer simply expressed the opinion that there should be a pro rata allowance, but did not request cancellation if, nor forbid it unless the amount suggested was allowed. Hence, we unite with the learned general term in saying that “ the plaintiff had done, in respect to the JEtna company, all that was needed.” It had given up its policy to a person authorized to receive it, and had requested cancellation. The policy having been actually terminated, was not revived by taking it back under the circumstances stated. Train v. Holland Pur. Ins. Co., supra.

The order appealed from in the action against that company, should, therefore, be affirmed, and judgment absolute rendered against the plaintiff in accordance with the stipulation contained in its notice of appeal.

The cases against the other defendants are less clear and the result reached less satisfactory because it rests, of necessity, upon an arbitrary presumption, and may or may not be in accordance with justice. What has already been said applies to those cases down to the time that the policies involved therein reached the hands of Page, who as to those policies was not the agent of the insurer, but of the insured. When they reached his hands, therefore, his possession was the possession of the plaintiff. He promptly mailed them, however, to Little, who stood in the place of the insurer, so far as the receipt of policies for cancellation was concerned. Page had no power to impose conditions, and as we read his letter, he assumed none. He followed the language of his instructions by stating that he enclosed the policies “ for cancellation,” giving as the reason that the stock of charcoal was used up. He requested as high a rebate as possible and that a statement of the amount allowed on each policy should be sent him to show to Reed, but he named neither sum nor rate even by way of suggestion, and left nothing open so that he could recede if the allowance was not satisfactory. If he was simply trying to find out what terms he could get in case of a surrender, why did he send on the policies before he knew what the companies would do ?

It is contended by the defendants that the mailing of the policies with a letter stating the object sufficed to cancel them, because it was equivalent to the acceptance of a proposition by mail, and the following cases are cited, among others, in support of the position : Trevor v. Wood, 36 N. Y., 307 ; Vassar v. Camp, 11 id., 441; Mactier v. Frith, 6 Wend., 103, and Brisban v. Boyd, 4 Paige, 17. These were cases of contracting wholly by letter or telegram. It was long ago held that if an offer made by mail is accepted by mail, the contract is complete from the moment the letter of acceptance is mailed, even if it is never received. Vassar v. Camp, supra. Those cases have no application here, because no negotiation was pending and no contract was proposed. The' plaintiff did not make an offer to the insurance companies that might or might not be accepted. It sought to do an act that would be binding on the companies, whether they were willing or not.

That act was a surrender of the policies with the request that they be terminated, and the act could not be complete until the request reached the companies, or their agent. The policies and notice might have been sent by a messenger, who would have been the agent of the plaintiff for that purpose. Having been sent by mail it was none the less the agency of the plaintiff than if a messenger had been selected. It was necessary for the plaintiff, in order to terminate the policies, to have its notice actually reach the companies, or their representative, and the instrument selected for that purpose was the agent of the plaintiff, not of the defendant If the plaintiff lost control of the letter as soon as it was mailed, that fact has no bearing except upon the nature of its relation to the agent that it empowered to deliver the package. It seems, however, that the writer of a letter may withdraw it from the office in which it is deposited, or from the office to which it is ■sent U. S. Postal Laws and Regulations,.§§ 531, 533. If the letter never reached the companies they would not have been bound, or if it reached them after a long delay, they would have been bound only from the date of receipt. So far as the delivery of such a letter is concerned, the law does not recognize the agency of the mail as of any higher or more binding character than that of an express company or a private individual) although it may presume that a letter duly mailed was received by the person to whom it was properly addressed. 2 Whar. Ev.,, § 1324; Powell’s Ev., 81-86. When did the notice reach the companies, or their agent, Mr. Little? If it reached him before the fire, the policies were terminated ipso facto, and were not in force when the loss occurred. If it reached him after the fire, then the policies were in force when the loss occurred, and the character of the contract was thereby changed from a contingent ■to a certain liability on the part of the insurer. A cause of action based on an absolute debt forthwith accrued to the plaintiff that, was not extinguished by the subsequent receipt of the policies by Little. Stone v. Franklin Fire Ins. Co., 105 N. Y., 543, 550; 8 N. Y. State Rep., 25 ; Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y., 465, 467. Whether such receipt would take effect from its date, as to losses subsequently occurring, is not here involved, and it is only necessary now to decide that it had no retroactive effect as to losses that had already occurred. If the letter was in process of transmission at' the time of the fire, the request required both by statute and by contract had not been effectually made and the cancellation was incomplete.

