text:
    Sarah F. Elmer, Resp’t, v. The Mutual Benefit Life Association of America, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Benefit societies—Burden of proof.
    An allegation in a complaint upon a certificate of a mutual benefit society that all the conditions were fulfilled by the insured, even when denied by the answer, does not place on the plaintiff the burden of proving that each particular condition or agreement was fulfilled.
    2. Same.
    Where the answer admits that the mortuary fund contains sufficient to pay the certificate and that proofs of death were served, the plaintiff is only required to prove the certificate and the death of the insured. Proof of payment of premiums is not required, as failure to pay would be an affirmative defense, the burden of supporting which is upon the defendant.
    3. Same—Breach of warranty not pleaded.
    It is not error for the court to refuse to dismiss on proof of breach of warranties other than those pleaded; he would be justified in such a case even in refusing to submit such questions to the jury.
    4. Same—Forfeiture—Assessment.
    A forfeiture cannot be based upon an assessment or mortuary premium call of which notice is sent before, but which is not payable until after the death of the insured.
    5. Same—Notice.
    A failure to pay an assessment or mortuary call will not work a forfeit ure unless the notice required by the act of 1877 is given.
    6. Same—Warranty.
    The insured stated in his application that he never had any disease of the bladder or urinary organs. It appeared that he had suffered from an ailment which three doctors testified was a disease of the urinary organs, while others testified it was not and that it was not even a disease, ¿eld, that on such testimony the court would not have been justified in withdrawing the question from the jury.
    7. Same—Waiver of forfeiture.
    A forfeiture for non-payment of a premium is waived by the making of subsequent mortuary calls upon the person 20 in default.
    Appeal from judgment entered upon a verdict in favor of plaintiff.

      E. T. Lovatt (W. H. Ely, of counsel), for app’lt; Austen G. Fox, for resp’t.
   O’Brien, J.

—This action was brought to recover the sum- of $10,000 upon a certificate of membership issued by defendant to-Richard A. Elmer, November 5, 1887. This certificate provided that, “in consideration of the representations, agreements and warranties made in the application for this policy, and of the payment of the expense premium of sixty dollars,' and of the further expense premium of thirty dollars, to be paid on or before the fifth day of November in each and every year during the continuance of this policy, and of all mortuary premiums * * * within thirty (30) days from the date of each notice,” the defendant, upon satisfactory proof being furnished of the death of the member, should the policy of membership then be in force, would pay to Sarah F. Elmer the sum of $10,000. The complaint alleges that during the continuance of the policy, and on or about the 1st of October, 1888, Elmer died in the city of New York, leaving his wife, the plaintiff, him surviving; that on the 15th of October, 1888, and more than sixty days prior to the commencement of this action, the plaintiff gave notice and proof of his death; it then alleges the due performance and compliance with all the provisions and agreements contained in the policy, and demand on the defendant for payment, and a refusal.

Excepting the issuance of the policy, the answer in effect contains a specific denial of the allegations of the complaint, and in addition sets up two affirmative defences: One, that a regular mortuary premium call was issued to Elmer in September, 1888, requiring the payment of $34.40 within thirty days from said date, which was not paid, which caused a lapse of the policy in thus failing to comply with one of its essential conditions. The second affirmative defence was that Elmer agreed that, if any fraudulent or untrue answers should be made by him to any of the questions propounded upon application for a policy, such would render the policy void. The statements which it is alleged were untrue were, that he had never had any disease of the bladder or urinary organs, and had never had any severe illness orín jury.

Upon the trial the plaintiff introduced a witness, who proved the fact of death, and then rested. Thereupon the defendant moved to dismiss the complaint upon various grounds. Among those specifically enumerated were, that there was no evidence of the payment of the mortuary premiums as they became due; that plaintiff had not furnished proof of death within the time as required by the policy; that no evidence was given of due performance of the conditions of the policy, or that it was still valid and in full force, or that the mortuary premiums or calls had been paid, or that the mortuary fund of defendant contained the sum of $10,000 applicable to the payment of this policy.

Whether any of these grounds were sufficient to justify the dismissal of the complaint, an examination of the pleadings and of the issues raised thereunder, and what burden, if any, was thus-placed upon the plaintiff, can alone determine. Ordinarily, in actions upon policies of insurance, all that is essential to make out a cause of action is, a statement' of the contract, the death of the assured, and the failure to pay as provided. The allegation that all the conditions were fulfilled by the assured, though proper in the complaint, even when denied by the answer, does not place upon the plaintiff the burden of proving that each particular condition or agreement was fulfilled. Here, the answer having admitted that the mortuary fund of the defendant contained more than $10,000, and (the fact that proofs of death were furnished, and not having denied the allegation that they were furnished on or about October 15, 1888, there remained nothing for plaintiff to prove except the policy and the death of the insured. The other grounds urged for a dismissal related to affirmative defences, the burden of supporting which rested upon the defendant. The motion, therefore, was properly denied at this stage of the case.

The other questions presented upon this appeal relate to the weight of evidence, and to the law upon the facts proved, and particularly to a submission of the questions to the jury as to whether any untrue answer, misrepresentation or breach of warranty, forfeiting the policy, was made by the plaintiff’s deceased husband.

