author: Van Brunt, P. J.

text:
    Wenstrom Electric Company, Resp’t, v. Charles H. Bloomer et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Interpleader—Who mat bring.
    An action of interpleader cannot be maintained by one of several claimants to a fund in the hands of a third person, but only by such third person.
    Appeal from an order continuing a temporary injunction.

      Franklin Pierce, for app’lts; G. W. Minor, for resp’t.
   Van Brunt, P. J.

The defendants Charles H. Bloomer, Walter C. Bloomer, and Nathan Bushnell were electrical contractors doing business under the firm name of Bloomer Bros. & Co. ; and on the 28th of February, 1894, they entered into a contract with one William Noble, who was then engaged in erecting the Hotel Empire in the city of New York, for the construction and erection by them of an electric light plant in said hotel, the terms of payment to be eighty-five percent, o'f the value of the work done and materials furnished each month as the work progressed, the final payment to be made, on the completion of the work, by the promissory note of said Noble, payable in ninety days. On the 30th of March, 1894, the plaintiff entered into a contract with Bloomer Bros. & Co. for the furnishing of certain dynamos for this work. It agreed to deliver the dynamos f.o. b. cars New York City for the sum of $1,500, terms of payment to be one-third on the successful starting of the plant, and the balance by three months’note of Mr. Noble, indorsed by Bloomer Bros. & Co.; the title and own-ship of the dynamos to remain in the plaintiff until paid for. In July, 1894, the firm of Payne & Sons sold to Bloomer Bros. & Co. engines to be placed in said hotel, but, as they alleged, they would not part with their property until they obtained some security therefor; and accordingly, on the 1st of August, 1894, Bloomer Bros. & Co. assigned to said Payne & Sons the balance due under their contract with Noble, and whereby they authorized said Payne & Sons to receive said balance, and to give a receipt and acquittals thereof, in their firm name. On the'2d of August, 1894, Noble acknowledged the receipt of the information in respect to the assignment, and in writing accepted the order, and promised to pay to them the balance due to Bloomer Bros. & Co., making such payments in accordance with said contract. Thereafter, and on the 11th of October, the said Bloomer Bros, gave an order for $660 to one Winthrop G. Bushnell, the brother of one of the members of the firm, which they claim to be due from the defendant Noble on said contract. The complaint alleges that the defendants Bloomer Bros. & Co. were insolvent, and that the alleged orders to pay Payne & Sons and Bushnell were given in fraud of the rights of the plaintiff, and that Payne and Bushnell were endeavoring to collect the same balance, or so much thereof as their respective claims amounted to, and the plaintiff was also endeavoring to collect its claim from said Noble out of said balance; and that Noble was ready to pay said balance into court according to the terms of his contract, and refuses to pay the same, or any part thereof, or give any note therefor to any of the parties thereto, until ordered and directed by the court; and, further, that if said Noble was allowed to pay the same to the defendants Bloomer Bros. & Co., with whom he made said contract, the plaintiff and all other claimants to said fund would be unable to collect any part of their respective claims out 'of said fund or from Bloomer Bros. & Co. Application was made on these facts for a temporary injunction, which was granted, and upon motion the same was made permanent during the pendency of the action, and from the order thereupon entered this appeal was taken.

It is claimed upon the part of the plaintiff that this is an action of interpleader, and that it may be brought by the plaintiff instead of the defendant Moble. Mo authority for this proposition has been cited, and it seems to be at variance with the practice which «existed in the court of errors, and has continued down to the present time. In order to entitle a party to interpleader, he must be exposed to danger, vexation, and loss from conflicting independent claims to the same thing of which he is the holder, as well as from claims that are dependent. The facts essential to maintain the action of interpleader are that two or more persons have a claim against the plaintiff; that they claim the same thing: that the plaintiff has no interest in the thing claimed ; and that he cannot determine, without hazard to himself, to which of such persohs the thing belongs; and, further, that there is no collusion between him and any of the parties, and that he will bring the money or thing claimed into court. These rules have been recognized in the case of Crane v. McDonald, 118 N. Y. 648; 30 St. Rep. 98, and also in the case of Schell v. Lowe, 75 Hun, 43; 58 St. Rep. 179, which case the similarity between motions made under the Code of Civil Procedure for interpleader and actions of the same nature is adverted to. The section of the Code was intended to prevent the cumbersome procedure by action, and substitute that by motion; and it is apparent that none but a stakeholder can obtain the relieve under the section of the Code recognizing the rule which had prevailed in actions of interpleader. There is not the slightest intimation that Moble is not able to respond to all of these claims, and he is not before the court asking for relief or bringing the fund into court. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for injunction denied, with ten dollars costs.


source: Caselaw Access Project

author: Patterson, J.

license: Public Domain

text:
    Isidor Lazarus, Plaintiff, v. John McCarthy, as United States Marshal et al., Defendants.

      (Supreme Court, New York Special Term,

      Filed December 21, 1894.)

    Jurisdiction—State and Federal.
    An order of a federal court, directing the marshal to deliver certain property in his custody under attachment to the claimant, renders it immediately subject to process of the state courts, though he has not made an actual or constructive delivery under the order.
    Motion to vacate a levy on certain property.

      Abram Kling, for pl’ff; Holmes & Adams, for def’ts.
   Patterson, J.

This is an application on behalf of the defendant Daniels, who appears by attorneys specially for the purpose of this motion, to vacate a levy made by a coroner of the city and county of Mew York under a writ of replevin issued in this action, and the precise ground upon which the motion is made that at the time of the levy the property was in the custody of the defendant McCarthy, United States marshal for the Southern district of Mew York, and hence in the custody of the United States circuit court within that district. The application is made solely to vacate the levy under the writ, and to require the coroner to deliver up the goods and chattels seized by him. It appears from the moving papers that in October, 1894, an attachment was issued from the supreme court of the state of New York against the Whitman Shoe Company, a foreign corporation, at the suit of one Herbert Lefavour. That corporation had made an assignment for the benefit-of creditors to William H. Daniels, who filed a claim to the property attached ; and on the 10th of November, 1894, the action was-removed by due proceedings into the circuit court of the United States. That removal carried with it all the interlocutory proceedings and provisional remedies in the action ; and on the 16th of November, 1894, the United States marshal was instructed by the judge of the circuit court to take all the attached property into-his possession, which, it seems, was done. On the 20th of November, 1894, this plaintiff, Lazarus, began this action in replevin, and a writ was issued to the coroner, who seized the property under that writ. On the same day, and, as it is admitted, at fifteen minutes past one o’clock in the afternoon, the United States circuit, court judge made an order respecting the property, which had passed into the actual possession of the United States marshal, which order contains the following provision :

“ It is ordered that the United States marshal for the Southern district of New York forthwith deliver to William H. Daniels, or his attorneys or agent, all the goods, chattels, and effects, merchandise, furniture, or office fixtures, books, books of accounts, and accounts, and choses in action, and all other property whatsoever, taken and held under and pursuant to the writ of attachment herein issued, and dated October 31, 1894.’’

This order was made on the return of an order to show cause, and appears to have been granted after a hearing. The single question now presented for determination is whether the property was so situated that it was the subject of levy by the coroner under the replevin process issued in this action. The levy complained of was made after the order of the United States court of November 20th was passed. If that property were in the custody of the United States circuit court in such a sense that that court had and maintained jurisdiction over it, the process of the state court would be ineffectual to take it from the possession of the United States-marshal. Freeman v. Howe, 24 How. 450. But I am of the opinion that the property was not in the custody of the law in any such sense as would indicate that the federal tribunal had, through its officer, that possession which placed the property beyond the reach of process of the state court. In Buck v. Golbath, 3 Wall. 335, the Freeman case is discussed, and its conclusions reasserted but the court remarked that the principle had its limitations, and that whenever the litigation is ended, or the possession of the officer or the court is discharged, other courts are at liberty to deal-with it (the property) according to the rights of the parties before them, whether those rights require them to take possession of the property or not. In the case at bar, to all intents and purposes,, the jurisdiction and custody of the federal court had determined. The property had been claimed by a particular individual, and its possession from the United States marshal had been demanded^ and that possession had been awarded to the party applying for it The order of the court had been made. The possession of the United States marshal ceased to be the possession of the court under the attachment process and under the order of removal. The contest over the res was ended. The court’s possession had been turned into a mere technical holding by its officer for the purposes of delivery to the applicant, Daniels. The marshal was commanded by the order of the court forthwith to surrender that possession to Daniels. So far as the United States court was concerned, Daniels’ right to the exclusive possession of the property was fully recognized, and all that remained was that the officer of the United States was to deliver physical possession of the property to Daniels.