Unfortunately, the learned referee did not determine whether the policies reached Little before or after the fire. He was- requested by the defendants to find in these words: “At or about, nine o’clock in the evening of July 29th, Mr. Little, while on his way to his residence, called at the post-office and opened his post-office drawer and found therein the package containing the policies in question forwarded to him by George Page, opened the said package and found that it contained policies of the Crown Point Iron Co., supposed they were sent him for cancellation, and' placed the package back in his post-office drawer, locked it and "went home.” The referee refused to so find, unless the proposed finding was amended by inserting after “July 29th” the words, “or morning of July 30th.” The defendants excepted to the refusal, but the testimony of Mr. Little, the only witness upon the subject, was almost in the words of the finding as amended. The referee was clearly justified in refusing to find that the letter reached the agent of the defendants on the 29th. Whether this, refusal to find is equivalent to a finding against the fact or not, Standard Oil Co. v. Triumph Ins. Co., 64 N. Y., 85, there was a. failure to find the fact essential to a successful defense. The-, plaintiff was entitled to recover unless the defendants established, and the referee found, either that the policies had been terminated, or the facts from which the law would infer a termination. The burden of proof was upon them to establish the facts necessary to make out that defense, and one of them was that Page’s letter reached Little before the fire occurred. Having failed to do this, they failed utterly, and, therefore, the order appealed from in each of the actions, except that against the .¿Etna Insurance Company, should be reversed and the judgment entered on the report of the referee affirmed, with costs.

All concur.


author: Per Curiam

text:
    William P. Chase, Resp’t, v. Fletcher A. Diefendorf, Supervisor, App’lt. Thomas L. Hulbert, Resp’t, v. Fletcher A. Diefendorf, Supervisor, App’lt.

      (Court of Appeals,

      Filed October 13, 1891.)

    1. Appeal—Towns—Actions against supervisor.
    Notwithstanding a direction by a town meeting to its supervisor to appeal from a judgment recovered against him as such, the supervisor may refuse or neglect to do so, and the appeal if brought is under his control and management, and he may withdraw the notices of appeal and take stipulations extending the time to do so.
    2. Same.
    After direction by the town meeting to appeal the defendant did so, but thereafter withdrew the notices and took a stipulation extending the time for the purpose of making a settlement, which was afterward made. Subsequently an order was made dismissing the appea’s, which was thereafter vacated, but the order of vacation was reversed by the general term. Held, that while the court below could have given relief against the stipulations and orders it rested in its discretion whether to do so, and its order is not appealable to this court.
    Appeal from order of the supreme court, general term, fifth department, reversing order of special term, vacating order dismissing appeals of defendant.

      W. Martin Jones, for app’lt; Walter S. Hubbell, for resp’t.

         See 35 N. Y. State Rep., 726.

   Per Curiam

We will assume that the town meetings had power to give the supervisor directions as to the defenses of the actions pending against him,- and yet we think the order of the general term is not reviewable here.

After the special town meeting held January 13, 1890, on the 15th of January notices of appeal were served by the defendant. Afterward on the same day, to give opportunity to negotiate settlements, the notices of appeal were withdrawn, and the plaintiffs by stipulation extended the time to appeal to January 30th. On the 29th of January notices of appeal were again served, and again on the same day withdrawn, the plaintiffs by stipulation extending the time to appeal to February 5th. On the 3rd day of February terms of settlement were agreed upon, and notices of appeal were not again served, and subsequently, in March, 1890, in pursuance of the stipulations given by the defendant, the orders were entered at both the special and general terms dismissing the appeals. These orders were supposed to be necessary because notices of appeal had been filed with the county clerk.

The resolutions of the town meetings could have no effect unless acted upon. The supervisor could still refuse or neglect to appeal, and the appeals, if brought, would still be under the control of the supervisor and his attorneys, to be managed by them in all matters of practice according to their sense of duty and best judgment. If they had neglected to bring appeals, the judgments would have been final. They could withdraw the notices of appeal, and take the stipulations extending the time to appeal. All this was matter of practice, and if, within the time limited, no notices of appeal were again served, the cases would stand as they would if- no notices had been served at any time. Therefore, when the orders were entered dismissing the appeals, no effectual appeals had been taken. The court below could have given relief against the. stipulations and orders. But the defendant was not absolutely as matter of law entitled to such relief. It rested in the discretion of the court below whether it would grant such relief, and the exercise of that decision is not subject to review here.