We do not think, if the questions were properly submitted to the jury, that defendant has any ground of complaint in respect to the number of questions presented by the trial judge. As we have already seen, the misrepresentations and breach of warranty alleged in the answer were confined to whether or not the assured had any disease of the bladder Sr urinary organs, or had ever had any severe illness or injury. The evidence adduced, however, in addition to these, had a tendency to show a breach of wayanties other than those pleaded; and the court in its charge submitted to the jury the question of all the alleged breaches of warranty, whether pleaded or not. This was a course most favorable to defendant, which thus was permitted to go to the jury upon defenses not set up in the answer. It is insisted by appellant, however, that the evidence sustaining these defenses which were not pleaded was uncontradicted, and therefore that it was error to submit the questions to the jury. But we regard the rule to be settled that 1‘ a defendant company, in order to avail itself of a defense by which the policy of insurance should be forfeited by reason of untrue answers made in the application, must set forth such defense so that it may be properly tried.” The application of this rule not only justifies the ruling of the trial judge in not dismissing upon grounds not pleaded, but would have justified a refusal to submit the questions at all to the jury. It would be destructive of all certainty and regularity in the procedure of a trial if evidence relevant and pertinent to the issues as fixed by the pleadings could be, without any amendment thereto, available to support either a cause of action or a defense not pleaded.

This brings us, therefore, to a consideration of whether or not, with resp&ct to the defenses interposed, the defendant was entitle^ to a direction of a verdict in its favor, or whether the questions were properly submitted to the jury. It is' insisted that' the defendant established as matter of law the defense of forfeiture, based upon its allegation that on September 15, 1888, it had duly made a mortuary premium call for an assessment due October 15, 1888, and notified the insured thereof. It is not alleged that this premium was due September 15 th; and as the notice required the payment of the premium on or before October 15, 1888, which was subsequent to the death of the assured, we do not think that any forfeiture could be based upon the failure to pay such premium, though the company would be entitled to deduct the amount thereof from the recovery had. • And though we were to assume that this premium was due on September 15th, a few days prior to the death of the assured, and' a failure to pay the same would work a forfeiture, it is evident that no -such result would follow in this case by reason of the failure to comply with the provisions of chapter 841 of the Laws of 1876, as amended by chapter 821 of the Laws of 1877, which was an act to regulate the forfeiture of life insurance policies, and which required the defendant to show the giving of the statutory notice and the lapse of thirty days thereafter without payment; proof of which is wanting in this case. The notice sent, assuming it ‘to have been received, required the payment of the mortuary premium on or before October 15, 1888, but in such notice the statement, as required by the statute, that unless paid the policy would be forfeited, was not included.

With respect to the defenses of breach of warranty, “ that the insured had never had any^ severe illness, or disease of the urinary organs,” these were not supported by evidence so con-' elusive as to make them questions of law. As to what does or do*es not constitute a severe illness may, in cases of which the present is an instance, be purely a matter of opinion about which even doctors, who are regarded as experts, may differ.

If we can assume, therefore, that a mere opinion can be the subject of a warranty, the breach of- which is to be established by the opinions of experts, such expert testimony, though uncontradicted, is not conclusive. Here the defendant, to prove the affirmative defense, showed that the insured had been afflicted with what is known as impacted renal calculus, from which undoubtedly at one time he suffered, and contended that the same constituted a severe illness or disease. The testimony of the seven physicians examined as to whether or not it was a disease of the urinary organs left the question in doubt. Three of them claimed that renal calculus was a disease of the-urinary organs, while some of the others testified that the temporary ailment from which the insured" had suffered prior to the application was not only not a disease of the urinary organs, but not a disease at all. We fail to see, upon such testimony, how the trial judge would have been justified in withdrawing this as a question of fact from„the jury, and ruling that this defense was established as matter of law, entitling the defendant to a direction in its favor.

The appellant claims that another insurmountable obstad é' to supporting the judgment arises from the failure of the plaintiff to show that the primary premium of thirty dollars provided for in the policy was paid, insisting that such payment was a condition precedent to a recovery, which plaintiff was bound tq prove. Assuming, which we doubt, that the burden was upon the plaintiff of proving such payment, it appears that the policy itself was dated on the 5th day of November, 1887, and it was conceded that of the two expense premiums specified in the policy, the one of sixty dollars was paid. It is not made to appear whether the further expense premium of thirty dollars which, according to the terms of the policy, was to be paid on or before the 5th day of November in each and every year during the continuance of the policy, was required to be paid at the same time, and in addition to the payment of the first expense premium of sixty dollars. If not so payable, it was not due until after the death of the insured. If it was payable, it was dearly waived by the calls for the mortuary premiums given to the insured, and which .were paid subsequent to November 5, 1887, thus constituting a clear waiver, and which if still due could have been deducted from any recovery, had the attention of the court been called to any such insistence upon the trial.

