author: Mayham, P. J. Herrick, J.

text:
    Mohawk National Bank of Schenectady, App’lt, v. Schenectady Bank, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Corporations—Bank—Stock—Lien for debts.
    Where the articles of association for a bank declare that the shares shall be deemed to be pledged and held in security by the bank for the payment of the owner’s debt to it, the bank, on making a loan to a shareholder, acquires a vested right in his shares, which cannot be divested by a subsequent assignment thereof by the shareholder. ,
    Appeal from a judgment in favor of defendant

      Alonzo P. Strong, for app’lt; S. W. Jackson, for resp’t. ■
   Mayham, P. J.

This action was prosecuted to compel the defendant to transfer upon its stock books 37 shares of the capital stock of the defendant, of the par value of $50 per share. The stock was held by one Paige, and stood in his name upon the books of the defendant, and was represented by a certificate issued by the defendant to him on the 10th day of July, 1868. The plaintiff claims title to the certificate and stock represented by it by virtue of a bill of sale and assignment and power of attorney executed by Paige, dated the 18th of September, 1876, claimed to have been given by Paige to the plaintiff as collateral to the renewal of an original loan by the plaintiff to him of $5,500. On the 22d of July, 1884, the plaintiff caused such assignment and power of attorney to be presented at the bank of the defendant, and a demand made upon the defendant to permit a transfer of such stock upon its books from Paige to the plaintiff, which was refused by the defendant. On the 9th day of February, 1870, Paige became indebted to the defendant in the sum of $6,100 on his promissory note for that sum, which was discounted by the defendant, which remained unpaid, and.which, with renewals and interest, amounted at the time of the trial to the sum of $7,013.97. The defendant was incorporated on the 24th day of December, 1861, under and in pursuance of an act of the legislature of New York entitled “An act to authorize the business of banking, passed April 18,1838, and the several acts amendatory thereof.” Section 15 of that act prescribes the manner in which banking associations may be formed under that act by making, filing, and recording in the office of the secretary of state articles of association as herein prescribed. Section 19 provides that the shares of such banking association shall be transferable on the books of the association in such manner as may be agreed upon in the articles of association, and every person becoming a stockholder shall, in proportion to his share, succeed to all the rights and liabilities of prior stockholders. The articles of association formed by the defendant under this statute contained, among other things, the following provisions.

“Art. 9. The directors shall cause suitable books -to be provided and kept for the registry and transfer of the shares of the association, and every transfer, to be valid, shall be made in such books, and be signed by the shareholder or by his or her attorney, duly authorized in writing; and every transfer shall be made and taken expressly subject to all the conditions and stipulations contained in these articles. Art. 10. The shares of the capital stock of this association shall be deemed pledged and held in security by the association for the payment of all debts and liabilities of the pwners thereof to the association ; and no transfer of any stock can be made until such debts and liabilities are discharged, without a resolution of the board of directors assenting to such transfer.”

It is insisted by the learned counsel for the defendant that under the above provisions of the defendants’s charter it had alien on the stock in question for the indebtedness of the assignor to it at the time of the assignment, and - that such lien is and was valid as to the assignor, or any assignee to whom he might assume to transfer the same. Section 19 of chapter 260 of the Laws 1838—that being the law under which the defendant was incorporated—provides that: “ The shares of said association shall be deemed personal property, and shall be transferable on the books of the association in such manner as .may be agreed on in the articles of association ; and every person becoming a shareholder b}r such transfer, shall, in proportion to his shares, succeed to all the rights and liabilities of prior share-holders.

Under this provision it is quite clear that the power was conferred upon the association to regulate the manner of the transfer of stock in and by the articles of association which became its charter on being filed in the proper office, and that charter, with the statute under which it was authorized and created, became the law of the association, both as between the association and its members and the association and all persons dealing with its members, in all matters regulated by the charter. By tlié charter itself the stock issued by the association became impressed with all debts due to the bank from a stockholder, and that characteristic passed with it, and bound not only the stock, but' each holder of the same. In Leggett v. Bank of Sing Sing, 24 N. Y. 288, Wright, J., in discussing the effect of a provision similar to the one under consideration, uses this language : “ The lien unquestionably attachesinrespecttot.be shareholders’«debts when the bank is asked to transfer the legal titled’ , '

In the same case, Allen, J., who dissents from his associates on some of the questions, but agrees with them as to the effect of the charter in creating a lien in favor of the bank for debts of the stockholders, uses this language: “As an agreement in effect making the debt of the shareholder a lien upon his stock, it is not prohibited by any law, and is inconsistent neither with any statute nor with public policy. ' A pledge of the stock in security for the payment of the debt actually contracted would clearly be valid; and an agreement pledging it, given in advance of the debt, can be nevertheless valid. Similar provisions in special charters granted by the legislature are not unusual, which is high evidence that public policy sanctions them, and courts have sustained and enforced such provisions. Bank v. Laird, 2 Wheat. 390; Bank v. Smalley, 2 Cow. 770. Each association organized under the general banking law may incorporate such special power’s in its articles of association, not inconsistent witli the laws of tire state, as the associates shall think expedient; and these special provisions will have the force of law with the associates.”

The articles pf association, the voluntary agreement of the associates in regulating the terms of their association, and their right as members thereof, take the place of a special charter, and perform its office. It seems to follow that the power of this association to incorporate this provision in its charter is one that has the sanction of authority, and that it violates no principle of sound public policy. It is the exercise of a power in the issuance and control of its stock, and of its stockholders while debtors of the bank, clearly conferred upon it by the statute under which the corporation was formed, which is the organic law of its existence. It would seem to follow that, on the creation of the debt by Paige to defendant on the 9th of February, 1870, the lien of the defendant attached to this stock, and, as the debt lias not been paid, the lien has not been divested. As was said by Sutherland, J., in Bank v. Smalley, supra: “ This provision was intended exclusively for the benefit and protection of the bank. The lien upon the stock for any debt due to them cannot be affected by a transfer of the stock.”

Doubtless, had this indebtedness of Paige been less in value than the stock, the plaintiff, as assignee, could, on extinguishing the lien, compel the transfer; but that is not this case. It doe?s seek by payment to extinguish the defendant’s lien, but rather by the assertion of its claim under the assignment and power of attorney, made long after the defendant’s lien attached, seeks to hold the stock by what it asserts as superior title. This, we think, it cannot do. This is not a case where a corporation seeks to exercise powers not specifically granted to it, but rather a power which is expressly conferred by the charter, granted, as we have seen, under and in accordance with the powers conferred on it by the statute, which is the organic law of its existence. It does not, therefore, come under the condemnation of any of the decisions cited by the learned counsel for the plaintiff under his second point. Nor can the lien created by this charter be denounced as a secret lien, such as the law will not uphold. In Driscoll v. West B. & C. Manufacturing Co., 59 N. Y. 96, the court held that a company could not by a by-law render the stock inalienable by a stockholder, where the scrip of stock had nothing upon its face to show that the company retained a lien on it by its by-laws as to a ¡mrchaser who bought without notice of the lien. But that case was where there was a restraint created by a by-law, and not the charter, and there was no express or implied authority, either in the statute or in the charter, for creating such lien; and, while the by-law was sufficient in terms, there was no authority in the statute under which the defendant in that case was incorporated, to pass such by-laws; and the court says: “Hence, if the defendant is to maintain this by-law, it must point out the authority either in its articles of association, and show that they are authorized by law, or in some statute.”

This, we think, the defendant did in the case at bar, under the provisions of § 19, chap. 260, Laws of 1838, under and in pursuance of which the provision in the charter of the defendant was clearly authorized. It seems quite apparent that there is a well-recognized distinction between provisions in the charter or articles of association in restraint of alienation of stock by a stockholder and the imposition of sucli restraint in a mere by-law of the corporation, and this distinction accounts for the mere fact that in some cases the courts have held that such restraint is inoperative as against a bona fide purchaser of the stock, and in other cases such condition in restraint of alienation is held valid.

In Bank of Attica v. Manufacturers & Traders' Bank, 20 N. Y. 501, Devio, J., in pointing out that distinction, uses this language ; “ And the difference between a restraint upon alienating the shares in this association, contained in the articles, which must receive the assent of all the primary shareholders, and by which all persons holding derivative interests must be bound, and a like restraint imposed upon the agents of the association in the form of by-laws, which may or may not come to the knowledge of the shareholder, and which, if known, may be disapproved by them, is very marked.”

In Driscoll v. West, B. & C. Manufacturing Co., supra, Judge Bulger, while denying the power to impose such restraint of alienation by and under the provisions of the by-laws, fully recognizes the power to do so in the charter or articles of association. He says: “ There may be in some cases an agreement of the original stockholders among themselves by their articles of association, that such power shall exist. This does not appear in this case.”