But still further, no exceptions had been filed to the report of the referee, and no case had been made as required by the rules and practice of the court, and the time had passed for doing these things at the time when the orders dismissing the appeals were entered. It would, therefore, be fruitless to allow the appeals to be restored, and whether, under such circumstances, the court below would restore the appeals, and allow exceptions to be filed and a case made, certainly rested in discretion not reviewable here.

The appeal in each case should, therefore, be dismissed, with costs.

All concur.


author: Finch, J.

text:
    Louis Stono, App’lt, v. Hermann Weiller, Resp’t.

      (Court of Appeals,

      Filed October 13, 1891.)

      1. Juey—Malicious prosecution and eraudtjlent release.
    _ The action was brought for malicious prosecution and for the cancella" tian of a release given by plaintiff on the ground that it was procured by duress. The case was sent to the special term for trial. Held, no error; that the case was an equitable one in its character and properly triable at special term, and that plaintiff by proceeding to trial without objection waived any right he might have had to a trial by jury.
    2. Duress—Release.
    Although_ the circumstances of an arrest and the prosecutor’s threats render possible an inference of duress in obtaining a release of damages for the arresi from him, yet where it appears that the release was executed after bail had been given and against the advice of counsel and a trial was open to the accused, a finding that there was no duress, but that the release was given freely and voluntarily will be sustained.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing the complaint.

      A. B. Moore, for app’lt; S. B. Hamburger, for resp’t.
   Finch, J.

The complaint of the plaintiff stated a cause of action for malicious prosecution, but further averred the execution by the plaintiff of a release which discharged the cause of action pleaded as well as all others. The complaint then proceeded to assail the release, and, alleging that its execution was extorted by threats and under duress, asked that it be cancelled and annulled, and then that damages be awarded for the malicious prosecution. The cause of action pleaded was thus equitable in its character. There could be no enforcement of the legal right except upon condition that equity should remove the barrier raised by the release. Upon this complaint the case came to trial at a circuit and before a jury. Upon the plaintiff’s opening the character of the complaint was disclosed and the .court at once, upon its own motion, directed the withdrawal of a juror and the transfer of the cause to the special term for trial.

At the special term the case was tried. ¡Neither party objected to the tribunal, and the plaintiff made no demand for a jury to determine any of the issues involved. He neither claimed such a trial as a matter of right, nor invoked the discretion which might have submitted one of the issues to a jury. Code, § 971. At the close of the evidence his complaint was dismissed. The general term affirmed the judgment, and the plaintiff appeals to this court.

So far as he complains of the action of the court at the circuit, founding his argument upon an exception taken at that time, we think he is wrong for two reasons. It was entirely proper to send the action to the special term because the equitable relief sought was an indispensable condition to the existence of the legal right of action. But if the fact had been otherwise, the plaintiff could still have demanded a jury trial of the legal issue, and upon such demand might have obtained it. Proceeding to trial before the court without objection, and making no request for the intervention of a jury, he cannot now complain of the tribunal to whose jurisdiction he submitted.

The remaining question argued is settled by the findings of fact. The third is “ that the said plaintiff executed the said release freely and willingly, and not by any coercion or fear, and had the benefit and advice of his counsel prior to the execution thereof.” It may be admitted that the circumstances of an arrest and of the prosecutor’s threats rendered possible an inference of duress, but the further facts that the release was executed after bail had been given, and against the advice of the party’s own counsel, and when a trial was open to the accused and he declared his innocence, tend to the inference that he acted freely and voluntarily, and chose to settle rather than face the litigation. The finding of the court, therefore, has foundation in the facts and must govern our conclusion. Upon that finding the release was valid and effectual, and the complaint was properly dismissed.

The judgment should be affirmed, with costs.

All concur, except Earl, J., absent.

       Affirming 32 N. Y. State Rep., 936.


author: Earl, J.

text:
    Lyman F. Hurlburt et al., Adm’rs, App’lts, v. Ella A. Hurlburt, Adm’rx, Resp’t.

