text:
    The People ex rel. Adolphe A. Caille, App’lt, v. Henry C. Merrick, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Office—Vacancy.
    The employment of a person by contract to perform the duties of an office which he is disqualified from holding does not prevent the office from becoming vacant.
    2. Same—Binghamton—Appointment.
    The office of city engineer becoming vacant and relator being ineligible to hold it, the mayor was authorized by the common council to contract with him to perform the duties of that office under an agreement that he should be appointed when he became qualified as a resident elector. In August following, becoming dissatisfied with his performance of the work of the office, the common council appointed respondent to the office, and subsequently the mayor appointed the relator. Held, that under the provisions of the charter of Binghamton, the common council had no authority to make the appointment, as more than three weeks had elapsed after the office became vacant; that the mayor alone had the power to appoint and that the appointment of relator was therefore valid.

      Appeal from a judgment, entered in Broome county November 29, 1890, dismissing the plaintiff’s .complaint, with costs, on the decision of the court nonsuiting the plaintiff at circuit, and from an order denying a motion for a new trial, .made on the minutes of the trial judge.

      A. D. Wales, for app’lt; E. O'Connor, for resp’t.
   Martin, J.

The sole purpose and object of this action was to determine the title to the office of city engineer of the city of Binghamton, N. Y. The right to that office was claimed both by the relator and the respondent; the former claimed title to the office by virtue of an appointment made by the mayor of the city; the latter under an appointment made by its common council.

The common council, at its annual meeting, held on the first Tuesday after the annual city election in the year 1889, duly appointed the respondent as city engineer for the term of two years. In the latter part of March, 1890, the respondént resigned the office, his resignation to take effect on the fifteenth day of the following April. His resignation was duly and properly accepted by a majprity vote of the common council and filed with the city clerk. From that time he ceased to perform the duties of the office until the 29th of August of that year. Soon after the resignation of the respondent, and its acceptance, all the members of the common council belonging to the then dominant party and the mayor, who was a member of the same party, held a caucus, at which the relator was present. The caucus determined that the relator should be appointed by the council -city engineer to fill, for the unexpired term, the vacancy caused by the resignation of the respondent. It was, however, subsequently discovered that the relator was ineligible to the office for the reason that he was not a resident elector of the city, it being provided by the charter that no person should be elected or appointed to any city office unless he should be, at the time, a resident elector of said city. Laws 1888, chap. 214, tit. 2, § 2. The caucus then determined that the relator should be employed to perform the duties of city engineer until such time as he should become qualified to hold the office by becoming a resident elector, when it was understood that he was to be appointed. In pursuance of this determination, the common council, at a meeting held March 31, 1890, passed the following resolution:

Resolved, That the mayor and city clerk be, and they are hereby authorized and directed to enter into a contract with A. A. Caille for his services as surveyor and engineer at a salary of one hundred and twenty-five dollars per month, to date from April 1st, 1890.”

_ tinder this resolution the relator was employed and continued to do the work usually performed by the city engineer until about-August 29,1890, when the common council attempted to appoint the respondent to fill the vacancy occasioned by his previous resignation.

During the time the relator discharged the duties of such office he was treated by the mayor and common council as though duly and properly appointed thereto. Shortly after his employment numerous complaints were made as to errors committed by him in establishing grades and curb lines of streets, which tended to show either that he did not possess sufficient capacity to properly discharge the duties of the office, or that he was negligent in the performance of such duties. The evidence disclosed that his errors were so numerous and glaring that the board of street. commissioners called the attention of the common council to the inefficiency of the relator and his work, and it also tended to show that he had had little, if any, experience in performing the kind of work required of a city engineer.

After the complaint of the board of street commissioners had been received, and the common council had become fully aware of the many complaints as to the errors and inefficiency of the relator, and on the 29th day of August, 1890, it held a meeting at which it sought to appoint the respondent as city engineer. At that meeting, when it had reached the order of business designated as “ Miscellaneous Business,” one of the aldermen moved that the council proceed to ballot for a city engineer to fill the unexpired term caused by the resignation of the respondent. Thereupon the president of the board of aldermen took a paper from his pocket and threw it onto the desk of the city clerk, which paper was as follows:

“Binghamton, N. Y., Aug. 13, 1890.

To ihe Honorable, the Common Council.

Gentlemen: By the power given me by the charter, I hereby appoint A. A. Caille, city engineer.

F. H. Stephens, Mayor."

The president of the board then refused to put to vote the motion to proceed to ballot for a city engineer, and an appeal was taken from such ruling, which the president also refused to entertain, whereupon the clerk was ordered to put the motion on the appeal, and it was sustained by a vote of eleven to one. The president was then requested to put the question on the original motion, which he did not do, and the clerk being ordered to do so called the roll and the motion was carried, ten voting in favor of the motion and three against it. The clerk was then requested to appoint tellers, and the council proceeded to ballot for a city engineer, the respondent receiving nine of the twelve votes of the aldermen The resolution was then

“ Resolved, That the services of A. A. Caille be dispensed with at the close of the present month.”

Subsequently, and on the 22d of September, 1890, the mayor made, executed and filed with the city clerk the following appointment:

“State of New York, 1

County of Broome, City of Binghamton, j

“ A vacancy having existed in the office of city engineer, and the common council having failed to fill said vacancy within three weeks after the same occurred, by virtue of the power vested me as mayor of said city I hereby appoint Adolphe A. Caille of Binghamton, M. Y, city engineer to fill said vacancy.

“ Witness my hand and seal this 22d day of September, [L. s.] 1890.

“Frank H. Stephens,

Mayor of the City of Binghamton."

It was endorsed as follows: “Appointment of Adolphe A. Caille, as city engineer, filed September 22, 1890.

“ W. J. Flannigan, City Clerk."

After this appointment was made and filed, the relator subscribed and filed his oath of office, as required by statute, and duly qualified as such officer. He then demanded of the respondent the possession of said office, which was refused.

On the trial the court dismissed the complaint on the ground that by reason of the employment of the relator no vacancy existed in the office until the time of the appointment of the respondent, and, therefore, the common council had the authority to make such appointment, as the vacancy had not then existed for the period of more than three weeks.

It is. true the evidence showed quite conclusively that there was an understanding between the mayor and a majority of the common council that no city engineer was to be appointed either by the council or the mayor until the relator should have resided in the city for the period of four months and thus become qualified to hold the office, and that he was to be employed in the meantime to discharge the duties of such office, and was to receive an amount equal to the salary as a compensation for his services. It is also true that he was in many respects treated both by the mayor and council as though, he were, in fact, such officer.

If, therefore, the common council, or the council and mayor together, had the power to make such contract and it resulted in preventing the occurrence of a vacancy in that office while the ■employment under it continued, it would seem to follow that the vacancy first arose when the contract was terminated. But we are unable to discover any principle upon which it can be held that the employment of a person by contract to perform the duties of an office which he was disqualified from holding, in any manner prevented the office from becoming vacant. The very fact that such disqualification existed rendered it impossible to prevent the occurrence of a vacancy. A public office is never conferred by contract, but finds its source and limitation in some act or expression of the governmental power. When, therefore, the authority in question was conferred by contract, it must be regarded as an employment only and not as the occupancy of a public office. Mechem on Public Officers,- § 5. While municipal corporations may make authorized contracts, they cannot make contracts or pass by-laws which shall cede away, control or embarrass their legislative or governmental powers, or which disable them from performing their public duties. 1 Dillon’s Municipal ■Corporations (4th ed.), § 97. We think the employment of the relator did not prevent the office from becoming vacant after the time when the respondent's resignation took effect, and that the vacancy occurred on April 15, 1890.

Moreover, it was clearly and positively alleged in the complaint, and not denied by the answer, that a vacancy had existed in such office for more than three weeks before August 29, 1890. The respondent also alleged in his answer that he ceased to be such engineer on April 15, 1890 ; that the office remained vacant and unfilled until August 29, 1890, and that it had remained vacant-from the time of respondent’s resignation until his election to said office on August 29, 1890. The same fact was also admitted on the trial. Under these circumstances it is not apparent to us how it can be held that the office in question had not remained vacant for more than three weeks prior to the 29th of August, 1890.