We have examined the charge of the trial judge, to which several exceptions were taken, none of which we regard as tenable, the charge being, in all respects, fair and as favorable to defendant as could have been requested. So with respect to exceptions taken to the admission and exclusion of evidence; one only requiring a brief notice, -

The defendant asked of Dr. Lockwood the question :

“ Will you state, taking this article to refresh your memory, the various symptoms that you noted the several days that you waited upon Mr. Elmer during this period? A. Do you mean the symptoms that I noted when I saw him personally ?

"Q. Yes."

This question was objected to by the plaintiff upon the ground that the doctor had stated that many of the symptoms stated in the article, which had been written for some medical journal, were not from personal observation, and that the question should not relate to facts which were not recollected by the witness himself. This objection was sustained, and the defendant excepted.

Whilst at first glance this ruling might seem to be erroneous, still, upon examination, it will be seen that the court in this ruling intended to restrict the answer of the witness to facts within his personal knowledge. Such facts were all that the witness had a right to testify to; and taking into consideration the faulty manner in which the question itself was framed, which referred the witness to an article-describing symptoms which he had not personally known, and then coupling it with a statement that he should state the various symptoms that he noted when he waited upon the insured, it was proper for the court, under the objection of plaintiff, to restrict the question to an ascertainment of facts within the personal knowledge of the witness. Such could have ' been elicited by a proper question ; and the failure to frame one does not place the appellant in the same position as he would be in had. he asked a question calling for the personal knowledge of the witness, which under objection had been excluded.

On the whole .case, therefore, we are of opinion that no error has been assigned sufficient to justify a reversal of the judgment, which should be accordingly affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Barrett, J. Van Brunt, P. J.

license: Public Domain

text:
    James Ferris, Resp’t, v. Elizabeth W. Aldrich, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Negligence—Elevators.
    Plaintiff was employed by a contractor who was laying the floors in an unfinished house belonging to defendant. Elevators were being put in by other contractors, but ,they were not finished, with the exception of one for freight. Defendant furnished aman to run this elevator, and the foreman of plaintiff’s employer was told by defendant’s agent that he could use the elevators when they were running. The elevator man at the request of the elevator contractors left his elevator for repairs and temporarily used an unfinished one, and while plaintiff was riding on that one he was injured. Held, that the defendant owed him no duty as to the elevator in question, and that no case was made for the jury.
    2. Same—Evidence.
    The foreman having testified that it was his understanding that he was to use the elevators when running for hoisting, it was error to refuse to allow his understanding to be tested on cross-examination by an inquiry as to whether he did not understand this as referring to the freight elevator.
    Appeal from a judgment in favor of the plaintiff rendered upon a verdict had at circuit; also from an order denying the defendant’s motion for a new trial.

      John M. Scribner, for app’lt; Thomas E. Rochfort, for resp’t.
   Barrett, J.

—The right of the plaintiff to go to the jury upon ' the question of the defendant’s negligence was sustained by this general term when the case was first presented to it mainly upon the ground that one Hamilton, who was the superintendent of the defendant’s building, knew of the use of the elevator in which the accident happened. Upon the second trial, now under review, it appeared most clearly that Hamilton was not the superintendent of the building, but that his duty was to look after the steam work, and to superintend the boiler, the engine, the engineer and the elevators.. The evidence failed to show that Youngs, who was superintendent, knew of the use of .this particular elevator, or that he ever authorized its use. There was evidence upon the former trial justifying an inference that Hamilton was the general superintendent of the building, and some of this evidence was brought into the second trial; but the latter was insufficient to outweigh the distinct testimony of Hamilton, Spencer Aldrich and Alexander on this point or to permit any possible inference to the contrary.

It alsp appeared quite conclusively upon this second trial that the defendant’s son and agent, Spencer Aldrich, provided one specially prepared elevator for the use of certain employees, and that neither he nor his mother ever authorized the use of any other elevator. The defendant employed one Mulvey to run this specially prepared freight elevator, and his employment was confined to it, and to it alone. The elevators generally were in the hands of Messrs. Otis Brothers under contract for their construction They were not finished, and had not been delivered to the defendant as completed structures under the contract at the time when the accident occurred. Shortly prior to the accident, the foreman of Messrs Otis Brothers requested Mulvey to leave his freight elevator for a little while, as it needed repairs, and to step into another elevator. It was in this'other elevator, and while Mulvey was running, it that the accident occurred. 0

Under these circumstances, the defendant cannot be held liable for the plaintiff’s injury. Mulvey’s authority was limited to the running of the freight elevator, and there was no authority, actual or apparent, to use any other elevator. These elevators were, as we have seen, in an unfinished condition, and the contractors were still at work upon them. The defendant provided an elevator safe in every particular, and manned with a competent servant, for the use of those employees who were called upon to carry materials up and down. She did no more. Neither she nor her, agent gave any one permission to use another elevator. Nor did she or her agent authorize Mulvey to run any of the other elevators, even temporarily. These other elevators had never;'-prior to the accident, been taken out of the custody of the contractors or delivered to the defendant, nor had the defendant managed, controlled or used them in any manner. What Mulvey did, outside of the running of the freight, elevator, he did solely at the request of the agent of the contractors, and not 'under authority, express or implied, from the defendant. The latter observation also applies to the occasional use by the employees of such other elevators. Such use was without authority from the defendant, her agent or superintendent; and the evidence that Mr. Spencer Aldrich or some other agent of the defendant observed such occasional use, is too slight and inconclusive to warrant a conclusion contrary to their direct assertions.