It is claimed, however, by the counsel for the moving party, that, until there was an actual or symbolical delivery of the property directly to Daniels, it still remained in the custody of the law, and simply for the reason that it still remained in the hands of the person who was the United States marshal, and under an unexecuted order. I do not understand the law to be that the possession of the United States court so continued until the actual delivery to Daniels as would divest the state court of jurisdiction to enforce its process after the United States court had distinctly and positively determined that the property should be taken out of the litigation which was pending in that court and be delivered to a third party. The order of the United States judge had been signed, entered, and was actually in the possession of the marshal. It operated instantly upon the property. The direction was forthwith to deliver it to Daniels, and by the act of making that order and of delivering it to the marshal the court completely divested itself of possession, for the possession that it had was only under the process, and the process had. been effectually removed from the property. Counsel for the moving party refers to the case of Bullis v. Montgomery, 50 N. Y. 352, in support of his contention that the actual possession of the property was not in Daniels, and it is argued that that case is in complete analogy with this on the subject of actual possession. But that case does not present the question which is now before the court This writ of replevin under which the coroner claims to hold the property did not run altogether against Daniels. It was against McCarthy, the marshal, as well as against Daniels, and the requirement of the writ was to take the property from the possession of all of the defendants. The copy of the affidavit annexed to the moving papers states that the alleged cause of detention is that the defendant McCarthy claims to have a process against the property; and the defendants Lefavour and Daniels claim to be the owners of the said chattels, and the said defendant Sexton, the sheriff, claims to hold a levy on the said property. The writ itself is not before the court, but it appears from the affidavit that all the defendants are connected with the detention of the property, and hence tire writ would go against all of them. The case, therefore, presented on these papers, is with respect to the possession of those-parties who are the defendants in this action and in the writ, and that necessarily involves the possession of McCarthy, as marshal. Now, we find that, at the time this writ was executed, McCarthy’s possession was one distinctly for the specific purpose of holding the property for a delivery-to Daniels ; and whether it was in-his possession in this limited way, or whether his possession should be considered the possession of Daniels for the purposes of this motion, is immaterial. Upon the question of the property being so situated in the. custody of the law as to prevent an execution of process issued from the state court against it, I am of the opinion that it was not protected from the levy of the coroner; that the effect of Judge Lacombe’s order was to take it out of the custody of the court; and that thenceforth, in the possession of McCarthy or of Daniels, the effect of the order referred to was to render it subject to the process of the state court while in the hands of the defendants in this replevin suit, or of either of such defendants. This ■conclusion is reached in passing only upon those questions which have been raised on this motion, and which are specifically re-, ferred to in the order to show cause. There are others which pas-, siblv might have been raised, but I cannot consider anything more than the subjects specifically presented by the application now before the court.

The motion to discharge the levy is denied, with $10 costs.


author: Per Curiam.

text:
    Elias Benedict et al., Resp’ts, v. George T. Arnoux et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Judgment—Opening default—Defense.
    On an application to open a default suffered through mistake and without loches, the validity of any proposed defense, unless clearly frivolous, will not be passed upon.
    3. Same—Unconscionable defense.
    Such application will not be denied on the ground that the proposed defense is unconscionable.
    Appeal from an order denying a motion to open a default and permit defendants to come in and answer.

      W. W. Niles, for app’lts; C. N. Bouvee, Jr., for resp’ts.
   Per Curiam.

Without passing upon the question as to the validity of any defense set up in the answer proposed to be served, we think that it is apparent that the default occurred through mistake, and that, by reason of such mistake, the defendants should not be deprived of the opportunity of raising the question, in a manner in which it can be reviewed, as to whether the answer sets up a defense or not. Where it is apparent that the default has been suffered through mistake, and there is no loches, it does not seem to be proper to pass upon the validity of any defense proposed to be interposed, unless it is clearly frivolous.

It is claimed, however, upon the part of the plaintiffs, that the proposed defense is an unconscionable one, whatever that may mean. The court of appeals has held that all defenses which are defenses are entitled to the same consideration by the court, and that a defense is a defense, whatever may be our private feelings in respect to it.. We think, therefore, that the defendants should have been allowed to put in their answer upon payment of the costs of the motion and all costs which have been incurred in the action.

The order should be reversed, with $10 costs and disbursements, and the defendants allowed to answer, upon paying the costs of the motion and the costs which had accrued in the action at the time of the making of the motion.


author: Follett, J.

text:
    Sabina E. Struthers, as Trustee, etc., Resp’t, v. William E. Smith, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Contract—Consideration.
    The discharge by one of a doubtful claim against another person is a good consideration for the promise by a third party to pay a sum of money ■ to secure such discharge.
    Appeal from a judgment in favor of plaintiffs.

      Lyman E. Warren, for app’lt; Delos McCurdy, for resp’t.
   Follett, J.

This action was brought on a contract dated November 6, 1893, by which the defendant promised to pay to the plaintiff’s assignors $17,500 three years after date, with interest semiannually at the rate of six per cent. The contract contains a provision that, in case any installment of interest remains unpaid for thirty days, the entire principal sum shall'then become immediately due and payable. The defendant failed to pay the interest, and this action was brought to recover the principal and interest. The sole defense interposed was that there was no consideration for the agreement. In 1892 the American Laetos Company, a corporation, was organized under the laws of New Jersey, with an authorized capital of $350,000, divided into shares of $100 each. The defendant was the promoter of this corporation, and after its organization became a director and the president thereof, transferring to it several factories owned by him, for which he received $50,000 of the capital stock. Stephen E. Struthers was a trustee for certain persons for whose benefit he held trust funds, $18,000 of which he, without authority, invested in the shares or the corporation. The money was received by the defendant, who caused the certificates for shares to be issued to Stephen E. Struthers as trustee. Subsequently the beneficiaries under the trust discovered the misappropriation of their funds, and threatened to bring an action against the corporation to recover the Sums so invested, and after considerable negotiation the defendant, acting under the advice of counsel, for the purpose of avoiding an action, executed and delivered the contract on which this action was brought. It is well settled that the discharge by A. of a doubtful claim against B. is a good consideration for the promise by C. to pay a sum of money to secure such discharge. White v. Hoyt, 73 N. Y. 505 ; Wahl v. Barnum, 116 id. 87; 26 St. Rep. 457; Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506. The judgment and order should be affirmed, with costs.


author: Beekman, J.

text:
    Union Insurance Company of Philadelphia, Pl’ff, v. Central Trust Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed February 11, 1895.)

    Arbitration—Revocation—Expense.
    Where the submission provides that a deposit be made as security for any award that may be made, expenses incurred in preparing for the arbitration are, upon revocation, payable out of the deposit, under § 2384 of the Code.
    Action to recover costs and expenses incurred in preparing for an arbitration.

      Evarts, Choate & Beaman, for pl’ff; Butler, Stillman & Hubbard, for def’ts.
   Beekman, J.

The complaint in this action was demurred to on the ground of insufficiency by the defendant corporations, and the demurrer was overruled at special term, where it was tried before Mr. Justice Van Brunt. On appeal to the general term, the judgment entered upon the decision below was affirmed. Union Ins. Co. v. Central Trust Co., 36 St. Rep. 435. The demurrants, availing themselves of permission so to do, thereupon interposed answers to the complaint, and the issues thus joined have now been brought to trial. The evidence offered sustains all the allegations of the complaint, and the case therefore presents the same legal aspect it had when the demurrers were tried. In view of this, no other course is open to me except to direct judgment for the plaintiffs upon the basis of a controlling decision which has declared the law of this case. It is contended, however, that there is one question which affects the extent of' the plaintiffs’ recovery that was not passed upon or involved in the decision at general term. The point so raised may be stated as follows: By the terms of the arbitration agreement, it was provided that the compensation of the arbitrators, and their expenses, and the expenses of witnesses should be borne and paid by the parties thereto in the following proportion, to wit: One-fourth thereof by the Union Insurance Company, one-fourth thereof by the Insurance Company of the State of Pennsylvania, one-fourth thereof by the Continental Insurance Company, and one-fourth thereof by Lorenzo Dimiek; “ the same to be advanced from time to time, in the proportion above mentioned, upon the certificate of the arbitrators, or a majority of them; the expenses of witnesses to be adjusted and allowed by the arbitrators, or a majority of them.” The agreement also contained a stipulation fixing the compensation of the arbitrators, and providing that no part of the costs aud expenses of the arbitration or of witnesses should be recovered by the prevailing party or parties, or be entered in the judgment, and that any limitation by statute as to the rate of such compensation was waived. It is now contended that this portion of the agreement is still operative, so far, at least, as to limit the recovery of the plaintiffs, if they are entitled to recover anything, to one-fourth of the following items of expense, namely: Fees of arbitrators, counsel fees and witnesses’ fees, and expenses. I think, however, that the decision upon the demurrer necessarily involves the negative of this view. The stipulation relied upon forms a part of the submission which has been revoked, and, as its terms clearly show, was predicated upon a continuance and completed execution of the agreement. It was in effect inconsistent with revocation, and therefore destroyed bv revocation. The claim of the plaintiffs, as I understand it in the light of the decisions at special and general terms, is for the damages recoverable, under section 2384 of the Code of Civil Procedure, against the revoking party, and also against his sureties, if any, upon the submission, or any instrument collateral thereto. These damages are specified in the section to be “ all the costs and other expenses, and all the damages which he has incurred in preparing for the arbitration and in conducting the proceedings to the time of revocation.” The cause of action does not arise upon the agreement; on the contrary, it is outside of it, and comes into existence as the consequence of the act of revocation, by virtue of a statute which, in creating it, also measures the extent of the recovery. The statute rests upon the principle that the revoking party, ex debito justitiae, should make good to the other damages suffered through expenditures rendered fruitless by the act of revocation. This liability extends to the security given by the revoking party, under a collateral agreement or otherwise, to secure the performance of the award; and, although such agreement may not in terms provide for the payment of the expenses of the award or of the arbitration, “ the law,” to quote from the opinion at special term upon the demurrer, “ has stated that, where any such obligation is entered into, the obligor, in case of a revocation of the submission, becomes liable to pay the expenses of the party who is not at fault, and the contract between the parties is to be construed in view of the provisions of the statutes governing such instruments.” The plaintiffs, therefore, seem to be entitled to the full measure of recovery prescribed by the section of the Code above referred to. The items of damage proven on the trial come within the allowance, and amount in the aggregate to the sum of $49,178.45. It follows from what has been said that the plaintiffs are entitled to have judgment against the defendants that the 500 shares of the capital stock of the New York & Harlem Railroad Company, held by the defendant the Central Trust Company, as set forth in the agreement of submission, is subject to a charge in favor of the plaintiffs for the payment of the sum of $49,178.45, and interest within the limit of $50,000 ; and that the stock be sold, and the plaintiffs paid the amount of their claim, within the limit mentioned, out of the net proceeds of such sale. Costs of this action are awarded to the plaintiffs against the answering defendants.