      (Court of Appeals,

      Filed October 13, 1891.)

    1. Evidence—Attorney and counselor—Privileged communication— Code Civ. Pro., § 835.
    In an action by the administrator of a father to recover from the administrator of the son a sum of money which the former claimed was given the son as an agent, but which the latter alleged was a gift to the son, the defendant offered to prove by an attorney that in his presence the father had assented to certain statements made to him by the son as to Lyman’s haying had all his share in his father’s personal property, etc. Reid, that this was not a privileged communication, as they were both interested in the advice which they sought and the disclosures were not confidential.
    2. Same.
    Material admissions made by the father to the son were competent against the personal representatives of the former.
    3. Trial—Judge’s charge.
    _ If a judge, in his charge to the jury, uses such language as to improperly bias their judgment or influence their verdict, that may be ground for the court below, upon a motion for a new trial, to set aside their verdict if satisfied that injustice has been done. But on an appeal to the court of appeals, where the court below has refused to set aside the verdict and has affirmed the judgment entered thereon, we can review only errors of law which have been properly excepted to.
    Appeal from judgment of the supreme court, general term, fifth department, denying motion for new trial on exceptions and directing judgment to be entered on the verdict in favor of defendant.

      Charles McLouth, for app’lts; S. B. McIntyre, for resp’t.
   Earl, J.

This action was brought to recover the sum of $6,682, with interest thereon, which it is alleged Charles F. Hurlburt, the plaintiff’s intestate, placed in the hands of his son Theron, the defendant’s intestate, as his agent, and for his benefit, in the latter part of the year 1881. Theron was a son of Charles, and he died December 25,1883, and Charles died January 6,1884.

The defendant claimed that the money was a gift to her husband, and that he was never under any obligation to repay the same. The plaintiffs were unable to produce any writing of any kind evidencing any obligation on the part of Theron to repay the money. They are the sons of Charles, and were the sole witnesses to establish their claim, and this they attempted to do by testifying to certain conversations which they overheard between their father and Theron.

Upon the trial the defendant rested her case mainly upon the conceded fact that for about two years before the death of her husband the money claimed had been in banks to his credit, and had been managed and controlled by him, and she produced proof of various declarations and admissions made by Charles tending, to show that the money was transferred by him to his son as a gift, and not to be held for his benefit

During the progress of the trial the plaintiffs made objections to evidence which were overruled, and they now claim some of the rulings were erroneous. We will briefly notice some of them.

Theron and Charles, in the spring of 1883, went together to consult a lawyer by the name of Aldrich as to the best mode of disposing of or adjusting the prospective interest of the plaintiff Lyman as an heir in the farm belonging to his father, and several plans were suggested by Theron in the presence of his father, and assented to by him to accomplish that end. The statement was there made by Theron to the lawyer, and assented to by his father, that Lyman had had all his share in his father’s personal property; and other statements were there made by Theron, and assented to by his father, of similar import. Aldrich was called by the defendant to prove these statements and admissions. The plaintiffs objected to his evidence on the ground that he was an attorney consulted professionally and that the communications to him were privileged. The court overruled the objection and received the evidence. We think that in receiving this evidence there was no violation of § 835 of the Code, which provides that “ an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.” This section is a mere re-enactment of the common law rule, and it cannot be supposed from the general language used that it was intended to change or enlarge that rule as it had been expounded by the courts. It has frequently been said that the object of the rule embodied in the section is to enable and encourage persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that such facts will be made public, to their disgrace or° detriment, by their attorney. Such a case as this is plainly not within the rule. Here Theron and his father were both interested in the advice which they sought, and they were both present at the same time and engaged in the same conversation. Each heard what the other said, so that the disclosures made were not, as between them, confidential, •and there can be no reason for treating such disclosures as privileged. It has frequently been held that the privilege secured.by this rule of law does not apply to a case where two or more persons consult an attorney for their mutual benefit, that it cannot be invoiced in any litigation which may thereafter arise between such persons, but can be in a litigation between them and strangers. Root v. Wright, 21 Hun, 347; Sherman v. Scott, 27 id., 331; Foster v. Wilkinson, 37 id., 244; Rosenburg v. Rosenburg, 40 id., 91; Whiting v. Barney, 30 N. Y., 330; Hebbard v. Haughian, 70 id., 54; Root v. Wright, 84 id., 72. Therefore, if Charles and Theron had been alive and parties to this action, this evidence would have been competent And as it would then have been competent it is equally competent in this action between their personal representatives. The fact that these plaintiffs are personally interested in the estate of their father can make no difference in the application of the rule. They are parties to this action only in a representative capacity. They legally stand as the representatives of their father and no one else. Evidence which would have been competent against him in his lifetime is competent against his personal representatives. So we think that this case is not within the reason of § 835 and even if it should be regarded as within its letter it should be taken out of the letter by the application of the familiar maxim “ cessante ratione legis cessat ipso lex.”