The only evidence tending to show that Mr. Spencer Aldrich authorized the use of all the elevators was that of Mr. Alexander, the foreman of Conover & Co., contractors for tiling the floors of the building. He testified as follows : o

“I asked him, Mr. Aldrich, if he would furnish me with the means of hoisting, and Mr. Aldrich told me that he would not supply means until the elevators were running and then we could use the elevators. That was the understanding I had.”

The use of the plural in this connection was evidently inadvertent, as he refers in the same connection "to the elevator ” and to “ one elevator.” Subsequently he said that he “ never saw one used for carrying rip goods excepting one. This was the fourth one from Broadway. * * "* I did not use any other elevator than number four that I remember of previous to the accident.”

If, however, this slight evidence were deemed sufficient to carry the case to the jury upon the question of Mr. Spencer Aldrich’s having given authority to use other elevators besides the freight elevator, it is clear that a new trial would have to be granted because of the refusal of the learned judge, upon Alexander’s pross-examination, to permit the understanding thus testified to to be tested. It will be observed that when Alexander, upon his direct examination, spoke of elevators in the plural, he qualified the expression by the statement that “ that was his understanding Now, upon cross-examination, he was’asked if, when Mr. Aldrich spoke of putting an elevator in use, he did not understand him to refer to this freight elevator.

This question was ruled'out and the defendant excepted. ' It seems clear that this was error, for, if the only evidence in the case which could be strained into an authority to use the “ elevators ” generally consisted of Mr. Alexander’s " understanding,” it was the defendant’s right to probe that understanding and to show, if she could, that it referred not to the elevators generally, but in reality to the single freight elevator which was subsequently provided.

Upon the facts as they appear upon the present appeal, we think the plaintiff wholly failed to make out a case for the consideration of the jury. He was not employed by the defendant, nor did she owe him any duty with regard to the elevator in question. He wastthe servant of her contractor and as such he was authorized to work for such contractor in this unfinished building. He certainly could claim from the defendant no greater regard for his safety than if he were her own servant, and it is clear that as a servant of the contractor he took all the risks incident to his employment and incident to the use of the premises in the condition in which they were. The defendant owed him no duty or obligation resting on contract. Nor did she invite him to use the elevator in which he received his injury. She simply placed a proper elevator at the disposal of her contractors and there her obligation, if any, ceased. We think that upon this evidence the complaint should have been dismissed. We need not, therefore, consider the question of the plaintiff’s own negligence. 0

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

O’Brien, J., concurs.

Van Brunt, P. J.

—I am of the opinion that upon the second trial there was no evidence sufficient to justify a finding that the elevator upon which the accident happened was used with the assent df the defendant or her superintendent. In this respect the case now is materially different from what it was upon the first trial, and even if the evidence has been changed to meet the exigencies of the case, this court upon appeal cannot import evidence into the case which does hot appear upon the record. I therefore concur with Mr. Justice Barrett.


author: Van Brunt, P. J. Barrett, J. O’Brien, J.

text:
    Henry Rosellen, Assignee, Resp’t, v. Louis Herzog et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Conversion—Evidence.
    In an action for conversion of goods of plaintiff’s assignors, where the defense was that the sale by defendants of said goods to said assignors was void, having been induced by false statements of their solvency, and one of the assignors has testified that the agent of the board of trade, at the time of obtaining information as to their standing, stated that he wanted it for 0a special purpose, and that the paper filled out by such agent had been changed, it is error to exclude evidence of said agent to contradict such statements.
    Appeal from judgment entered on verdict of a jury, and from order denying motion for new trial.

      J. J. Frank, for app’lts; Albert I. Sire, for resp’t.
   Van Brunt, P. J.

—This action was brought. to recover the value of certain property, consisting of jewelry, of the value of $163.93, which the plaintiff claimed had been wrongfully taken into possession by the defendants and converted by them. The answer denied the ownership of the property, and as affirmative defense averred that prior to, and at the time of the commencement of this action, there was pending undetermined in this court another action wherein the plaintiff and his assignors were defendants, and these defendants were plaintiffs, for the recovery of this and other property.

Upon the trial it was shown that the defendants had taken the goods,- and justified the taking upon the ground that the sale of the goods by them to the plaintiffs’ assignors was void, and that it had been induced by their false statements of their solvency.

The jury rendered a verdict for the plaintiff, and from the judgment thereupon entered, and from the order denying a motion for a new trial, this appeal is taken.

The appellant claims that _error was committed during the progress of the trial in the admission of evidence of payments for other property not affected by this action, in reading from the books of the plaintiff’s assignors, and the declarations of the defendants as to their intentions in respect to the goods taken, which do not seem to be very material to the question in controversy, or to have in any way affected the defendants to their detriment

But it does appear that evidence was given by one of the Viemeisters, although objection was duly made, to the effect that if their creditors would have waited, or extended the time of payment, they could have paid their, creditors in full. This was clearly error. It was entirely immaterial what would have happened had the creditors of the Viemeisters chosen to extend the time of payment of their indebtedness.

