text:
    MARY A. JORDAN, Administratrix, etc., and HENRY S. WILSON, and others, Executors, etc., Appellants, v. HENRY VOLKENING, impleaded, etc., Respondents.

      Undertaking on appeal — ■money deposited in lieu of — liens upon.

    When upon an appeal to the Court of Appeals from a judgment of the General Term, money is deposited in court in lieu of an undertaking, such deposit is subject only to the decision of the appeal, to which it relates, and upon the reversal of the judgment the fund is released from all liens except those created by judgment or assignment.
    The plaintiff is not entitled, on showing that the defendant who made such deposit is insolvent, to have the money held as security for the payment of any judgment he may recover on a new tidal.
    Appeal from an order directing the New York Life Insurance- and Trust Company to pay to Nelson Smith as assignee of one Gloeckner $1,250, part of a deposit of $4,000, and to said Smith for himself, and as attorney for one Gloeckner, the balance of said deposit.
    The plaintiffs, on February 5, 1876, recovered judgment against the defendant for $3,828.98. Defendant, on appeal to the General Term, moved to have the judgment marked, secured on appeal, and under an order in this action of February 19, 1876, the $4,000 was deposited by defendant in the Trust Company to the credit of this action. After an affirmance by the General Term, and an appeal to the Court of Appeals, said deposit ivas made a deposit in that court. The Court of Appeals having reversed the judgment and granted a new trial, application was made by an order to show cause in the action, why such moneys should not be paid to Nelson Smith and Ludwig G. Gloeckner. Gloeckner alleged in his affidavit that Yolkening had assigned the deposit to him June 3, 187(5, and that he had assigned $1,250 to Mr. Smith. The appellants alleged that Volkening was utterly insolvent, and that the Marine Court appointed a receiver of his property in supplementary proceedings, October 10, 1876 ; that this deposit was plaintiff’s only security for their recovery in the action, which is on an undertaking given by defendants as sureties on an injunction.

      George H. Forster, for the appellants.

      Nelson Smith, for the respondents.
   Brady, J.:

The money deposited in this case in lieu of an undertaking, was subject only to the decision of the appeal to which it related. When the court of appeals reversed the judgment the fund was released from all liens except those created by judgment or assignment. The plaintiffs not being judgment creditors could not stay the payment of it, and especially as it had been assigned by the depositor. The attempt to convert it into a security for the payment of the plaintiff’s debt has no precedent and cannot be sanctioned. Order affirmed with ten dollars costs and the disbursements of this appeal.

Davis, P. J., and Ingalls, J., concurred.

Order affirmed with $10 costs and disbursements.


source: Caselaw Access Project

author: Be a or, J.:

license: Public Domain

text:
    WILLIAM LIBBEY, Survivor, etc., Respondent, v. MOSES STRASBURGER, Appellant.

      Bankrupt act — discharge in composition proceedings — effect of , on fraudulent debts.

    A debtor who is discharged in composition proceedings, instituted under the U. S. Bankrupt Act, is not thereby relieved from a previous debt fraudulently contracted.
    Appeal from an order denying defendant’s motion for a perpetual stay of execution.
    The action was commenced December 28th, 1875, to recover the sum of $2,304.23, for goods sold and delivered by A. T. Stewart & Co. to the defendant, in November and December, 1875. An order of arrest was issued in the action upon affidavits alleging that the defendant was guilty of fraud in contracting the debt, and he was arrested thereunder and held to bail. This order of arrest was on appeal sustained by the General Term of this court.
    Judgment ivas entered in the action against the defendant, November 12th, 1877, for $3,003.05. On the 3d day of December, 1877, an execution against the property of the defendant was issued on said judgment, and on the 1st day of February, 1878, said execution ivas returned unsatisfied. On the 1st day of February, 1878, an order was duly made and entered herein by Mr. Justice Donohue, denying the defendant’s motion for a perpetual stay of proceedings on the execution and judgment herein, with $10 costs, from which order the defendant appeals.
    The fraud in contracting the debt for which this action Avas brought is admitted, but the court Avas asked to grant a perpetual stay of the execution and judgment, on the ground that the cause of action and the judgment have been discharged under a composition in bankruptcy, alleged to have been made October 7, 1876, more than a year before the judgment in this action AAras entered.
    The plaintiff did not join in the composition proceedings, nor consent to the same, and has not accepted or received any benefit thereunder.

      Townsend tf- Waldheimer, for the appellant.
    The composition under and in pursuance of the 17th section of the act of congress approved Juno 22d, 1874, operated as an accord and satisfaction, and a discharge of the indebtedness of the defendant to A. T. Stewart & Co., although the debt was contracted in fraud. (Pool v. McDonald, 15 N. B. R. R., 560.) No formal discharge is necessary, but the recording of the resolution, etc., is all that is required (In re Becket, 12 N B. R. R., 201), nor can the record of the United States Court of the composition proceedings be questioned or impeached collaterally. (Alston v. liobinett, 9 N. B. R. R., 74; Hudson v. Bingham, 8 id., 494; Ocean Bank v. Olcott, 46 N. Y. R., 12.) While a discharge under section 5117 (U. S. Statutes) does not discharge debts contracted by fraud, a composition under the act of 1874 (supra) docs operate as such upon all provable debts whore the provisions of the act have been complied with. (IKc/A v. Lamprey, 16 N. B. R. R., 205; Bamh-rg v. Stern,. Daily Reg., Jan’y 11, '78; Olajiin v. Scessel, hi. Y. W. Dig., Nov. 12, ’77.)

      Henry H. Bice, for the respondent.
   Be a or, J.:

The appellant, who fraudulently contracted the debt due to the plaintiff, secured by a meeting of his creditors a discharge under the provisions of the bankrupt law authorizing a composition. Act of congress approved 22 June, 1874, sec. 17.) The plaintiff did not, however, unite in the proceedings, and did not accept or receive any benefit from them. The defendant, nevertheless, insists that he is discharged from the debt. In this, we think, he is mistaken. The Revised Statutes, section 5117 of the bankrupt act, declares that no debt, created by the fraud or embezzlement of the bankrupt, shall be discharged by proceedings in bankruptcy, and the composition already mentioned is a proceeding in bankruptcy.

The second section relating to it declares that in all cases of bankruptcy now pending, or thereafter pending, a meeting may be called under the direction of the court, etc.; and the Court of Appeals has substantially decided that in construing a section of the bankrupt law, it is to be read and applied in connection with every other section of the act. (Ansonia B. & C. Co. v. New Lamp Chimney Co., 53 N. Y., 123.) This rule is applicable to this case, because there is nothing in the language of the section relating to compositions, which in terms enlarges their effect so as to overrule the general and broad provisions of section 5117 (supra). The intention of the law makers was to exclude the fraudulent debts of the bankrupt from the operation of the statute. It was designed to assist honest debtors only. It would be extending its benefits beyond the scope its framers had in view, to declare that debts which under its provisions could 'not be discharged, would by composition proceedings be blotted out, even although the recusant creditor had received no part of the estate.

We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Davis, P. J., and Ingalls, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    THE BRANDON MANUFACTURING COMPANY, Respondent, v. HERBERT L. BRIDGMAN, impleaded with SAMUEL L. PETTENGILL and others, Appellants.

      Code, § 391 — examination of party under — not allowed, where the purpose is to compel the party to disclose a libel — cannot compel him to criminate himself.

    This action was brought to recover damages for injuries to plaintiff’s business, occasioned by certain libelous publications alleged to have been made by defendants as advertising agents for some persons unknown. The plaintiff procured an order for the examination of the defendants, under section 391 of the Code, to enable them to frame a complaint, and to ascertain the names of the persons who prepared and procured to be published the said advertisements, in order that they might be made parties to the action.

      Held,, that under section 391, an examination could not be ordered in a case in which the party might refuse to answer the questions to be put, on the ground that they would tend to criminate himself, and that the order should be reversed.
    Appeal from an order of the Special Term, directing the examination of defendants before trial.
    In July, 1877, the plaintiff obtained an order and summons for the examination of the defendants Pettengill and Bridgman, as witnesses before trial, under section 391 of the Code of Procedure. The affidavit upon which the order was granted alleged that the defendants and others were engaged in the business of advertising; that they had received from persons who were unknown to the plaintiff, a variety of false, libelous and defamatory communications and statements of and respecting the plaintiff, its business prospects, pecuniary condition, and general standing, and caused them to be published in various papers; that the action was commenced to recover damages for the injuries occasioned thereby; that “the plaintiff is unable to frame their complaint as against the said persons, by reason of being as yet not possessed of all the various false and defamatory articles which they have published throughout the United States (although they have a large number now within their control), and also, because they do not know the names of the persons who have prepared and procured to be published the said advertisements, and who arc proper parties defendant in this action; and that it is necessary, in order to obtain the knowledge of the said names, and of the facts necessary to frame the said complaint, that all the tacts and circumstances incidental and necessary to the full determination of this action, may be brought before the court, that the plaintiff shall have an order to examine the defendants, constituting the firm of S. M. Pettengill & Co., and the said Bridgman, and to that end they now apply for an order to examine the defendant Samuel M. Pettengill, the defendant Herbert L. Bridgman, and the other defendants constituting the firm of S. M. Pettengill & Co., or otherwise associated with them, or the said Bridgman, in directing or procuring such publication, so that the plaintiff can obtain from the said persons the information necessary as aforesaid.”

      G. D. Adams, for the appellants.
    The discovery which the plaintiff here seeks, is to compel the defendants to disclose that they have published, or been instrumental in publishing, libelous matter, and for whom, or at whose instance they published it; in other words, whether they, and certain other persons, whom they are expected to name, have been guilty of a criminal offense, for which they could be indicted and punished.