author: O’Brien, J.

text:
    Henry P. Talmadge et al., Resp’ts, v. George W. Seaman et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Tax—Transfer—Will made before enactment.
    Chap. 399 of 1892 imposes a tax upon successions to property transferred by will before the passage of the act, whenever any beneficial interest therein vests subsequent to its passage.
    Appeal from a judgment in favor of plaintiffs.

      Edgar J. Levey, for app’lts ; Lucius H. Beers, for resp’ts.
   O’Brien, J.

The only question raised upon this appeal is as to the liability of the estate included in the residuary trusts created by John B. Seamen’s will to taxation under the act of 1892 in relation to taxable transfers of property (Laws 1892, c. 399). The residuary clauses of said will are as follows:

“Sixth. All the rest, residue, and remainder of my estate, real and personal, I give, devise, and bequeath to my executors, hereinafter named, in trust to apply and pay over the income of one equal undivided half part thereof to my said adopted daughter and niece Elizabeth Seaman during her natural life; and upon her decease I give, devise, and bequeath said equal undivided one-half part of my estate so held in trust for my said adopted daughter and niece to the children of my nephew George A. Seaman living at the time of her death, share and share alike. Seventh. I direct and order my said executors, hereinafter named, to apply and pay over the income of the other equal undivided half part of my estate so held in trust by them to iny said adopted son and nephew George A. Seaman during his natural life; and upon his decease I give, devise, and bequeath the said equal undivided half of my, estate so held in trust for my said adopted son and nephew to the children of my said nephew George A. Seaman living at the time of his death, share and share alike.”

The will was made, arid the testator died, and the will admitted to probate in 1876. At the time of the making of the will and at the time of the death of the testator the life tenants were both living. The four children of George A. Seaman who are defendants in this action were also all living both at the time of the making of the will and of the death of the testator. George A Seaman also had one other child, Hubert Seaman, who was born in 1880. and died at the age of about six months. The estate consisted almost entirely of personal property. A portion of the real property, which was small in comparison with the entire' estate, was sold under the authority of the power of sale contained in the will, a few lots, valued at $1,000, remaining unsold. The two life tenants died in January, 1893.

On May 1, 1892, chapter 399 of the laws of that year, entitled “An act in relation to taxable transfers of property,” became law. By the latter portion of the third subdivision of section 1 thereof it was provided :

“Such tax shall also be imposed when any such person or cor - poration becomes beneficially entitled, in possession or expectancy,, to any property or the income thereof by any such transfer, whether made before or after the passage of this act.”

The question presented is : Did the children of George A. Seaman become “beneficially entitled, in possession or expectancy,” to the remainders of the funds held in trust for the life tenants, upon the termination of such life estates, and thus subject their interests to the payment of a tax ? The learned judge at special term correctly said:

“If the transfer would have been taxable under the law of 1892, if it had been in force at the time the will took effect, then it is not taxable now.”

Had such a law been in force at the time the will took effect, it is insisted that the children of George A. Seaman then living were persons “in being, who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent e-tatethat their estate was, therefore, then vested (1 Rev. St. p. 723, § 13); that the amount of the tax payable by the estate given in remainder as a whole could have been fixed, since the remainders, in any event, would have passed to collateral relatives, and, upon determining the value of the life estates, the total value of all the remainders taken together could be easily ascertained. On the other hand, it is as strenuously urged that, as to the personal property, the law of this state is settled that dispositions thereof, such as were here made, directing distribution at some future time among persons whose right to take depends upon relation to some future event, vest no legal estate in such persons prior to the happening of such event; and that under this will the children of George A. Seaman took each a contingent interest, the vesting of which was dependent upon their surviving the termination of the two trusts. As said in the note on vesting in Delafield v. Shipman, 18 Abb. N. C. 300:

“Limitations of future or contingent interests in personal property are subject to the same rules so far as prescribed in 1 Rev. St. p. 722, etc., in relation to future estates in land. Id. p. 773, § 2. But, notwithstanding this provision, the distinction between what is termed ‘vesting’ in the one case and in the other continues. The term ‘vested’ is constantly used of legacies to indicate more than not being contingent in the common use of that term as to estates in real property, viz. to indicate one which is not subject to be divested; one that is not defeasible by lapse of time or otherwise. A legacy is not said to be vested except when the legatee, if sui juris, has power to extinguish by release, or give perfect title by assignment.”

And the learned author, in formulating general principles to guide in the interpretation to be put on a gift of personalty in words of futurity, says :

“Where words of futurity are annexed to the substance of the gift, and there is nothing in the will to manifest a different intention, the gift itself will be deemed future, and the question of who-is the beneficiary will be deemed dependent upon the state of facts when that future time shall arrive ; ami in this class of cases, of which the case in the text is an illustration, the legacy is said meanwhile not to be vested, although, if it were an estate in real property, given by the same language, it would technically be called a ‘vested,’as distinguished from a ‘contingent,’ remainder.”

This distinction we endeavored to point out in Matter of Curtis, 73 Hun, 185 ; 56 St. Rep. 113. The court of appeals, however, in reviewing that case, 142 N. Y. 219 ; 58 St. Rep. 348, did not consider it necessary to-pass on the question of vesting. And in the more recent case of Matter of Hoffman, 143 N. Y. 334; 62 St. Rep. 245, it is said :

“Our decision in Matter of Curtis is not decisive, because the facts are essentially different; but in that case is expressed what was our decided drift of opinion in cases more like the present, and was fairly settled later in Matter of Roosevelt, 143 N.Y. 120; 62 St Eep. 130. We are obliged to follow one of two lines of construction. We must open all the nice and difficult questions which arise under a will as to the vesting of technical legal estates, although future and contingent, and assess the tax upon what are in reality only possibilities and chances, and so complicate the statute with the endless brood of difficult questions which gather about the construction of wills; or we must construe it in view of its aim and purpose and the object it seeks to accomplish, and so subordinate technical phrases to the facts of actual and practical ownership. For taxation is a hard fact, and should attach only to such ownership, and may properly be compelled to wait until chances and possibilities develop into the truth of an actual estate possessed, or to which there exists an absolute right'of future possession.”

And in Matter of Roosevelt, supra, it is said :

“It does not follow, because the legislature taxes persons beneficially entitled to property or income in possession or expectancy, that a tax was thereby imposed upon an interest that may never vest. Until that time arrives, the power to tax does not exist.”

And the opinion concludes as follows :

“The legislature, in the act of 1892, had given a practical construction to its previous legislation on this subject when it provides that, where the fair market value of the property or interest cannot be ascertained at the time of the transfer, the tax shall become due and payable when the beneficiary shall come into actual possession or enjoyment.”

While, therefore, in a strictly legal sense, persons having a vested or contingent, a defeasible or indefeasible, a possessory or * expectant interest in property by will or deed may be said to be “beneficially interested” (which has been regarded as synonymous with “beneficially entitled”), and thus answer the description of persons who, becoming “beneficially entitled, in possession or expectancy,” to property, would be liable to taxation, we do not think this is the meaning that is to be attached to the words as used in the act of 1892. As we have endeavored to point out, the latest expression of the court of appeals favors the view that for the purposes of taxation one only becomes beneficially entitled to property when the time arrives that he has the title, or is entitled to possession, or when a contingent interest vests, or when a defeasible estate becomes indefeasible. While there are objections to, and possible hardships in, such a construction, by rendering subject to a tax an interest or property which was free therefrom when created, it nevertheless presents the most practicable rule to be applied-'in the construction of acts relating to the taxing of inheritances. Under these acts it was in the beginning a question as to whether the tax was one upon the estate, as distinguished from one upon the succession ; but this is no longer an open question, because we regard it as now settled by the court of appeals that this tax is on the succession. Matter of Hoffman, 143 N. Y. 330; 62 St. Rep. 245 ; Matter of Swift, 137 N. Y. 77; 50 St. Rep. 81. This being so,.one should not be liable until he succeeds to the property, and the injury or injustice of a rule that would hold one liable or responsible for a tax upon property * in which lie might have a contingent interest, but which might never vest, has in many of the later cases been pointed out. We think, then, that, had the law of 1892 been in existence at the time of the making of the will or the death of John B. Seaman, the interest of the children of George A. Seaman would not then have been taxable, because they did not, within the meaning of the transfer tax, become beneficially entitled, in possession or expectancy, to the remainder of the funds held in trust during the lives of their aunt and father, respectively, until the termination of such life estates. Upon the death of the testator these children had an interest which could only ripen into a beneficial one by their outliving, as to half of the estate, their aunt, and, as to tbie other half, their father: and, if then obliged to pay a tax, they might never reap any resulting benefit, because, if they died before either of the life tenants, they would'never succeed to any interest in the property. As said in Matter of Curtis, supra:

“The law itself gives abundant evidence in its language of the intent to subject only real and beneficial interests to taxation, and nothing in its policy justifies the imposition of such a burden where no correspondent benefit has been received.’’