There is nothing in the character of this stock which makes it negotiable, or invests the transferrer with rights superior to that of the assignor. Ordinarily, the purchaser of a chose in action, not negotiable, is subject to all the equities existing against it in the hands of the assignor; and, if we are right in holding that the defendant has a valid lien on this stock for the debt of Paige, his assignment to the plaintiff cannot divest that lien, or invest the assignee with greater rights than those enjoyed by the assignor. McCready v. Ramsey, 6 Duer, 574. The defendant on making the loan to the plaintiff’s assignor, acquired a vested right in this stock, which cannot be divested by Paige by assignment; and the assignee, of the stock took the interest of the assignor subject to that right, and cannot divest the defendant except upon payment of the defendant’s lien. Nor do we think the defendant in this case is estopped from asserting its right. This case is clearly distinguishable from Knox v. Eden Musee American Co., 74 Hun, 483; 57 St. Rep. 48. The judgment must be affirmed,' with costs.

Putnam, J., concurs.

Herrick, J.

I concur upon the ground that the plaintiff is not a bona fide holder for value of the stock in question. The assignment of such stock was made to the plaintiff to secure the payment of an antecedent debt. The plaintiff parted with nothing of value upon the faith or credit of the stock. Upon the other questions in this case it seems to me that the principle in the case of Knox v. Eden Musee American Co., 74 Hun, 483; 57 St. Rep. 48, applies.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Mary Jane Mowell, Resp’t, v. Augustus H. Van Buren, as Administrator, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Executoes—Claims—Pleadings—Amendments.
    Provisions of the Code relating to the amendment of pleadings do not apply to statutory reference of claim against decedents.
    2. Same—Vabiance between claim and pboof.
    Where the claim referred is for money loaned, a recovery cannot be directed for money received by decedent from claimant for investment. ,
    3. Witness—Attobney.
    The burden of proving that a communication between attorney and client is a privileged communication is on the person objecting to such attorney’s testimony.
    Appeal from a judgment in favor of plaintiff.

      John J. Linson, for app’lt; Chas. A. & E. Bowler (E. Fowler, of counsel), for resp’fc.
   Putnam, J.

Plaintiff, on or about December 13, 1892, presented the following bill to defendant, as administrator of the estate of N. E. B rod head, deceased:

“ Kingston, N. Y., Dec. 13, 1892.

“ Estate of N E. Brodhead, Dr. to Mrs. M. J. Howell.

“ July 18, 1892. To money loaned N. E. Brodhead at different times before this date, $5,000.”

The bill so presented had the usual verification. It was rejected by the defendant, and thereupon the parties, by written stipulation, agreed upon a reference to a referee therein named. The approval of the surrogate was obtained, and the usual order of reference of the supreme court entered. The referee, after? hearing the testimony offered by the parties, made, among others, the following findings: “ (2) That prior to the 1st day of January, 1892, the defendant’s intestate had and received at divers times money from the plaintiff for the purpose of investment for her, which on that day aggregated in amount three thousand dollars. (3) That defendant’s intestate never invested such money for the plaintiff, and left among his assets no securities or other papers representing any portion of such money. (4) That on the 25th day of June, 1892, the defendant’s intestate made his promissory note, whereby, on demand, after date, he promised to pay to the plaintiff two thousand dollars, and delivered such note to the plaintiff; that the consideration of such note was money lent by the plaintiff to the defendant’s intestate, and the plaintiff is the owner and holder of said note.

“And I find, as conclusions of law: (1) That, at the time of his death, Nicholas E. Brodhead was justly indebted to the plaintiff in the sum of five thousand dollars, with interest on three thousand dollars from the 1st day of January, 1892, and on two thousand dollars from the 25th day of June, 1892. (2) That the plaintiff is entitled to recover of the defendant in this action five thousand dollars, with interest as stated in the foregoing finding.”

In his opinion the referee'says: “The bill of the plaintiff presented to the administrator consists of but one item, and that for money loaned, but this does not conclude her. As in the case of formal pleadings, the bill, which i^ in the nature of a complaint, must be conformed to the facts proved upon the trial.”

The learned referee evidently assumed that on a reference under the statue, on the presentation of a claim to an administrator of a deceased party, and the rejection thereof, the referee has the same power of allowing an amendment as a referee in an action under the provisions of the Code of Civil Procedure. We think his conclusion in this regard cannot be sustained. A proceeding by reference under the statute to determine a disputed claim against the estate of a deceased' party is a special proceeding, and not an action. Roe v. Boyle, 81 N. Y. 305. The provisions of the Code of Civil Procedure in regard to amendments of pleadings do not apply in such a proceeding. 3 Rum. Pr. 295 ; Townsend, v. N. Y. L. Ins. Co., 4 Civ. Pro. R. 398; Eldred v. Eames, 26 St. Rep. 277. In this case the claim presented to defendant was for $5,000, money loaned. The claim, as allowed by the referee, was for $2,000, money loaned, and $3,000, money advanced to the deceased to invest, and which he had failed to invest. Ib, Townsend v. N. Y. L. Ins. Co., supra, the plaintiff, an attorney, presented a bill as follows:

The New York Life Insurance and Trust Co., Adm’rs, etc., of Mrs Charlotte Brinckerhoff, to John T. Townsend, Dr.

1873.

Apr. 21. For my services in aiding in the care and protection of the estate of Mrs. Brinckerhoff from Nov. 1st, 1868, to date, and for advice in transactions relating thereto................'.... $61,000

The referee allowed the plaintiff, for the general care of the estate, $5,026.30, and also a further sum of $350 for professional services of the plaintiff as an attorney. The court of appeals, however, held: That the charge in the bill for “service in aiding in the care and protection of the estate” did - not cover a claim for the services of plaintiff as attorney; that “ service, by reason of the special relation, would naturally be the subject of a distinct and specific statement.” That the referee erred in allowing for professional services. That no claim therefor was referred to him. The charge for “ services in aiding in the care and protection of the estate, * * * and for advice in transactions relating thereto,” in the case cited, as much embraces a claim for attorney’s services performed in the care and protection of such estate as the claim presented in this case, for money loaned, covers a demand for money deposited with deceased to invest, and which remained uninvested. A demand for money advanced for the purpose of investment is entirely "different from one for money loaned. The plaintiff never presented to defendant a claim for money advanced or deposited for investment. She never verified such a bill, and no consent was ever given by the defendant to refer such a claim. If a demand had been presented to defendant for money advanced to invest, he might not have' consented to a reference, preferring to contest the same in an ordinary action, where he could have bad the benefit of a trial by jury. If the judgment appealed from is allowed to remain, the defendant is deprived, without his consent, of the right of trial by jury. In Eldred v. Eames, supra, where a referee had assumed to allow an amendment of a claim presented, the court used the following language, which we quote as applicable to this case: “ The exercise of such a power by the referee would enable a claimant to obtain a reference of his claims against an estate without the consent of the defendant or the approval of the surrogate, which is made by the statute the condition of such a proceeding. It is the claim which is rejected by the executor which may be refeired, and none other. If the power of amendment is allowed, the whole subject of the controversy may be .changed during the trial, to the manifest detriment of the defendant, and in violation of statutory authority to order a reference. The trial might thus be had upon claims that were not presented, or rejected by the executor, and whose reference was never approved by the surrogate. These conditions are made by the statute essential to the power to refer, and cannot be dispensed with or subverted.”

Under the above-cited authorities, we think the referee, under an order of reference on the bill presented to defendant for money loaned, could not properly direct judgment in favor of the plaintiff oil a demand for money advanced by plaintiff to deceased to invest. There was no agreement to refer such a claim, and no reference thereof. The referee, in passing upon such a claim, acted beyond his powers. When such a demand is properly presented to the defendant, he may elect to refer it, or to litigate the matter in an action. Hedías the right to elect which course he will pursue. He cannot be compelled to try the matter before a referee unless lie consents to do so.