      Nothing is better settled, than that a party cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture, or a criminal proceeding. (Wingram on Discovery, 195; 1 Daniells Ch. Pr. [3d ed.], 589, 729; Paxton v. Douglas, 19 Yes., 226; Matter of Kipp, 1 Paige, 607.) For this reason a bill of discovery was never allowed, in Chancery, in an action for libel. (2 Story Eq. Jur., § 1, 494 and note; Glynn v. Houston, 1 Keen, 829; March v. Davidson, 9 Paige, 588; Opdyke v. Marble, 44 Barb., 67.) The examination of an adverse party before trial, provided for by section 391 of the Code, is a substitute for the former remedy by bill of discovery, and can only be had where a bill for a discovery would have been previously sustained. Phoenix v. Dupuy, 2 'Abb. [New Cases], 146; King v. Leighton, 58 N. Y,, 383; Glenney v. Stedwell, 64 N. Y., 127; 1 Abb. [New Cases], 327, note 332, 487.) It follows logically that a defendant cannot be compelled, under section 391 of the Code, to disclose facts to enable a plaintiff to sustain an action for slander, or for libel, and so the courts of this State uniformly hold. (Townshend on Slander and Libel [3d ed.], addenda to p. 646; Bailey v. Dean, 5 Barb., 303; Phoenix v. Dupuy, 2 Abb. [New Cases], 146.)

      Jno. B. Whiting, for the respondent.
    The right to examino a ' party before trial is absolute. (Code of Civil Procedure, (§ 837, 873; Glenney v. Stedwell, 64 N. Y., 120; McVickar v. Ketcham, 1 Abb. Pr. [N. S.], 452; Cook v. Bidwell, 17 Abb. Pr., 300.) The mere fact that a suit for libel is begun, and a party to it is sought to be examined as a witness docs not create the privilege of refusing to be sworn. \Marsh v. Davidson, 9 Paige, 580; Bailey v. Dean, 5 Barb.., 297.) The objection must be taken by the witness after he is sworn. (Paryv. Almond, 12 Sergeant and Rawlo, 284; U S. v. Barr, 1 Robertson’s Trials, 207, 208; 9 Wise., 143.)
   Brady, J.:

The object of the examination of the defendants, Samuel L. Pettengill and Herbert L. Bridgman, was to enable the plaintiffs to frame their complaint.

From the application it is apparent that it was designed to obtain from thorn information connecting them with the publication of the alleged libelous matter. Under section 391 of the Code this cannot be allowed in an action of this character, for the reason that it assimilates to a bill of discovery which in such cases "was not allowed under the old system, and has been refused in many instances. Such is the rule both in England and in this country, the reason being that the answers may criminate or tend to criminate the person giving them. (Bailey v. Dean, 5 Barb., 297; Phœnix v. Dupuy, 2 Abb. [New Cases], 146; Paxton v. Douglas, 19 Vesey, 225; Tupling v. Ward, 6 H. & N., 749; March v. Davison, 9 Paige, 580.)

The right to an examination under section 391 is not, by virtue of its provisions, so enlarged as to include cases in which, by the law existing when it was passed, a party would be at liberty to refuse to answer if put upon the stand. This decision is designed to relate to the case considered and kindred cases, and not to affect in any way the right of a party to call the defendant as a witness upon the stand, leaving him while there to such objections as he may interpose against answering any question put to him; or to his examination under the Code after issue joined.

The order should be reversed with ten dollar’s costs and disbursements to the appellant, to abide the event.

Davis, P. J., and Ingalls, J., concurred.

Order reversed with ten dollars costs and disbursements to appellant, to abide event.


text:
    FRANK RHONER and others, Appellants, v. THE FIRST NATIONAL BANK OF ALLENTOWN, PENNSYLVANIA, Respondent. THEODORE J. PALMER, and others, Appellants, v. THE SAME.

      National bank in another State — attachment against — cannot be issued before final judgment.

    An attachment cannot be issued against a national bank before final judgment, even though it has property within this State and is located and carries on business in another State. (Southwick v. Mrst National Bank of Memphis, 7 Hun, 96, overruled.)
    Appeal from orders vacating warrants of attachment in the above entitled actions.

      F. A. Burnham, for appellants.

      Peabody, Baker & Peabody, for respondent.
   Brady, J.:

The defendant is a bank organized under an act of congress and located at Allentown, in the state of Pennsylvania, and the plaintiffs herein being creditors, and the defendants having property in this State, on application and proof of the facts stated, an attachment was issued. The defendant appeared for the purpose of moving to discharge the'attachment, on the ground that by act of congress this court was prohibited from granting an attachment against such an association before final judgment, and the motion was made and was successful.

The appeal presents the question whether or not this relief was properly granted.

The precise question was considered in Southwick v. The First National Bank of Memphis (14 S. C. [7 Hun), 96), and disposed of adversely to the defendant, but the subsequent corrections by the Revised Statutes of 1874, to sections 5242, 5198, were not considered in that case, the decision in which rested upon the effect of the phraseology of the section criticised in the case mentioned. It was then held that the prohibition related only to attachments against national banks in the place where they were located, and therefore this court had power to issue such process against a national bank, not located but having property in this State. The amendment suggested however removes the obscurity which led to the decision mentioned, by making the inhibition so sweeping as to relate to all actions against such associations. In the case of The Central National Bank v. The Richland National Bank of Mansfield (52 How. Rep., 136), Justice Barrett considers tlie question here involved, and expresses by his opinion the difference between the provisions already considered. Ho arrived at the conclusion that an attachment could not be legally issued, and his judgment in that respect seems to be correct. Congress had declared that it should not be done. This provision in the act of congress does not, however, affect the jurisdiction of this court over national banks. It limits only the exercise of authority by attachment, which is a provisional remedy, and not absolutely essential to jurisdiction, which may be acquired by other and indo pendent modes under the Code — sections 134, 135. The decisions are unanimous as to the power to relieve national banks from the garnishee process, said Barrett, J., in The Centred National Bank v. The Richland National Bank of Mansfield, and this is all in effect that is done by the amendment suggested. It has frequently been held in this State that the form of the remedy may be changed without violating the provisions of our constitution, and the protection of banks created by national authority from the destructive process of a state court when ample remedies are given by the federal tribunal, is in no ways subversive of constitutional limitations. The states can exercise no control over national banks nor in any wise affect their operation except in so far as congress may see proper to permit. (The Farmers' Bank v. Dearing, 91 U. S. S. C. Rep., 34.) For these reasons the orders appealed from should be affirmed with ten dollars costs, and the disbursements of these appeals respectively.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Orders affirmed with $10 costs and disbursements respectively.


author: Davis, P.. J.:

text:
    ANN MARGARET VAN HORNE MOKE, Appellant, v. ADAM NORRIE and GORDON NORRIE, Executors, Guardians and Trustees, and GEORGE EDWARD MOKE and others, Infants, Respondents.

    “ Executors ” — when it includes executrix — Cestui que trust — when he may act as his own trustee.

    The will of defendants’ testator provided among other things, “ I appoint my wife Ann Margaret Van Horne Moke executrix, my father-in-law Adam Nome * * * or such of them as may qualify, executors of this my last will and testament, and trustees thereunder of my estate.” In other portions he conferred certain powers upon his “ executors ” and appointed his “ executors ” guardians of his children, and conveyed property to them to be held in trust. Held, that the testator, in using the word “ executors,” intended to include therein the “ executrix,” and that his wife was entitled to act as trustee and as guardian of the children.
    A cestui que trust is not absolutely prohibited from occupying the relation of trustee for his own benefit, and especially is this so when he is but one of several trustees.
    Appeal from a decree of the surrogate of the eity and county of New York, entered upon the final accounting of the executor of one G. L. A. Moke, deceased. The principal question presented by the appeal relates to the meaning to be given to the word “ executors ” as used in the testator’s will.
    The will, after dividing the estate into a certain number of shares, proceeds: “I hereby give, devise and bequeath each and every such equal parts or shares unto my executors, hereinafter mentioned, to have and to hold the same unto them and the survivor or survivors of them in trust as follows, that is to say: one of such equal parts or share in trust for the benefit of each of such children. * * * I hereby declare that it shall be lawful for my executors or executor or others, the trustees or trustee for the time-being of my will, with the consent in writing of my said wife, during her lifetime and afterwards at their or his own discretion, to raise any part or parts not exceeding the whole of one-half of the then vested or expectant or presumptive share of any child or issue, under the trusts hereinbefore declared, and apply the same for his or her advancement or- benefit as the said trustees or trustee shall see fit. I authorize and empower the executors and trustees under this, my will, to hold all investments and securities held by me at the time of my decease. * * # I appoint my wife Ann Margaret Van Horne Moke executrix, my father-in-law Adam Norrie, my brother-in-law Gordon Norrie, and my friend David Plendcrleath Sellar, or such of them as may qualify, executors to this, my last will and testament, and trustees thereunder of my estate. I authorize and empower my said executors, or such of them as may qualify, to sell at public or private sale, or lease for short terms not exceeding five years, any real estate of which I may die seized, and to grant, convey, demise and let the same to the purchaser or purchasers, or lessees, by good and sufficient deeds of conveyance and leases, with the usual covenants contained in executors’ deeds, and in leases for short terms. I also authorize and empower my said executors, or such of them as may qualify, to change the investments of my estate from time to time in their discretion; also to compound, compromise, settle and submit to arbitration all claims belonging to or against my estate. I make, constitute and appoint my said executors, or such of them as may qualify as such, the guardians of the persons and estates of each and every of the children I shall leave who may survive me, until such, children shall respectively attain the age of twenty-one years; and I direct that my said executors, who are hereby made trustees of the respective shares of my children in my estate, shall apply the income of the share of each child to his or her use, education and maintenance, m such manner and to such extent as they shall deem expedient.
    The opinion of the surrogate in this case is reported in 2 Red-field, at page 429.