Again, if the relator’s employment was in effect a filling of such office so that no vacancy existed until such employment was terminated, the council had no authority to appoint the respondent, as they could only appoint when a vacancy existed. Thus we are led to the conclusion that the judgment in this case cannot be upheld on the ground that a vacancy in such office had not existed for more than three weeks before the action of the common council by which they sought to appoint the respondent.

It may be observed in passing that the attempted appointment of the relator made by the mayor, dated August 13, 1890, and which was presented to the city clerk on the 29th of that month, was insufficient, as it was not in conformity with the statute, which required that such appointment should be made in writing under the hand and seal of the mayor and be filed with the city clerk. (Laws 1888, chap. 214, title 3, § 2.) That appointment, was neither under his seal nor filed with the city clerk.*

The next and practically the only remaining question that need be considered is, whether the common council had, at the time it. attempted to exercise it, power to appoint a city engineer. If it had not, then its attempted appointment of the respondent was void, irrespective of any question as to the regularity of its proceedings. This question is dependent for its solution upon the construction to be given to the provisions of the charter of the city of Binghamton relating to that subject. The portion of the charter which relates to the office of city engineer provides that the common council shall meet annually on the first Tuesday after the annual city election; that at such annual meeting they shall choose a president of the board of aldermen; and “ The common council may also, at such first, or any subsequent-meeting, appoint by ballot, one city clerk, one recorder, one treasurer, one city engineer, one corporation counsel, one sealer of weights and measures, one sexton, and one janitor of the city buildings, whenever the term of office of any of said officers are about to expire, and such appointment is required ; but' if the common council fail to appoint any such officers within three weeks from said first meeting, or- fail to fill any vacancy which may occur in any elective or appointed office, which it is authorized to fill by the provisions of this act, within three weeks after such vacancy shall occur, it shall become the duty of the mayor, immediately upon the expiration of said three weeks, to appoint to such offices, and to fill such vacancies, which he shall do in writing under his hand and seal, and file with the city clerk, who shall thereupon notify the person or persons so appointed, the same as if such appointment had been made by the common council.” (§ 2 of title 3 of chap. 214, Laws 1888.) The charter also provides : “ The city engineer shall hold his office for two years. . He shall be paid an annual salary of not less than twelve hundred and not to exceed fifteen hundred dollars, to be paid as the common council may determine. He shall perform such duties with regard to surveying, engineering and other similar work, as the council may prescribe.”

We find no express provision in the charter which provides for filling airy vacancy that may occur in the office of city engineer. If, however, in the absence of such provision it is to be assumed, as we think it should, that the body or officer having the power to make such appointment has the same power when there is a vacancy occasioned by resignation as when it is caused by the expiration of the term of office, and is to be exercised in the same manner, then it follows that the provisions of the charter must still control in determining the power of the common council.

It will be observed that the section relating to the appointment of such officer provides that the common council may, at its first annual meeting, or at any subsequent meeting, appoint a city engineer ; but it then declares that if the council fail to make such appointment within three weeks, it shall become the duty of the mayor, immediately upon the expiration of that time, to make such appointment. The respondent contends that the provision,

' that such appointment may be made at any meeting subsequent to the first annual meeting, is evidence of an intention on the part of the legislature that it may be made by the council at any time while such vacancy exists, although more than three weeks may have elapsed. If that provision stood alone, the construction contended for would doubtless be correct, but in construing a .statute effect must be given, if possible, to all the language employed. (People ex rel. Freligh v. Matsell, 94 N. Y., 179, 183; People v. McGloin, 91 id., 250.) Every part must be viewed in 'connection with the whole, so as to make all its parts harmonize if practicable, and give a sensible and intelligent effect to each. People ex rel. v. Hyde, 89 N. Y., 18, and cases cited in opinion. Therefore, in determining the effect to be given to the provision that the appointment may be made at the first annual meeting of the common council, or at any subsequent meeting, we should consider the further provision that unless the common council shall make such appointment within three weeks it shall become the duty of the mayor to appoint, and construe these provisions together. When we thus read this statute it becomes quite manifest that the term, “or any subsequent meeting,” should be construed as only including a subsequent meeting held by the council within three weeks after a vacancy has occurred and while it had the express power to make such appointment.

That the council had the absolute power to appoint a city engineer at any time within three weeks after a vacancy occurred is obvious. But the power conferred was required by the statute to be exercised in a definite manner and within a limited time. If it was not exercised within that time, it then became the absolute and immediate duty of the mayor to make such appointment. This provision shows quite clearly that the designation of the time within which the council may appoint was intended as a limitation of its power. The power conferred upon the common council was absolute, except as to the time and manner of executing it. In that respect it was limited and conditional, and could be lawfully exercised only within the limits prescribed. If it was not thus exercised, it then vested in the mayor and was to be exercised by him alone. “The provisions of the charter as to time and mode of election, the appointment, qualifications and duration of the terms of officers, must be strictly observed.” 1 Dillon’s Municipal Corporations, 4th ed., § 207. It could be exercised only at the time, in the manner and to the extent prescribed by law. Mechem on Public Officers, § 124. “ The designation of certain times and agencies necessarily excludes the adoption of any others for the accomplishment of the objects provided for.” People ex rel. v. Schiellein, 95 N. Y., 124, 128. When we read the statute according to the natural and most obvious import of the language employed, without resorting to subtle and forced construction for the purpose of limiting or extending its operation, we conclude that it was the intent of the statute that the common council should have the exclusive power to appoint a city engineer at any time during the period of three weeks after a vacancy in that office occurred, but that if, for any reason, the council did not exercise the power granted within that time, then the power to make such appointment passed to and vested in the mayor alone, and rested in him until such appointment was made.

We cannot think that it was the intent of the law makers that the power should rest in the council for three weeks, and after that time that the common council and the mayor should have co-ordinate power to make such appointment It is not, we think, reasonable to suppose that such was the intent. Whenever the language admits of two constructions, it is obvious that the more reasonable of the two should be adopted as that which the legislature intended. Endlich on Interpretation of Statutes, § 258, and cases cited.

The propriety of thus construing this statute becomes more apr parent when we consider the liability of a conflict between the mayoe and council, if such co-ordinate power was held to exist, and thr inconvenience, uncertainty and mischief that might follow. Aftes the expiration of three weeks, if the mayor refused to discharge hi. duty by appointing an engineer, he could be compelled to do so Could the council also be compelled to make such appointment ? If the power of the council continued, as it affected third persons and the public interest, the statute would be regarded as mandatory, and the duty to make such appointment would also continue, and the council could be compelled to appoint. Under such a construction there might be two actions at the same time; one, to compel the mayor to appoint; the other, to enforce an appointment by the council. A construction which might produce such a condition of things should not, we think, prevail. This statute should not be construed so as to work such mischief, unless required by words of the most express and unequivocal import. People v. Mallory, 2 T. & C., 76, 81; People v. Lambier, 5 Den., 9. If the statute is construed as vesting the power of appointment in the council for three weeks, and after that time in the mayor alone until made, it becomes certain and reasonable and the mischief which would arise from the opposite construction would be avoided.

Again, the duty imposed upon the mayor was an immediate one, and the manifest intent of the statute was that it should be discharged at once by filling such vacancy immediately upon the expiration of the three weeks within which the council could appoint, and not that it should remain vacant after that time with co-ordinate power in the mayor and council to appoint.

Hence, we are of the opinion that as the office had been vacant more than three weeks at the time the common council attempted to appoint the respondent,-it had no power or authority to make such appointment, and it was, therefore, void, and that as the mayor alone had the power to make the appointment after a vacancy in the office had existed for three weeks, and he having exercised it in the manner provided by the charter in appointing the relator on September 22, 1890, his appointment was valid and entitled him to the possession of the office.