Another material error seems to have been committed in the exclusion of the evidence of the agent of the Jewelers’ Board of Trade, who was obtaining information in respect to the Viemeisters’ standing, denying the statement which- had been sworn to by one of the Viemeisters, that he stated at the time of obtaining such information that he only wanted it for a special purpose. It certainly was material as to the extent of the credibility to be given to the witness, and affecting the credibility to be given to the Viemeisters in respect to their explanation of the information which they gave to the agent.

So also, the defendants were entitled to show that the alleged change in the paper which had been filled out by the agent of the organization had not been made as was claimed by the Viemeisters; and also to show “where the paper had been, and in whose custody it was, for the purpose of contradicting the evidence which had been gffered upon the part of the plaintiff. °

Without considering the other points raised, we think that the errors suggested call for a reversal of the judgment'

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

Barrett, J.

—I concur upon the ground' that it was error to exclude the evidence of the agent of the Jewelers’ Board of Trade in denial of what had been sworn to by one of the Viemeisters.

O’Brien, J.

—The defendants, with regard to the sale and delivery of goods between November 24 and December 9th, 1890, to plaintiff’s assignors, alleged that the same were delivered because they relied upon the truth of statements which were false and fraudulent. Some of the goods taken by them were delivered prior to November 24th, 1890, and had either been paid for or delivered upon a credit not induced by fraudulent representations. These the defendants took wrongfully, and for their value a verdict should have been directed for plaintiffs. I dissent, moreover, from so much of the opinion as intimates that it was error to'show the prior dealings between the parties. Such evidence, it seems to me, is competent and relevant upon the question as to whether or not defendants relied solely on the representations made to the Jewelers’ Board of Trade, and communicated to them. The extent of prior credits and the course of5 dealing between the parties bears directly on this point Upon the other grounds assigned as error by the presiding judge, I concur in the result.


author: Van Brunt, P. J.

text:
    In the Matter of the Will of James Phalen, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Will—Undue influence.
    It is not enough to invalidate a will on the ground of undue influence that an opportunity to exert influence existed; but there must be proof that influence so strong that the "will of the testator was thereby overcome was actually exerted.

      c 3. Same.
    Testator, by a codicil, revoked a provision for his son, and placed his share in trust with remainder to his heirs. The habits of the son had been bad, and such as to unfit him for the management of property, and he was separated' from his wife, and childless, and it was claimed that his sisters, who lived contiguous to testator, by studious efforts to impress upon him the fact of theson’s incompetency, influenced him. to make the change. The will, as drawn from testator’s directions, was signed by him in the presence of the subscribing witnesses alone, and there was no evidence that the sisters knew of the making of the will untill it was done. Held, that no undue influence was shown.
    Appeal from decree of the surrogate dismissing proceedings :and denying the prayer of the petition of Charles J. Phalen for revocation of the probate of the will of James Phalen, deceased.

      C. H. Woodruff, for app’lt; E. W. Sheldon, for resp’ts.
   Van Brunt, P. J.

—James Phalen, a citizen of New York, but a resident of Paris, died there in January, 1887, leaving a widow, two daughters and one son, the appellant. Three days before he died he executed a codicil to his will, which had been made in 1882, revoking the provision therein giving to his son absolutely an equal portion with his sisters, and placing his share in the hands of trustees for his life with remainder to his heirs. An absolute devise to his son of one of the family dwelling houses in Paris, however, was not revoked.

It is claimed upon the pai't of the appellant that this codicil was caused to be made through the undue influence, fraud and deceit of the two sisters of the petitioner, and the husband of one of .them, practiced upon the testator, and that although no direct proof of undue influence has been adduced, yet the motive of .the persons benefited by the change, the opportunity for influencing the testator and its accomplishment, have been established by the evidence, and that it is evident from the proof that the testator, from 1882 to 1887, intended that his only son should enjoy his property out and out, without any restrictions whatever.

It appears that between 1882 and 1887 the testator had drawn six codicils to his will without in the least affecting the division of the rest-and residue of the property between his children; the fifth codicil revoking the appointment of the appellant as executor in November, 1886, the reason for such action being said to be on account of his health. The first and last codicils were executed according to the laws of the state of New York and the intervening codicils were holographic in form.

The claim is made that the motive for securing a change in thé testator’s will upon the part of the sisters was to augment their ■expectant estates; that at this time their brother was forty years of age, married in 1875, separated from his wife, and childless; that by his father’s will he had the right to dispose of his share as he chose in his life-time or by will; and that by the change made this right was taken away; that the opportunity to strongly affect the testator’s mind existed from the fact of the daughters living with their father in contiguous connecting houses in Paris, while their brother was in Switzerland, and his father had not seen him since 1885; and that one of such daughters was her father’s active agent and adviser in family matters, and it is claimed in matters which resulted in this change in his will (in respect to'which latter assertion we fail to find any supporting proof); and that a scheme was entered into between these sisters and the husband of ■one of them to influence the testator, to warp his judgment, and finally deceive him as to his son’s mental condition.