      A. P. Man, for the appellant.

      Robert Dickey, guardian ad litem, for the infant respondents..

       This case was decided at the May Term, 1877.

   Davis, P.. J.:

The sole difficulty of construction involved in this appeal grows out of the use of the word “ executrix” in connection with th,e name of the appellant, Mrs. Moke, in the tenth clause of the will. If'that word had been omitted, there would-be no difficulty whatever in holding that Mrs. Moke was included in the word “ executors,”'as used in that clause, and wherever else used in any provision of the will.

Nor could there be in that case any question that she as one of such executors was intended to be appointed one of the trustees and guardians under the will. The word “ executors ” is undoubtedly a proper word of description, of all persons appointed by a will to the duty of executing its provisions. The revisors of the provisions of the Revised Statutes, entitled “ Of granting letters testamentary and of administration” (2 R. S., p. 68), wholly ignore the word “executrix” and use the more strictly proper words “executor” and “ executors,” in speaking of persons of either sex.

And-the word “ executrix ” does not appear to have been introduced into our statutes, until by the provisions of chapter 782 of the laws of 1867, the partial - disability of married women to act as executors was removed by the legislature. Nothing is more common in wills, where the wife of a testator is nominated together with other persons to execute the will, to find her name designated in the appointing clause as “ executrix,” and the other per- > sons as executors, and in every other clause of the will all the appointees grouped together under-the common name of “ execu- ■ tors.” That is the case in the present will. In every clause in which reference-is made to the persons'who are to execute the •will, they are denominated “executors,” and the word “executrix” finds no place in the will except-as above pointed out. We think this fact indicates with unerring certainty the intention of the testator-that the word “ executor” should include the appellant wherever it was used by him in the will; because it cannot be supposed that he intended to give her the empty title of executrix, and then divest her of all power by using the word “executors” in ásense to exclude her from the exercise of any of the functions of the office.

The true grammatical sense of the first sentence of the tenth •clause of the will, requires that -the words “to this, my last will and testament, and trustees thereunder of my estate,” should be read-in- connection with- both the words “ executrix ” -and “ execuTors,” precisely as much as it requires that the words I appoint,” which commence the sentence, shall be read as well, in connection with the several other persons named in the sentence, and with the words “executors” and “trustees” as with the words .“ my wife ” and “ executrix.” By no other mode of reading- can the several parts of the sentence have the significancy necessary to express the sense obviously intended. It is a forced construction which divides the several parts of the sentence so as to arrest the power given to the wife at the word “ executrix,” and to confine to the several persons named as executors all the parts of the sentence following their nomination. The .effect of this would be to declare the word “executrix” to ■be one of exclusion, used to cut off the wife from any power or authority given in the various clauses of the will to the executors. Such an effect would be a gross injustice to the intention and memory of the testator, who clearly as it seems to us, intended to manifest and express, not only affection, but entire confidence in both the ability and judgment of his wife. We regard the construction of this clause as one wholly dependent upon the intention of the testator, to be gathered from all the parts of the will, and There does not seem to us to be any doubtas to what that intention really was.

The eleventh clause of the will appoints the executors (or such of them as might qualify) the guardians of the persons and estates of each and every, the children, the testator should leave, until such children, respectively, attain the age of twenty-one years. It appears in the case that several of these children were, at the time of the publishing of the will, of very tender years. -It caa hardly be possible to suppose that the testator, by using the word “ executors” in the eleventh clause, thereby intended to exclude the mother from the guardianship of his six children during their infancy; and yet that effect must be given to that provision (as it has-been by the learned surrogate), if we construe the word executrix, used in connection with the name of Mrs. Moke, in the tenth clause, as intended to distinguish and exclude her whenever the word “ executors” is used .in the will. If Mrs. Moke, beheld to be-included in the word “ executors,” it needs no argument, to show that she is appointed in common with all who qualify as executors, one of the trustees under the will. But it is regarded as significant of the testator's intention to exclude her from the trusteeship and guardianship, that by the seventh clause he declares: “it shall be lawful for my executors or executor, or others the trustees or trustee for the time being of my veil, with the consent in writing of my said -wife during her life, and after-wards at their or his own discretion, to raise any part or parts not exceeding the whole of one-half of the vested or expectant, or presumptive share of any child or issue under the trust hereinbefore declared, and apply the same for his or her advancement or benefit as such trustees or trustee shall see fit.” The argument is, that if Mrs. Moke be a trustee, her consent and participation as such, will of course, be necessary; and therefore it was inconsistant with her relation as trustee, to require her consent in writing. But the testator, as shown by the use of the words “or others,” in that clause evidently anticipated the possibility that she and the other executors might fail to qualify as executors, and he intended, in any event, to prohibit the raising of the advance during the life of his wife, without her consent in writing; or he designed to express, for more abundant caution, his intention that while his wife lived, whether she were an executor or trustee, or not, the raising of this advancement should depend altogether upon her consent in writing. We fail to see the force of this fact as an argument against the intention that she should act as trustee.

But the principal point is made upon the fact that if trustee, she would to some extent be a trustee for her own benefit.. If this fact were fatal to a trust, its effect we think would be limited in ¿this case to the portion which is for her own special benefit. But as the law is now settled, a cestui que trust, is not absolutely excluded from occupying the relation of trustee for his own benefit, and especially is this so where he is but one of several trustees. (Wetmore v. Truslow, 51 N. Y., 338; Amory v. Lord, 5 Selden, 103; Tiffany v. ClarJc, 58 N. Y., 632; Lewin on Trusts, 6th Ed. 57; Parsons on Trusts, 2 Ed. § 59.) “Where the administration of a trust is vested in co-trustees, they all form as it were, but one collective trustee. They must therefore execute the duties of their office in their joint capacity” (Lewin on Trusts, 227.)

We are of the opinion therefore, that the learned surrogate erred in his construction of the will and that the decree must be so modified as to declare Mrs. Moke to be one of the trustees and guardians under the will, with the same powers and to the same extent as the other executors who qualified, and with this modification, affirmed. The costs of the several parties to the appeal to be paid out of the fund.

The order to be settled by the presiding justice.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


author: Per Quriam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. BENJAMIN K. PHELPS, v. CHARLES DONOHUE, one of the Justices of the Supreme Court.

      Habeas corpus act — power under, to command action of inferior tribunal.

    One Jewett, charged with an offense, demanded an examination before the police justice, whereupon the proceedings were adjourned. On the day to which they were adjourned, he waived an examination, and offered bail for his appearance at the General Sessions. The police justice refused to accept the bail, and proceeded with the examination; whereupon he was served with a writ of certiorari, issued by a justice of the Supreme Court, under the habeas coipus act, and, on the hearing had on the return thereto, it was ordered that the police justice at once fully commit the said Jewett for trial with or without bail, or fully discharge him. Held, that no such order was authorized by the habeas coipus act.

      JSemble, that the only power to interfere in such cases would be by the mandamus of a superior court, or that form of certiorari which would bring up for review the alleged illegal assumption of power.
    This matter came before this court upon a writ of certiorari. The return showed that a written complaint was made before Bankson T. Morgan, Esq.; a police justice of the city of New York, against Hugh J. Jewett, charging him with the crime of perjury in an affidavit made by him as president of the Erie Railway Company, verifying. the annual return of that company to the State Engineer for-the year ending September 30th, 1877:— That- Mr. Jewett was arrested and brought before the justice on a warrant duly issued upon such complaint. That he then demanded ah examination, wheieupon a day was appointed therefor, and bail given for his appearance thereupon; that on the day appointed the complainant appeared with his witnesses, as also Mr. Jewett, when the latter waived an examination and proffered bail,! the counsel for the complainant and the people insisting that, nevertheless, the magistrate should proceed to the examination of the complainant and his witnesses in the mode provided by the statute. That the magistrate held it to be his duty so to do, and proceeded with the examination until served with a writ of certiorari issued by Justice Donohue, commanding him to return to said justice the proceedings before him. That the magistrate thereupon suspended the examination and made the required return. That Justice Donohue thereupon, after argument, made an order, directing the-police justice at once to fully commit, discharge, or lot to',; bail the accused: The purpose of the present writ is to review that action of Justice Donohue.

      Wm. A. Beach, for the relator.

      Wm. Fullerton and John JR. Fellows, for the respondent.
   Per Quriam :

The proceedings brought up for review in this case, were taken before the respondent upon a writ of certiorari issued by him as one of the justices of this court, under the provisions of the Revised Statutes, authorizing writs of habeas ccnpus and certiorari, to inquire into causes.of detention, etc.