If correct in these views, it becomes unnecessary to examine the other questions presented by the appellant, as the judgment must be reversed for the reasons already stated.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Frank B. Jenks, Resp’t, v. Thomas Quinn, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Eobeclosube—Sale..
    Where one of several pieces of land covered by a mortgage is primarily liable, a failure to first sell such piece does not render the sale void, in the absence of a demand or request that such piece be first sold.
    2. Deed- -Warranty—Eviction—Estoppel.
    A loan commissioner’s mortgage covered two pieces, one of which was conveyed by deed containing a covenant by the grantee to pay such mortgage and save his grantor harmless therefrom. The other piece was conveyed to defendant and by him to plaintiff’s grantor by deed containing covenants of warranty. The mortgage was afterwards foreclosed and. plaintiff’s premises sold, although the other piece if first sold would have paid the mortgage in full. Plaintiff and his grantor were present, at the sale, but did not request the sale of the other piece; but defendant, though notified and promising to be present and save the property from sale, did not appear. Plaintiff surrendered the premises to the purchaser on demand. Held, that the sale .was valid and passed title to the purchaser; that plaintiff was justified in surrendering to him, and that he was not estopped, under the circumstances, from maintaining an action upon the covenant of warranty by the fact that he did not demand that the other piece be first sold.

      3. Same—Damages.
    Plaintiff recovered judgment for the value of the premises at the time of the eviction. Held, that as this was less than the consideration named in defendant’s deed the latter could not complain.
    Appeal from a judgment entered in Cortland- county on the decision of the court, a jury trial having been waived.

      W. C. Crombie, for resp’t; A. P. Smith, for app’lt.
   Martin, J.

This action was upon a covenant of warranty contained in a deed from the defendant to the plaintiff’s grantor. The plaintiff was evicted by a purchaser under a foreclosure and sale of the premises, upon a mortgage given to the loan commissioners of Cortland county to secure the payment of the sum of $496 and interest. The mortgage was given in June, 1837, by Jonathan and Eansom Scott, who were then the owners of the premises mortgaged, which included the premises in question with other lands then owned by them. The mortgaged premises, with others, were conveyed by Eansom Scott and wife to Charles Pardee March 12, 1867. This deed was made subject to the foregoing mortgage, which the grantee assumed and agreed to pay as a part of the purchase price. The deed was recorded April 15, 1867. Pardee conveyed to John and Daniel Curtin 137 acres of the mortgaged premises on April 1, 1868, subject to such mortgage, which the grantees covenanted to pay. This deed was recorded May 9, 1870.

Subsequently John and Daniel Curtin divided the premises so purchased, Daniel and wife conveying to John fifty-six and one-half acres thereof by deed dated October 2, 1871, which deed contained a covenant that Daniel should save John “ harmless from and pay off and liquidate ” the mortgage in question, and he also assumed by such deed to pay $1,535.35 of another mortgage held by Pardee, which was a lien thereon. This deed was recorded December 11, 1871.

On the day that the last mentioned deed was given, and in consideration thereof, John Curtin and wife conveyed to Daniel seventy-nine acres of the mortgaged premises, John agreeing to pay $1,452.95 of the last mentioned mortgage. This deed was also recorded December 11, 1871. On December 8, 1871, John Curtin and wife conveyed the fifty-six and one-half acres owned by them to defendant, which deed was recorded on December 11, 1871".

Afterwards, and on the 8th day of March, 1873, the defendant and wife conveyed the fifty-six and one-half acres to William S. Jenks, the purchase price, as stated in the deed, being the sum of $2,200, the grantee assuming and agreeing to pay on the Pardee mortgage the sum of $1,384.32. This deed contained the covenant which is the foundation of this action. '

On February 4, 1881, William S. Jenks and wife conveyed the premises in' question to the plaintiff, the consideration for such conveyance being the sum of $1,400, and an agreement by the grantee to give the grantor and his wife a home with him as long as he should keep the place, or during their lives, the plaintiff assuming the amount due on the Pardee mortgage, which was about $1,200, as a part of the purchase price, the remainder to be paid to his grantor.

Several years before the foreclosure of the loan commissioners’ mortgage, William D. Hunt became the owner of that portion of the mortgaged premises which was deeded to Daniel Curtin. From • the time when Daniel and John Curtin divided the premises until October 1, 1886, Daniel and those who acquired title under him paid the interest on the loan commissioners’ mortgage, except that in one year Hunt, who was then the owner of the Daniel Curtin premises, induced the defendant to pay a portion thereof, which ■ he afterwards recovered of Hunt in an action against him brought for that purpose.

On or about November 1,1887, the loan commissioners of Cortland county instituted a proceeding to sell the premises covered by such mortgage, in pursuance of the statute relating to such mortgages, and a sale was had therein on February 7, 1888. Notice of the time and place of such sale was served upon both the plaintiff and defendant. The plaintiff and his grantor were present, but the defendant was not. By reason of a mistake in the ■ search obtained by the loan commissibners, it appeared that the owner of the plaintiff’s premises was to pay such mortgage, when in fact it was the part owned by Hunt that was primarily liable therefor, according to the provisions in the deed from Daniel to John Curtin.

The loan commissioner making the sale intended to sell the piece that was thus liable, but by reason of such mistake he sold the other. The plaintiff’s grantor knew of the provision in the Daniel Curtin deed. The premises owned by Hunt were of sufficient value, so that if they had been first sold a sufficient sum would have been realized to pay said mortgage debt, interest and costs. At the sale neither the plaintiff nor his grantor requested or demanded' that the premises thus primarily liable should be first sold, but stood by and permitted the premises in question to be sold.

The plaintiff’s evidence tended to show that when the defendant conveyed the premises to the plaintiff’s grantor the latter had heard of this loan commissioner’s mortgage, and the defendant then assured him that it was for Daniel Curtin to pay, and would be paid, and stated that he would see that the mortgage was paid and discharged, and subsequently promised to pay the mortgage and have it discharged. The plaintiff’s evidence also tended to show that his grantor served a notice of the sale upon the defendant personally, and requested him to be present and protect the premises from such sale, and he promised to do so.

Upon the sale the premises were purchased by Frank L. Cuddeback for $635.52, which was the amount due upon the mortgage, including interest and costs. After the sale the purchaser went to the premises and asked the plaintiff to vacate them, whereupon he surrendered possession to the purchaser. After such surrender the purchaser leased the premises to the plaintiff's mother, who was the wife of the plaintiff’s grantor.

The plaintiff’s proof was that the premises in question were worth at the time of the sale, and when he was evicted, the sum of $1,906.19. The court found that that was the value, and that the plaintiff was entitled to recover that sum, with interest from February 7, 1888, besides costs, and directed judgment accordingly-

The appellant contests the validity of this judgment upon the grounds:

1. That the sale, not having been made in the inverse order of alienation, was void, and that plaintiff and his grantor having notice that the lands sold were not primarily liable for the mortgage debt, and having been present and permitted them to be sold, when the lands which were primarily liable were of sufficient value to have satisfied the debt and costs, were estopped from claiming damages caused by "their neglect.

2. That if the defendant was liable, the damages awarded were in excess of the amount to which the plaintiff was entitled.

We do not perceive how the question of selling the mortgaged premises in the inverse order of alienation is involved in the case. The question here relates to the validity of the sale of a portion ‘ of the premises which, under the contract between the owners, had become only secondarily liable for the mortgage debt before selling the part that was primarily liable therefor. That the loan commissioner, in making this sale, did not first sell the portion of the premises which, by the conveyance between the former owners, was made primarily liable for the mortgage debt, is undenied. That such should have been the order of sale we have no doubt, notwithstanding the fact that the provisions of the statute requiring property thus mortgaged to be sold in the inverse order of alienation has been repealed. (Laws 1837, chap. 150 ; Laws 1856, chap. 3; Laws 1863, chap. 73, § 27.)