That the habits of the appellant had at times been bad, and such as made him unfit for the management of any property committed to his care, seems to be established by the evidence beyond doubt. But it is claimed that outside of these habits a studious effort was made to impress upon the father the idea that the appellant was not competent to manage his own affairs, and that stories of his extravagant and bad habits were incessantly detailed to his father and mother. And a large part of the testimony is taken up by evidence in reférence to proceedings which were taken for the confinement of the appellant because of his physical and mental condition in an asylum at St. Urbain.

It is conceded upon the part of the appellant that these claimed peculiarities in his conduct and habits had some foundation in fact; and that the life that he led, and his bodily infirmities and mental distress and despondency, together with habits of drink, had impaired his constitution, and given concern to his physician, of all which the father was well aware. But .it is urged that although confinement in a private hospital for treatment was prescribed by the physician, confinement in a lunatic asylum was entirely unnecessary and unwarranted by his condition. The respondents claim that this treatment was directed by his father, and was essential to his restoration from a state of otherwise hopeless alcoholism, and resulted in great benefit to his mental and physical health.

Whatever may be the conclusion arrived at from an examination of the testimony which has been offered-upon the part of the appellant, there seems to be a complete absence of proof tending to show that this action was taken by the sister of the appellant for the purpose of influencing the father in reference to the provisions of his will, or that she attempted in any manner to exercise any such influence. The evidence shows that the codicil was prepared by a Mr. Yralker, the consul general of the United States resident at Paris, in accordance with instructions received directly from the testator ; that it was read over to the testator before he signed it, and that it was executed in the presence of no one but the subscribing witnesses; and there is no evidence that the sisters of the appellant ever suggested or even knew of the intended execution of the codicil until after it was done.

There seems to be an absence of proof to support the claim that the codicil was not, under the condition of affairs which it is admitted the evidence establishes, such as a testator would be likely to make, or that it was unnatural in respect to its provisions. It is not enough that the opportunity to exert influence may be offered. There must be proof that such influence was exerted; and that the codicil was due, not to influence, but to undue inflence; that is, influence so strong that the will of the testator was thereby overcome.

As has been said in the Matter of Martin, 98 N. Y., 193, “ The case then is one where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and where at its execution she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition. A will exeouted under those circumstances can be avoided only by influence amounting to fraud or coercion, and prpof that it was obtained by this coercion. The burden of proving it is on the party who makes the allegation.”

We think, therefore, the case is utterly devoid of any proof which would justify this court in coming to a different conclusion from that reached by the learned surrogate.

The decree should be affirmed, with costs.

Barrett and O’Brien, JJ., concur.


author: Ransom, S. Van Brunt, P. J.

text:
    In the Matter of the Estate of James T. Swift, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Collateral inheritance tax—Real estate in another state.
    The proceeds of real property situated in another state and brought into this state for distribution are not subject to the collateral inheritance tax, although the provisions of the will operated an equitable conversion of such realty.
    2. Same—Personal property in another state.
    Personal property located without the state and remitted here for distribution is not taxable under the act.
    3. Same—Valuation.
    In valuing the estate for taxation the appraiser should proceed without regard to a provision of the will in relation to the manner in which the tax is to be paid, and is not justified by such provision, declaring that tlie legacies shall be free from tax and that the same shall be paid as an expense of administration, in deducting the amount of the tax from the residuary estate in estimating its value for taxation.
    4. Same.
    Where specific articles are bequeathed to be divided among several persons, some of whom are exempt by reason of taking less than §500 under the will, it is error to make an aggregate valuation of such property as subject to tax.
    Appeals by both parties from an order of the surrogate affirming an order assessing the value of property subject to taxation under the collateral inheritance tax act
    Upon the first report by the appraiser the matter was sent back to him, the surrogate writing the following- opinion:
   Ransom, S.

—The first exception to the report of the appraiser herein is that, in appraising the value of the estate of the residuary legatees, he has included certain real estate, of which testator died seized, situated in the state of Hew Jersey. The appraiser included the proceeds of this real property apparently for the reason that the provisions of the will operated as an equitable conversion thereof for the purpose of paying legacies and making distribution, which conversion had actually taken place; and the proceeds are now in this jurisdiction for the pur- pose of distribution under the terms of the will. Ho brief has been filed by the comptroller to sustain the report, though on the oral argument he relied for its confirmation upon Miller v. The Commonwealth, 111 Penn., 321. In that case, a testator, domiciled in the commonwealth of Pennsylvania, devised land situated without the state, which was to he sold to pay pecuniary legacies. It was held that the legacy would pass to the legatee as money and subject to the law of the testator’s domicile, and, hence would be subject to the collateral inheritance tax.

In Drayton's Appeal, 61 Penn., 172, a testator in Pennsylvania gave his residuary estate to collaterals and authorized the executors in their “ discretion to sell, on such terms as to them shall seem expedient, all real estate.” He owned real estate in Minnesota which his executors sold and deposited the proceeds in Pennsylvania in their general account as executors, with money arising from the personalty; drew on the whole fund for the purposes of the estate, and charged the proceeds in their general account as executors. It was held that these proceeds were not liable to collateral inheritance tax.