In disposing of questions, therefore, under these tax acts, we are not to be controlled by the legal divisions of estates as classified and defined in the Eevised Statutes, and the language referring to the character of estates that should be taxed must be taken in its ordinary and popular sense; and where, as here, the act provides for a transfer tax as against those who become “beneficially entitled, in possession or expectancy,” it was intended by the legislature not to tax a mere legal estate or interest, which might or might not ripen into a beneficial one. The obligation to pay the tax was not to be imposed except upon one who has “a present enjoyment or a fixed and absolute right of future enjoyment” of property, and the appraisal of the property or the fixing of the tax is to be proceeded with when this can be ascertained. Thus, as said in Re Hoffman, supra, “The - state will get its tax when the legatees get their property.” As the tax is a burden placed permanently on the succession, and not upon the estate, if the act of 1892 had been in force when the testator died, the-state could not have got its tax, because there was no certainty as-to which of the children would eventually get the property, and the matter would have had to be deferred until the termination of the life estates. Here, before such termination, the law of 1892 was-enacted; and as, by its provisions, the tax was to be imposed upon any one who became beneficially entitled, in possession or expectancy, to any property, whether the instrument under which such property was acquired was made before or after the passage of the act, we fail to see any valid reason why it should not apply in the present instance.

It is to be noticed that the word used in the statute is “transfer,” and this was regarded by the special term as confining its application to deeds, so that where, as here, the instrument creating the estates was a will, the statute would not be applicable. VYe think this, however, is too narrow a construction, ’ it being evident from a reading of the entire act that the legislature intended to include not only transfers by deed, but also-transfers by will. By its language, the act imposes a tax upon successions to property transferred by will prior to its passage,, though the beneficial interest therein vests subsequent to its passage; and, while this construction seems to give a retroactive effect, to the act, which in all cases should, if possible, be avoided, its effect is retroactive only so far as the legal estate is concerned, but not as to the beneficial interest, which, in this-case, did not spring into existence until after the passage of the act, and thus the persons entitled to succeed to the beneficial enjoyment of the property became liable for the tax. Our conclusions, therefore, are that this act imposes a tax upon successions to property transferred by will before the passage of the act, whenever any beneficial interest therein vests subsequent to its-passage; that the beneficial interests of the children of George A. Seaman in the trust funds, which, by the terms of the will, were-to be distributed to such of them as should be living at the deaths of the respective life tenants, did not vest until January, 1893; and that upon such vesting the children became liable to pay the tax.

The judgment of the special term should be accordingly reversed and a judgment in accordance with the views herein expressed entered, with costs to the appellant.

All concur.


text:
    George Ropes, Resp’t, v. William H. Arnold, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Appeal—Case—Amendment.
    An application for leave to amend the case on appeal should he made to the judge before whom the action was tried.
    Motion to amend the case on appeal.

      Geo. A. Black, for the motion ; G. S. Hamlin, opposed.
   Per Curiam.

A motion of a precisely similar character to the one now presented was made to the general term when the case came up for argument in its regular order upon the calendar, and this court then held that it could not with propriety insert excepttions in a case upon its coming before it for argument, but that the case must be settled by the judge who tried the same, and be by him ordered on file, and that this function, which by the general rules of practice was confided to the judge who tried the case, ought not to be performed by the general term. No request to postpone was made by the appellant in order that he might make an application to the judge who tried the case, but the appeal was argued, and, after its decision by the general term, this application is renewed. We think it is apparent that, for the reason stated upon the previous application, it must now be denied. Motion denied, with ten dollars costs.


text:
    Elizabeth Nesbit, Resp’t, v. Halpern Albebt, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Estoppel—Surety in lease.
    A surety in a lease is estopped from alleging that the blanks were filled in after he signed it, or that the seal was not aflixed at the time of its execution, where the lease in due form was delivered to the lessor, who had then no knowledge of such facts.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.

      A. H. Parkhurst, for app’lt; Edward B. Hill, for resp’t.
   Per Curiam.

This action was brought to recover the rent unpaid under a lease upon which the defendant was surety. Sylvan us 0. Boynton, prior to the execution of the lease, was in possession of the same premises as tenant, but, as he was not prompt in making payment of the rent as it became due, he was required, as a condition of a further leasing of the premises, to obtain a surety who should guaranty such payment. In due course he executed the lease himself and procured this defendant to become surety thereon. He continued in possession under the new lease for a period of about nine months, but for a portion of the time he failed to pay the rent. The direction of a verdict in favor of the plaintiff, the appellant says, was erroneous, in that there was sufficient evidence tending to show that the agreement was not filled out at the time of its execution by the surety to have at least presented a question for the jury. It is not only proved by the subscribing witness and the lessee that the surety signed the contract of suretyship, but he admits it himself, and concedes that he understood the purpose of it at the time of its execution. And, having turned over to the lessee the lease bearing the contract of guaranty, signed by the defendant and witnessed in due form, he could not thereafter, as against the lessor, coming into possession of the lease and the contract of guaranty without any knowledge that the blanks had been filled up subsequent to execution, assert that fact as a defense. Singer Manufacturing Co. v. Drummond, 40 Hun, 260. For the same reason, the attempt to, swear the seal off the contract at the time of its execution was not effecr tive. There was evidence, it is true, that the contract, when signed by the surety, did not bear a seal,—sufficient evidence to have presented a question for the jury, if a favorable determina^ tian by them could have affected the result. But the surety, having signed the contract, which asserted the existence of a money consideration from the lessor, and the further consideration of a letting of the premises to the lessee, and delivered the same to the.lessee, duly witnessed, must be held to have authorized its delivery to the lessor as a completed instrument; and if he.-seeks ,to be relieved from liability under his contract, on the ground that the instrument has been altered since its ¡execution, he must show that the instrument was altered after it came into possession of the lessor. No other rule would be safe, and' there is no authority asserting the existence of such a rule. This defendant did not attempt to do. The judgment should be affirmed, with costs. .


author: Dykman, J.

text:
    Prospect Park and Coney Island Railroad Company, Resp’t, v. Brooklyn, Bath and West End Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1". Contract—Validity.
    An agreement between two street railroad companies, in case no inconvenience results to the public, is valid, though it requires the abandonment of part of its tracks by one of the companies.
    2. Same—Construction .
    A contract between two railroad companies to establish a “ joint depot and terminus,” impliedly prohibit the extension of its road beyond the depot by either company.
    Appeal from a judgment, restraining defendants from operating cars over certain lines of road and through certain streets in the city of Brooklyn.

      Morris & Whitehouse, for app’lts; Wingate, Cullen & Miller (Geo. W. Wingate, of counsel), for resp’t.
   Dykman, J.

We are entirely satisfied with the disposition made of this case at the special term,' and with' the reasons therefor contained in the opinion delivered at the special term. The case depends upon a peculiar state of facts, and there seems to be no necessity for making any addition to the opinion of the trial judge, and the judgment should be affirmed upon that opinion, with costs.

All concur.