The object and purpose of such writs of habeas corpus and certiorari are clearly defined by the statutes (3 R. S., 6th ed., 874)', and the power of the judge or other officer issuing the same is also defined to be, either to remand to custody the person alleged to be detained, or to discharge such person, or in proper cases to let him to bail. The return in this case shows that Hugh J. Jewett had been arrested and brought before Bankson T. Morgan', Esquire, a police justice of the city of New York, charged with a felony; that, on being brought before the police justice, he demanded an examination, whereupon a day was appointed for"' such' examination,' and bail was given by him for his appearance from' day to day; but that on appearing on the day to which the examination was adjourned, he waived examination, and offered bail for his appearance at the court of General Sessions, to answer the complaint. The police justice thereupon adjourned the hearing to another day, at which time the defendant appeared and renewed his offer of bail to appear and answer at the court of General Sessions, and the police justice declined to accept bail, and decided to proceed with the examination. He accordingly did so proceed, and after two witnesses had been sworn, and while. the second witness was being cross-examined by the counsel for the defendant, the police justice was served with a writ of certiorari issued under the habeas corpus act, allowed by the respondent and returnable before him at one o’clock of the same day. The police justice thereupon made return to the writ setting forth in substance the facts above stated, and also that he had further adjourned the examination until the following day. The matter was brought to a hearing on the return and traverse before the respondent, on the same day, and after the hearing thereof,, the following order was made and entered:

In the Matter .
OP THE
Application op Hugh J. Jewett.
On the ceriiarari heretofore issued herein by me to the Honorr able Bankson T. Morgan, a police justice of the city and county, of 'New York, and on the return thereto this day made by him, ' and the traverse thereto on the part of the said Hugh J. Jewett, and after hearing John E. Fellows, Esq., as attorney for, and on behalf of said Hugh J. Jewett and Benjamin K. Phelps, Esq., the. district attorney on behalf of the said, the Honorable Bankson T. Morgan: It is hereby ordered that the said the Honorable Bank-son T. Morgan proceed .at once to fully commit the said Hugh J; Jewett for trial .with. or. without bail, or fully discharge him.
CHAS. DONOHUE,
J. S. C.:

It seems to us that the learned judge exceeded his authority in the matter then before him. The order made is nothing more nor less than a peremptory writ of mandamus in the form of an order. It commands an inferior tribunal before whom a proceeding ivas then pending “at once” to take the alternative action specified in the order; that is “to fully commit the petitioner for trial with or without bail, or to fully discharge him.” It woidd be a dangerous precedent, we think, to hold that in proceedings by habeas corpus or certiorari under the statutes above referred to, a judge or a court can command an inferior tribunal having jurisdiction of any matter pending before it, to take such action as might to such judge or court seem to be proper, even if it appeared that, the inferior tribunal was exceeding its authority in the mode of conducting the proceedings before it. The only power to interfere in such cases would be by the mandamus of a superior court, or possibly by that form of certiorari which would bring up for review to a court having jurisdiction for that purpose, the alleged illegal assumption of power on the part of the inferior tribunal. If the police justice had refused to obey the order in this case, we know of no authority by which the learned judge could have proceeded to compel his obedience,

It is not necessary to discuss the principal question, to wit, tne power of a police justice to proceed with an examination where the prisoner appears and waives the same, and offers bail for his appearance at the court of General Sessions. Upon that question as the argument ivas heard before two of the justices of the court it might have been necessary to have ordered a reargument of the case. But as we have no doubt that the error above considered is fatal to the proceedings below, we feel it our duty to reverse the order.

It was suggested on the argument by the counsel, and, as we understand, concurred in by all parties, that the police justice had, in obedience to the order, discontinued the examination, and received bail from the petitioner for his appearance at the General Sessions. If this be so, that act terminated his jurisdiction of the case, even though he was led to accept bail by the unauthorized order made in the certiorari proceedings. All further jurisdiction of the complaint then ponding, is transferred to the grand jury and. the court of General Sessions before whom the bail was given to appear. Of course the order in this case will not have the effect to reinstate any such jurisdiction in the police magistrate, whatever might have been its eflect, if he had refused to let the defendant to bail, and persisted in such refusal.

Present — Davis, P. J., and Beady, J.

Order reversed.


author: Davis, P. J.,

text:
    MARY BORST, Appellant, v. WILLIAM WINCKEL, Respondent.

      Notary’s certificate of protest — construction of.

    Appeal from an order of the Special Term denying a motion for a new trial.
    This action was brought against the defendant as endorser of a promissory note and decided in defendant’s favor. The only question in the case, is whether any notice of the dishonor of the note was duly served to charge the endorser. The note was payable at the Newark Trust Company, Newark, N. J.; and at maturity it was protested by a notary public residing in that city.
    The following is a copy of the certificate of the notary as to service of notices of protest:
    “ I do hereby certify that the above is a copy of the notice of protest of the bill of exchange, promissory note or bank check, entered on the preceding page, addressed to the several persons entitled to be notified of the presentment and non-payment of the same, to wit: Charles Pathe, South Orange, New Jersey, W. Winckel, The German Savings Bank in the city of New York, J. B. Keller, cashier, and Charles Pathe, enclosed with one for and to T. Rogers, Esq., Cashier, New York City; also the said notice or notices were served by me, after presentment and demand of payment or acceptance being made, by deposit in the post office, in the city of Newark, postage prepaid, except in such case otherwise named, this evening, November 2d, 1875.”
    On the same clay he sent notices of protest for the defendant inclosed with others to T. Rogers, Esq., cashier, New York City at the Bank of the Metropolis, who was the last endorser of the note. The notice was, however, not forwarded to the defendant or served upon him until six days after the protest of the note, although he was a resident of the city of New York.
    The coxu’t at General Texan said : “ This was altogether too late, and the defendant was discharged by the delay in giving such notice. The only point insisted upon by the appellant is that by the construction of the notarial certificate or xxotice, grammatically considered, it should be held that the notice was enclosed, directly to the defendant himself and sent to his place of residence. JBxxt we think both the laxv and the grammar are against. him. It was very easy to have called the notary to establish the fact as to the form of sending the notice. The failure to do so on the part of the plaintiff tends to establish what the notice itself shows, to wit: That the service was in fact made by an enclosure of several notices to the last endorser as above stated, with the expectation that he would cause them to be served upon the prior endorsers, as he might properly have done under the well settled rule of mercantile law; the order should-' therefore be affirmed with costs.”

      G. JV. Saunders, for appellant.

      Erastus Qoole, for respondent.
   Opinion by

Davis, P. J.,

Beady and Ingalls, JJ., concurred.

Order affirmed with costs.


author: Ingalls, J.,

text:
    JOHN D. LOCKE, Appellant, v. SAMUEL R. FILLEY and JOHN J. LOCKE, Respondents.

      Arbitration —favored by the courts — Award — not rejected beeatise, in some particulars, the arbitrators exceed, their authority — by a majority of the arbitrators, when good — One partner wrongfully interrupting the business — his liability, therefor.