Several witnesses were permitted to give evidence of declarations made by the plaintiffs’ intestate tending to show that he had made a gift of this money to his son, and this evidence was objected to by the plaintiffs as incompetent. It is familiar law, for which no citation of authorities is needed, that the declarations of a testator or intestate binding him or binding or impairing his estate, may he given in evidence against his personal representatives in all cases where they would'have been competent against himself if he had been living and a party to the action. His executor or administrator represents him and stands in his place, and his declarations admitting a debt or obligation, or tending to discharge a debt or obligation due him or to impair his estate in any way, are competent in any litigation to which his personal representatives are a party. Therefore the evidence of material admissions made by Charles in his lifetime was competent against these plaintiffs.

It is further claimed that much of the evidence thus received was wholly immaterial, and should, therefore, have been excluded. We have carefully scrutinized the evidence, and while much of it has but a slight and remote bearing upon the case, yet we cannot say that any of it was wholly immaterial. It was competent for the defendant to prove the relations between Theron and his father, and, to some extent, the dealings between them, and the relations between the father and the different members of his family.

Complaint is made of the charge of the judge. Our attention is called to no erroneous rule of law laid down by him, and the most that can be said is that the charge shows a significant leaning in favor of the defendant, and that the judge was strongly impressed with, the merits of the defendant’s case. But the mere intimation of an opinion by the judge upon evidence, or upon the merits of the case, or his comments upon the evidence, though unfavorable to the party complaining, furnish no ground for a reversal here, so long as the whole case is submitted to the jury upon a charge which lays down no improper rule of law. If a judge in his charge to the jury uses such language as to improperly bias their judgments or influence their verdict, that may be ground for the court below upon a motion for a new trial to set aside the verdict if satisfied that injustice has been done. But upon an appeal to this court where the court below has refused to set aside the verdict and has affirmed the judgment entered thereon, we can review only errors of law which have been properly excepted to.

A careful examination of the whole case leads us to the conclusion that the exceptions of the plaintiffs point out no legal error, and that there is no ground for a reversal of the judgment.

The judgment should be affirmed, with costs. '

All concur.

       Affirming 18 N. Y. State Rep., 407.


author: O’Brien, J.

text:
    Warren Bryant et al., App’lts, v. Harriet F. Tracy Thompson, Impl’d, Resp't

      (Court of Appeals,

      Filed October 13, 1891.)

    1. Appeal—Executors and administrators—Construction of will.
    Testator, by bis will, gave bis executors a certain sum of money, as trustees of bis infant daughter during her life. He also directed that if she contested the will her share should go to his wife, the residuary legatee. The special guardian for the daughter contested the will, but it was admitted to probate, and the widow, one of the executors, desirous that the daughter should have her share, stipulated that no effect should be given to the clause revoking the legacy in case of contest, provided no appeal was tak'-n from the surrogate’s decree. The special guardian however did so appeal, and the decree was affirmed. Then the two other executors brought this action to have the court construe the will as to the disposition of the money given to the daughter, the widow declining to become a party plaintiff. The special term held that the contest by the special guardian was not one by the daughter, and that she was entitled to the bequest, and this was affirmed by the general term on the ground that she was an infant, but they held that the contest was made by her. The executors then appealed to this court and it was moved to dismiss the appeal. Held,, that the judgment rendered in the court to which the plaintiffs resorted, in the first instance was a perfect protection to them in the disposition of the fund in accordance therewith, and that they had no interest or duty in obtaining a decision according to some view of the law that they may have entertained or been advised by counsel.
    3. Same.
    The court of appeals will not entertain appeals by executors and trustees under wills from a judgment of an appellate court on a construction of a will unless it be on a point not raised at all below, or if raised the appeal must not be by the trustees alone but by the beneficiaries also.
    (Huger, Ch. J., Andrews and Gray, JJ., dissents.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of special term in favor of defendant

      John G. Milburn, for app’lts; John E. Parsons and Charles Robinson Smith, for resp’t.