The court does not consider or discuss in either of these cases its right to apply the doctrine of equitable conversion to real property “situated without the state, for the purpose of levying a collateral legacy tax upon the proceeds thereof brought within its jurisdiction for distribution. Those cases, therefore, cannot be regarded as authority upon the fundamental principle which must-be determined in this proceeding.

“A succession tax is not a tax on property, but on the privilege of succeeding to the inheritance. It is not a direct tax upon the land taken by descent, but is an impost, upon the devolution of the estate and the right to become beneficially entitled thereto, or to the income thereof.” Cooley on Taxation, 2d ed., p. 30, and cases cited; Matter of MacPherson, 104 N. Y., 306; 5 St. Rep., 680.

Upon the death of a person leaving property within this state, that property, whether real or personal, reverts to the state. Prior to the passage of the. act taxing collateral inheritances, the state permitted the owner to dispose of the same by will upon complying with certain' statutory requirements, and in case of his omission to do so, directed the manner in which it should be distributed. The state imposed no burden or other condition upon the exercise of this privilege until the passage of this act. It seems to me, therefore, that the fundamental test of the right to tax the1 devolution of property, either by will or in case of intestacy, is to ascertain the sovereign power through whose favor the property is permitted to pass. The power to tax this privilege is commensurate with its dominion over the property. It is plain that with reference to extra territorial real estate this state could confer no privilege governing the devolution of the title thereto, and consequently, if the test suggested above is a true one, it could impose no conditions upon its exercise.

“ Everything- to which the legislative power extends may be the subject of taxation, whether it be person, or property, or possession, franchise or privilege, or occupation, or right * * And not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits, and may be carried to any extent which the government may find expedient.’’ Cooley on Taxation, 2d ed., p. 5.

“ The taxing power of a state is coextensive with its sovereignty,, ,,and whatever objects of government are within its reach are subject to it and may be made the basis of levies. It is commonly said that taxation and protection are .reciprocal, and this, if rightly understood, is correct, though some subjects receive the protection of the government which are not taxable, and some may be taxed though not protected.” Cooley on Taxation, 2d ed., p. 19.

“ A state can no more subject to its power a single person or a single article of property whose residence or legal situs is in another state, than it can subject all the citizens or all the property of such other state to its power.” Cooley on Taxation, .2d ed.,. p. 159.

The test suggested above furnishes a uniform and symmetrical method of determining the extent to which the beneficial interests conferred by will or by intestate laws are measured for the purpose of taxation under the act. In applying this test, no convenient fictions of law, which are resorted to by courts of equity for the purposes of justice, should be recognized. The law will then deal only°with actualities. I doubt if the doctrine of equitable conversion would have been invoked by the comptroller if. the mischievous result to the state were foreseen which the application of this principle would have accomplished. Thus, under the act as amended in 1891, direct relatives of a decedent leaving personalty in excess of $10,000 are made subject to the tax, while they are exempt if- the interest passing is realty. If, as contended on behalf of the state, the doctrine of equitáble conversion may be successfully invoked in taxing interests under this act, a testator with a vast estate consisting almost exclusively of personalty, having in view the exemption where the beneficial interest passing is realty, could bequeath personalty to any amount to direct relatives, having previously, by an appropriate direction in the will, worked an equitable conversion of the personalty into real estate. In this manner, the chief object the legislature had in view in passing the act, viz., compelling personal property to-pay its just proportion of taxation, would be defeated. It has also-been suggested by the learned counsel for the executors (to whose-able brief and exhaustive inquiry I have been greatly indebted in considering this problem), that a testator might direct his personal property within the state of Hew York to be converted into-real estate in New Jersey, and -as such devise it; and he propounds the query : “ Would the state of New York be then willing to admit that the gift was real property out of its jurisdiction and not taxable?”

To support the application of the doctrine of equitable conversion in determining the extent of liability to this tax, it must be held to have been the intention of the legislature to permit a testator to determine for himself whether the devolution of title should be subject or exempt. .

The second exception relates to the taxability of personal property located without the State, and which is remitted to this jurisdiction for distribution. It presents a question which at first occasioned some difficulty. But, on reflection, I see no good reason why the test suggested with reference to real property will not apply equally to personalty.

“ A nation within whose territory any personal property is actually situated has as entire dominion over it while therein, in point ■of sovereignty and jurisdiction, as it has over immovable property situated there.” Story on Conflict of Laws, § 550.

The chief argument of the counsel for the executors in maintaining that such property is not liable to the succession tax is the maxim in the law of taxation, that protection and taxation must be reciprocal, and that under such circumstances personal property may be compelled to pay a double tax on its devolution; and he cites the language of the court of appeals in the Miston case to show that an influential consideration with the court in deciding the case was the reluctance to construe a tax law so as to impose a double burden. In Cooley on Taxation numerous cases are cited which show that while double taxation will not be presumed, it is still within the power of the state to pass such a law, and it is no objection to its validity that such a result is accomplished.