    This is an appeal by the plaintiff from a judgment rendered in favor of the defendants. The action was brought to set aside an award made pursuant to a written submission.
    On the first day of January, 1873,' the parties to this action formed a partnership, to continue five years from that date. The articles of partnership contained the following provision: “In case of any disagreement between the said parties as to any matter arising out of this agreement, the parties hereto agree to refer such and all matters of difference between them to the decision of three persons, one to be selected by each of the three said parties, the award of whom, or any two of them, shall be final.”
    A disagreement having arisen between the parties in regard to the business, the parties in accordance with the above provision executed the following submission:
    “ Whereas, a partnership was formed on the 1st day of January, 1873, between the undersigned, John D. Locke, S. R. Filley and John J. Locke, which by its terms has not yet expired, but which the partners desire to terminate :
    “ And whereas, they have been unable to agree upon the terms of dissolution, and various differences have arisen among them;
    “ Now, therefore, in consideration of the premises, and for a settlement of all the questions between the parties connected with said partnership, the undersigned agree to submit their differences to the arbitrament and award of David H. James, Florien Grosjean and William E. Dodge, jr., whose decision, duly made in writing and delivered to the parties on or before the 1st day of November, 1875, the undersigned severally and mutually agree to abide by and perform.”
    The matters specially submitted to said arbitrators, and upon which they are to make their award, are:
    “ First. Upon what terms shall the said S. R. Filley and John J. Locke purchase the stock and interests of the said John D. Locke in all the partnership property of the said firm, including merchandise, furniture and fixtures, machinery at factory, and real estate, the purchasers assuming all the partnership liabilities, and what security upon such purchase shall be given to the said John D. Locke.
    “Second. Upon what terms shall the said John D. Locke purchase all the stock and interest of the said S. R. Filley and John J. Locke in the same partnership property, he assuming all the partnership liabilities, and what security upon such purchase shall be given by him to the said S. R. Filley. and John J. Locke.
    “ The arbitrators shall also determine which of the parties shall have the option of' purchasing according to the terms awarded, ■ that is, whether the option shall be given to the said John-D. Locke to purchase .the interests of the said Samuel R. Filley and the said John J. Locke in- said property, or to the said Samuel R. Filley and the said John J. Locke to purchase the interest of the said John D. Locke in the same upon the terms awarded by them; and in case the party to whom such option is awarded does not, within thirty days after the execution and delivery of the award, elect to purchase according to its terms, then the other pai’ty to these presents shall, and hereby agrees to purchase according to the terms awarded, as the terms of a purchase by them.
    “ In determining the matters so submitted, the arbitrators are to have submitted to them the articles of partnership executed between the partners, the partnership books, and any inventories, balance-sheets and other statements appertaining to the ■ partnership business, and also such books and papers of the former firms of John D. Locke & Co. as may be required in the premises, and may act upon their own judgment as to the values, or may take testimony, and after hearing the statements of the parties and their counsel, they shall make their determinations and award upon a full consideration of all the claims, questions and differences of and between the parties.”
    ■ The award having been made in pursuance of the above submission, the plaintiff sought to set the same aside.
    The court at General Term said: “ The submission is very comprehensive; several subjects - are specifically named, and the phraseology employed is such that it is apparent the parties intended to submit for the determination of the arbitrators all matters in controversy between them connected with such partnership. Such we deem the reasonable construction of the submission. It contains the following: 1 Now, therefore, in consideration of the premises, and fon’ a settlement of all the questions between the parties connected, with said partnership." Again near the close of the submission the following appears: ‘ They shall make their determination and award upon a full consideration of all the claims, questions and differences of and between the parties.' This submission is to be interpreted in the light which all- the ■ surrounding circumstances reflect’upon it. The parties had become dissatisfied, and had resolved to terminate the partnership, and.were unable amicably to adjust the terms upon which the same should be accomplished and a settlement between them made. It is quite improbable that they would reserve from the determination of the arbitrators any of the questions which were in dispute between them in regard to such partnership. The fact that certain subjects were specifically mentioned as matters to be submitted and examined, does not justify the conclusion .that all others were intended to be excluded. . Hence we con■clude that the apparent intention of the parties is in harmony with the phraseology employed in framing the submission. The instru.ment should receive a reasonable- construction, with a view to accomplish the purpose obviously intended by the parties. (French v. New, 20 Barb., 482; Owen v. Boerum, 23 id., 187; Emmet v. Hoyt, 17 Wend., 410.) The award of the arbitrators, seems consistent with the submission. They do not appear to have considered matters not within the limits of such submission, nor do we perceive wherein they have omitted to award in regard to any subject in controversy between the parties in relatian to the partnership, and which was fairly presented for their determination. It does not follow that an entire award must be rejected because in some particulars arbitrators transcend the authority conferred upon them by the submission, provided the objectionable portion of the award can be separated from the unobjectionable. Proceedings before arbitrators are not reviewed with the same degree of strictness which is exercised in regard to trials before the courts, for the reasons, that arbitrators are usually not lawyers, and the proceedings before them are conducted with little regard to form, and the rules of evidence are not strictly adhered to. Often the controlling reason for resorting to that method of adjusting a controversy, is..to avoid the customary •delay and expense, consequent upon a trial in the courts — there is generally a practical difficulty, and in some cases it is impossible to discover from the record, the process ’ by Avhich the result is reached by arbitrators, yet the conclusion may be eminently just and proper. Hence such proceedings are regarded by the. courts ■with great liberality, and properly so, as any other course Avould •virtually deprive the community- of this method of settling. co,ntroversies. Arbitration is favored rather than discouraged by the courts — -as it furnishes a .convenient, and ordinarily inexpensive mode of adjusting differences.. The following decisions show very clearly how such proceedings are regarded by the courts. (.Fudickar v. The Guardian M. L. Ins. O.o., 62 N. Y., 392; Smith .v.. Gutler, 10 Wend., 589; Jackson v. Ambler, 14 John?., 96.) The remarks of Judge Spencer in his opinion in the case last cited are pertinent, and forcibly enunciate the views entertained by courts in regard to the liberality wffh which such proceedings are to be regarded when under review. (Perkins v. Giles, 50s N. Y., 228; Morris Run Goal Go. v. The Salt Go., 58 id., 667.) The plaintiff insists that the deduction of $40,000 from the plaintiff’s interest, based upon his interruption of the business of such partnership, and causing its determination before the period .fixed by such articles, was such a gross act of injustice on the part of the ' arbitrators towards the plaintiff, as to indicate at least prejudice on their part to such a degree as to call for a reversal of their proceedings. When one member of a partnership wrongfully interrupts the business and causes its termination before the period fixed, and thereby deprives his associate of profits which it may reasonably be assumed ho would derive from the business if continued, an allowance may be made to a party thus injured, to indemnify him for such loss. (Bagley v. Smith, 10 N. Y., 489.) In this case the arbitrators necessarily determined two questions •against the plaintiff in regard to this claim.
    • First. That his conduct was such as to render necessary a termination of the partnership.
    Second. That there existed a reasonable probability that profits would accrue from a continuance of the business to the period fixed by the agreement; and the defendant’s share thereof. Such determination could only be properly arrived at, after considering all the facts and circumstances connected with the business, and acts- of the parties in relation thereto. We cannot justly assume that these arbitrators disregarded their duty by omitting such investigation, and jumping blindly to a result of such magnitude. This court has not before it such facts and circumstances, and hence cannot intelligently ascertain and deter- • mine-whether the decision of the arbitrators was justified by the facts before them. The law raises the presumption that they acted justly and wisely; and we have not before us facts which overcome such presumption, and justify, this court in concluding that the arbitrators have been guilty of recklessness or fraud.
    Parties who voluntarily resort to this method of settling differences, are alone responsible for the consequences which result therefrom. In a business of the magnitude which the one in question seems to have been, judging from the capital involved, and the long continuance of the business under the direction and control of the plaintiff, previous to the formation of this partnership, we can readily perceive that a partner who possesses the controlling interest and influence, may if disposed, seriously impair the success of such a business. And parties who possess limited means may not be able successfully to contend against such influence, and prevent consequent,loss.
    We therefore conclude that upon that ground this court cannot interfere. It is further contended that the award should be declared void for want of certainty and finality. Applying the same liberal rule of construction we conclude that the award can, in this respect, be upheld. Exact certainty is not indispensible to the validity of an award; certainty to a common or reasonable intent, is all that the law requires. When an award furnishes a substantial basis by and through which the parties can, by calculation or otherwise, work out the contemplated result, in accordance with the principles settled by, and the rights of the parties declared in the award, it will be regarded sufficient. . (Case v. Ferris, 2 Hill, 75; Backus v. Fobes, 20 N. Y., 205; Jackson v. Ambler, 14 Johns., 96; Oil v. Schroeppel, 5 N. Y., 482.) The award made by two of the arbitrators was sufficient. The Revised Statutes (vol. 3 [6th Ed.], p. 844, § 7), provides “ all the arbitrators must meet together and hear all the proofs and allegations of the parties; but an award by a majority of them shall be valid, unless the concurrence of all the arbitrators be expressly required in the submissionWe have seen that the articles of partnership provided for an award by any two of the arbitrators. The submission did not expressly require the concurrence of all the arbitrators in the award. This case was carefully considered at Special Term, as appears by .the opinion, in which all the questions are intelligently discussed. After giving to the case the examination which its importance demands, we are convinced that no substantial ground is established which will justify a reversal of the judgment.
    There must be affirmance with costs.

      8. P. JSTash, for the appellant.

      8. E. Lyon and John K. Porter, for the respondents.
   Opinion by

Ingalls, J.,

Davis, P. J., and Brady, J., concurred,

Judgment affirmed with costs.


author: Brady, J.

text:
    ROSE LEVY and others, Respondents, v. JANE ANN MERRILL, Appellant.

      Satisfaction piece of bond and mortgage — when execution and delweiy of, can be enforced by party it)7io has sold the mortgaged premises.

    Appeal from judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    •' This action was brought to have a bond and mortgage, given by the parents of the plaintiffs to the defendant, cancelled and discharged of record, on the ground that the amount due thereon had been paid. The bond was dated the 15th day of November, 1864.. By the condition thereof, $1,000 was to be paid on the first day of May, 1865, and the further sum of $1,000 on the first day of August, in the same year. The bond bore a receipt dated the 11th day of January, 1865, acknowledging the payment thereon of $1,000, signed by the husband of the mortgagee, who, it-appears, was her agent in the matter. There was no evidence-written on the bond of any further payment, nor was any receipt, produced of any such payment.
    An opinion was delivered at Special Term by Van Vorst, J., in which, after carefully reviewing the evidence and holding that it established the payment of the bond and mortgage, he proceeds;
    “The remaining question is, can this action to compel a satisfaction be maintained? The heirs have conveyed the lauds covered by the mortgage, to a third party, but the purchaser has withheld an amount of the purchase money sufficient to pay the amount claimed to be unpaid upon the mortgage, and the same is deposited in the trust company to abide the event of a proceeding to procure a satisfaction of the mortgage, and to pay whatever may be found due thereon. So long as the mortgage remains unsatisfied of record, the plaintiffs cannot realize the full consideration for the sale and conveyance of the premises.
    The rule is, without doubt, that a person who has no longer any interest in the land cannot maintain an action to remove an apparent lien upon the land, upon the ground that it is a cloud upon the title.
    I am referred by the counsel for the defendant to the case of Townsend v. Goelet (11 Abb. Pr., 187), as decisive against the plaintiff’s right to maintain this action; that case is clearly distinguished from the present. It was there held that a grantor who has no longer any interest in land cannot maintain an action to remove an apparent lien thereon, on the ground that he agreed with his grantee that he would procure the lien to he discharged. The incumbrance sought to be removed was a judgment, not against the plaintiff, but against a third person. The plaintiff was in no Avay privy, party to, or connected with the judgment, nor as between him and the judgment creditor was he bound to pay it, not holding a title to the land. The plaintiff had agreed to procure the land to be discharged from the lien; such an agreement did not authorize him to maintain an action against the judgment créditor for the removal of the lien.
    In this case there is privity between the plaintiff' and the mortgagee.

      Bissell v. Kellogg (60’Barb., 617), to Avhich I am also referred, decides only that a party cannot maintain an action to remove a cloud from the title to land in which he has no interest, upon the sole ground that he has warranted the title. That is not this case.
    But this last case suggests that if the action was for relief against a bond accompanying a mortgage, claimed to be a cloud upon the title, and by which he was endangered, he might, upon sufficient allegations, be entitled to relief through a bill “ quia timet.”

      ■ This suit is in effect to haye the bond as well as the mortgage cancelled, and declared to be of no further validity on the ground that the bond is, in fact, paid, and that their existence and the record of the mortgage prevent the plaintiffs from realizing the proceeds arising from the sale of the land.
    The money part of the consideration arising from the sale, in' the trust company, represents joto tanto, the land, and by the claim under the bond and mortgage and its outstanding record, is locked up. Plaintiffs, as long as this claim and record are made, and unsatisfied, cannot reach this money. I cannot see but that the plaintiffs are practically without remedy in the premises, unless this action be maintainable. The mortgagee has for ten years refrained from taking any proceedings to enforce it, and upon application has refused to execute a satisfaction. If the defendant has in truth any claim under the mortgage, she can assert it here as she has done under her answer. I can conceive no better way in which the matter may be determined than in this action.
    The other cases and authorities to which I have been referred, I do not regard as against the plaintiff’s right to sustain this action.
    The bond being in fact paid, as is above decided, the plaintiffs are entitled, to judgment, that the defendant upon presentation, execute a satisfaction of the mortgage, and that the bond be adjudged to be satisfied and paid, and the record of the mortgage be effectually discharged; that the plaintiffs receive their costs of this action.”
    The court at General Term said: “upon examination we are satisfied that this opinion is correct, both upon questions of fact and conclusions of law.”