The well recognized principles of equity required the premises primarily liable to pay such debt to be first sold, and we have no doubt that a sale in that order could have been enforced if the plaintiff, his grantor or the defendant had demanded it. (Conaughty v. Nichols, 42 N. Y., 83.) Where the owner of mortgaged premises sells a portion thereof to a purchaser who assumes and agrees to pay as a part of the purchase price the whole or a part of the mortgage debt, the purchaser is legally and equitably bound to pay off and satisfy such mortgage. By such assumption he becomes the principal debtor, and the land conveyed to him the primary fund out of which the mortgage is to be paid, the mortgagor remaining simply a surety, and the remainder of the property being liable only secondarily. The purchaser, therefore, is bound to protect the mortgagor and his grantees from all liability on account of the mortgage debt. And should the mortgagor or his grantee be compelled to pay the mortgage debt or any part thereof, he will be entitled to an assignment of such to enable him to obtain satisfaction out of the land of the party who assumed the payment thereof. (Torrey v. Bank of Orleans, 9 Paige, 649; Wilcox v. Campbell, 106 N. Y., 325; 8 St. Rep., 885 ; Halsey v. Reed, 9 Paige, 446.)

But, as we have already seen, neither the plaintiff npr his grantor, or the defendant requested or demanded of the loan commissioner that the premises owned by the grantee of Daniel Curtin should be first sold. The effect of such omission is one of the questions we are required to consider on this appeal. ISTo question is raised as to the regularity of the proceedings before, upon or after such sale, except that the plaintiff’s premises should not have been first sold. That they were still subject to the mortgage there is no doubt. Did the failure of the commissioner to first sell the piece primarily liable for the debt render the sale void ? We think not. While it is doubtless true that if the plaintiff, his grantor or the defendant had demanded or requested the commissioner to sell that portion of the premises first, it would have been his duty to do so, and the right to have the sale thus made could have been enforced, still, in the absence of such demand, we think the sale was valid and passed the title to the purchaser, at least until vacated or set aside. It follows then that, as the .purchaser acquired a good and valid legal title to the premises, which was paramount to that of the plaintiff, the purchaser was entitled to possession. The plaintiff was justified in surrendering possession, and was entitled to recover on the covenant of warranty contained in his grantor’s deed, unless he had been guilty of some act which would bar such a recovery.

The contention of the appellant is that the plaintiff’s right to maintain this action was barred by the action of himself and his grantor in standing by and permitting, without objection, the sale of their premises first, when if they had asserted their right the ¡Dremises would not have been sold. We think it is quite obvious that if the plaintiff or his grantor had objected to such sale and requested that the other portion of the mortgaged premises should be sold first, the commissioner would have discovered his error and sold the premises in the proper order.

This brings us to the question whether the plaintiff owed to the defendant the duty to make this demand, and, if so, whether his omission to discharge it relieved the defendant from his liability upon the covenant which was the basis of this action. On the trial the plaintiff’s evidence tended to show, and the court in substance found, that the plaintiff’s grantor served upon the defendant a notice of such sale and requested him to be present and protect the plaintiff’s premises from such mortgage, and he agreed to be present. Under this evidence w6 are inclined to hold that the plaintiff and his grantor had a right to rely upon the agreement of the defendant to be present and protect the premises from sale. That they would not have been required to attend under such circumstances we think is quite clear. (Wilcox v. Campbell, 106 N. Y., 325; 8 St. Rep., 885.) We are also of the opinion that if they went there relying upon the defendant’s promise, without ascertaining their rights or learning that any action upon their part was necessary to protect their premises from sale, and in consequence thereof omitted to make the proper request, the defendant cannot complain, and that such omission did not bar a recovery in this action.

We have been cited to no case or doctrine of the law of estoppel which would justify us in holding, under the circumstances developed by the evidence in this case, that the plaintiff was estopped from maintaining an action upon the defendant’s covenant of warranty because he was present at such sale and did not demand that the other portion of the' mortgaged premises should be first sold. It will be observed that the question here does not arise between the plaintiff and the purchaser. If such had been the question, it may be that the plaintiff, if he was silent or passive when he ought to have spoken or acted, might as to the purchaser, or those claiming under him, have been estopped. Here the question is between the plaintiff and a former grantor of the premises.

“ The party will, in many instances, be concluded by his declarations or conduct, which have influenced the conduct of another to his injury. The party, in such cases, is estopped from denying the truth of his admissions. But, to the application of this principle with respect to title to property, it must appear, first, that the party making the admission by his declarations or conduct was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved. The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.” (Herman on Estoppel, § 966, and cases cited in note. See, also, Bigelow on Estoppel, § 543, et seq.).

It is quite manifest, we think, that the doctrine of estoppel has no application in this case, as practically none of the conditions existed which were essential to create an estoppel.

Hence, we find nothing in the plaintiff’s omission to request the commissioner to sell the other part of the premises first which would constitute a defense to this action. While we are not at all inclined to hold that the defendant has no remedy for the injury he has sustained, or may sustain, by reason of the manner in which such sale was made, yet we do not think it rests in the alleged defense to this action.

This brings us to the consideration of the question of damages. The court awarded to the plaintiff the value of the premises in question at the time of his eviction. The amount awarded was $1,906.19, and interest from February 7, 1888, which was when the plaintiff was evicted. The rule of damages in this state in an action for the breach of a covenant for quiet enjoyment, in the absence of fraud, where the eviction is based upon an absolute title in another, is the amount of the purchase money, with interest from the time the plaintiff loses the mesne profits, not to exceed six years. (Staats v. Ten Eyck, 3 Cai., 111; Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 id., 50; Baldwin v. Munn, 2 Wend., 399; Dimmick v. Lockwood, 10 id., 142; Kinney v. Watts, 14 id., 38; Kelly v. The Dutch Church of Schenectady, 2 Hill, 106; Hunt v. Raplee, 44 Hun, 149, 155 ; 7 St. Rep., 783.)

The covenant of warranty contained in the deed from the defendant to the plaintiff’s father was a covenant which run with the land for the protection of the owner in whose time the breach occurred, and passed with the estate by purchase to the plaintiff. (Rawle on Covenants for Title, § 213, et seq., and cases cited.) The plaintiff’s right of action being under and by virtue of the covenant contained in the deed from the defendant to plaintiff’s grantor, it may be that the true rule of damages would be the amount of the purchase price named in the defendant’s deed. There is, however, a conflict in the decision's of other states upon this question. By some it is held that the measure of damages in such a case is the consideration paid by the original covenantee, and not the price paid by the plaintiff. (Lowrance v. Robertson, 10 Rich. [S. C.], 8; Hopkins v. Lane, 9 Yerg. [Tenn.], 79.) By others, that the measure of damages is the price paid by the plaintiff, not exceeding the amount of consideration received by the defendant. (Moore v. Frankenfield, 25 Minn., 540; Crisfield v. Storr, 36 Md., 150; Mette v. Dow, 9 Lea [Tenn.], 100; Williams v. Beeman, 2 Dev. [N. C.], 483.) Perhaps it may be said that the weight of authority in other states is adverse to the rule first stated.

In the case of Petrie v. Folz (54 Supr. Ct. Rep. [22 J. & S.], 223; 10 St. Rep., 451), which was somewhat similar to the case at bar, Sedgwick, Ch. J., in delivering the opinion of the court, said : “ There remains to be said that the defendant was not correct in his claim, that the value of the land was to be deemed the amount of consideration recited in the deed to plaintiff, that is, one dollar. The warrantor is liable according to the value of the land at the time of the warranty, which is conclusively fixed at the amount of the consideration of the sale. Rawle on Cov., 243 ; Sedgwick on Dam., 5th Ed., 168, and the cases cited in these books from the state of New York. Evidently the warrantor should at least return such part of the consideration as he appropriated as represents the value of the land to which he gave no title.”