The defendant urges that the referee erred in receiving the evidence of the witness Prime, an attorney, as to admissions made to him by deceased. Such admissions, he claims, were those of a client to his attorney in the course of a professional employment of the latter. As there may be another trial, we will briefly consider the position of defendant. Of course, it is well settled that any communication made by a client to his legal adviser for the purpose of obtaining advice is privileged. This is so, although no fee is asked for or paid, and no action is pending or contemplated. All this is necessary, to render such a communication privileged, is that the relation of attorney and client shall exist, and that the latter shall ask legal advice from the former. Bacon v. Frisbie, 80 N. Y. 394; Bank v. Mersereau, 3 Barb. Ch. 528-595; Williams v. Fitch, 18 N. Y. 546-551; Root v. Wright, 84 N. Y. 72. But a communication made by a party to an attorney is no more privileged than if made to any other person, unless made in reference to some matter in which the attorney is employed, or for the purpose of obtaining his advice, or such communication, it may be supposed, was drawn out in consequence of the relation to which the parties stand, as attorney and client. Marsh v. Howe, 36 Barb. 649; Riggs v. Denniston, 3 Johns. Cas. 198; Carroll v. Sprague, 59 Cal. 655. The burden is upon the party objecting to the evidence of an attorney, as privileged, to show that the admission of the client to the attorney, sought to be proved, was • confidential. Sharon v. Sharon, 79 Cal. 633-636. Although the relation of attorney and client exists at the time, an admission made by the latter to the former is not confidential unless made in a matter in which the attorney is acting for the client, or having sotne relation thereto, or made to the attorney for the purpose of obtaining his advice. 1 Greenl. Ev. § 244; State v. Mewherter, 46 Iowa, 88-94. The admissions of Brodhead, proved, by the witness Prime, were made at the December interview at Kingston, and at subsequent meetings in July. The witness swears that such admissions were not made in reference to any matter as to which he was employed ; that his advice was not sought or given ; that he made a suggestion to deceased, but gave no advice. After a careful examination of the testimony of the witness, we are forced to the conclusion that the defendant failed to show that the communications of Brodhead to Prime, to which he objects, were confidential, or other than mere casual remarks of deceased to the witness, having no reference whatever to the matters as to which Prime was employed as an attorney, and not calling for any advice on the part of the attorney. The cases cited by appellant are not parallel. In Bacon v. Frisbie, supra, the client, on a statement made by him to the attorney, asked the advice of the latter. The communication was made to the attorney for the purpose of obtaining such advice. It was the statement so made to the attorney for the purpose of procuring legal advice that the court of appeals held could not be proved by him. In Root v. Wright, supra, the information derived by theattorney was from communications of liis clients while he was engaged in transacting their business, and which were necessarily made to enable him to do so. So, in the other cases to which we are referred by appellant, the communications sought to be proved were made to an attorney in the course of his professional employment, and relating thereto, and hence are not like the case under consideration, where the only evidence we have shows that the admissions of deceased to Prime had no relation to or connection with any professional employment, and that no advice was asked or given in relation thereto. We therefore think that the referee, on the evidence submitted to him, could properly find that the conversations between deceased and the witness Prime in reference to the money in question were not confidential, and hence he did not err in overruling the objections of appellant to the evidence of the witness relating to the aforesaid admissions of deceased.

We do not deem it necessary to discuss the other questions raised in the case. For the reason first above stated the judgment should be reversed, a new trial granted, an the referee discharged, with costs to abide the event.

All concur.


text:
    John R. Myers et al., App’lts, v. Josephine Polhemus, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Trial —- Referee—Dismissal.
    Wheré the evidence raises a question of fact, it is error "for the referee to dismiss the complaint.
    Appeal from a judgment dismissing the complaint.

      Wilmer H. Bunn, for app'lts; P. Q. Fckerson, for resp’t.
   Putnam, J.

On the trial before the referee, the defendant did not offer any testimony or rest her case, but, at the close of plaintiff’s evidence, moved to dismiss the complaint on the ground, among others, that the plaintiffs had failed to make out a cause of action. As far as the record discloses, no other proceedings were had in the action until the referee dismissed the complaint upon the merits, with costs. Had the referee denied the motion to dismiss, the defendant would have had the right to offer evidence in her own behalf upon the issues raised1 by the pleadings. It will be seen that the case is like that of Place v. Hayward, 117 N. Y. 487; 27 St. Rep. 710. In that case, on the close of the plaintiff’s evidence, defendant, without announcing that he rested his case, moved for a dismissal of the complaint on tl^e merits, and the motion was granted. It was held that the action of tjoe referee was equivalent to granting a nonsuit, and that, to maintain the judgment, defendant was bound to show that there were no disputed material questions of fact that, upon a jury trial, would have been required to be submitted to the jury, and that, upon the undisputed evidence, he was entitled to judgment. See, also, Forbes v. Chichester, 125 N. Y. 769 ; 36 St. Rep. 248. Hence, to sustain the judgment, it must appear that the evidence failed to raise any questions of fact that, if the trial had been at circuit, the court would have been compelled to submit to the jury.

We do not desire to criticise the findings of the learned referee, or to express an opinion that such findings were not sustained by the evidence; but we think it quite clear that, on the evidence given on the trial, the referee would have been authorized to find that the plaintiffs sold and delivered the ice, for which the action was brought, to the defendant. It was shown that the ice in question was contracted for by Charles W. Polhemus, the conceded manager of defendant’s business, and her agent When he contracted for the icey it does not appear that he mentioned any name as a purchaser, or stated for whom he purchased it. He was authorized to purchase ice for the defendant. The ice was taken by defendant’s wagons and afterwards Anderson, agent of the plaintiffs, went to defendant’s office, and brought his book containing the items of the ice delivered, and compared the same with the book there kept, and found that the books agreed. Here was a sale of ice to defendant’s manager and agent, the name of the purchaser not being mentioned, a delivery of the ice to defendant, and an entry of the icé so delivered on defendant’s book. Of ■course, there is evidence tending to show that defendant was not the purchaser; as, the draft, the bill, and the testimony of Charles W. Polhemus, who swore that, in addition .to working for his mother, the defendant, he carried on an independent business as a wholesale dealer in ice, and bought the ice in question on his own .account, and resold it to defendant before it was delivered. Under the circumstances of the case, however, it was a question for a court or jury as to what credit should be given to his testimony. Prom the above statement it is evident that a question of fact was raised in the case, to be passed upon by the referee, and that from ■such evidence the court could have found that defendant xvas the purchaser of the ice specified in the complaint; and hence, within Place v. Hayward, supra, a judgment of dismissal of the complaint, which, under the circumstances, was a judgment of non--suit, was not authorized. Had a dismissal of the complaint been proper, however, such dismissal should have been on the merits. Terry v. Horne, 37 St. Rep. 58; 13 N. Y. Supp. 353.

The judgment should be reversed, the referee discharged, and ■a new trial granted ; costs to abide event.

All concur.


author: Per Curiam.