      T. Q. Campbell, for the appellant.

      A. Blake, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., and Ingalls, J., concurred.

Judgment affirmed with costs.


author: Beady, J.

text:
    In the matter of the petition of THOMAS H. WALTER to vacate assessments on Manhattan street.

      Application to vacate assessments in New Ywk, when each asssssme?it is equal to one-half the assessed value of the land — if the assessments are made for distinct improvements, application not proper.

    Appeal from an order denying an application to vacate an. assessment.
    The petitioner sought to vacate the assessment to which this application relates upon the ground, among others; that after the work was done the commissioner of public works divided the expense into two amounts and caused two assessments to be laid, each of which is the full one-half of the valuation of the land for purposes of taxation, and the aggregate of which is the full valuation.
    The court at General Term said with reference to this ground : “ With regard to the second point it is only necessary,to say, that by the act of 1840, .chap. 326, § 7, it is provided as follows : 1 Section 7. Commissioners or assessors for making estimates and assessments for any improvements authorized by law, to be assessed upon the owners or occupants of houses and lots or improved or unimproved lands, shall, in no case, assess any. house, lot, improved or unimproved lands, more than one-half the value of such house, lot, improved or unimproved land, as valued by the assessors of the ward in which the same shall be situated.”
    The authority thus to assess a lot or piece of land extends to each improvement authorized by law to lie made. The assessment imposed in this case relates to two separate and distinct improvements, determined upon at different times, and in a manner duly authorized by law.
    It is true that the assessments in the aggregate are equal to the full assessed value of the land; but neither of the assessments are in excess of one-half of the value of the land as required by the act of 1840 (supra). The assessments being authorized by law, and neither of them being for more than one-half of the assessed value of the land, it seems to be very clear that the second point is not well taken and is not available therefore to the petitioner.

      Edmund Coffin for the petitioner, appellant.

      J. A. Beal for the respondent.
   Opinion by

Beady, J.

Davis, P. J., and Ingalls, J., concurred.

Order affirmed.


author: Davis, P. J.

text:
    WILLIAM L. HEERMANCE, Plaintiff, v. WILLIAM S. TAYLOR, Defendant.

      Statute of Frauds — contract void under — there must be not only a delivery, but an unequivocal acceptance — what is an acceptance.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a dismissal of the complaint at the circuit.
    This action was brought to recover the agreed price of a quantity of butter, alleged to have been sold by the plaintiff to the defendant. The price of the butter exceeded fifty dollars, and the contract was not reduced to writing. At the close of the evidence the court dismissed the complaint on the ground that there was no proof of the acceptance of the butter by the defendant.
    The plaintiff and the defendant went into the cellar of the store, in the city of New York, where several firkins of the butter were bored into and examined by the parties, after which the defendant said he would take, at the price named (which was twenty-three cents per pound), twenty firkins out of the lot of forty from which the firkins examined had been taken, and directed them to be sent as above stated. The firkins actually examined, and enough more to make up twenty, were taken from the lot of forty and delivered to the carman, who delivered them to the boat of the People’s Line. The People’s Line delivered them to the carman in Albany, who carried them to the defendant’s store. They were received and placed in the defendant’s cellar in a pile by themselves. The defendant was still absent in the city of New York, and returned home two or three days thereafter; and on the morning following his return, having an application for the purchase of butter, took his customer down to the cellar and showed him this lot, and bored into one of the firkins, but on examination said, “ This will not suit,” and went to another lot of butter in the cellar, from which he made a sale, and then and within half an hour thereafter shipped the butter back to the plaintiff at New York, notifying him in substance that he should not accept it because it was not the butter he had purchased. The court at General Term said:
    “It .is well settled by authority that a mere delivery is not sufficient to take the case out of the statute of frauds. The delivery, therefore, to the carman, and to the carrier, and by the carrier to the carman at Albany, and by him at the store of the defendant, do not in themselves amount to the acceptance required by law.
    “ In Stone v. Browning, when first before the Court of Appeals (51 N. Y., 211), it was held that 1 Ifc is not enough that the goods were delivered to the purchasers; they must also have accepted them. A delivery of property, tó satisfy the requirement of the statute of frauds, must be a delivery by the vendor with the intent of vesting the right of possession in the vendee, and there must bo an actual acceptance by the latter with the intention of taking possession as owner.’ That case was lately again, before the Court of Appeals, and a new trial was granted, although the jury had found as a question of fact that there had been an acceptance. It was held that 1 it was necessary that defendant should have made the examination and pronounced the goods satisfactory, or that they should have dealt with them, or done some unequivocal act, showing that they intended to accept them unconditionally as their own property, to. order to supply the place of a written contract. Performance by plaintiffs of their part of the contract was not enough. (Stone v. Browning, 51 N. Y., 211; Oaulhins v. Heilman, 47 id.', 449.) Evidence that the goods werp as represented, and corresponded with the samples, was not material upon the question of acceptance. It was immaterial whether the defendant’s refusal to take the goods was reasonable or not.'

      “ Under this authority we think the ruling of the courtl beow was correct. The plaintiff had fully performed on his part. lie had delivered the goods as directed. The goods were those which had been actually purchased, for they comprised not only the firkins examined by the defendant, but enough more out of the identical lot from .which he purchased them to make the twenty firkins directed to be sent to him. His reason for not examining them sooner after their arrival at his store was shown without dispute to have been his detention in New York; and his examination on the morning after his arrival was, for aught that appears, within a reasonable time. Nothing was shown to have been done at his store in Albany beyond the placing of the goods into his possession at his store, by actual delivery there. The facts were not disputed, and there was no question to go to the jury.”

      O. W. Seymour, for the plaintiff.

      O. J. Buchanan, for the defendant.'
   Opinion by

Davis, P. J.

Ingalls, concurred; Beady, J,, not sitting.'

Judgment ordered for defendant with costs.


author: Ingalls, J.

text:
    NELSON CLEMENTS, Appellant, v. FRANCISCO YTURRIA, Respondent.

      Furnishing aid to enemy — contract made for such purpose, void — Delivery.

    Appeal by the plaintiff from a judgment entered in favor of the defendant, after a trial at the circuit where the complaint was dismissed.
    The action was brought to recover damages for the conversion by defendant, at the town of Camargo, Mexico, of 270 bales of cotton, alleged to belong to plaintiff
    The court at General Term said: “The plaintiff failed, at the trial, to establish a right to recover, and the complaint was therefore properly dismissed. The evidence of the plaintiff himself, shows that his pretended title to the property in question is based upon an agreement by which he was to furnish for the use of the Confederate government military stores, including arms, and in-exchange therefor was to receive cotton, and the cotton in question was derived through such contract. All the other facts and circumstances of the case corroborate this view. The parties with whom the plaintiff negotiated, and by and through whom the transaction was manipulated, were in one capacity or another agents of such Confederate government. The plaintiff was a citizen of the state of New York, and knew at the time that he was furnishing aid to a public enemy of the United States, and obviously intended so to do for his own private advantage. The whole transaction is too transparent to admit of a doubt, and the agreement was void, as against public policy; and therefore no valid title was acquired by the plaintiff to the cotton in question. ( Woods v. Wilder, 43 N. Y., 164; Bank of JV. O. v. Matthews, 49 id., 12; Montgomery v. The U. 8., 15 Wall., 395; Sjyrott v. U. 8-, 20 id., 459; U. 8. v. Grossmayer, 9 id., 72; U. 8. v. La.p'ene, 17 id., 602.) The tacts fairly construed, failed to show that the plaintiff' received the delivery or acquired a valid possession of the cotton. And therefore even within the doctrine of the case Whitfield v. U 8. (2 Otto, 165), relied upon by the appellant, the action could not be maintained against the defendant.”

      Braslus Gooke, for the appellant.

      Thomas G. Shearman, for the respondent.
   Opinion by

Ingalls, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed with costs.


text:
    RUDOLPH LEXOW, Appellant, v. JAMES JULIAN, Respondent.

      Action for fraud — party not bound to surrender what he has received, before bringing suit.

    Appeal from a judgment entered in favor of the defendant, upon the dismissal of the complaint at the Circuit.

      The court at General Term said: “The plaintiff’s cause of action, as stated in the complaint, is clearly for fraud, and not based upon a rescission of the contract. In such case the party is not bound to surrender that which he has received; he may retain it, and recover such damages as he can establish at the trial. (Allaire v. Whitney, 1 Hill, 485; Same case after second trial, entitled Whitney v. Allaire, 4 Denio, 555; The Ilian Bank v. Carver, 31 Barb., 235; JSTewbery v. Garland, id., 128; Ely v. Mumford, 47 id., 629; BordweM v. Collie, 45 N. Y., 494.) The complaint was dismissed expressly and solely upon the ground that the $500 was not tendered to the defendant before the com mencement of the action. We deem this ruling erroneous, and entitles the plaintiff to a reversal of the judgment.”

      Charles Wehle, for the appellant.

      G. L. Van Pelt, for the respondent.
   Opinion by

Ingalls, J.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new'trial ordered,'costs, to abidé'the event.


text:
    THE MANHATTAN LIFE INSURANCE COMPANY, Respondent, v. ANNIE W. GLOVER, Appellant.

      Mamed women — mortgage foreclosure — validity of her bond — when obligee •not entitled to judgment for deficiency on.