       See 37 N. Y State Rep., 431; see also 36 N. Y. State Rep., 931.

   O’Brien, J.

The plaintiffs, as executors and trustees of the will of Francis W.. Tracy, who died April 15, 1886, brought this action in order to procure a judicial construction of its provisions. The will and codicils dispose of a large estate, consisting of both real and personal property. Numerous large bequests were made to collateral relatives, and also to various public and private charitable institutions. The residuary estate was left to the widow. The only clause of the will with which we are concerned, in the decision of this appeal, is the one in which provision was made for the defendant, Harriet F. Tracy, who is the only child and heir-at-law of the testator. At the time of his death she was an infant, nearly nineteen years of age, and since the commencement of this action and about the month of April, 1890, she married one George Thompson. She is the daughter of a former wife who obtained a divorce from the testator many years before his death. When very young, she and her mother separated from the testator, took up their residence in the city of ¡New York, while the deceased continued to reside in Buffalo, where he died. The relations between the deceased and his daughter, and her maternal relatives had, for many years, been hostile. Her mother’s maiden name was Robinson, and the child took that name and is so designated in some parts of the case.

The testator, by a codicil to his will bearing date August 19, 1879, pi’ovided a trust fund of $100,000, the income of which was to be paid to this doughier during her life, the principal to be divided among her issue at her death. The form of the bequest was to the executors of his will in trust. The same codicil contained, however, the following provision : “ In case any beneficiary named in my said last will and testament, whether a devisee, legatee, or cestui que trust therein named, shall, in person or by another, contest the probate of my said last will and testament or any codicil thereto, or shall institute any proceedings of any kind with a view to avoid or annul my said last will and testament or any codicil thereto, or any provision in my said last will and testament, or in any such codicil contained, then and in either case I do hereby revoke all provisions in my said last will and testament or in any codicil thereto contained in favor of the person or corporation contesting or seeking to avoid such last will and testament or codicil or provision. And if such contestant shall be my daughter, then I give, devise and bequeath to my wife all the property which, in and by such last will and testament and the codicils thereto, is or shall be given to my executors in trust for my said daughter’s benefit. If my wife shall be such contestant, then I give, devise and bequeath to my executrix and executors all the property which is by my said last will and testament or any codicil thereto given to my wife, in trust for my daughter, upon the same trusts in every particular as are specified .in the second article of this codicil.”

It seems that the testator contracted a second marriage, and the wife referred to in the provisions of the will, and who took the residuary estate, and with whom he lived up to the time of his death, is the wife of this marriage.

A few days after the death of the testator his will, with the codicils, were presented to the' surrogate of .Erie county for probate by the plaintiffs, and a citation was issued and served upon the daughter, the defendant in this action. Upon the return day of the citation, the surrogate, of his own motion, appointed a special guardian for the daughter for the sole purpose of appearing and protecting her interests in the proceedings to prove the will. Subsequently, and after consultation with the defendant and her relatives, in ¡New York, and with counsel there, acting for them, the guardian interposed an answer before the surrogate, taking issue in the usual form with the allegations of the petition. The special guardian also retained counsel, and, under the direction of the surrogate, the proponents of the will were required to produce many witnesses before him for examination, and the trial continued during a number of days. It was contended in behalf of the special guardian that the testator did not possess testamentary capacity, and various witnesses, including servants of the deceased and also experts, were called to sustain that contention. The guardian, through his counsel, requested the surrogate'to refuse probate to the will. In the month of November, 1886, the surrogate entered a decree admitting the will to probate, which, among other things, contained this clause: “ Pursuant to § 2628 of the Code of Civil Procedure, it is hereby stated that the probate of said will was contested.” The daughter herself was present at the hearing, and was called and heard as a witness on behalf of the special guardian. After the entry of the decree admitting the will to probate, the widow executed, acknowledged and filed with the surrogate a paper, under seal, which recited that she was the residuary legatee and devisee of her late husband’s will which had been admitted to probate. The provision of the decree stating that it was contested, and of the will and codicil that the legacy, in case of such contest, should be deemed revoked, were referred to. It then recited that she was desirous that all the provisions of her husband’s will, respecting his daughter, should be observed, providing his reputation and capacity be not further questioned. It then stipulated that the executors (of whom she was one) shall not claim, in any way, that the right of the daughter to the provisions of the will for her benefit had been forfeited, that no effect should be given to the clause revoking the legacy in case ■of a contest by the legatee, but that the legacy should be deemed legal and valid and the trust in favor of the daughter executed. The consideration for this agreement on the part of the widow was stated to be the omission of the daughter to appeal from the decree of the surrogate, and it was in terms conditioned that no such appeal should be taken, and that no action or proceeding of any nature should be brought by or in behalf of the daughter, or by any person claiming through or under her to set aside the probate, or question the validity of the will, or the testamentary ■capacity of her husband; and in case such appeal, action or proceeding should be brought or instituted, then the stipulation and agreement should be void and of no effect. The special guardian, however, appealed from the decree of the surrogate to the general term, where the decree was affirmed.