text:
    Eleanor E. O’Brien, Resp’t, v. John Barkley, as Executor, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Wills—Condition Subsequent—Public Policy.
    A provision in a will that the devise, unless the devisee lives apart from her husband, shall go to third persons, is a condition subsequent, and void as against public policy.
    3. Trust—Separation of husband and wipe—Void.
    A trust, which has no other object than the furtherance of the testator’s unlawful purpose to separate his daughter and her husband is wholly void.
    Motion for a new trial on a case and exceptions.
    The opinion of Mr. Justice Kellogg at special term is as follows:
    This action is brought to construe the last will and testament of Robert Shaw, deceased, late of the county of Washington, in this state. The will was executed December 5, 1891; and the testator, in January following, some six weeks after execution of the will, died, leaving, him surviving, a widow and a daughter,, the plaintiff in this action, as the only next of kin and heirs. He died the owner of real estate in that county'valued at $10,000, and personal estate valued at $18,000. The widow survived the testator only a few days. A short time prior to the execution of the will, the daughter (plaintiff) married James H. O’Brien ; but at the time of the , execution of the will, and at the time of the decease of the testator, she was living with her parents, separate and apart from her husband. The first clause-of the will relates to a division of property held in common with testator’s sister, and the duties of this clause require only the exercise by the executors of a trust power. The second clause-of the will relates to provisions for his wife, rendered, however, inoperative by her decease. The whole estate is covered by the third clause of the will, the widow being dead. The third clause-reads : “All the rest and residue of. my estate, real and personal,, to be set apart by my executors, and held in trust, to take the-rent and profits thereof, and apply the net annual income to the use of my daughter, Eleanor Elizabeth, for and during her natural life; provided, however, and on the express condition, that she do not, at 'any time after my decease, associate, cohabit, or live with one James O’Brien. And in case she shall, at any time after my decease, associate or cohabit or live with the said James O’Brien, then and in such case the said real and personal estate so held in trust under this third clause of my will shall be immediately divided, transferred, paid over, and delivered,' share- and share alike, to and among Margaret McNeil and Jane S.. McCurdy, children of my late brother-in-law, Daniel McCurdy; William W. Shaw, son of my brother,‘ John Shaw; Isabel Beveridge and Ann Beveridge, children of my brother-in-law, David Beveridge; provided, however, that if the said James O’Brien shall depart this life, or otherwise lawfully cease to be the husband of my said daughter, and she shall at no time after my decease have associated or cohabited or lived with him, the said James O’Brien, ¡then—that is, upon his decease, or upon his otherwise lawfully ceasing to be the husband of my said daughter, and my said daughter then surviving, then and in that case, and on the first happening of either—the said trustee shall forthwith transfer and deliver to my said daughter, all and singular, the whole of the real and personal estate then remaining in his hands under and by virtue of the third clause of my will.” There is no residuary clause or gift over, other than the one to testator’s nephews and nieces, above quoted, in these words; “And in case she shall, at any time after my decease, associate or cohabit or live with the said James O’Brien, then and in such case the said real and personal estate shall he immediately divided, transferred, paid over, and delivered, share and share alike, to and among,” etc. In case the life estate created for the daughter should continue during her life, no disposition is made of the fee.
    The provision of the will respecting the one-third set apart for the widow, and in these word„s: “ If my said wife shall survive my said daughter, and the latter not have received lawfully, or been lawfully entitled to receive, the said estate so held in trust under said third clause hereof, as aforesaid, then the estase so held in trust under said second clause shall, ah the decease of my said wife, be transferred and delivered to the persons hereinafter named as entitled to receive the same under this, the third clause hereof,”—is of no value, except to discover the intention of the testator, since the widow is dead, and the daughter survives. But the testator fails to say to whom this third of his estate shall go in case the daughter dies before the widow, and dies “lawfully entitled; ” that is, the divorced wife or the widow of James O’Brien. It is significant, in that it shows the intention of the testator not to give to any of these nephews and nieces any portion of his property, except upon one condition, and immediately upon the happening .of that condition, viz. the “association” or “cohabitation ” of the daughter with her husband after the decease of the testator. They take nothing upon the death of the daughter; nothing upon the extinction of the life estate by death. If the daughter should, by the terms of the will, be entitled to the income and profits of the estate during her life,— that is, should not associate or cohabit with her husband after the testator’s death,— and James O’Brien should not “ lawfully cease ” to be her husband, what then becomes of the corpus of the estate? The testator has not told us. It does not, in that case, by the terms of the will, go to these nephews and nieces. That is clear. To discover what is called the “pole star” in construction of a will, viz. the intention of the testator, it is quite as important to examine the void provisions of a will as it is to examine the valid portions. The general scheme in the testator’s mind can be discovered in no-other way. Taking this will as a whole, it is not difficult to read the mind of the testator. He wishes his daughter to possess his property—to possess it and enjoy it—at the earliest possible date, but he wishes to accomplish, also, another purpose,—a continued separation between his daughter and her hftsband; and he wishes a speedy divorce, unless a merciful Providence shall sooner serve, by taking James O’Brien hence. It is unnecessary to say that his second purpose was contra bonos mores, and hence an unlawful and void purpose, and this part of his intention must fail. If his wishes that his daughter should have his property can still be carried out, that will be all of the testator’s intention which can be made effectual. The will gives to the daughter the rents and profits of his estate during her natural life. Here there can be no difference of opinion, I think, as to the actual vesting in the daughter of this life estate. The gift took effect at the instant the testator died. The proviso or condition is something which must occur after his decease. The testator says so in words : “ Provided, however, on the express condition that she does not, at any time after my decease,” etc. This, I think, must be interpreted to be a condition subsequent The estate vests at once in the daughter, subject to being divested on the happening of the condition, “cohabitation or association ” with James O’Brien after the testator’s decease. This construction seems to be borne out by the interpretation by the court of similar language in wills in many cases. It was said in Scott v. Guernsey, 48 N. Y. 106, “ The law favors a construction which will not tend 'to the disinheriting of heirs, unless the intention to do so is clearly expressed.” Where the actual and primary intent, as col? lected from the whole instrument, is in harmony with the policy of the law, the courts will aid it by construction, but where it is subversive of that policy the same principle favors a construction which will defeat it. Patterson v. Ellis, 11 Wend. 294; 2 Jarm. Wills, 766. In Burnett v. Strong, 26 Miss. 124, the court says: “ Courts have shown no disposition to apply the strict rules applicable to conditions precedent in covenants and other contracts to last wills and testaments, and have looked rather to the circumstances of the bequest, and the nature and object of the conditions, so as to give the devisee the benefit of the testator’s bounty. In Waters v. Tazewell, 9 Md. 292, it is said: “Unqualified restrictions on marriage are discouraged, on grounds of public policy; and instead of aiding them, by applying liberal rules of construction, the courts have been disposed to construe them strictly, and in such manner as will favor the person on whom the restraint is laid.” It will be sufficient to make the condition subsequent if the testator appears, from the context of his will, to have intended an immediate interest to pass to the object of bis bounty. 1 Bop. Leg. 766. If a legacy be given to A., payable at twenty-one, or marriage, but if he marry under that age, without consent of his executors, then the legacy is to C., the legacy will vest immediately in A.,- and the condition is subsequent. Id. In Weathersby v. Weathersby, 18 Smedes & M. 685, the provisions of a will were: “I give and bequeath to my son Ludovick my servants Tom and Lucy, in trust and upon the following conditions.” The conditions, being emancipation, were held by the court to be void. The conditions were held to be subsequent, and the “consequence is that the trust on condition is defeated, and the estate is absolute in the legatee.’’The word “provided’’ is a technical word. It has always been held that a devise to A., provided he should or should not perform certain acts, is a devise upon a condition subsequent, and the estate vests, subject to being divested, if he does not perform as required. Wright v. Tuttle, 4 Day, 313 ; Rich v. Hotchkiss, 16 Conn. 409, 419 ; Wheeler v. Walker, 2 Conn. 196 ; Hooper v. Cummings, 45 Me. 359 ; Chapin v. School Hist. 35 N. II. 445; Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528. Whether the condition is precedent or subsequent depends on the order of time in which the performance is required. Acherly v. Vernon, Willes, 157 ; Hoe v. Scudamore, 2 Bos. & P. 297. Heath, J., says : “The question always is whether the thing is to happen before or after. If before, the condition is precedent; if after, it is subsequent.” It is in the giving ad interim, directly and at once, to the legatee, of the rents and profits, which indicates the purpose to vest the legacy at once. In re Hart's Trusts, 3 De Hex & J. 195. In Taylor v. Mason, 9 Wheat. 326 (Marshall, C. J.), the testator gave his property to a trustee, to be turned over to the oldest male heir of his nephew, J. T. M., “on the following terms,”—that he change his name to “A Barnes.” On his refusing, then to the next male heir, on same terms, etc. It was held that the condition was subsequent, and not precedent. The estate vested in the oldest male heir, to be divested on nonperformance of the condition. In Finlay v. Ring's Lessee, 8 Pet 246 (Marshall, C. J.), the language of the will was: “In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel, his wife, lately Rachel Finlay, in trust for the oldest son or issue of said marriage; and, in case such marriage shall not take place, I leave and bequeath said estate to any child, giving preference to age, of William and Rachel Trigg that will inarry a child of my brother James King, or of sister Elizabeth, wife of John Mitchell, and their issue.” William Trigg and Rachel, his wife, never had a daughter; hence, there was no marriage such as the testator contemplated. Marshall, 0. J.: “In the case under consideration, the testator does not give his real estate to William King on his marrying the daughter of William and Rachel Trigg, but at the death of his wife, on condition of his marrying a daughter of William and Rachel Trigg, * * * He gives the estate at that time without requiring that the condition annexed to it should be previously performed. The estate then vests in possession, whethei' the condition on which it was to depend be or be not performed. * * * This is clearly a condition subsequent. * * * A devise to A., on condition that he shall many B., if uncontrolled by other words, takes the effect immediately. * * * The condition is subsequent." In Thomas v. Howell, 1 Salk. 170; 4 Mod. 67, the father, having three daughters, constituting his heirs at law, devised to one of them a messuage, called “Lowborn," “upon condition that she’ marry T. T., and, if she refuse to marry him, then over to trustees, in trust, to be divided among the three coheiresses, equally or otherwise, as they please.” The marriage became impossible by reason of the death of T. T., under 12. and the question was which to apply to it,—the law of conditions, or the law of limitations. The court held that the law of .conditions was applicable, and being a condition subsequent, and having become impossible, the devise was absolute. In Jennings v. Gower,. Oro. Eliz. 219, the court Said, if a man devise a term to A., and that, if his wife suffers the devisee to, enjoy it for three years, she shall have all his goods, executrix, but, if she disturbs A., then he makes B. his executor; his wife is executrix presently; for though, in grants, the estate shall not vest till the condition precedent is performed, it is otherwise in a will, and this shall not be construed as a cqndition precedent, but only a condition to abridge the power of the executrix if she performed it not In Hayden v. Inhabitants of Stoughton, 5 Pick 528, the will read : “Both of the above pieces of land I give to said,town for the purpose of building a schoolhouse for the use of a free grammar school; provided, said schoolhouse is built by said town within one hundred rods of the place wheré the meetinghouse now stands.” This was held to be a condition subsequent, and the fee to the lands vested immediately in the town, and did not rest in abeyance until the schoolhouse should be built. In Conrad v. Long, 33 Mich. 78, the will devised the lands in question to testator’s mother for life. After1 her death the lands were to go in conformity with the following clauses in the will: “ To my brother, Frederick S. Conrad, I give and bequeath the one-half so remaining, and the other half I give and bequeath to my sister, Elizabeth Long, upon this condition: “If, at any time subsequent, she .should conclude not to live with her present husband, Henry Long, as his wife. But, if; she continue so to live as the wife of said Henry Long until her death, then and in that case I give and bequeath all my property,, real and personal, remaining after the burial of my mother, to my aforesaid brother, Frederick S. Conrad.” The court says: “It is claimed on behalf of Conrad that the condition mentioned is a condition precedent, and is void, and that no estate can attach. That the condition is void is admitted. It is contrary to the plainest principles of public policy to separate, or to provide in this way for a separation of, husband and wife as the condition to the enjoyment of an estate. But we find here nothing in the nature of a condition precedent. The language is very blind, but it shows that the ultimate devise over to Frederick S. Conrad was to depend on whether Elizabeth Long continued to live with her husband until her death. * * * Taking the whole clause into account, we can only find in it a forfeiture of an estate on breach of condition, and not a condition precedent.”