    Appeal by defendant from a judgment against her for a deficiency on a mortgage foreclosure.
    This action was brought to foreclose a mortgage given by the defendant, Annie W. Glover, and her husband, upon real estate belonging to her, and to enforce a joint bond of the husband and wife, to which the mortgage was collateral. A judgment for deficiency was rendered against her from which this appeal was taken.
    The court at General Term said: “ The complaint in this action contains no other allegation on the subject, than that Mrs. Glover and her husband executed, the bond and mortgage described. It does not appear, therefore, that the debt which was intended to bo secured was created by her in or about carrying on a trade or business by her, or that the papers executed related to, or were made for the benefit of her separate estate, or that it was her intention to charge her separate estate generally. Under such circumstances, in accordance with the decisions relating to the obligations of married women, the plaintiffs were not entitled to a personal judgment against her for such deficiency as might arise upon sale of the property mortgaged. The mortgage and the bond must in other words be regarded as an appropriation only of so much of her estate as the mortgage covered. (Manhattan Brass Co. v. Thompson, 58 N. Y., 80; Payne, v. Burnham, 62 id., 69.) The coverture sufficiently appears from the allegation of the complaint, that the defendant, Annie W. Glover, and Robert O. Glover, her husband, for the purpose of securing the payment of the sum named, executed and delivered to the plaintiff the bond and mortgage described.”

      T. G. Barry, for the appellant.

      J cones 0. Hoyt, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Ingalls, J., concurred.

Judgment reversed with costs.


author: JBarnard, P. J. :

text:
    JOSEPH MAYER AND BENJAMIN MAYER, Respondents, v. ZACHARIAH MODE, Appellant.

      Post-dated check — loan of, by maker — transferee of, for existing debt — rights of.

    Defendant lent his post-dated check for $108 to one M, upon the agreement that the latter should furnish him with money to pay it before the day on which it was payable, otherwise defendant would notify his bank not to pay it. M transferred the check before it was payable to the plaintiff in payment of an existing indebtedness, plaintiff having no knowledge of the agreement.
    In an action upon the check, held, that the agreement between defendant- and M furnished no defense to the action, and that plaintiff was entitled to recover.
    Appeal from a portion of a judgment in favor of the plaintiff, entered upon the trial of this action at the Circuit.
    This action was brought to recover upon two checks made by the defendant to the order of one Mieas Meyer. The defense set up was that the checks were accommodation checks, and that plaintiff was not a bona fide holder thereof for value.

      Morris S. Wise, for the appellant.

      Horace Graves, for the respondent.
   JBarnard, P. J. :

There was proof given upon the trial tending to show that the plaintiffs were informed that the checks in question were accommodation checks loaned by defendant to M. Meyer, who transferred them to plaintiffs. At the close of the testimony it seems to have been assumed that there was no question of fact to go to the jury, and by agreement the case was submitted to the judge alone for decision. In the findings no reference is made to this fact of the knowledge of plaintiffs, as to the checks having been accommodation checks. The fact of such knowledge is not found and no request was made that the judge should pass upon it. I suppose, therefore, that the fact that evidence was given on the trial tending to show such knowledge cannot now be made available to defendant upon appeal. The case then presents one question of law. Defendant lent his check for $108 to one M. Meyer, post-dated. It was loaned to this M. Meyer upon the agreement that M. Meyer should place sufficient money in defendant’s hands with which to pay it on the day before the check was payable, or in default thereof, defendant would notify the bank on which it was drawn not to pay the check. M. Meyer before the check was payable transferred the same to plaintiffs. Plaintiffs were butchers. They were in the habit of selling meat upon credit to M. Meyer. The credit seems to have been only from week to week. At the time of the transfer of the check M. Meyer was indebted to plaintiffs in the amount of the check or nearly so. The check was transferred in payment of this pre-existing debt, and a new bill of goods purchased in accordance with the usual mode of dealing between the parties. There was no diversion of the check by M. Meyer, he was not limited in the manner of its use. Upon this state of facts I suppose it to be clear that the plaintiffs are entitled to recover. The post-dated check was an inland bill of exchange made when delivered, and payable at its date. It was delivered in payment of an existing debt before it was due. Its transfer before the day of its date afforded no cause of suspicion so as to put plaintiffs upon enquiry, and subject them to the equities between defendant and M. Meyer. (Brewster v. McCardel, 8 Wend. 478.)

The consideration of the transfer was sufficient. Payment of an existing debt by a cheek transferred by the payee before it was due, will sustain an action on the check as against the maker, even if it was borrowed by the payee of the maker. (Schepp v. Carpenter, 51 N. Y., 602.)

The judgment should therefore be affirmed. The plaintiffs were entitled to recover the second check set forth in the complaint, but the plaintiff has not appealed from the decision of the court in respect thereto.

Judgment affirmed with costs.

Gilbert, and Dykman, J. J., concurred.

Part of judgment appealed from, affirmed with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE MUTUAL GAS LIGHT COMPANY, Appellant.

      Examination of parties to action — Code, § 870 — officers or directors of corporations — • cannot be examined under. •
    The term “ party,” as used in section 870 of the Code of Civil Procedure, relating to the examination of parties to an action before trial, does not include the agents, directors or officers of a party, and in an action by or against a corporation, its agents, directors or officers cannot be examined thereunder.
    Appeal from an order made at the Special Term refusing to vacate an order requiring Alexander Studwell, one Of defendant’s directors, to appear and be examined under section 870 of the Code of Civil Procedure.
    The action is brought by the people, by their attorney-general, and is in the nature of an action of quo warranto, its object being to declare forfeited the charter of defendant, on the ground that one-half its capital stock was not paid in within the time required by law.
    Alexander Studwell is one of its directors, and verified the answer, stating that one-half the capital stock had been paid in.

      An order was obtained after issue joined, under section 870 of the Code of Civil Procedure, to examine said Studwell before trial, on the ground that a corporation defendant may be examined, by means of the examination of said Studwell its director.

      Wheeler II. Pechham, for the appellant.

      Charles J. Lowrey and Winchester Britton, for the respondent.
   Barnard, P. J.:

The question- presented by this appeal is, whether the defendant, a corporation, may be examined as a party through Alexander Studwell, one of its directors, under section 870 of the Code of Civil Procedure.

Parties under the Code of Civil Procedure mean only such persons as are parties to the record, either as plaintiff or defendant. (§446, etc.) The term includes corporations. They are persons as against the opposite party. (La Farge v. The Exchange Fire Ins. Co., 22 N. Y. Rep., 352). In the absence of authority, it would seem plain that the term party would not include a director in a corporation. He is not the party to the record. He can make no admission to bind the corporation as a party. He is simply a witness. He may verify the pleading of the corporation, but this is by express statute. (IcL, 525.) He is permitted to verify the answer because he is an officer of the party, and the party is incapable of' making an affidavit.

The weight of authority is against the construction that the word party includes the officers of a corporation when they are not parties to the records In Woods v. De Figaniere (16 Abb. Rep., 1), it was held that “party,” under the old section of the Code, which was similar to the present section 870, included only parties to the record. This decision was made by the Supreme Court at General Term, and all the judges concurred in it. In Goodyear v. The Phœnix Rubber Co. (48 Barb., 522), it was held that under the old section a corporation defendant could not be examined as a party by its president and secretary. This decision was made at the General Term of the Supreme Court, and was concurred in by all the judges. The Court of Common Pleas, in the city of New York, have held the contrary. The court at Special Term, followed this case in the Common Pleas. Both decisions are based upon the assumption that the power to examine parties under the section in question, is a substitute for the old bill of discovery, and that it was permitted to make the officers and agents of the corporation parties for the purpose of discovery. Assuming this to have been the old practice as to bills of discovery, it furnishes no reason to give a signification to the word party in the Code, different from its real meaning. The Code term does not mean agent, director, or president of a party. Agents, directors and presidents of corporations, may be witnesses for or against a corporation, but they cannot be designated or examined as parties under §870 Code.

The order should be reversed with costs and disbursements, and the motion to vacate the order granted with costs.

Dyicman, J., concurred; Gilbert, J., not sitting.

Order reversed with costs and disbursements.


author: Barnard, P. J.-.

text:
    In the Matter of the Assignment of JOEL B. FARNUM for the benefit of his Creditors.

      General assignment — accounting by assignee — when it may be compelled.

    "Where an application is made to compel an assignee for the benefit of creditors to render an account, he cannot defeat the application by alleging that the assignment has been rendered void by his own failure to file the bond and schedule of assets, as required by the statute.
    A county judge has power, upon the accounting of the assignee, to admit or reject a claim presented by a creditor, and to determine who are and who are not entitled to participate in the distribution of the estate.
    The fact that an assignee denies that anything is due to one who applies to have him compelled to render an account, furnishes no reason why such application should be denied.
    Appeal from an order made by the County Court of Kings county, compelling John Hopkins, the assignee of Joel B. Farnum, to render an account.

      John F. Baker, for John Hopkins, appellant.

      John L. Lindsay, for the petitioner respondent.
   Barnard, P. J.-.