The opinion of Mr. Justice Cctllen at special term is as follows :

. This action is brought to restrain the operation of the railroad of the first-named defendant, in. alleged violation of a cpntpact be,tween the plaintiff and that company establishing a union terminal depot at Thirty-Ninth street and Fifth avenue, Brooklyn. The first question presented is the authority of the defendant the Brooklyn, Bath & West-End Railroad Company to limit its franchise or statutory powers by contract. It is doubtless true, as a general proposition, that a quasi public corporation cannot by contract relieve itself from its duties to the public, or its obligation to operate its franchise and to use its power for the public benefit. But this general proposition is subject to qualification. Under the act of 1839, a railroad company is authorized to contract with another for the use of its road. This has been held even to authorize a lease. Beveridge v. Railroad Co., 112 N. Y. 1; 20 St. Rep. 962; Woodruff v. Railroad Co., 93 N. Y. 616. The general railroad act also provides for compulsory interchange of facilities of connection between crossing or uniting railways. Thus it has always been the policy of this state to promote, and to some extent even to compel, agreements for some joint operation of their roads between-companies .whose roads have connected or united. Such agreements must necessarily infer to some extent restrictions on the broad powers and discretion as to the construction and operation of this road conferred by statute upon a railroad company. But such agreements are valid, unless the effect of the restrictions prescribed are injurious to the public. Even if the effect of the contract between the plaintiff and the defendant was to cause the abandonment of the part of the latter’s road on Fifth avenue between Twenty-Sixth and Thirty-Sixth streets, that does not render the agreement illegal or against public policy, if there be no detriment to the public. People v. Rome, W. & O. R. Co., 103 N. Y. 95; 3 St. Rep. 39. Here the plan of a terminal depot greatly subserved public convenience. The elevated railroad on Fifth avenue was to be continued along that avenue to the new depot, into which trains of both surface railroad companies were to be brought. The Brooklyn, Bath & West-End Company also leased the Fifth avenue piece of its road to the Atlantic Avenue Railroad Company, making a continuous street railroad to the new depot. Thus far greater facilities were given the public than it could have obtained from the few blocks of the steam railroad abandoned. The contract between the parties is therefore valid, and the plaintiff, having made a very large outlay in pursuance of it, is entitled to have it enforced. It is therefore only to be determined what limitations that contract placed on the defendant the Brooklyn & West-End Railroad Company and the other defendant, which has now leased the road of the first-named company. Justice Bartlett decided, on the application for a temporary injunction, that the contract did not prohibit the operation of defendant’s road by electricity instead of steam, it being shown that it could be so operated without interfering with the running of plaintiff’s trains into the station; second, that the defendant had no right to use the ground reserved for the use of the Union Depot for the passage of trains intended to run through to other parts of the city. In this decision I entirely concur. By the agreement the two companies were to erect, establish and maintain a joint railway depot and terminus " at the equal expense of both companies. The parties were to divide equally the receipts at this depot, and to share equally the expense of its maintenance. While the agreement does not in express terms prohibit either company continuing its road at this point beyond the depot, I think it does so by necessary implication. If either road were to be continued beyond this point, then the station or depot would plainly cease to be the terminus of the road. It would also entirely destroy the scheme for the division of the receipts and expense of the depot provided by the agreement. A company extending its road further into the city would receive a great mass of its passengers and the great bulk of its receipts at the new terminus, and cast, consequently, the whole burden of the old station upon the other company. A personal examination of the ground and the structure erected shows that it was never contemplated (except on one contingency) to extend the two roads beyond this station. The provision in. the contract inhibiting the plaintiff from extending its road or branches to the west, or the defendant extending its road or branches to the east, did not contemplate any extension at this end of the route, but extensions through the territory lying between the depot and Coney Island. The thirteenth clause of the agreement provides for running trains through the cuts to the ferry, in the event of the parties effecting a satisfactory connection or arrangement with the South Brooklyn Railroad & Terminal Company, in which case the through business of both companies to and from Coney Island was to be divided as was provided in the contract for the other business. If such connection was made, it was plainly to be shared in by both parties. There has been no proof upon the trial as to the circumstances under which .this connection was made. While the agreement calls for a satisfactory arrangement, I think it does not follow that either company could refuse to agree to a reasonable arrangement, and'then prohibit the other from making the connection. So, also, neither party could make, unless upon the refusal of the other to enter into it, an agreement for connection for its exclusive benefit. But there is no evidence before me to show whether the defendant conferred with plaintiff about the connection; whether the arrangement is reasonable; whether the plaintiff declined to enter into or whether the defendant refused to allow plaintiff to participate in it. I should not decide this question, except on evidence of the actual transaction between the parties. This subject must therefore be withdrawn, and left for another action, or the case must be reopened for evidence on this point. The defendants should therefore be enjoined from operating their cars or trains beyond the Union Depot, “ save through the cut,” and, while they may operate their road by electricity, and either by trains or by single0 cars, from so operating it as to interfere with the safe and ordinary running of plaintiff's trains by locomotives; the plaintiff to recover costs.


text:
    Prospect Park and Coney Island Railroad Company, Resp’t, v. Atlantic Avenue Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Appeal from an order enjoining defendants from conveying passengers between Coney Island and Thirty-Sixth Street Depot for less than the rate prescribed in the contract under which the •depot was built by the parties.

      Morris & Whitehouse, for app’lts ; Wingate, Cullen & Miller (Geo. W. Wingate, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order restraining the defendants in this action from carrying passengers between the Union Depot, in Brooklyn, and Coney Island, upon the Brooklyn, Bath & West End Railroad, for less than fifteen cents for a single trip, or twenty-five cents for a round trip, for an adult, or for less than half those rates for children between the ages of five and twelve years. The action is based upon a contract between the plaintiff and the Brooklyn, Bath & West End Railroad Company which secures the right to the plaintiff which is sought in this action, and the violation of which is restrained by the order of the special term from which this appeal is taken. This action is denominated suit “No. 2” between these same parties. Suit No. 1 has been tried and decided in favor of the plaintiff. It was an action for the specific performance of the same contract, and the judgment in that case is an adjudication of the validity of the contract and decisive of this appeal. We have affirmed the judgment in that case upon the opinion of Judge Cullen, and it follows that this order should be affirmed, with $10 costs and disbursements. All concur.


text:
    Mayer Kahn, Resp’t, v. Chester Chapin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Trust—Purchase by trustee.
    The mere fact that the trustee personally purchased the trust property at a foreclosure sale, does not render his title void, but voidable only at the election of the beneficiaries; and the title of the trustee and his grantee may be confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries.
    Appeal from a judgment in favor of plaintiff.
    September 6, 1851, Abel Harker died, seized in fee of No. '291 West Twelfth street, subject to a mortgage to secure the payment of $3,500, executed by him and his wife October 6, 1847, and recorded October 7, 1847. Abel Harker left, him surviving, .Jane Ann Harker, widow, and four daughters, his only heirs and next of kin. He left a last will and testament, which was duly probated September 25, 1851, by which two executors were nominated, both of whom refused to qualify, and on the 2d of October, 1851, letters of administration with the will annexed were issued to the widow and James Wooley who accepted the trust and administered the personalty. By the will a trust was established over the realty for the benefit of' the widow and children. Wooley also assumed the execution of the trust created in the real estate. February 1, 1866, upon the petition of the widow and the four daughters, Joseph Harker, a nephew of. the testator, was appointed as trustee to execute'the trusts created by the will, and entered upon the discharge of his duties. February 27,1866, Cornelius Yanderbilt, the assignee of the aforesaid' mortgage, began an action for its foreclosure, in which the widow, the four daughters, the persons name.d as executors in the will, and the trustee were made parties defendant, all of whom were served. All of the parties were of full age, except Virginia C. Harker and Louise E. Harker, who were upward of fourteen on February 28, '1866. A guardian ad litem was appointed for the infants, who appeared and served the usual answer, submitting their rights to the court. A judgment of foreclosure was recovered April 30, 1866. The premises were sold and conveyed May 22, 1866, in pursuance thereof, to Joseph Harker, for $9,000. After the payment of the judgment and the costs of sale, there was a surplus of $5,038.57, which wms paid by the referee to the chamberlain of the city of New York. Afterwards Harker applied, as trustee, for an order directing the payment of the surplus to him. The matter was referred. The infants appeared upon the hearing by their guardian, and the surplus was directed to be paid to Harker, as trustee. The two infant daughters became of full age on or before February 28, 1873. March 15, 1881, Joseph Harker and his wife conveyed the premises to Chester W. Chapin for $14,000, by a deed recorded March 18,1881. Subsequently the grantee died, leaving this defendant his sole heir, who acquired the title which his father acquired under the aforesaid deed, and has since remained in possession of the premises. October 19, 1892, the litigants entered into an executory contract by which the defendant sold and agreed to convey to the plaintiff, by a warranty deed, said premises, in consideration of $16,000. On the date fixed for passing the title, the plaintiff refused to accept the conveyance tendered by the defendant, on the ground that his title was defective, because the trustee personally purchased the property at the mortgage sale, and defendant’s title was derived from him. Afterwards this action was brought, the plaintiff asking tliat the contract be specifically performed in" case the defendant was able to convey a good title, but, if not, that damages be awarded. The defendant answmred, denying that his title was defective, and demanding a judgment that the contract.be specifically performed. At the conclusion of the trial, the plaintiff waived his objections to the title, and announced that he was ready to take the conveyance tendered and execute the contract. The defendant waived all claim to affirmative relief, and thereupon a judgment was entered directing him to convey the premises to the' plaintiff by a warranty deed. No costs were awarded to either party. The defendant appeals and insists that the court erred in directing him to convey to the plaintiff and warrant a defective title.

      Alfred A. Gardner, for app’lt; Abner C. Thomas, for resp’t.
   Per Curiam.