    I cannot, in the light of these decisions, see how it can be successfully contended that the condition or proviso in the third clause of the will of Robert Shaw, is a condition precedent, or a eonditio’nal limitation. The bare reading of the condition shows the intent of the testator to have been that his daughter should be divested of the estate here provided for her by some act of the legatee “ after ” his decease, and not that she was to do some required thing before she could receive any of the rents and profits of his estate. The estate for life having vested in the daughter immediately upon the decease of the testator, and the condition subsequent being void, it must remain in her for life. The courts have held in some cases, respecting legacies,—and I find no reported case holding to the contrary,—that even where the condition is precedent, and void as against public policy, the legatee takes the legacy free and pure notwithstanding, and in all cases of realty the devisee takes where the condition is subsequent The case of Hawlce v. Huyari, (Neb., 1890), reported in 46 N. W. 422, is a case similar to this, though the language in the will in that case was far from being favorable to the legatee and devisee as in the case at bar. The will turned the estate, real and personal, over to trustees. The provisions aim to force a separation of a son from his wife. The executors, in case a separation is accomplished at end of ten years, are to turn over to the sou the estate; if not accomplished, are to turn the estate over to the other children of the testator. The court says: “The question is one in restraint of the continuation of the marriage relation. ■* * * I think there can be no doubt, either as a question of reason from moral premises, or from legal authority, not only that such condition is void, but, having been declared void, it leaves the bequest of the testator operative the same as though the conditions had not been sought to be made by will.” In Wilkinson v. Wilkinson, 12 L. B. Eq. 604, the testatrix provided by her will a legacy to her niece Elizabeth, and then provided it ■should pass to others, unless, within eighteen months after the decease of the testatrix, the legatee should cease to reside at Skipton,—a place where her husband resided, and did business. The court held the conditions void, as a manifest attempt to induce the legatee to leave her husband, and also held that the legatee took the legacy freed of the condition. Lord Maccels-EIELD, in Mitchel v. Reynolds, 1 P. AVms. 181, says: “All the instances of conditions against law, in a proper sense, are reducible under one of these heads: (1) Either to do something that is malum in se, or malum ¡prohibitum; (2) to omit to do something that is a duty; (3) to encourage such crimes and omissions. Such conditions as these the law will always, and without any regard to circumstances, defeat.” In Wren v. Bradley, 2 De Grcx. & S. 49, the testator directed certain moneys to be invested upon trusts expressed as follows: To pay and apply income, etc., “ and to my daughter Ann Jeffreys AVren, the wife of Abram AVren, in case she should be living apart from her said husband, the said Abram AVren, and shall continue to so do during the lifetime of my said wife, an annuity of £30. * ’ * And I do further direct that if, at any time, the said Ann Jeffreys AVren should cohabit with, said Abram AVren, the said annuity hereinafter given to her shall, during the time she shall so cohabit, absolutely cease and determine.” The vice chancellor: “ Assuming that the husband and wife were living separate at date of the will, and at the death of the testator were living together, my impression is that it will be more in accordance with authority to decide in favor of the gift.” The gift was held to be absolute, and freed from the condition and all limitations. In Tennant v. Braie, Toth. 77, there was. a bequest of a sum of money made to the daughter of the testator “ if she would be divorced from her husband.” The gift was held good, and the condition void. In Brown v. Peclc, 1 Eden, 140, a testator directed his executors to pay to a niece, Rebecca, “ if she lived with her husband, £2 per month, and no more; but if she lived from him, and with her mother, £5 per month.” The condition was held to be bad, and that she was entitled to £5 per month. The cases mentioned, Wilkinson v. Wilkinson; Wren v. Bradley; Tennant v. Braie, and Brown v. Peck, have been frequently referred to by the courts in this country, and accepted as the settled law. “ The rules of the civil law being that where a condition precedent is originally impossible * * * or illegal, as involving malum prohibitum, the bequest is absolute, just as if the condition had been subsequent.” 2 Jarm. Wills, 524. In Cooler v. Bemsen, 5 Johns. Oh. 461, the chancellor says: “ There is a wide difference between a bequest to a daughter during her separation from her husband, when the separation was then actually existing, without being procured by the testator, and a legacy to her if she lived apart from her husband; for that 'would be to hold out a temptation to a separation, which would be contra bonos mores. The legacy would be simple and pure in the latter case, according to the decision of Lord Worthington in Brown v. Peck, 1" Eden, 140.” In Potter v. Me Alpine, 3 Dem. Sur. 108, the will made the enjoyment by Charles B. Potter of his one-fifth part of the income of the estate conditional upon his not living with, or in any manner contributing to the support of, his wife. The court held: “This condition is illegal and void. It requires the violation of a statute. • It is contrary to public policy. The condition is evidently precedent in its character, and while, at common law, it would doubtless work a forfeiture of the gift, yet in equity, and under the civil law, though the condition is void, the gift is good.” And the court here refers to 1 Rop. Leg„ 757; Tennant v. Braie; Brown v. Peck. It is true this is a decision of a surrogate’s court, but it is in accord with all previous decisions, and is referred to as authority by Justice Learned, at the general term of this district, in Whiton v. Harmon, 54 Hun, 552 ; 27 St. Rep. 641. In Whiton v, Harmon, id., the testatrix, by will, gave her real estate to her son “ for and during the term of his natural life, or while he shall live separately from his present wife. On his decease, or when he shall again live with his present wife,” the property should go to his nieces. Learned, J., says: “Here the testatrix seeks to bribe the husband to continue the abandonment of his wife.” Held, that the condition was bad, and “the son took the property during life,” only the condition of the will that the property should, “at his death,” go to the nieces, being counted good; and the court cites Potter v. McAlpine; Tennant v. Braie; Broion v. Peck; Oonrad v. Long; Wilkinson v. Wilkinson, and Wren v. Bradley. In Kelly v. Monde, 3 Eidg. App. 205, legacies charged on the realty, in aid of the personal estate, were given to the testator’s daughters, payable on their respective days of marriage; provided, however, that if either 'married without consent, or a man not seized of an estate in fee, or of perpetual freehold, of the annual value of £500, her legacy should not be^ paid, but should sink as in the text. One of the daughters married with consent, but her husband had not the requisite estate. Lord Clare was of the opinion that she was nevertheless entitled to the legacy; “ that even if it were held that the legacy were a charge on the realty, the condition was illegal at common law, being too generally in restraint of marriage.” To the like effect may be cited Otis v. Prince, 10 Gray, 581; Panclall v. Marble, 67 Me. 310; Maddox v. Maddox's A dm’r, 11 Grat. 804; Williams v. Oowden, 13 Mo. 211; Waters v. Tazewell, 9 Md. 291; Spencer v. Negro Dennis, 8 Gill. 314; Barksdale v. Mam, 30 Miss. 694.
    The daughter, then, is here secure of the rents and profits of the entire estate, real and personal, without limitation as to time, or during her life. It will be seen, by the language of the will, that the trust attempted to be created by the third clause had for its sole object the furtherance of that unlawful scheme of the testator, viz., a separation of husband and wife. It was not the intention of the testator that the trustees should hold his property during the life of the daughter. It was to be held by them only until the wife cohabited with her husband. Then the trust was, by the terms of the will, to cease. If the daughter were sufficiently tempted, and should fail in her duty toward her husband, and should “ lawfully cease ” to be the wife of James O’Brien, then the trust was to cease. The trust is an important feature of the scheme. Through the trust the testator’s scheme was to be worked out. The scheme begins with the trust, and when the scheme is executed the trust -is to cease. The trust has no other object than to aid the consummation of this unlawful purpose. This is blazoned on every line of the third clause of the will. The clause which creates the trust defines its object, and fixes its duration. None of the purposes of this trust can be accomplished. The scheme is unlawful, and the trust unlawful. It is no answer to say that the statute of uses and trusts permits the lodging of the legal estate in a trustee, to take the rents and profits, and pay them over to another. In such a case the object of the trust is lawful when its duration is fixed by the life of the beneficiary. The purpose is single. But that is not the purpose of the testator in this case, nor the purpose of this attempted trust. The testator declares that he has no other object in creating the trust, or keeping the possession of the estate out of his daughter, except to coerce her into a breach of duty. As soon as she shall “ lawfully cease ” to be the wife of ¿Tames O’Brien, possession and fee are to be hers, and the trust to cease. Upon the first cohabitation with her husband after testator’s death, the trust is to cease. As soon as it is discovered that the trust has failed to coerce the wife into doing what the law disapproves, the will provides that the trust shall cease. The rule declared by Justice Allen in Knox v. Jones, 47 N. Y. 398, in this language, “ A void trust, which is •separable from other valid trusts, may be cut off when the trust thus defeated is independent of the other dispositions of the will, and subordinate to them, and not an essential part of the general scheme,” is not violated, I think, in holding that this trust created by the third clause of this will is wholly void. There are no parts here. The trust is an entirety. There is no valid object apparent. There was none in the mind of the testator. It was a single scheme, and every part of it was 'unlawful in its aim and object. And there can be no valid trust without a lawful object. To attempt a separation, and say the trust shall have effect during the life of the daughter,—possession of this estate shall be held by, these trustees during her life,—is simply to defeat,the plain intention of the testator. They were to hold it only until the first act of cohabitation of the daughter with her husband after the decease of the testator. Whether that act has yet occurred, or not, is immaterial. It is to be presumed the wife has faithfully performed her duties toward her husband; and if she has failed, being induced by this offer of reward by the testator, she is no more entitled to the reward than if she had not failed. Cooper v. Remsen, 5 Johns. Ch. 461. In either case, the trust, following the intent of the testator, ceased there,—must have ceased the moment the law would presume cohabitation after testator’s death. The trust was not necessary to the life estate in the daughter. She is entitled to the rents and profits, but obtains these as well without the trust as with. The trust medium is not essential to her rights in this respect. If the bequest of the rents and profits and income of the entire estate to the daughter—the trust being void—requires the possession and management of the estate as an incident to the full •enjoyment, I see no reason why that may not properly follow.
    The necessary conclusion from the foregoing is that ail the testator legally effected by his will was : First. • The power in trust to separate property held in common with his sister, as set forth in this first clause. Second. The, trust for the. benefit of the widow is set forth in the second clause, which is, however, immaterial now, as the widow died before this trust could have practical effect, and within a few days of the testator. The widow’s portion, therefore, fell into the body of the estate, to be controlled as the other portion, so far as it lawfully might, by the provisions of the third clause. Third. The creation of an estate for life in the daughter, in the whole, with the necessary incident to the right of enjoyment of the rents and profits, viz : possession and management. The failure of the testator to make by a residuary clause, or by devise or gift over on the death of his daughter, a disposition of the remainder, leaves that remainder to descend to the heir as in case of intestacy. Considering the apparent natural affection of the testator for his only child, and the manifest great anxiety in him that she, and she alone, should have, possess, and enjoy, in full fruition, all of his estate, a careful analysis of this singular will creates and leaves upon the mind the impression that the conclusion arrived at, and stated above, is just the conclusion intended. He doubtless hoped, by .a blustering parade of rewards and punishments, to induce the child to desert her husband , bu* he carefully provides, by condition subsequent, a void trust, and a failure to devise or make gift over of the remainder, that, in any event, his great desire that his daughter should possess and enjoy forever his whole estate shall not be defeated. And this impression gains force whon it is known that the testator was aided in this connection by astute and experienced counsel, doubtless well informed as to the condition of the will being unlawful and void, and the effect thereof, and that, in the absence of a devise or gift over of the remainder, the daughter, as only heir, would inherit, and so the life estate, freed from the trust would merge with the fee, and the estate would be so saved, in any event, to the daughter, clear and untrammeled.