In Dickson v. Desire’s Adm’r, 23 Mo., 166, it is said: “On a covenant of warranty or seizin, where the transaction remains between the original parties, the measure of damages is the value of the land at the time of the sale, as fixed by the parties themselves in the price given and received. When, however, the original grantee has sold the land to another, and the second purchaser has been evicted, the damage he has sustained -is the value of the land at the time of his purchase, and his right of recovery against the first grantor upon the original covenant must, of course, be limited to his actual loss, although it cannot exceed the liability of the first vendor to his immediate grantee.”

If, therefore, the rule be either that the plaintiff should recover the value of the premises, or that he should recover the amount of the consideration named in the defendant’s deed, it would seem to follow that the defendant could not justly complain, as the plaintiff recovered only the value of the premises, which was less than the consideration named in the defendant’s deed.

The appellant, however, makes the further claim that the plaintiff was only entitled to recover the amount of the mortgage, interest and costs, and at most the judgment should have been only for the sum of $635.52. It is said in Devlin on Deeds, § 934: “If the eviction is by a paramount lien, damages may bo recovered to the extent of the lien, if this does not exceed the amount that could be recovered for an eviction for failure of title.” Many cases are cited as sustaining this doctrine. When, however, the cases cited are examined, it will be found that they arose in states where the local laws, regulating the foreclosure of mortgages, provide that even after entry by the mortgagee upon the land for that purpose, it may still be redeemed within three years or some other period by payment of the mortgage debt and costs, and, lienee, although the purchaser may have been actually evicted by the mortgagee, yet, if the latter held the possession only under a conditional judgment, or if it be otherwise defeasible by payment of the amount due on the mortgage, with costs, the damages will bo limited to that amount.

In other words, what is held in these cases is, that so long as the purchaser still has a legal right to regain the estate by payment of a certain amount, he can recover no greater sum. This is the doctrine held in the cases of Norton v. Babcock, 2 Met., 510; White v. Whitney, 3 id., 89; Donahoe v. Emery, 9 id., 63 ; Tufts v. Adams, 8 Pick., 547 ; Furnas v. Durgin, 119 Mass., 500; Curtis v. Deering, 12 Me., 499; Lloyd v. Quimby, 5 Ohio St., 262. And when we examine the case of Winslow v. McCall (32 Barb., 241), which is a case much relied upon by the appellant, wo find that it establishes the same doctrine. In that case the eviction was by a mortgagee in possession. The mortgage had not been foreclosed, and hence there had been no absolute failure of title. Under these circumstances, the court held that the measure of damages was the amount due upon the mortgage, with interest from the commencement of the action. We cannot see how these cases aid the appellant, as in the case at bar there had been a foreclosure which resulted in an absolute failure of the plaintiff’s title.

On the other hand, in the case of Elder v. True (32 Me., 104), where a mortgagor of land conveyed premises by a deed of warranty, it was held that his grantee was under no obligation to redeem, and if the mortgage was foreclosed the measure of damages to be received by the grantee was the value of the land and interest. In Stewart v. Drake (9 N. J. L. [4 Halsted], 139), it was held that where bv reason of an antecedent mortgage the grantee was evicted, the rule of damages for a breach of covenant for quiet enjoyment and warranty was the same as if the grantee had been evicted by reason of a total want or failure of title in the grantor; that is, the amount of the consideration money, with interest.

In Miller v. Halsey (14 N. J. L. [2 Green], 48), it was held that the refusal of a plaintiff to buy in a paramount title or incumbrance, even when offered to him upon moderate terms, was no waiver of the covenant for quiet enjoyment, and would not bar a recovery thereon after eviction.

In Wilcox v. Campbell (106 N. Y., 325; 8 St. Rep., 885), it was held that the rule which requires a party exposed to injury or damage to make the loss as small as he reasonably can, does not require the grantee to advance the money to pay a mortgage for the purpose of protecting himself or his land.

We think the authorities bearing upon the question do not sustain the claim of the appellant, but that the rule of damages in this case was the value of the premises at the time of the conveyance by the defendant to the plaintiff’s grantor, as evinced by the consideration mentioned therein, and,. hence, that as the rule adopted by the court was more favorable to the defendant than he was entitled, the judgment in this action should not be disturbed.

We, therefore, are of the opinion that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


author: Hardin, P. J.

text:
    Wilson H. Gardenier, App’lt, v. The Oswego Mutual Savings & Aid Association et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Stay—Non-payment op costs.
    An action brought by an assignee of a claim may be stayed for nonpayment of costs adjudged in a former action on said claim brought by the assignor.
    2. Same.
    Where the grounds of relief in the former action were not identically the same as in the case at bar, the latter should not be stayed.
    Appeal from an order made at the Oswego special term on the 28th day of March, 1891, staying all proceedings on the part of the plaintiff until the payment to the defendant, The Oswego Mutual Savings & Aid Association, of the sum of $46.82, with interest, and the further sum of $66.26, with interest from February 26, 1891.

      Wilson H. Gardenier, in person, for app’lt; T. H. King, for resp’ts.
   Hardin, P. J.

In Ex parte Stone, 3 Cowen, 380, it was said that the power exercised by the courts to stay proceedings is one of “equitable jurisdiction, and intended to prevent the vexatious of suits.”

In Barton v. Speis, 73 N. Y., 133, it was said: “This power is one of equitable cognizance over suitors to prevent a multiplicity of actions and harrassing and oppressive litigation.”

In Richardson v. White, 27 How., 155, it was said, that “ The rule is the same in personal actions as in actions to recover real property.”

In Griffin v. The Round Lake Camp Meeting Association, 26 Hun, 314, it was said that “ An assignee of a chose in action not negotiable takes the demand subject to all equities existing between the parties to the contract. He stands in precisely the same position as his assignorand it was held that the power to stay was properly exercised in requiring the plaintiff to pay the costs of the former action by his assignor brought upon the same cause of action.

In Kentish v. Tatham, 6 Hill, 372, it was held that “ where a defendant is sued a second time for the same cause of action, though in conjunction with others who were not parties to the first suit, the court will order the plaintiff’s proceedings to be stayed until the costs of the first suit are paid.”

Applying the rule derived from the cases to which reference has already been made, we are of the opinion that the special term properly required the plaintiff to pay the costs in the action brought by John E. Peterson, amounting to the sum of §46.82.

(2) In action brought by Gardenier against the Oswego Mutual Savings & Aid Association, the plaintiff sought to recover of the defendant upon two grounds: (1) “ That the defendant omitted for the years 1886 and 1888 to make to the superintendent of the banking department the report required by § 2 of chap. 564 of the Laws of 1875. (2) That the defendant has violated the law of the state in its manner of disposing of its shares and in its dealings with its shareholders, and in its manner of doing its business. ” Plaintiff failed to establish either of the grounds upon which his claim for relief was based and his complaint was dismissed on the merits.

We think the grounds for relief in that case were not identical with the grounds for relief in the present action. We cannot say that the present action and the one to which reference has just been made “ each invoke the equitable powers of the court to the same end; ” we therefore think that action did not fall within the rule found in the cases to which we have referred.

(3) The burden of proof that the second suit is not vexatious is upon the plaintiff. Demarest v. Wynkoop, 2 Johns. Ch., 461; Kerr v. Davis, 7 Paige, 53; Lawrence v. Dickenson, 2 Cow., 580.

As to the Peterson case the special term has found upon that question, and we are not disposed to disturb its finding. It follows from the foregoing views that the order appealed from should be modified by striking therefrom the requirement to pay the sum of §66.26 with interest thereon from February 26, 1891.

Order modified by striking therefrom the words and also the sum of §66.26, with interest thereon from February 26, 1891, judgment for costs of last mentioned date in the action of Wilson H. Gardenier against the said association,” and as so modified affirmed, without costs to either party of this appeal.