At the date of the trial, twenty-eight years had elapsed since the trustee purchased at the mortgage sale, twenty-two years had passed since the testator’s youngest daughter became of full age, and thirteen years had run since the defendant’s father acquired his title. All of the daughters are now living, except one, who was not a minor at the date of the foreclosure. The trustee is also living, is financially responsible, and is still engaged in administering the trust. During all this time the action of the trustee had never been questioned. The premises were not sold by his act or procurement, but pursuant to a mortgage executed by the testator; and the mere fact that the trustee personally purchased the property at a foreclosure sale does not render his title void, but voidable only at the election of the beneficiaries, and the title of the trustees and of his grantee may be confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries. Harrington v. Bank, 101 N. Y. 257; Lewin, Trusts (8th ed.) 495. It is not asserted that the property did not sell for its full value at the mortgage sale, and it expressly appears that the surplus money was recovered by the trustee in a proceeding to which the widow and all of the children were parties. The beneficiaries, having knowledge of the sale, and having received the benefit of it, and acquiesced for so many years, would not be permitted to disturb the title of a purchaser, ut would be left to their remedy against the trustee, if they have any cause for complaint against him. Neither litigant had declared the contract abandoned, or had absolutely refused to perform it, until the trial -was conelnded. When the evidence was all in, and the state of the title developed, the plaintiff withdrew his objections, and offered to take title; and it was then too late for the defendant, as a matter of right, to refuse to perform his contract. The alleged defect, which, under the circumstances, we think is not a substantial one, existed when the defendant executed the contract and covenanted to warrant the title to the plaintiff; and we tninlc the court did not err in compelling the defendant to perform his contract.

The judgment should be affirmed, with"costs.


text:
    Empire Warehouse Company, Limited, Resp’t, v. Peter Mallett, as Surviving Partner, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    1. Attachment—Affidavit.
    An affidavit for an attachment, made on information and belief, must state the grounds for such information and belief.
    2. Same—Disposal of property.
    Section 636 of the Code does not apply where the defendant disposes of money received as agent for the plaintiff; such case cannot be brought . within the statute by waiving the tort and claiming that the money received by defendant thereby vested in him.
    Appeal from an order denying a motion to vacate an attachment.

      Charles M. Demond, for app’lt; John V. Bouvier, Jr., for resp’t.
   Per Curiam.

The papers on which the attachment was granted are defective, in that they fail to show assignment, disposal, or secretion of property by the defendants with the intent to defraud creditors, as required by section 636 of the Code of Civil Procedure. Every allegation relating to an alleged assignment, disposal, or secretion of their property by the defendants with intent to defraud their creditors is made upon information and belief, and the grounds of such information and belief are withheld. The cause of action alleged in the complaint is that the defendants are agents for the plaintiff, receiving from time to time sums of money belonging to the plaintiff, aggregating $44,-018.08, which they wrongfully converted to their own use. If the requirements of section 636 of the Code of Civil Procedure could be satisfied by affidavits to the effect that defendants had assigned, disposed of, or secreted such sum with intent to defraud their creditors, the attachment could be upheld. But it does not suffice to show that defendants have assigned, disposed of, or secreted plaintiff's property, for the demands of the statute can only be met by showing that the defendants have made such disposition of their own property with such intent. Bank v. Dash, 60 How. Pr. 124. The plaintiff ingeniously seeks to meet this difficulty by the following argument:

“ By the commencement of this action the plaintiff waived the tort committed by the defendants in the conversion and appropriation to their own use of the funds collected by them as agents of the plaintiff, and thus the title to the moneys so collected passed to, and became vested in, the defendants; and therefore, in assigning, secreting, and disposing of such moneys, they have so disposed of their own property as to defraud the plaintiff; and, the affidavits being sufficiently full and definite in that respect, the require ments of the statute are sufficiently complied with.”

1. It has already been decided otherwise in Bank v. Dash, supra.

2. At the time the defendants are alleged to have assigned, disposed of, or secreted the moneys of the plaintiff, the title was not vested in them. The title was then in the plaintiff, and continued to be in it until the commencement of this action, when for the first time the plaintiff waived the tort, and sought to recover upon an implied contract. Plaintiff’s argument, therefore,, is defective in that it necssarily assumes that the title to the moneys was in the defendants at the time they are alleged to have assigned or disposed of them; whereas, in fact, the title was in the plaintiff at that time, and so continued until the commencement of this action. The order should be reversed, with $10 costs and printing disbursements, and the motion to vacate the attachment granted, with $10 costs.


text:
    Frances N. Henck, Resp’t, v. William Barnes, Jr. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    1. Former adjudication—Questions of law.
    A judgment in an action, in which questions of law are alone involved, is as conclusive between the parties as a judgment in an action involving issues of fact as well as law.
    2. Partnership—Employment op attorney by partner.
    One partner has power to employ an attorney to defend actions brought against the firm, and an answer served in their behalf is binding upon all the firm.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff.

      C. E. Coddington, for app’lt; Edward S. Clinch, for resp’t.
   Follett, J.

This action was brought to recover rent due on a lease, all the defendants being personally served. Barnes and Bichards answered separately, but Davison made default. August 26, 1892, the defendants leased from James Adair, by a written contract, Nos. 10 and 12 Vanderwater street, in the city of New York, for five years and eight months from September 1, 1892, agreeing to pay an annual rent of $8,000, in monthly payments of $666.66, in advance, on the first day of every month. It is recited in the lease that the lessees were doing business in New York city under the name of Godey Publishing Company. When the lease was entered into the lessor wrote and delivered the following communication to the lessees:

“ New York, August 26th, 1892.
“ Godey Publishing Co., 21 Park Bow, New York City— Gentlemen : Beferring to the premises Nos. 10 and 12 Vanderwater St., which you have rented for $8,000 per annum for five years and eight months from September first, 1892, I will agree to find good tenants for all floors except the two at top of building. The topmost loft you propose occupying. For the loft next to the top I will provide a good tenant on a one year lease, dating from May first, 1893, at an annual rental of not less than $1,200. All said leases to subtenants to be made in your name, and in terms suitable to your interests. I will secure for the remaining five floors and basement the following prices on five-year leases ; $1,000 per annum for each of the three lofts directly under the two top lofts, $900 each for the ground floor and loft next above it, and from $600 to $800 for the basement, or ■ a total rent averaging as above; the tenants to be of good commercial standing, and not engaged in business that would be detrimental to you. The building to be named after the style of your corporation. I will also agree that you shall not be called on to pay any rent until December first, 1892 (for the month of December), and the incoming subtenants are to have the same privilege, if necessary. I will also agree that on December first, 1892, if the building is not fully rented according to the within terms, including the top floor, which you will occupy at the rate of $1,000 per annum to allow you for any difference in your total rent until all is rented. I will also place a wire guard around the elevator car, to make it suitable to carry both passengers and freight.
“Yours truly,
James Adair.”

The lessees entered into possession of the demised premises, and continued therein as partners until September 17, 1892, when the firm was dissolved, and the members were incorporated under the laws of the state of New Jersey under the name of Godey Publishing Company, since which the corporation has continued in possession of the premises. In November, 1892, the lessor conveyed the premises, and assigned the lease to this plaintiff. In September, 1893, this plaintiff began an action in the city court against all of the defendants to recover $1,333.32, rent due August 1 and September 1, 1893. The defendant. Barnes was not served with process in that action, but on the 2d of October, 1893, an answer was served in behalf of all of the defendants, which was duly verified by Paul M. Richards. In this answer the defendants admitted the execution of the lease ; that they had been engaged in business as partners under the name of Godey Publishing Company, and alleged as a defense, that Adair, the plaintiff's predecessor in title, had failed to perform the promises contained in the communication of August 26, 1892, to their damage in the the sum of $656.65. On the trial of the action the defendants did not show, or offer to show, that the plaintiff, when she purchased, had notice of the communication of August 26, 1892, and it was held that the collateral personal contract of Adair did not run with the land, and bind the subsequent purchaser ; and a judgment was ordered for the plaintiff, which has not been reversed.

The present action was brought to recover $2,666.66, rent from January 1, 1894, to April 1, 1894, inclusive. As a defense, and by way of counterclaim, the defendants set up the agreement of August 26, 1892, and alleged that Adair had failed to perform it, to the defendants’ damage in the sum of $20,000, and also alleged that the plaintiff had full knowledge of the agreement before the lease was assigned to her. On the trial the defendants did not show, or offér to show, that the plaintiff had knowledge of the existence of the agreement of August 26,1892, when she purchased the premises and took the assignment of the lease. The agreement of Adair, and all of the facts which the defendants offered to prove on the trial of this action were before the city court in the action there tried, where it was held that the facts proved and offered to be proved constituted no defense to the action. The judgment of the city court has the same effect as though the defendants had pleaded all of the facts in their answer by way of defense or counterclaim, and upon the plaintiff’s demurrer it had been held that the facts pleaded were insufficient to constitute a defense, and a judgment had been rendered for the plaintiff. A judgment in an action in which questions of law are alone involved is as conclusive between the parties as a judgment in an action involving issues of fact as well as of law. Bouchaud v. Bias, 3 Nenio, 238; Gould v. Railroad Co., 91 U. S. 526; Vanlandingham v. Ryan, 17 Ill. 25; 1 Freem. Judgm. (4th ed.) § 267. The judgment of the city court is a bar to the defense sought to be interposed in this action. The defendant Barnes sought to obviate the effect of this judgment by offering to show that he was not personally served with process in the city court, but he did not offer to prove that his two partners were : not served, nor that Richards did not serve a verified answer in behalf of all the defendants. One partner has power to employ an attorney to defend actions brought against the firm, and a'n answer served in their behalf is binding upon all the firm. Apart from fhe question of estoppel, we think the facts the defendants offered to prove did not constitute a defense. The agreement of Adair was a mere collateral personal undertaking, which did not run with the land, or bind the subsequent grantee, the plaintiff, who purchased without notice. Coffin v. Talman, 8 N. Y. 465 ; Tayl. Landl. & Ten. §444; 2 Platt, Leas. 413. The judgment should be affirmed, with costs.