      Smith & Wellington (G. B. Wellington, of counsel), for pl’ff ,° ■James Gibson, for def’ts.
   Per Curiam.

After a careful examination of the briefs presented by counsel, and the authorities therein cited, we have reached the conclusion that the action was correctly disposed of by the court below. The elaborate and able review of the facts and law of the case by the learned trial judge renders it unnecessary for us to write an opinion.

The motion should be denied, without costs to either party.

All concur.


author: Mayham, P. J.

text:
    Frank H. Pettee, Resp’t, v. Mary H. Pettee, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Divorce—Adultery—Connivance.
    The law does not prevent the husband from scrutinizing the conduct of his wife, or detecting her in her voluntary violation of the sanctity of the marriage relation.

      '2. Appeal—Curing error,
    The striking out of improper testimony of a party on his own motion, without objection from the adverse party, cures any error in its admission.
    S. Trial—Adjournment.
    The granting of an adjournment while the trial is in progress is a matter of discretion with the trial court, which will not be disturbed unless abused.
    Appeal from a judgment entered on an order confirming the report of a referee granting an absolute divorce.

      McLaughlin & liowe(JJ. B. McLaughlin, of counsel), for app’lt; ■ S. H. Bevins (Francis A. Smith, of counsel), for resp’t.
   Mayham, P. J.

The fact that the defendant was guilty of the adultery charged in the complaint is not, apparently, controverted by the appellant, and cannot, we think, under the evidence, be successfully denied. The real question, therefore, to be considered on this appeal, is whether the learned referee and judge at special term erred in refusing to find and decide that such adultery was committed without the knowledge, privity or consent, connivance or procurement of the plaintiff. By § 1758 of the Code of Civil Procedure, it is provided as follows:. “In either of the following cases the plaintiff is not entitled to a divorce,, although the adultery is established. First. Where the offense was committed by the procurement or with the connivance of the plaintiff.”

This branch of the case was exhaustively examined by the learned referee in a well-considered and elaborate opinion, reaching the conclusion that the plaintiff did not conspire with the corespondent, Owens, or any other person or persons, to cause or promote the adulterous intercourse complained of, and that the adultery was not committed by the procurement or with the connivance of the plaintiff.

It is insisted by the learned counsel for the defendant that the facts, as found by the referee, do not justify the conclusion reached by him. A careful analysis of the findings of fact by the referee fails to disclose anything in the employment of the co-respondent, Owens, by the plaintiff, or in plaintiff’s continuing to board him after he concluded his service. Nor can any legitimate inference, ad verse .to the plaintiff, be drawn from the sale and conveyance of his hotel property, or the storing of a portion of his furniture with his mother, Mrs. Bissell, where Owens was subsequently employed and boarded and lodged. The referee finds that up to the 18th of July, 1891, the defendant had not committed adultery with Owens, but that, on the 13th of July of that year, plaintiff was informed by Mrs. Bissell of her suspicions of improper intimacy between the defendant and Owens, and that defendant would dpsire to come to Bissell’s. the next Saturday, and if she came, and the plaintiff would follow her, he could verify the suspicions expressed by Mrs. Bissell. The report finds that the defendant did request, permission of the plaintiff to visit Bissell’s on the Saturday night referred to, and that such permission was granted, and the plaintiff then arranged with friends to assist him in watching the movements of the defendant, and thus detect her infidelity with Owens, if any occurred. It is to be observed that the evidence does not disclose, nor does the referee find, that the plaintiff took any affirmative' steps to bring about a meeting between the defendant and Owens'at the time -of the occurrence of the alleged adulterous intercourse. It is true that his suspicions had been aroused, and he sought to detect her infidelity, if it ex.isted, and took no steps to prevent the defendant carrying out her manifest purpose of meeting the man whom he suspected as being, and who proved to be her paramour. But he left her to her own volition. This, we think, he had a right to do. Any other rule would compel a husband to impose upon his wife undue restraint, and might often lead to the utterance of unfounded suspicions, well calculated to disturb the harmony of domestic relations. While the láw very justly condemns any act on the part of the husband by which he voluntarily leads his wife into temptation, or in any way connives at or procures her defilement, it does not prevent him from scrutinizing her conduct, or detecting her in her voluntary violation of the sanctity of the marriage relation.

But it is insisted by the defendant that the learned referee erred, in allowing the plaintiff in this case to be sworn, and give evidence in his own behalf, under the objection that such evidence is inadmissible under § 831 of the Code. If this testimony had not been'voluntarily stricken out, on motion of the plaintiff, without objection, we think it would'have been error, for which this judgment should be reversed. But as all of the plaintiff’s direct examination was stricken out by the court, on motion of the plaintiff, without objection from the defendant, we think that the same is out of this case, and can therefore do the defendant no harm. The defendant, therefore, having made the plaintiff her own witness, and proved by him, with great particularity, all the facts relating to his conduct, and that of the defendant, claimed by the defendant to bear upon the charge of conspiracy and connivance of the plaintiff, she cannot object to the explanations to that evidence given by the plaintiff on a redirect examination of the plaintiff.

Mb'r do we think the referee erred in refusing to grant an ad- • journment, as asked for by the defendant, to procure the attendance of the witness Sibley. The granting of an adjornment while a trial is in progress is largely a matter of discretion, and nothing short of an abuse of that discretion would justify the court, on appeal, in reversing for such refusal.

We see no error committed by the referee in his findings of fact, conclusions of law, or rulings upon the trial, for which this judgment should be reversed.

Judgment affirmed, with costs.

All concur.


text:
    Patrick Redmond, Resp’t, v. Industrial Benefit Association, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Evidence—Insurance—Certificate of death.
    The certificate of death, put in evidence by plaintiff in an action on a life insurance policy, does not admit any matter stated therein except the cause of death.
    2. Witness—Physician—§ 834.
    In an action on a life insurance policy, a physician cannot testify as to what he treated the insured for before the policy was issued, where lie states that his information was necessary to enable him to treat the insured.
    3. Same—Waives.
    The plaintiff, by introducing the certificate of the cause of the insured’s death, does not waive the protection which she might claim under the provisions of § 834 of the Code.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside a verdict, made on the minutes.