Merwin and Williams, JJ., concur.


text:
    Mary J. Allport, Ex’rx, App’lt, v. Lewis D. Jerrett and Gerritt S. Cole, Ex’rs, et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    Will—Charge oe support op widow on real estate.
    By the will of defendant’s testator he gave his wife the use of all his estate for life and provided that if the income was insufficient the executors were directed to sell so much of the property as might he necessary for her support. After her death he gave to his younger daughter Augusta the residue that might remain, subject to a payment of $60 to his other daughter, the plaintiff’s. The income proved insufficient during the last sickness of the widow. Held, that it was clearly the intention of testator to make the widow’s support a charge oh the corpus of the estate; that Augusta received the real estate charged with her mother’s support, and that such expenditures as were necessary for her support in equity should he declared a lien on the real estate remaining unsold at her death and the land decreed to he sold therefor if necessary.
    Appeal from a judgment entered in Oswego county, upon the report of a referee dismissing the plaintiff’s complaint, with costs. Plaintiff is executrix of the last will and testament of her mother, Mariah E. House. On January 24, 1885, William C. House, then a resident of New Haven, Oswego county, died, leaving him surviving his widow, Mariah E. House, then about seventy-two years of age, and his two daughters, the plaintiff herein and Augusta J. Cole, one of the defendants. The will of William C. House was admitted to probate in Oswego county, and Jerrett and Cole were named as executors in the will, and as such are defendants in this action. At the time of' the death of House he was seized and possessed of a farm of about fifty acres, worth in the neighborhood of $1,300. His widow remained thereon, occupying a’ portion of the house, after his death, and was able to rent the same to a tenant, who would supply her with table board and pay her twenty-five dollars a year, and who, after the executors caused a mortgage to be placed upon the farm to pay the debts of the testator, amounting to the sum of $403.36, the tenant was induced also to pay the interest on that mortgage as a full consideration for the use of the real estate. Some two months before her death Mariah E. House was taken ill and remained seriously ill until her death, which occurred on the 22d day of May, 1889. During her last sickness she was boarded and cared for by the plaintiff, who furnished her various kinds of food, attended and nursed her and boarded the other nurses who were employed, and two physicians were employed, and the expenditures for the physicians, for the nurses and for her care and board remained unpaid at the time of her death, the defendants having contributed nothing thereto or therefor. In the will of William C. House is found the following provision: “ After all my lawful debts are paid and discharged, including my funeral expenses, and after my wife, Mariah E., shall have set off to her all she is legally entitled to by law to hold, I givé and bequeath to my said wife, Mariah E. House, the use of all the residue and remainder of my property, real and personal, for her use and benefit, and the avails of the same, for and uring her natural life, and if from any cause the use of said property shall prove insufficient for her support, then, in such case, I hereby direct my executors, hereinafter nominated and appointed by me, to sell and dispose of so much of my property as may be necessary for her support, the avails of the property so sold to be used for her benefit. After the decease of my said wife I give and bequeath to my younger daughter, Augusta, now the wife of Gerritt S. Cole, the residue and remainder of all that may remain of my property, real and personal, to her and to her heirs and assigns forever, on the condition, however, that she pay to my oldest daughter, Jennie M., now the wife of Smith All-port, the sum of sixty dollars within six months after the decease of my said wife; it may be for the interest of my said estate to sell and dispose of some or all of my property before the death of my said wife, if she should prefer to have it sold, and use the interest of the avails for her support, and others most interested should be of that opinion, then, in that case, I hereby authorize and empower my executor, hereinafter appointed by me, to sell and dispose of all my property, either before or after the death of my said wife, and make and execute good and sufficient deed or deeds to the purchaser or purchasers, as the case may be, as sufficient conveyance of the said property.” As conclusions of law the referee found: “ (1) That the said last will of William C. House vests no estate in his said executors, but that said will created a power in trust to sell said real estate upon the happening of the contingency that any portion of the avails of the same should become necessary, over and above the use and income of his said property, for the support of his said wife Mariah E. House. (2) That it was the intention of the said testator, as expressed in his said last will, that such sale, if made at all, of his said real estate by his said executors for the support and benefit of his said wife, should be made only in her life-time. (3) That by the terms of said will said real estate vested absolutely in said defendant Augusta J. Cole immediately upon the death of the said widow, Mariah E. House, subject only to the payment of sixty dollars to the plaintiff within six months after the decease of the said widow. (4) That said sixty dollars was paid in accordance with the terms of said will within sixty days from the time of the decease of the said Mariah E. House. (5) That the use and income of the property left at his death by said William C. House was sufficient for the support of said Mariah E. House, except during her last sickness, when it was insufficient. (6) That the said Mariah E. House must be deemed to have acquiesced in the non-execution of said power in trust to sell said real estate for her support and benefit by said executors. (7) That the power in trust to the executors of the will of William 0. House, given by his will, to sell his real estate for the support and benefit of his said wife, terminated with the death of his widow Mariah E. House; ” and then ordered the complaint dismissed, with costs.

      D. P. Morehouse, for app’lt; W. H. Kenyon, for resp’ts.
   Hardin, P. J.

We think the language of the will of Mr. House clearly indicates that his intention was to give “ the use of all the residue and remainder of my (his) property, real and personal, for her use and benefit, and the avails of the same for and during her natural life.” We think it was also his intention that in the event of the avails or use being insufficient, that her support should be and was made a charge upon the cotjjus of his estate; such intention was clearly evidenced by the use of the following words, viz.: “And if from any cause the use of said property shall prove insufficient for her support, then in such case I hereby direct my executors hereinafter nominated and appointed by me to sell and dispose of so much of my property as may be necessary for her support, the avails of the property so sold to be used for her benefit.” The language is so clear and explicit that no doubt can be entertained of the intent to charge her support upon the body of his estate in the event the use or income should be inadequate. This intent is made clear by the language subsequently used in the will containing a devise to his daughter Augusta; the language is as follows: “After the decease of my said wife I give and bequeath to my younger daughter, Augusta, now the wife of Grerritt S. Cole, the-residue and remainder of all that may remain of my property, real and personal, to her and toiler heirs and assigns forever, on the condition, however, that she pay to my oldest daughter, Jennie M., now the wife of Smith All-port, the sum of sixty dollars within six months after the decease of my said wife.” We think it is a mistake to suppose that he intended to give Augusta all his “ real and personal ” on the condition that she pay sixty dollars; on the contrary, it was his intent to give only so much of Ms real and personal as should be “ the residue and remainder ” after satisfying the support given to-his widow and charged upon his real estate. The words “ all that may remain of my property, real and personal,” clearly evinces an intent that his daughter Augusta should only receive what remained after fully satisfying the requirements of the charge imposed upon his property in favor of his widow.

In Shallcross v. Finden, 3 Vesey, Jr., 738, it was held that a devise after payment of debts was equivalent to a charge of the debts.

In Williams v. Chitty, 3 Vesey, Jr., 545, it was held there is “no difference between debts and legacies in an implied charge upon real estate by will.” We are, therefore, of the opinion that the daughter Augusta received from her father the real estate-charged with her mother’s support, and that such expenditures as were necessary for her support in equity should be declared a lien upon the real estate remaining unsold at the time of the death of the mother’. There seems to have been a steady if not studied neglect by the executors of Mr. House in carrying out the provisions of his will intended to provide a liberal support for his widow out of his estate. That neglect ought not to enure to the benefit of the devisee of the real estate, as she should only receive what remains after liquidating the necessary expenditures made in support of her mother beyond such sums as were received from the income of the estate. Smith v. Van Ostrand, 64 N. Y., 285.

We think a court of equity has jurisdiction to enforce liquidation of such expenditures.

In Lent v. Howard, 89 N. Y., 181, it was said, “ Whatever view may be taken of the general jurisdiction of the courts of equity, in the absence of any statutory or legislative policy, to abrogate continual trusts, created for the purpose of providing a sure support for the widow or children of a testator, or other beneficiary, the indestructibility of such trusts here, by judicial decree, results, we think, from, the inalienable character impressed upon them by statute.”