Two of the executors then brought this action to procure, the judgment of the court as to the disposition of the one hundred thousand dollars which the daughter was to take by the provisions of the will. The widow, declining to become a party plaintiff, was made a defendant both individually and as executrix and trustee under the will. The daughter is the only other defendant, and no other question is raised by the pleadings. The ■complaint, after alleging the making of the will, its provisions, "the death of the testator and the, proceedings before the surrogate, stated that the daughter still claimed the legacy, but that the plaintiffs were advised that, by reason of the clause above quoted, and the contest, the provisions of the clause revoking the gift upon certain contingencies became operative, and that the widow was entitled to the same. The relief asked was that the court give construction to the clauses of the will touching this legacy, and the fund mentioned therein, and that it determine the conflicting claims thereto, and define the rights and duties of the plaintiff concerning the same. The special term held that the contest before the surrogate, by and in the name of the special guardian, was not a contest by the daughter in person, or by another, within the meaning of the clause in the codicil expressing the conditions upon which the legacy should vest, and that she was entitled to the bequest.

The general term affirmed the judgment, but upon the ground that the daughter being an infant, and having merely submitted her rights to the court, the revoking clause was, as to her, an attempt to subvert the course of judicial proceedings, and to deprive the court of the right and duty imposed upon it by law, in all cases, to institute, of its own motion, proper proceedings for the protection of infants, and that, as to the daughter, the condition was void as against public policy. It held that the contest must be deemed to have been made by the daughter, although the actual steps were taken by the guardian. Bryant v. Thompson, 59 Hun, 545; 37 N. Y. State Rep., 431. The widow allowed the judgment to pass without any answer or other opposition and the only parties who have appealed to this court are the two executors who brought the action. The argument of the case was accompanied by a motion in this court to dismiss the appeal. The question is, therefore, raised whether the plaintiffs have such a standing in the case as enables them to bring the appeal. The plaintiffs clearly had the right to bring this action in order to procure a judicial determination of the question as to which of two claimants was entitled to the fund, and also to obtain the instructions of the court in regard to their duties under the will. They have obtained these instructions and this determination from the highest court of the state possessing original and general jurisdiction. There were two parties who had a pecuniary interest in the decision of the question involved in the case, the daughter, who is satisfied with the result, as it is in her favor, and the widow, who does not appeal. The judgment rendered in the court to which the plaintiffs resorted in the first instance is a perfect protection to them in the disposition of the fund, in accordance therewith, and in the performance of every duty growing out of the legacy to the daughter under the provisions of the will. This being true what interest have the plaintiffs in the further prosecution of the action ? They had an interest and it was their duty to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained or have been advised by counsel.