      Walter S. Mac Gregor (William F. Beutler, of counsel), for app’lt; Jas. C. Matthews (Franklin M Danaher, of counsel), for resp’t.
   Mayham, P. J.

The defendant, being a mutual co-operative association, organized under and in pursuance of the provisions of chapter 175 of the Laws of 1883, issued its certificate or policy of membership to Catherine Eedmond, dated the 17th day of October, 1891, in class B of the association, and providing for the payment to the beneficiary of the amount therein named on proof of the death of the ¿ssured. On the 6th day of April, 1892, the assured died, and proof of the death was duly made, and presented to the association, which refused to pay the amount of insurance on the ground that-thé representations of age and health contained in the application were untrue, and that the policy was for that reason void; and in this action, prosecuted by the plaintiff, as the sole beneficiary named in the policy, the defendant interposed such alleged false representation by way of defense.

It is quite true, as contended by' the learned counsel for defendant, that the application, and policy issued by the company under it, constitute the contract of insurance, and that the insured, in entering into that contract, is subjected to the terms, rules, and provisions of the by-laws of the company. Hutchinson v. Supreme Tent, etc., 68 Hun, 355; 52 St. Rep. 199; Smith v. Bown, 58 St. Rep. 605; 27 N. Y. Supp. 11. Section 1 of article 7 of the bylaws makes the application upon which the certificate is based a part of the contract between the association and the assured, and provides that any fraudulent or untrue answers or statements made therein concerning the'age, health, or condition of the person therein insured, or of any material fact, shall render the certificate issued thereon void. Such representations in the applica-' tfon are deemed a warranty, and their falsity, in an essential particular, a breach of the same, which renders the policy void. Dwight v. Germania Life Ins. Co., 103 N. Y. 341; 3 St. Rep. 115. If, therefore by the undisputed evidence, the warranty in the application was false or broken, then the policy would be vitiated or void; and the beneficiary, in such case, could not recover. The only evidence in the case, so far as we can see, tending to show a breach of the warranty in the application, is that found in the proof of the death of the insured, offered in evidence by the defendant,- That proof consisted of a verified certificate of Dr. Boyd, filed by the plaintiff witli the defendant, containing, among other things, the opinion of the doctor as to the cause of her death, and the disease of which she died, and containing also a statement that in January, 1891, he prescribed for the insured for a disease described in the certificate as “renal calculi.” This certificate having been furnished by the plaintiff to the defendant, as one of the facts tending to establish his right to the insurance fund, it was urged by the defendant as an admission that the insured Mid been, within five years prior'to the time of making her application, ill of some of the diseases referred to in her application was in that particular untrue, and her warranty broken. But it will be seen, by a comparison of the application with his certificate (if competent evidence upon the subject of the diseases of the insured), the former is not contradicted by the latter. The evidence does not, in terms, establish that renal calculi was a disease of the urinary organs, existing at the time of the making of the'application by the insured, and it was not error for the judge to so charge. Nor does the fact asserted in the certificate contradict any of the statements or warranty in the application.- The questions propounded and answered in the application upon which a warranty can be predicated are as follows: (7) Has the insured ever had a stroke of paralysis, apoplexy, or had cancer, or anything resembling the same ? No. If yes, state fully. (8) Has the insured, during the past five years, had any of the following diseases ? (Yes or No.) If yes, state fully. Asthma? No. Liver complaint? No. Palpitation or disease of the heart? No. Bronchitis? No. Dropsy? No. Rheumatism? Yes. Disease of the urinary organs? No. Or any disease, ailment, or infirmity not mentioned herein ? (9) Has the insured any ailment, or infirmity at the present time? No. (10) Present state of health of insured it good. (11) Have any material facts relating to the bodily health or condition of the insured been omitted or suppressed? No.

None of these appear to be expressly proved untrue by the evidence offered on the trial, even if we regard the certificate of Dr. Boyd competent evidence, as an admission by the plaintiff. But we think that that certificate, so far as it tended to prove any fact acquired by the doctor in his relation as a physician for the insured before the issuance of the policy, was not proper evidence against the plaintiff on the trial, if objected to, under § 834 of the Code of Civil Procedure. The cause of the death was a pertinent inquiry, and, so far as the certificate proved that, it was competent evidence, as an admission by the plaintiff. Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N. Y. 450; 38 St. Rep. 247. But beyond that we do not think it bound the plaintiff, as an admission. Nor do we think his evidence that he prescribed for her in January, February, and March, 1891, any evidence'of a breach of the warranty contained in the application. There was no assertion in the warranty that she had not had the services of a physician within four years previous to the date of the application. This is not inconsistent with the determination of this court in Boland v. Ind. Ben. Association, 56 St. Rep. 382 ; 26 N. Y. Supp. 433. In that case, Putnam, J., expressly disclaimed the conclusiveness of the certificate of death made by Dr. Graveline, but put his decision upon the ground that the whole evidence upon the trial showed that the certificate was true. It was therefore an open and disputed question of fact, in this case, whether or not the warranty made by the insured in her application was true, which was properly left by the trial ■ judge to the determination of the jury, and his refusal to nonsuit the plaintiff was not error. Nor was it error to exclude the testimony of Dr. Boyd, offered by the defendant, as to what he was treating the assured for in 1891. He testifies that his information upon that subject was such as was necessary to enable.him to treat the insured professionally. That brought him clearly within the prohibition of § 834 of the Code of Civil Procedure, and rendered his testimony upon that subject inadmissible, and it was properly excluded by the court; the inquiry relating to a period subsequent to the issuing of the policy, and did not, therefore, prove the physical condition of the insured at the titne of making and signing the application. That she was sick subsequent to that time raised no valid presumption against the truth, of her representation in the application. Tucker v. United L. & A. Ins. Associate, 133 N. Y. 548 ; 44 St. Rep. 100; Cushman v. U. S. L. Ins. Co., 70 N. Y. 72. Nor was the evidence auxiliary to, or explanatory of, the certificate of the cause of the insured’s death; and it was not, therefore, made necessary or proper by that certificate. By the introduction of that certificate the plaintiff did not waive the protection which she might claim under the provisions of § 834 of the Code. Nor did that certificate absolve the doctor from all the duties and obligations impjosed upon him by that section.

We think this action well brought, at law, to recbver the amount, which, under this policy, was capable of being ascertained, liquidated, and reduced to a definite sum of money, the amount of which was capable of proof from the books of the defendant, based upon the receipts in the class in which this policy was issued; and the proof seems, in this case, to show .that that amount had been definitely ascertained, and was disclosed to the jury by competent proof. And the money so set apart to meet this class of liabilities could be reached in this action, if not by execution, by proceedings supplemental to, or in aid of, execution. If the plaintiff is entitled, upon the merits, to judgment, we see no objection to a recovery in this form of action. The judgment must be affirmed, with costs.

Putnam, J., concurs; Herrick, J., dissents.


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    Luther Shute, Resp’t, v. Frederick W. Jones, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Appeal — Findings.
    The finding of a referee will not be disturbed, unless against the manifest preponderance of evidence.
    2. Same — Opinion of befebee.
    An appeal cannot be taken from the opinion of a referee.'
    Appeal from a judgment in favor of plaintiff.

      Rem'y Van Iloesen (J. Rider Cady, of counsel), for app’lt; Andrews & Longley (L. F. Longley, of counsel), for resp’t.
   Mayham, P. J.

This action was upon a note alleged to have been given to the plaintiff for $2,000, and also upon an account claimed to be due the plaintiff from the defendant. The answer admits the execution and delivery to the plaintiff of the note in question, but denies that there was any consideration therefor moving from the. plaintiff to the defendant, or from any one in his behalf, or that the defendant ever received any consideration, or that any was received by any othfer person for him, for such note. The answer also set up a counterclaim, to which the plaintiff interposed^ a reply. On the trial before the referee, defendant asked, and was permitted by the referee, to amend his answer so as to deny any knowledge, or information sufficient to form a belief, as to whether he ever ■executed and delivered the note mentioned in the complaint to the plaintiff. The note in suit is not set out in the complaint, nor does it appear in the case, but is described in the complaint as a “promissory note, in writing, dated on the 5th day of February, 1890, at Hudson, 1ST. Y., and thereby, for value received, promised to pay to the order of the plaintiff two thousand dollars, four months after date, with interest.” The principal defenses set up in the answer, and sought to be established by the proof on the trial, are that there was no consideration for this note, and that the same had no legal or valid inception in the hands of the plaintiff, and was delivered to him, not for the purpose of vesting the title thereto in him, but only as the agent of the" defendant •for the purpose of having the plaintiff solicit the indorsement of a ithird person, for the purpose of enabling the defendant to •negotiate the same, and have the same discounted for the benefit of the defendant.