Our attention is called to Thomas v. Pardee, 12 Hun, 151, by the respondent. The language used in the will in that case was different from the language in the will before us. We see nothing used in the language of the opinion that is adverse to the views which have already been expressed. In the course of the opinion in that case it was said: “The testator did not design to give his wife either the principal or interest as such, but whatever she needed for her comfort and support, she being the judge. She could take out from the estate as a whole, but what she did not take out, what remained at her death, was to go to others.” In the case before us the personal estate of Mr. House was used up, and it clearly appears the income was inadequate for the support of his widow, and, therefore, the sum required for her support became an equitable charge upon the real estate. Will. Eq. Juris., 489.

In Glen v. Fisher, 6 Johns. Ch., 35, it was said: “He who accepts a benefit under a will must conform to all its provisions, and renounce every right inconsistent with them. This is an obvious and settled principle in equity. He accepts of the devise under-the condition of conforming to the will, and a court of equity will compel him to perform the condition; for no man, says Ch. Baron Eyre, Blake v. Bunbury, 1 Vesey, Jr., 523, shall be allowed to disappoint a will under which he takes a benefit.” See, also, Birdsall v. Hewlett, 1 Paige, 33.

In Thurber v. Chambers, 66 N. Y., 42, Chief Judge Church observed: “ It is a general rule that provisions in a will intended for the support of a wife will receive the most favorable construction to accomplish the purpose intended,* and that observation was approved in Stimson v. Vroman, 99 N. Y., 80.

We think the learned referee fell into an error in supposing that because the expenditures for her support were not actually paid by the executors of her deceased husband in her lifetime that they could not be enforced upon property left by the testator charged with her support. Such expenditures may 1-e ascertained in this action and declared a charge upon the real estate devised to the daughter Augusta, and if she shall not pay the same within a specified time the real estate, or so much thereof as shall be necessary, may be sold under the direction of this court, and the funds realized from the sales used to liquidate such ex-denditures. We think the judgment should be reversed.

Judgment reversed and new trial ordered before another referee, with costs to abide the event.

Martin and Merwin, JJ., concur.


text:
    Samuel W. Cass, Resp’t, v. Marcus M. Cass, Individually, etc., Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Appeal—Objections.
    Technical objections'to the granting of an order to show cause cannot, be first raised upon appeal.
    2. Equity—Pleading.
    It is not necessary for the complaint in an aciion in equity to show on its face that the plaintiff has not an adequate remedy at law, but the defendant, if he claims that such remedy exists, must set it up .in his answer.
    3. Trustee—Accounting—Jurisdiction.
    The supreme court has concurrent jurisdiction with the surrogate’s court to compel a testamentary trustee to account and may entertain an action for that purpose where no proceedings to accomplish that end have, been commenced or are pending in the surrogate’s court.
    4. Reference—Affidavit.
    A reference was ordered on an affidavit stating that the action would involve the examination of a long account; embracing over 500 items; the opposing affidavit stating that important and intricate' questions of law were involved, and one involving: the question of defendant’s solvency and fitness to continue as trustee. Held, no error; that the answering affidavit was insufficient as it was general.
    Appeal from an order of the Schuyler special term, made on the 16th of June, 1891, which ordered the action “ referred to Rufus King, Esq., to hear, try and determine the same.” The order appealed from recites that it was made “upon the affidavits of Orlando Hurd, O. H. Everts, Frances Oass and George D. Norman, and upon the proceedings heretofore had in this action, including the pleadings and orders heretofore made; and upon affidavits of Marcus M. Oass and Marcus M. Cass, Jr.” The complaint alleges that Cynthia Ann Freer of the town of Dix, now in the county of Schuyler, died on the 1st of October, 1853, leaving her last will and testament and codicil which were duly admitted i to probate, and that by said will a legacy of both real and personal property was bequeathed to the plaintiff; the will and codicil are annexed and made a part of the complaint; and the complaint alleges that the property so bequeathed and devised, some §20,000, went into the hands of and “was -received by the said Marcus M. Cass and Orlando Hurd as trustees for this plaintiff under said will;” it also alleges “that the said Marcus M. Cass and Orlando Hurd have never rendered, made or filed an account-of their proceedings as such trustees, to or- with any court having jurisdiction thereof.” It is also alleged that on the 27th of February, 1891, the plaintiff caused a petition to be filed in the surrogate’s office of Schuvler county and a citation to be issued thereon requiring the said Oass and Hurd to account in said surrogate’s court as trustees of this plaintiff, to the end that the amount justly due from them to this plaintiff might be ascertained. It is also alleged that Cass and Hurd appeared on the return of the citation in the surrogate’s court, and that an answer to the petition was filed. It is also alleged in the complaint that “ on the 13th day of April, 1877, the said Orlando Hurd passed over securities belonging to the trust fund so created for this plaintiff to the said Cass, the sum of §14,959.88 with accumulated interest, which were received by him as such trustee, since which time he has wrongfully used, invested and appropriated a large portion thereof so that the same, the pretended securities or obligations taken therefor, are comparatively worthless and of little or no value.”
    It is also alleged that the trustees have given no security for the trust fund, and that since the probate of the will they have become insolvent. It is also alleged “ that the said trustees now have money, or should have, to the amount of upwards of $20,-000 to which this plaintiff is entitled, and which they have been repeatedly called upon to pay over, all of which they have neglected and refused to do.”
    In the prayer to the complaint the plaintiff asks “that they and each of them be required to render their and his account as such trustees, or trustee as aforesaid, that the same may be judicially settled and determined, and that the moneys found due to the plaintiff may be paid over to him. That the defendants and each of them, be required to give security for any funds that may remain in their hands, or that they and each of them may be removed as such trustees and some suitable and proper person or persons may be appointed in their place, to whom such trust fund may be paid over or for such other or further relief as may be proper in the premises.”
    The answer of Marcus M. Cass denies many of the allegations in the complaint, and it alleges that “ by and with the consent of the plaintiff in this action certain securities, or alleged securities, amounting to $14,759.88 were transferred to this defendant by the said Orlando Hurd as such trustee, which was the only sum received by this defendant, and the said securities and the amount thereof was so received by him at the request of the said plaintiff and he thereupon approved of the same as the only amount of said trust fund and approved of the character thereof as being the only securities in which he was the beneficiary under said trust. * * * ” The said defendant alleges that he has faithfully discharged his duty and has “from time to time paid over to him all sums connected therewith in pursuance of the directions of said will of Cynthia Ann Freer, deceased, whereby the same rvas createdand" he further “ avers that he has paid the said plaintiff from time to time and at different times between the time that he accepted said trust in 1877 and before the commencement of this suit, a large sum of money and more than sufficient to pay to him the income received by him on account of such trust and directed to be paid over to said plaintiff, and has in addition thereto paid him an additional sum to the amount of more than $700, including expenses, commission, and other just charges upon said fund, for which he has from time to time rendered a statement to the plaintiff, and at all times when requested so to do, he has rendered and delivered to him such statements, all of which were approved when so rendered by the plaintiff as correct and proper.” He also alleges in his answer that “he is advised and believes the surrogate’s court of the proper county has full and ample power and authority to hear and determine said accounting, and that this court ought not to' have or to entertain jurisdiction thereof or otherwise entertain this suit; ” and he also sets up the statute of limitations. In the affidavit of Frances Cass used upon the motion it is stated “ that in February last said Everts did institute proceedings in this matter before the surrogate of Schuyler county, in which this defendant appeared and filed his verified answer and such proceedings were discontinued, * * * after which and on the 17th day of April this action was commenced.”
    In an affidavit used upon the motion to refer, Mr. Everts, the attorney for the plaintiff, states: “ That to deponent’s personal knowledge the trial of this action will involve the examination of a long account embracing over 500 different items, including the computation of interest on over seventy-five different items and rests extending over a period of thirty years.”
    In the affidavit of Frances Cass it is stated that the defendant has “ over $600, the income of said trust fund, which he has been directed by the plaintiff to pay over to this deponent and which he has refused to do.”
    In the affidavit of Marcus M. Cass, Jr., one of the attorneys for the appellant, it is stated, “ That this suit involves, as deponent verily believes, important and intricate questions of law, which will necessarily have to be determined upon the trial of this cause,” and he also adds “ That there is a further legal question which will arise therein concerning the solvency of the defendant, Cass, and his fitness to continue as a trustee therein.”