All concur.


text:
    Josephine Antoinette Cambreling, Resp’t, v. Ella Ward Graham et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Mortgage—Satisfaction .
    The satisfaction of a mortgage on premises owned by the holder thereof in common operates in favor of his cotenant, when made voluntarily, without any misunderstanding or mistake of fact, and with actual knowledge of the legal effect of such act.
    Appeal from portions of an interlocutory judgment, fixing the respective interests of the parties, and directing a sale of the premises.

      F. R. Coudert, Jr., for app’lt Ella Ward Graham; E. Luther Hamilton, for app’lt Grace Graham Cambreling; Henry L. Sprague, for resp’t, Josephine Antoinette Cambreling.
   Per Curiam.

Cornelia Flora Graham died August 17, 1885, seized of the premises in question, which were subject to a mortgage of $12,500, whereupon Robert McC. Graham, her husband, acquired an estate of tenancy by the curtesy therein, and, in addition, under the will of Cornelia Flora Graham, he became seized of an undivided one-fourth of said premises, and her children, Josephine, Grace, and Douglas, each became seized of an undivided one-fourtli thereof. April 17, 1887, Grace Graham, for a nominal consideration, conveyed her interest to her father, Robert McC. Graham, and a few months later, but before attaining their majority, Josephine and Douglas united in a conveyance of all their right, title, and interest in such premises to their father. Before the execution of such conveyance, and on the 3d of August, 1887, Robert McC. Graham intermarried with Ella” Ward. July 9, 1888, Robert McC. Graham, for a nominal consideration, conveyed to his wife, Ella Ward Graham, all his right, title, and interest in and to such premises. On the same day he executed and caused to be duly recorded a satisfaction piece of the mortgage of $12,500, which was an incumbrance upon the property at the time of the death of his first wife. Subsequently, and in December’, 1890, Robert. McC. Graham died intestate. When Josephine reached her majority, for the purpose of making void and dis< avowing the deed executed by her jointly with her brother, Douglas, she conveyed her right, title, and interest in the premises to Henry L. Sprague, in which it was recited that such was the object of its execution and delivery. Thereafter Sprague conveyed such undivided interest to her. Later on, Douglas Graham, becoming of age, also took the necessary steps to disavow the deed made by him during his minority. Josephine thereupon commenced this suit in partition, which has resulted in a judgment that the property , be sold, and adjudging the interests of the several parties therein to be as follows:

“ The plaintiff is entitled to one undivided fourth part thereof in fee, subject to the right of curtesy initiate of her husband, the defendant Nicholas Cambreling. The defendant Ella Ward Graham is entitled to one undivided half part thereof in fee. The defendant Douglas Graham is entitled to one undivided fourth part thereof in fee.”

With so much of the decision as determines that the plaintiff, Josephine, and the defendant Douglas had a right to disaffirm the deed which they executed as minors, the appellant Ella Ward Graham makes no complaint, but she insists that her husband never intended that Josephine and Douglas, his children and cotenants, should have the benefit of any portion of the $12,500 mortgage which he paid off, and she urges that she is entitled to be subrogated to all his rights in such respect. The referee reached the conclusion that a case was not made out for the equitable relief asked for by the defendant Ella Ward Graham, because the satisfaction of the mortgage by Robert McC. Graham was a voluntary act, made without any misunderstanding or mistake of fact, and with actual knowledge of the legal effect of such act As we have reached the conclusion that his position in such respect was well grounded, it wi 11 be unnecessary to discuss the equitable principles invoked by the appellant. The facts which induce our concurrence in the position taken by the referee may be briefly Stated as follows: At the death of Cornelia Flora Graham the $12,500 mortgage was held by Louisa A. Steinwav, and in May following the full amount due on the mortgage was satisfied of record. This was claimed to have been done under a mistake, and thus Mr. Graham was led to consult his counsel, who advised him of the'rights which the after-born children of his first wife had in the premises, and the effect which might follow a satisfaction of the mortgage. He was further informed, while he would have the right of subrogation against the children, the better course would be to take an assignment of the mortgage. The advice of his counsel was followed, an assignment of the mortgage obtained, and a memorandum made upon the margin of record of the mortgage referring to the assignment. From that time until the mortgage was satisfied of record by him—more than two years later—it was held open and retained in his possession. It cannot even be said that, owing to the lapse of time, he had forgotten the advice of his counsel which led him to correct the original mistake for the purpose of protecting himself as against his children, for his attention was sharply called to it by the letters of his counsel* written shortly before the mortgage was satisfied, which letters were written in the course of preparation and execution of the deed by which the property was conveyed to his wife. In the first letter, his counsel,' among other things, say :

“We had advised in other cases, and think it quite ns well in your case, to take a quitclaim from the two minor children also, as they are of sufficient years to fully understand what they are signing, and would consider themselves, when of full age, morally bound to ratify and confirm.”

The second letter reads as follows:

“We inclose proposed deed to Mrs. Graham, which you can execute. It says, ‘Subject to existing incumbrances.’ The mortgage that you hold is outstanding, as you remember, and may or may not merge, according to your intentions. The proposed will of Mrs. Graham is prepared, and ready for you to examine. You are doubtless aware that marriage and birth of a child will revoke your own will, if made before marriage.
Respectfully, Coudert Brothers.”
“[Inclosures.]
“And on the margin, ‘You can execute deed, and satisfy mortgage afterwards, if you wish.’ ”

The further fact is established that he well knew that his minor children would have the right to disavow the deed executed by them when they should reach majority. In the first place, he was so advised in the first letter, from which we have quoted, in which it was suggested that a deed be taken from the minors, because they would consider themselves morally bound to ratify and confirm it when they should become of age. His knowledge of the rights of the minors is further evidenced by the testimony of his wife and grantee, Ella Ward Graham, who testified that “he said, as they were minors, there would be a question to be decided by law as tó their signature, if they wanted to disavow it later, if anything happened to him.” In'the light of these facts, and without a suggestion in the record that he was deceived or mistaken, there is no basis for a different conclusion than that reached by the referee. The appeal of Grace Graham Cambreling complains of so much of the judgment as adjudges that the defendant Ella Ward Graham owns one-half of the premises ; her claim being that she should have been adjudged to be the owner of an undivided one-fourth interest therein. That she was of full age when she executed the deed which she sought to have set aside in this suit, is conceded. The ground upon which she sought to attack the validity of the deed was that it was procured from her by her father by means of misrepresentations and undue influence. The referee decided that her contention was not supported by the evidence, and in that view we concur.

The judgment should be affirmed, with costs to the special guardians, payable out of the proceeds of the sale of the property.


author: Parker, J.

text:
    In the Matter of the Application for the Probate of the Will of Lewis R. Blair, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    W ill—Attestation.
    Where the attestation clause is placed between the main body of the will and a clause subsequently added, the testator signs both portions of the will, and the witnesses sign such clause, the signatures- of the witnesses are not at the end of the will as required by the statute.
    Appeal from a decree admitting a will to probate.

      A. B. Porter, for app'lt; Janies O'Neill, for resp’t.
   Parker, J.

The surrogate decided that there was such a subscription and signing by the testator and witnesses at the end of the will of Lewis R. Blair as is required by statute, and admitted it to probate. The object of the statute is to surround testamentary dispositions with such safeguards- as will' protect them from alteration, and -to-prevent fraud. The court of appeals said of it, in Sisters of Charity v. Kelly, 67 N. Y. 409, that the 'provision-“is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions. While its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction." Other cases in which the question has been in some form presented are In re Hewitt, 91 N. Y. 261 ; In re O'Neil, 91 N. Y. 516 ; In re Conway, 124 N. Y. 455 ; 36 St. Rep. 486 ; In re Case, 4 Dem. 124. Neither in those cases nor in any others, to which our attention has been called, has the precise question now presented been considered, but they all manifest an intention on the part of the courts to insist that the requirements of the statute shall be strictly enforced. On the 8th day of December, 1887, Henry G. Leask, at the request of Blair, drafted for him a will containing some nineteen provisions. He was assisted in that work mainly by a prior will executed by Blair. While he was engaged in the work of preparing the new will for execution, Blair was in an adjoining room, visiting with the draughtsman’s father, who was an old friend of his. As soon as the writing, including the attestation clause', was completed, the draughtsman invited Blair in, and read the will to him ; saying, as the reading was finished, “Is that your will?” to which Blair replied, “Yes ; that is my will.” Then Blair said:

“Now, I want you to add something at the bottom of that. It has nothing to do with the will, but I want you to add this, so that my executors shall have money enough to pay for funeral expenses, and other things that may come up; and it won’t interfere with the body of the will.”

In accordance with his request, the draughtsman added the following : . , . . ,

“I hereby direct my executors to sell at private -sale that piece of real estate, with tenements and appurtenances thereto, known as No. -, East One Hundred and Tenth (110) street, in the city of New York", and occupied by Mr. Rosenthal, and the proceeds thereof to be devoted to liquidating any deficiency that may arise in interest and cash bequests made in this will.”