This note, being an ordinary negotiable promissory note, payable to the order of the plaintiff, and presented by him in court, where its execution was properly proved, was, on its face, prima facie evidence of the indebtness of the defendant to the plaintiff for the amount of the same, with lawful interest. To overcome that legal presumption the burden, in the first instance, was'’cast upon the defendant. It is quite true, as insisted by the learned counsel for the appellant, that this prima facie case may be'overcome by a preponderance of proof on the part of the defendant; and in actions on notes, as in all other cases, the plaintiff holds the affirmative of the proposition which he asserts, and must ■establish it by a preponderance of proof before he can recover. These rules are elementary, and require no citation of authorities. In this case, the plaintiff, by the proof and production of this note, made his prima facie case. The defendant, by evidence criticising the plaintiff’s accounts, evidence of his financial .ability, and in various other ways, sought to overcome the plaintiff’s prima facie case, to which the plaintiff responded with evidence tending to uphold the consideration and validity -of this note. Upon these opposite sides of this contest, there was a large amount of conflicting evidence offered by the respective parties in support of their respective theories. This evidence was listened to by an experienced and learned referee, who saw the witnesses, and had a much better opportunity of judging of their character, and the probable truth or falsity of their narrations, than this court, on appeal, can possibly have. He occupied the place of the jury, and was, by his position, constituted, peculiarly, the judge of the facts; and while it is true that this court, on an appeal, may review and reverse on questions of fact, it is only authorized to do so upon disputed facts, where there is a clear and manifest preponderance of evidence against the finding of a referee, or the verdict of a jury. This rule is of very universal application,, and the reason for it is well stated by Ruger, J., in Baird v. Mayor, etc., 96 N. Y. 567, as follows: “When there is evidence on both sides, and the case is balanced, and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the special adaption of the trial court to investigate and determine such questions. Any other rule would nullify th"e peculiar advantages which that tribunal possesses in observing the manner and appearances of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to- be attached to oral testimony. These rules have-been the subject of frequent comment in the courts, and are fully sustained by authority.”

This rule was approved, and the language of the opinion quoted, in Lowery v. Erskine, 113 N. Y. 55 ; 21 St. Rep. 917, and the doctrine there laid down may be regarded as of universal application in this state. Applying it to the case, we do not feel authorized to reverse the finding and determination of the referee-on the disputed question of fact, as to this note, or the consideration upon which it’was given. In the case last cited the court say : “The rule governing appellate tribunals in reviewing questions of fact is stated as follows: To justify a reversal, it must appear that such findings were against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusions.”

We have carefully read the evidence in this case, and the very elaborate brief and comments of the learned counsel for the defendant, but fail to find reason, within the above rules, for a. reversal of the findings and conclusions of the referee upon the questions of fact on this appeal. But it is insisted by the learned counsel for the appellant that the referee erred, on the trial of this action, upon questions of law ; for which this judgment should be reversed. The exceptions-taken by the defendant to the report of the referee are all directed to his conclusions of law; and we find in the case no requests on the part of the defendant, of the referee, to find either upon questions of fact or law. If we are right in holding that we cannot disturb the findings of fact of the referee upon the conflicting evidence in this case, then the conclusions of law found by him are, we think, fully supported by the facts found in his report, and the .exceptions of the defendant to his conclusions of law are not well taken.

But it is insisted that the referee erred in allowing probative force to an affidavit of the defendant used on a motion to amend >the answer. It nowhere appears in the report of the referee that he considered that affidavit as evidence, and it does not appear from the case that' it was offered in evidence by the plaintiff or defendant upon the merits; and it cannot, therefore, be held as evidence in the case. As it was not, therefore, an element in-the trial, was neither used by the plaintiff, nor objected to by the defendant, we fail to see how the defendant can predicate error apon it. It is true that, in the opinion of the learned referee, he refers to that affidavit in connection with the cross-examination of the defendant upon the trial. That opinion is properly printed in the appeal book, but it does not constitute a part of the report of the referee from which an appeal can be taken. In Magie v. Baker, 14 N. Y. 435, the court say: “The appeal book contains, it is true, an elaborate opinion by the judge, and a general exception thereto. But that opinion is not in the case, and has no right to be there. It is not one of the papers upon which an appeal can be taken. * * * In the appeal book, it is very proper that the opinion, if any had been written, should be printed, in order to give the appellate court the benefit of the reasons assigned for the judgment. But if performs no other office.”

In Laning v. N. Y. C. Railroad Co., 49 N. Y. 521-539, Folger, J., in discussing the right of the appellate court to review a judgment upon expressions of a judge in an opinion, uses this language : But we are not authorized to review a judgment, and tore verse it for an alleged error, which does not appear upon the record, and is not shown, or to be arrived at, save by the expressions appearing in the opinion of the court.”

In Snebley v. Conner, 78 N. Y. 218, the court say: “ We cannot look at the opinion of the general term for the reasons, as grounds of the decision there pronounced.”

Without stopping to discuss whether or not the reasons and arguments used by the learned referee in his opinion are, or are not, soúnd, we are, within the decisions referred to, precluded from making them the basis of our action in determining whether or not this judgment should be affirmed. If an examination of the opinion should disclose erroneous expressions or conclusions, they would furnish no ground for a reversal of this judgment.

We have carefully examined the exceptions taken by the counsel for the defendant to the receipt and exclusion of evidence on the trial under his objections, and find no error committed by the referee in such receipt or exclusion of evidence. On the whole case, we think the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


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    Sarah A. Tyler, Resp’t, v. Timothy P. Hildreth et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Appeal—Conflicting affidavits.
    A decision by a special term on a disputed question of fact, presented by conflicting affidavits, will not be disturbed.
    2. Same—First instance.
    The objection that a disputed question of fact should not have been decided on affidavits, cannot be raised for the first time on appeal.
    3. Principal and surety—Assignment.
    A surety, upon his offer to pay a judgment against him and his principal, may, on motion, compel its assignment to him.

      Appeal from an order granting an application for an assignment of a judgment against principal and surety to surety.

      Chas. F. Doyle, for app’lts; Morrison & De Groot (B. F. DeGroot, of counsel), for resp’t.
   Putnam, J.

YL'his is an appeal by the defendant Timothy P. Hildreth and by Robert H. Mott from an order directing the latter, as assignee of the judgment obtained in the above action, to assign it to the defendant Alfred Gr. Peck, or his appointee. The notice of motion was directed to Robert H. Mott. On its return, the defendant Timothy P. Hildreth appeared, and made himself a party to the proceeding.

It is well settled in this state that “ a surety, on the payment of a judgment on which he is liable together with the principal, is entitled to be subrogated.” And he can compel an assignment of the judgment to himself, or to some one named by him. Townsend v. Whitney, 75 N. Y. 425; Twombly v. Cassidy, 82 id. 155. Clearly, respondent in this case was entitled to the order obtained at special term, if the facts were as set out in his moving papers. But the appellant read several affidavits on the hearing of the motion, to the effect that, although respondent on the note in question appeared to be the last indorser, yet it was agreed when the note was made between him and appellant that they should be equally liable thereon,—each liable to pay $500, if the principals of the note failed to pay it. Those affidavits were squarely denied by those read on the part' 'of respondent. Hence a question of fact was presented to the court below on conflicting affidavits, and we cannot properly overrule the decision made thereon by the court. It has been frequently and properly held that the decision on a motion by a special term, on conflicting affidavits, will not be disturbed by the appellate court on a disputed fact involved therein. Henderson v. Jackson, 2 Sweeny, 603 ; Lane v. Town of Hancock, 29 St. Rep. 635; 9 N. Y. Supp. 97.

It is claimed by appellant that the affidavits read on the motion being conflicting, and raising a sharply contested question of fact, the motion should have been denied, and the respondant compelled to seek relief by action. It does not appear that this position was taken at special term.. As far as the papers show, the app'ellant voluntarily submitted the question raised by the affidavits to the decision of that court. It was discretionary with the court below whether to entertain the motion, or to decline to hear it, and compel respondent to resort to an action. ' See Cole v. Malcolm, 66 N. Y. 363. The court below having, in its discretion, entertained and heard the motion on its merits, under the circumstances, we cannot properly hold that it erred in so doing. It has long been a common, and not deemed an improper, procedure for sureties to apply to the court by motion to compel the assignment of securities which they have been compelled to pay. Cole v. Malcolm, supra; Twombly v. Cassidy, supra; Gifford v. Rising, 35 St. Rep. 695; 12 N. Y. Supp. 430; Dundee Nat. Bank v. Wood, 30 St. Rep. 607; 9 N. Y. Supp. 351. Had the papers shown that, in the court below, the appellant, instead of voluntarily submitting his case on its merits, objected to the proceedings, on the ground that the affidavits raised a question of fact which could be determined in an action, we perhaps might have reached á different conclusion.

It is suggested that the respondent was not entitled to the order he obtained until he "had actually paid the judgment. We are of opinion, however, that the papers showing the offer by, and the readiness of defendant Peck to pay the judgment on obtaining an assignment thereof, -it was within the discretion of the court below to make the order from which the appeal is taken. The matter of granting costs was also discretionary. It appears by the recitals in the order that appellants Mott and Hildreth appeared by their counsel, and opposed the application of respondent. Hence it was discretionary with the court whether or not to direct the payment of costs by them.

The order must be affirmed, with costs.

All concur.