There does not seem to be any legal ground for this appeal. In February, 1874, Joel B. Farnum made a general assignment of all his property to John Hopkins for the benefit of all his creditors. The assignee filed no bond or schedule of assets as required by the provisions of chap. 348, of laws of 1860, and the amendments thereto made by chap. 56, of laws of 1875. The assignee received nearly four thousand dollars from the estate of the assignor and has paid no body anything. In September, 1876, Amy Farnum presented her petition to the county judge of Kings county, asking for an order compelling the assignee to account for and pay what should be due her on the accounting. The county judge on the 16th of September, 1874, granted an order requiring the assignee to show cause why he should not make such account, and pay the petitioner her just share of the estate. The petitioner testifies in her petition that she is a creditor of the assignor in the sum of $3,826.54. That the assignee has admitted her claim and entered it upon the list of creditors. On the return day of the order to show cause the assignee makes three excuses against rendering an account. The first objection is that by reason of his non-compliance with the statute above mentioned, the assignment is void. This objection is untenable. While it may be admitted that by this neglect creditors of the assignor and purchasers in good faith from him might urge a legal claim against the assigned property, based upon this neglect, the person who was guilty of the neglect cannot do so. He was still assignee. He still held the property as trustee for the creditors, after he had executed the trust so far as to possess himself of the assets under the assignment. (Brennon v. Wilson, Mass. Court of Appeals, decided Dec. 21, 1877.) The second objection made by the assignee against accounting, is that part of the assigned property was under legal seizure at the time of the assignment. That the creditors (it does not appear how many) met in an office in New York, and there agreed that all seizures should be released and that Hopldus should take all the property of the debtor and apply the same jjro rata to the payment of the debts. The assignee claims that this assignment made him the agent for the creditors and not responsible to account as assignee. There are two insuperable difficulties against this view. The creditors had no title to give and it does not appear, as has been stated, that all the creditors assented to the arrangement. The creditors who had liens gave them up and the assignee took all the property. Ilis title came from the assignment alone, and the legal effect of the arrangement was no greater than to induce the attaching creditors to release their liens. The assignment stood in its full force.

The last objection is that the assignee denies the debt of petitioner. This objection also furnishes no reason why he should not account. The petitioner swears to her debt. That is a good ground of inquiry. The petitioner must prove her debt. She cannot bring her action against the assignee. A judgment against the assignor would put the petitioner in no better position than she now is, so far as her debt is concerned. The assignee can as well deny that as deny the claim in its present shape. There could never be a compulsory accounting if the assignee chose to deny the debt of the petitioning creditor. The power of the county judge I deem to be ample to admit or reject a claim presented at the hearing. He has “power to examine the parties to such assignment and other persons, on oath, in relation to such assignment and accounting, and all matters connected therewith.” The county judge has power to decree payment of the “ creditor’s just proportional part of such fund.” The power to settle and distribute the estate implies the power to determine who are the creditors who shall receive it. There can be no just proportional part determined as due any creditor, without the power to first establish the real claim against the fund. The order appealed from should be affirmed, with costs and disbursements to be paid by John Hopkins personally.

Gilbert and Dykman, JJ., concurred.

Order affirmed, with costs against John Hopkins personally.


author: Barnard, P. J. :

text:
    BRYAN FAGAN, Respondent, v. WILLIAM M. SCOTT, Appellant.

      Executory contract for purchase of land — right of possession unden' — when owner may take forcible possession.

    Plaintiff entered into a contract with the Jamaica and Brooklyn Plank-road Company to purchase from the latter certain real estate, paying down ten per cent., and agreeing to make other payments as therein specified, no right of possession being given by the contract. He failed to make the payments as required, but subsequently inclosed the land and sowed it. Upon being notified by the company to leave, he promised to do so when the crops were harvested. Upon being again notified to leave in the December following, he refused to do so, whereupon the defendant, by order of the company, tore down the fence and leveled the land.
    In an action of trespass against him for so doing, held, that as the plaintiff had failed to comply with the terms of the contract, he had no right to the possession of the land, even though he entered under a verbal license, and that he could not maintain an action of trespass against the real owner who had forcibly dispossessed him.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Jno. J. Armstrong, for the appellant.
    Under the contract of purchase the plaintiff had no right to the possession of the premises in question. (Spencer v. Toby, 22 Barb., 260; Eggleston v. New York and Harlem R. R. Co., 35 Barb., 162.)

      Philip 8. Crooke, for the respondent.
    The plaintiff was rightfully in possession, as vendee, with permission of the vendor, under a written contract of sale. He could only have his possession disputed by ejectment. (Suydam on Vendors, 179; Tyler on Ejectment and Adverse Eujoyment, 40,' 57, 216.)
   Barnard, P. J. :

This is an action to recover damages for trespass upon lands. The facts as proved on the trial and upon which the action is claimed to rest are few and undisputed. In February, 1872, the plaintiff' entered into a contract to purchase the lands in dispute •of the Jamaica & Brooklyn Plank-road Company. By the terms •of sale the plaintiff was bound to pay at the date of the execution ■of the contract, ten per cent, of the purchase price. This he paid. By the contract ho was to pay thirty per cent, of the purchase money cn the 1st of May, 1872. This has never been paid or tendered. The balance he was bound to pay when he received his deed. The agreement was by its terms to be void, unless the Plank-road Company sold all its lands in Brooklyn city or such ■as it chose to sell. In case the sale was not completed the money paid was to be returned to plaintiff. The agreement gave no possession or right of possession. Shortly after the execution of the contract plaintiff drew some soil upon the premises described, without any license so to do from the company. In May, 1875, the plaintiff enclosed the land by a fence without any permission so to do. The company promptly gave him notice in writing to remove the same, and he replied through an attorney of this court that he would deliver up the possession of the premises as soon as the crops thereon were gathered. On the 30th of December, 1875, the plaintiff was directed by the company to l’emove the fence and ho refused, whereupon the defendant, acting under the direction of the Plank-road corporation, removed the, same and graded down the land enclosed thereby.

There Avas no evidence of any lawful possession of the land by plaintiff. A contract to buy land, Avhich by its terms gives no possession, is not of itself a license to enter. (Spencer v. Tobey, 22 Barb., 260; Eggleston v. N. Y. & H. R. R. Co., 35 Barb., 162.) Assuming a possession by mere license, the case was tried upon a mistaken principle. The jury were told that if the Plank Eoad Company consented to the plaintiff’s taking possession, the only remedy left the company Avas to obtain possession by action of ejectment. We deem the laAv to be otherwise. In Ives v. Ives (13 Johns., 235), it was held that a defendant who entered under a contract to purchase Avithout a right to possession by the terms of the contract, could be dispossessed by force by the OAvner, and that trespass therefor Avould not lie. In Hyatt v. Wood (4 Johns., 150), it was held that a person having a legal title could enter by force and turn out a person Avho had a naked possession only, and that trespass would not lie against him. In Erwin v. Olmsted (7 Cowen, 229), it was held that when the owner dispossessed a person who entered under a contract with him, and was dispossessed in turn by the purchaser, that an action would lie by the owner against the purchaser on the executory contract. In Evertson v. Sutton (5 Wend., 281), it was held that a mere naked possession could maintain trespass against all the world except the real owner. In Estes v. Kelsey (8 Wend., 555), it was held that a turnpike company could remove a fence from its road by force and without proceeding by action. The plaintiff having no title except an executory contract to buy the land, and not having performed it, had no right to tne possession of it, assuming that he had a verbal license to enter. At best he was a mere tenant at will, and had no right to bring an action of trespass against the real owner, who dispossessed him by force.

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

Dykman, J., concurred, Gilbert, J., not sitting.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    THE OSBORNE AND CHEESMAN COMPANY, Appellant, v. GEORGE CROOME, Respondent.

      Trustee of manufacturing corporation — how the fact of Ms being a trustee is proved.

    "Where it is sought to enforce against one who is claimed to be a trustee of a manufacturing corporation a personal liability, incurred by the failure of the trustees to file the annual report, it is not enough to show that he was elected a trustee, but some direct and positive act by him, assenting to this action of the stockholders, must also be proved.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action at the Circuit, and also from an order directing the entry of such judgment, after a verdict for plaintiff directed by the court.

      Joshua M. Van Cott, for the appellants.

      F. A. Paddock, for the respondent.
   Barnard, P. J.:

The defendant is sued as one of the trustees of the Redfield & Rice Manufacturing Company, a manufacturing corporation, incorporated under the laws of New York, for failure to file the annual report required by law. The plaintiffs are creditors of that company and seek to recover their debt of the defendant on account of such neglect. The defendant denies that he was a trustee when the duty of filing the report was imposed upon him, so as to make him liable for this claim. It appeared upon the trial that the defendant with others was elected trustees of the debtor corporation in 1866', 1867, 1868, 1869 and 1870. In 1871 there was no election and the defendant acted with the old trustees who held over. In 1872 there was an election of trustees. Defendant was elected with others. He was not at the election and never had notice of it. He never acted as trustee after 1871. The court ordered judgment for defendant. The appellants seek a reversal chiefly on two grounds. 1st. That an election as trustee is prima facie evidence of trusteeship. I suppose this not to be the law. (People v. Batchelor, 22 N. Y. Rep., 128.)

“ But the fact that ho was elected a trustee did not alone invest him .with the character of trustee.” “The defendant should, by a direct and positive act, assent to the action of the stockholders.” (Cameron v. Seamen, Mass. Court of Appeals.) There was, then, something more to be proven than an election. Nothing more was proven. The defendant was sworn, and testified that he never had any notice of his election in 1872, and never acted as such in that year. The argument that the jury might restrict the denial of notice to a denial of a written notice is not based on a liberal or correct view of the testimony. Denial of notice as used meant a denial of information that he had been elected trustee. The plaintiff' made no cross-examination upon this point. It is a fair construction of his testimony that he intended, to support his answer that he was not trustee, especially when a question from the plaintiff would have shown if that was not the meaning of the witness. There were but two meetings, of the trustees in 1872. Defendant was at neither. No connection of defendant with the Redfield & Rice company is shown in 1872, except that he in that year was compelled to pay a certain claim against it which he became bound to pay in 1871, and then not as trustee. The facts surrounding the case seem to mo to repel any inference that defendant accepted the trusteeship. The company in 1871 was compelled to resort to defendant for his-personal obligation on which to borrow money. There had been no election in 1871, as already seen. The defendant did not attend election or meetings of trustees in 1872, and had nothing to do with the affairs of the company, and in November, 1872. the company failed and ivas declared bankrupt.

If these facts do not repel the inference that defendant did not accept as trustee, they certainly do nothing to justify a finding that he did so accept. I think the judgment should be affirmed with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed with costs.