Another person was then brought in to subscribe the will, as a witness: and, in the presence of the subscribing witnesses, Blair signed the writing in two places, at the same time affixing seals, first immediately after the testimonium clause, and second at the end of the clause which we have just quoted, which immediately' follows the signatures of the subscribing witnesses, whose names were written next underneath the attestation clause. Having done this, he declared the instrument to be his last will and testament, and requested the witnesses to sign as subscribing witnesses, which they did underneath the attestation clause, and before the provision purporting to confer a power of sale upon the executors. The learned surrogate decided that Blair’s first signature was at the end of the will, within the meaning of the statute, and admitted that which preceded it to probate, as the last will and testament of Blair. A decision that the second and last signature of Blair was at the end of the will would have prevented probate, because the statutory requirement that the subscribing witnesses shall sign at the end of the will would not have been complied with.

Whether the court was right in deciding that the provision which we have quoted, and the signature of Blair subscribed thereto, should be ignored, must be considered. The first inquiry naturally relates to the character of this provision. Is it substantial? Had the testator a definite and well-understood purpose when he instructed the draughtsman to write it out ? And was that purpose to prevent a failure of the will, as to interest and cash bequests, by providing for a sale of enough real estate to prevent it? If the clause be read and considered independently of the testimony of the draughtsman, an affirmative answer only is possible. And it is a fact not to be lost sight of that the latter ■clause was signed and sealed by the testator at the same time and in the same way as the provisions which preceded the attestation clause. It is urged that notwithstanding such fact, and the further one that it purports upon its face, to constitute an important part of the will, it may be disregarded, and the will held to have -ended above the first signature, because of the testimony of the draughtsman that Blair, in effect, declared", when directing that the clause be written, that it had nothing to do with the will. It is clear that it was intended by Blair, by means of this provision, to make certain the payment of the various bequests given by his will. And it seems to be equally clear that the idea which Blair intended to convey to his draughtsman was that the added clause would not in any way affect the disposition of his property which he was undertaking to make by the provisions already incorporated into the instrument.

But, if it be assumed that the language employed by him in giving instructions to his draughtsman is capable of the "construction which the learned surrogate has put upon it, then the questian id whether a testator’s conversation with his draughtsman can have the effect to contradict and overcome a writing made and. sigued by him a few minutes later ; for the power of sale clause,, supported by the signature and seal of the testator, effectually asserts that it constitutes a part of testator’s scheme for working-out such a distribution of his property as he had planned. And if its assertion can be set at naught by the testimony of thedraughtsman, alleging a contrary intention on the part of the testator, then there would seem to be opened a door for fraud, which it was the aim of the legislature to close. It is true that there is-no suspicion of fraud in this case, and to sustain the probate of , the will would work out the intention of Blair, unless it should happen that there should not be moneys enough to pay the bequests, by reason of the failure of the power of sale as to the 110th street property. In saying this, we do not lose sight of the fact that the primary rule of the construction of wills, requiring effect to be given, if possible, to the manifest intention of a testator, cannot be invoked in the construction of the statute relating to their execution. In such cases the courts consider the intention of the legislature, not that of the testator. In re O'Neil, 91 N. Y. 516. But the fact that no harm will likely result, in this case, from a. probate of that part of the will which precedes the first signature-of Blair, should not have much weight with the court; for the more important question, after all, is whether the decision will establish a good or bad precedent. Bearing in mind that Blair directed the writing of the provision following the attestation clause; that, in the presence of both attesting witnesses, he signed his name and affixed his seal, first after the testimonium clause, and second after the provision conferring a power of sale upon his executors, and directing that “the proceeds thereof be devoted to-liquidating any deficiency that may arise in interest or cash bequests made in” his will, and that he then declared it to be his last will, without in any way limiting his assertion to the 'provisions preceding his first signature, the conclusion must necessarily be-reached that the first signature was not at the end of the will. And such conclusion cannot be overborne by the testimony of the draughtsman that Blair said to him before it was written, and necessarily before execution, that such provision “ has nothing to-do with the will.” But it should be further said that the witness’ testimony, as a whole, does not convey to our minds the impression that Blair did not intend it to be a part of his will, but, instead, that he intended to give to his draughtsman the assurance, merely, that the addition of the clause would not affect the disposition of his property as provided in the instrument then written. The draughtsman quotes Blair as saying :

“ It has nothing to do with the will, but I want you to do this-so that my executor shall have enough to pay for funeral expenses, and other things that may come up ; and it won’t interfere with the body of the will.”

We think it must be held that the first signature of Blair was not at the end of the will, and it follows that the decree, admitting so much of the instrument to probate as precedes it, is in violation. of the statute requiring the signing by the testator at the end of the will. The decree should be reversed, and probate denied, with costs to all parties, payable out of the estate.

All concur.


text:
    Richard W. Maxwell, Resp't, v. William B. Gerard, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Innkeepers—Liabilitv.
    An innkeeper’s liability for the baggage of his guest is not terminated the instant the latter pays his bill and leaves the hotel, but continues for such a reasonable time thereafter as may be necessary for him to secure its removal; and, if the innkeeper, in the ordinary course of his business, undertakes its removal to a railroad or to some other common carrier, until he has made performance.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Edmund R. Lodge, for app’lt; Henry Thompson, for resp’t.
   Parker, J.

J.—The appellant insists that the motion to dismiss

the complaint should have been granted, because the relation of guest and innkeeper ceased the moment the plaintiff left the hotel with the declared intention of not returning; that thereafter the defendant, as to plaintiff’s trunk, was merely a warehouseman. We do not understand this to be a correct statement of the rule. An innkeeper’s liability for the baggage of his guest is not terminated the instant the guest pays his bill, and leaves the hotel, but continues for such a reasonable time thereafter as may be necessary for him to secure its removal; or, if the innkeeper, in the ordinary course of his business, undertakes its removal to a railroad, or to some other common carrier, until he has made performance. This is the rule as between passenger and common carrier, and there is no substantial distinction in the relation which they bear to each other as to baggage, and that borne by guest and innkeeper, as to require or permit a different rule. When a passenger alights from a train at his journey’s end, so much of the contract of his carrier as relates to the transportation of the passenger’s person is performed, but its liability as common carrier of his baggage continues for such a reasonable time thereafter as may be necessary to secure its removal by the ordinary and usual methods. Roth v. Railroad Co., 34 N. Y. 548; Fenner v. Railroad Co., 44 id. 505 ; Burnell v. Railroad Co., 45 id. 184; Matteson v. Railroad Co., 57 id. 552 ; Burgevin v. Railroad Co., 69 Hun, 479 ; 52 St. Rep. 617; Mortland v. Railroad Co., 81 Hun, 473; 63 St. Rep. 215. We see no reason for applying a different rule as between innkeeper and guest, and our attention has not been called to any case in this state commanding us to do so.

When the plaintiff left defendant’s hotel, he left in his room a trunk, containing wearing apparel, which the jury has found was of the value of $60. What became of the trunk the record does not advise us, but it is conceded that the plaintiff never received it, and the defendant does not appear to know what, if anything, was done with it after plaintiff left the hotel. Plaintiff left the hotel to go on board a yacht for a cruise, and it was his desire to have his trunk sent home by express. His testimony is that he made an arrangement with the clerk in charge of the hotel office to deliver his trunk at once to an expressman for transportation to his residence. It is not pretended that this undertaking on the part of the defendant’s clerk was outside of the ordinary routine of the work undertaken by the defendant to promote the pleasure, comfort, and convenience of his guests, and to assure their further patronage. Nor is it pretended that innkeepers generally are not accustomed to perform work of like character for their guests, and for a like purpose. If the plaintiff’s version of what took place between himself and the clerk be true, it would follow, under the rule we have announced, that defendant’s liability as innkeeper continued until he should have delivered the baggage to the ex-pressman, which he promised to do immediately on the departure of his guest. This he neither did nor attempted. If plaintiff’s testimony had not been contradicted, it would have been the duty of the court to have directed a verdict in favor of the plaintiff. On the part of the defendant, however, it was denied that he, or any one in his behalf, agreed to deliver the trunk to the express-man, as testified to by the plaintiff, and this issue the trial court rightly decided to submit to the jury. The defendant has no substantial ground of complaint of the manner in which that question was submitted by the court, for the charge was far more favorable to the defendant than he was entitled to. The finding of the jury disposed of the only issue in favor of the plaintiff.

The judgment must be affirmed, with costs.

All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Charles Mater et al., as Administrators of Margaret Mater, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Appeal—What brought tip.
    An appeal by administrators from a decree, settling their, accounts as presented, does not bring up for review the rejection by the surrogate of the individual claim of one of them against the estate.
    Appeal from a decree, judicially settling the accounts of administrators.

      Louis Cohen, for app’lts; Luis James Phelps, for resp’t.
   Per Curiam.

The account of the administrators , was settled and allowed by the surrogate’s court as presented, and they were not aggrieved by the decree. The administrators alone have appealed. This does not bring before this court the question of the right of one of them as an individual to recover his claims against the estate. Appeal dismissed, with $10 costs and disbursements, against the appellants personally.