Appeals are not allowed to this court for the purpose of settling abstract questions, however interesting or important they may be-to the general public or to the legal profession, but to correct errors injuriously affecting the rights of some party to the litigation. The plaintiffs are not concerned, in the slightest degree, in any legal sense, with the question whether the provision for the daughter be held for her or deemed revoked, under the other ■clause, and secured to the widow. The widow is not here complaining of the result in the courts below. Had she waived in writing, or in any other way binding upon her, the conditions of her stipulation touching the contest before the surrogate, after the general term had passed upon the question, it would amount to a settlement of the controversy between the only parties having a pecuniary interest in it which would prevent an appeal. Looking at the substance of things, and keeping in mind the relations which these two beneficiaries now hold to the case, we cannot see that the present appeal stands on grounds any different from what it would then. The widow, after the appeal to the general term from the decree of the surrogate, could have waived the conditions contained in her stipulation in regard to the effect of an appeal, as she had before renounced the benefits of the clause revoking the legacy in case of a contest She did not, it is true, waive these conditions expressly, but she failed, when made a party to this action, to insist upon them and it is not perceived that the plaintiffs have any interest in insisting, through an appeal to this court, upon a point which the real and only beneficiary has refused to raise for herself. The widow, as already observed, conditionally renounced the benefits of the revoking clause by her deed, and no one, we think, should be permitted to urge that this deed has become inoperative by reason of a breach of its conditions except herself, and that position she is not, it seems, inclined to take.

The plaintiffs are not seeking any benefit for themselves in the action. They have simply asked the judgment and advice of the court in regard to the disposition of property, belonging to others, which is in their care and keeping. The court, has given the judgment and advice prayed for, and the real beneficiaries do not complain. Whether the plaintiffs are entitled to be heard further in this court does not depend upon any inherent right which the plaintiffs, as suitors, have, but upon express statutory ■permission. State v. County of Kings, 125 N. Y., 312: 34 N. Y. State Rep., 782.

The right of a party to have all disputes in which he has any interest determined, according to judicial forms, in a court possessing original jurisdiction, is absolute, if indeed there are any such rights in a strict sense. But when he seeks to have the judgment reviewed in this court he must be able to point to some statute giving him the right and conferring the jurisdiction. The ■only statute relied upon as securing to the plaintiffs in this case the right to appeal is § 1294 of the Code of Civil Procedure, and under that section the right is limited to a party aggrieved. In this case the executors and trustees under a will having asked the court for directions in regard to their duty, and for a judgment as to which of two parties is entitled to a certain bequest, which directions and judgment are given and acquiesced in by both of the alleged claimants of the fund, the plaintiffs are not aggrieved, within the meaning of the statute, by the judgment rendered. The question decided in the courts below and presented by the record is, undoubtedly, one of great interest and importance and, for that reason, should not be passed upon by this court until brought here by some party having an actual and practical, as distinguished from a mere theoretical interest in the con- ' troversy.

Cases can be and are cited by the learned counsel for the appellants in which this court has entertained appeals by executors and trustees, under wills, from judgments of this character. But it is believed that they are cases either in which the point was not raised at all, or if raised, the appeal was not only by the trustees, as in this case, but by the beneficiaries also, so that a motion to dismiss, as now before us in this case, if granted, would not dispose of the case, but would still leave the same questions to be determined upon the appeal of the other parties. If, in this case, the widow had contested the right of the daughter to receive the legacy, and claimed it for herself, under the clause providing for revocation, and had appealed to this court to maintain that position, and the appeal was before us, we would not then regard this motion as of much practical importance. This was the situation when the court was asked to dismiss the appeal in most, if not all, the cases of a similar character to which our attention has been directed. An appeal to this court does not lie unless the party appealing has an interest in the controversy. People ex rel. Breslin v. Lawrence, 107 N. Y., 607; 13 N. Y. State Rep., 108; Hyatt v. Dusenbury, 106 N. Y., 603 ; 8 N. Y. State Rep., 713.

The case of The People ex rel. Burnham v. Jones et al., 110 N. Y., 509; 18 N. N. State Rep., 540, is not contrary to these views. In that case the commissioners of the land office, representing the state, made a grant of land under water to an individual. Subsequently the determination of the commissioners in making the grant was reversed by the supreme court on certiorari, and the commissioners appealed to this court, where a motion to dismiss was denied. The order appealed from in that case in effect nullified the grant made by the state, and the commissioners, as public officers representing the state, were in duty bound to defend the grant against the effect of an erroneous decision, and so were aggrieved.

We think that the plaintiffs have no interest in the question presented by the record in this case, and that the appeal should be dismissed, with costs to both parties, payable out of the estate.

Earl, Finch and Peckham, JJ., concur; Ruger, Ch. J., Andrews and Gray, JJ., dissent.