      John J. Van Allen and Marcus M. Cass, Jr., for app’lt; Charles H. Everts, for resp’t.
   Hardin, P. J.

Appellant, in his argument before us urges certain objections to the order to show cause, which is in the nature of a notice of motion and asks us to reverse the order on alleged technicalities and irregularities in the nature of preliminary objections, but upon turning to the order we are unable to discover that such objections were taken at the special term ; it is too late for the appellant to raise them on this appeal in the first instance.

(2) The appellant insists that the complaint does not state facts sufficient to constitute a cause of action, and insists that it must appear on the face of the complaint that the party coming into a court of equity has not an adequate remedy at law.

(а) In answer to such position taken by the appellant, it may be observed that § 3339 of the Code of Civil Procedure provides as follows : “ There is only one form of civil action. The distinction between actions at law and suits in equity, and forms of those actions and suits,-have been abolished.”

(б) It has lately been held by the court of appeals that: “ The defendant in an equity action, in order to insist thai an adequate remedy exists at law, must set it up in his answer.’’ Ostrander v. Weber, 114 N. Y., 96; 22 St. Rep., 979. The judge at special term correctly observed that no defense of that character is pleaded.

(3) It is insisted in beHalf of the appellant “that the surrogate’s court has complete and adequate power to administer the machinery necessary to force an accounting of the trustee and to settle the same without invoking the aid of a court of equity,” and the learned counsel for the appellant refers to §§ 2802 et seq. of the Code of Civil Procedure. It may be conceded that the proper surrogate would have jurisdiction of the trustee, and that proceedings might be initiated in the surrogate’s court to compel him to account and perform his duties as trustee, and that such proceedings might be instituted at the instance of any one interested in the fund in the hands of the trustee, but we do not understand that those sections of the Code or any other legislation has deprived the supreme court of its jurisdiction over trustees and trust funds.

In Wager v. Wager, 89 N. Y., 168, it was said: “ Where complete relief can be obtained in the surrogate’s court, a court of equity may, in its discretion, decline on that ground to entertain an action for an accounting or other relief against executors, but the proposition that the court has no jurisdiction in such a case cannot be sustained.” When this action was commenced no proceedings before the surrogate were pending, instituted by the plaintiff or by the defendant for an accounting or a judicial settlement of the accounts of the trustee.

In Rogers v. King, 8 Paige, 210, it was held that the jurisdiction of this court and of the surrogate over an executor or administrator to call him to account were concurrent, and it was further held in that case that where a bill was filed in chancery against an executor or administrator, for an accounting, that in a subsequent proceeding brought before the surrogate the pendency of the suit in chancery might be set up before the surrogate in the nature of a plea in abatement, and will constitute a valid objection to the proceedings therein.

The doctrine of that case was referred to and followed in Groshon v. Lyon, 16 Barb., 467, and after stating the rule as laid down in Rogers v. King, supra, the court observed: “ The converse of the rule thus laid down would also hold. If there were a decree before the surrogate to account it would be a bar to any proceeding for an account in the court of chancery in all cases where full relief could be had before the surrogate.”

In Wood v. Brown, 34 N. Y., 337, the jurisdiction of this court over trustees and executors was a subject of inquiry, and after referring to the statute conferring jurisdiction upon surrogates, it was observed by Judge Morgan, who delivered the opinion of the court, as follows: “It does not, however, follow that a court of equity may not exercise the same or concurrent jurisdiction; ” and later on in the opinion he further adds: “But, then, it must be conceded that courts of equity, as a general rule, have a concurrent jurisdiction with surrogates’ courts in matters of accounting as against executors and administrators. Rogers v. King, 8 Paige, 210. These courts may furnish a more comprehensive remedy, for they may proceed by injunction to restrain the further proceedings of executors until an account can be taken, if there is danger of injury to the estate. The casé? at bar was a proper one to call on the defendant to render an account of his proceedings.”

In Christy v. Libby, 5 Abb., N. S., 192, an action was brought to compel the defendant to account to the plaintiff for the assets he had received, and in the course of the opinion it was said: “ The provisions of the Revised Statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode of bringing executors, etc., to account, but did not take away the power theretofore exercised by courts of equity to afford this species of relief. It still exercises a concurrent, and, in some cases, an exclusive jurisdiction. Rogers v. King, 8 Paige, 210; Will. on Eq. Jur., 560.”

In Christy, Adm’rx., v. Libby, 35 How., 119, it was held, viz.: “ Courts of equity have jurisdiction to call upon executors and administrators to account. Such power was frequently exercised by the late court of chancery, although the surrogate had jurisdiction over such proceedings. The Revised Statutes do not confer on the surrogate exclusive jurisdiction over proceedings to compel executors, administrator’s or collectors to account.” In the course of the opinion in that case, Van Vorst, J., said: “ Courts of equity take cognizance of the conduct of executors, administrators and other trustees. Blackstone’s Com., vol. 3, 437 ; Willard’s Equity Jurisprudence, pp. 88, 490.”

In Haddow v. Haddow, 3 N. Y. Sup. Ct. (T. & C.), 777, it was held: “A court of equity has jurisdiction to compel an accounting to parties entitled to an estate from those who have it under their control, when the proper parties-are in court;” this case was affirmed in the court of appeals, 59 N. Y., 320, and in delivering the opinion of the Court, Rapallo, J., says nothing inconsistent to the doctrine of the cases to which we have already referred.

Appellant’s counsel calls our attention to Seymour v. Seymour, 4 Johns. Ch., 409; we have examined it, and find nothing inconsistent with the doctrine of the cases already referred to; in that case it was held that “A surrogate has concurrent jurisdiction with the court to compel administrators to account, and make distribution of the estate,” and it was further held that after administrators had been brought before the surrogate “ for an account and distribution of the intestate’s personal estate, this court will not, without some special and satisfactory reason, interfere with the proceedings of the surrogate by granting an injunction, and sustaining a bill for general relief." We think the case does not aid the argument of the appellant.

(4) The appellant contends that the reference ought not to have been ordered, because the trial of the issue involves difficult questions of law; the affidavit on that subject is a general averment, and does not conform to the requirements of the adjudged cases.

In Salisbury v. Scott, 6 Johns., 329, it was said: “ Where a motion to refer a cause is repelled on the ground that questions of law will arise on the examination of the cause, the party must state what the points ot law are, so that the court may judge whether they are material or difficult, and will necessarily arise; and that we may be satisfied whether the referees be a proper tribunal for the trial of the cause; otherwise, by the general affidavit, all references may be prevented” This case was referred to with approval by Judge Paige in Dewey v. Field, 13 How., 439.

(5) The special term has found in effect that the trial of the issues will require the examination of a long account. We think, upon a full consideration of all the matters alleged in the pleadings, and in the affidavits before the special term, the finding was warranted, and we are not disposed to interfere with the same.

In Welsh v. Darragh, 52 N. Y., 592, in the course of the opinion delivered, Ch. Judge Church says: “The court will not review the finding below, that the action involves the examination of a long account, if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be'involved that an appeal will lie to this court. Kain v. Delano, 11 Abb., N. S., 29.”

In one of the affidavits used upon the motion it was stated: “ This action will involve the examination of a long account, embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests extending over a period of thirty years.”

We think the conclusion reached at the special term should be sustained.

Order affirmed, with ten dollars costs and disbursements.

Williams and Merwin, JJ., concur.