It will be seen that the test suggested has its foundation in the law of escheat Take the case of a resident of this state dying intestate, without heirs at law or next of kin, and owning real and personal estate situated in New Jersey. It would not for a moment be contended that the real property, under those circumstances, would escheat to any other sovereignty than the state of New Jersey. The law of escheat, with reference to real estate, is identical with that as to personalty, and it can hardly be questioned but that the personal estate under those circumstances would follow the same rule. Johnston v. Spicer, 107 N. Y., 185-196; 11 St. Rep., 486. That state has dominion over the property, and in the exercise of that dominion, and pursuing the comity of nations, permits the transmission of personal assets to the jurisdiction of domicil for the purpose of distribution; but even in this case it exerts its dominion so far as may be necessary for the protection of the interests of its own citizens, as, for instance, creditors, by retaining sufficient assets to meet their claims.

Another argument in favor of this contention is that by adopting this rule we avoid-inconsistency in the tax law and oppression by the taxing power. The court of appeals have decided in the Romaine case, 38 St. Rep., 76, that the personal property of a nonresident decedent which has its situs in this state is subject to the tax.

“ In a well adjusted system of taxation, a fundamental requisite is that it be harmonious. But harmony does not exist unless the taxing power is exerted with reference exclusively either to the •situs of the property or to the residence of the owner. Both rules, cannot obtain unless we impute inconsistency to the law and oppression to the taxing power. Whichever of these rules is the true one, whichever we find to be founded in justice and in the reason of the thing, it necessarily excludes the other; because we ■ought to suppose, indeed, we are bound to assume, that other states and governments have adopted the same rule. If then, proceeding on the true principles of taxation, we subject to its burdens all goods and chattels actually within oúr jurisdiction, without regard to the owner’s domicil, it must be understood that the same rule prevails everywhere. If we also proceed on the opposite rule and impose the tax on account of the domicil, without regard to the actual situs, while the same property is taxed in another sovereignty by reason of its situs there, we necessarily subject the citizen to a double burden of taxation. For this no. sound reason can be given.” Hoyt v. The Commissioners of Taxes, 23 N. Y., 228.

The third exception to the report is that, in determining the valueeof the residuary estate, the appraiser erred in failing to deduct the amount of the tax to be assessed against that interest as. an expense of administration. . The ninth clause of the will is as-follows:

“ I direct that all legacies and devises herein made shall be free of any succession or other tax, and that any and every such tax thereon shall be paid by my executors as part of the expense of administering my estate."

In ascertaining the value of the residuary estate for the purpose of taxation, the appraiser has deducted the amount of tax on other legacies given by the will. It is claimed that he should have also deducted the amount of the tax to be paid on the residuary estate from its gross value. I fancy it will not be contended that a testator can, by a provision in his will charging the payment of the legacy tax upon the residue or any other designated fund, deprive the state of any revenue which it would otherwise receive. To illustrate: Suppose a testator bequeath to A. $500, to B. 500, and the balance of his estate, amounting to $4,000, to C., all the legatees being collateral. In that event the state would be entitled to receive a sum of money equivalent to. five per cent, of $5,000, viz.: $250. By charging the payment of the tax due upon the first two legacies upon the residue, he cannot reduce the sum which the state would otherwise derive.

To put the case in a different and perhaps stronger light: Suppose there is no residue, but the will directs the payment of the tax out of the same. The law- must be construed, if possible, so as to provide for every possible .case, and it will be seen that by applying the rule which would have to be applied in the case last presented, the true method of assessing the tax upon estates bequeathed in this manner is ascertained. The direction that the tax shall be paid out of the residue is no concern either of the state or the appraiser. He should report the legacies taxable, as if no such provision were contained in the will. In the case at bar, the report of the appraiser is incorrect so far as he has deducted from the value of the residue the taxes which must be paid out of that fund. He was correct in refusing to deduct from the residue, in ascertaining its value for the purpose of taxation, the sum of money which would be payable by the legatees.

The fourth exception: By the fourth clause of his will, the testator gave to his executor “such paintings, pictures, plateorother, personal articles as may be specified by me in a note or memorandum which I may leave, either of this or a subsequent date "*■ * * upon trust, to dispose of the same in such manner as I .shall by such note or memorandum direct or request” . But three ■of the persons designated in the memorandum referred to receive taxable benefits. The appraiser has reported the aggregate value ■of the property thus bequeathed as subject In this he is in error. To the extent that this aggregate valuation represents property bequeathed to persons exempt by reason of their rela"tionship to deceased, or by reason of their receiving under all the provisions of the will beneficial interests less than $500 in value, it is not taxable. The value of the benefit received under this provision of the will by unexempted persons who receive benefits under other provisions of the will must be taken into account in ■assessing the tax.

S. W. Rosendale, for the People, app’lts; N. S. Spencer, for the executors, app’lts.

The matter must be remitted to the appraiser to report anew in accordance with this decision.

_ On the coming in of the report in conformity with such deci•sion, the order in question was made.

Van Brunt, P. J.

—We think the order appealed from should be affirmed upon the opinion of the learned surrogate.

O’Brien and Barrett, JJ., concur.


text:
    Abraham S. Friedlander, Resp’t, v. Lewis Myers, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Lease — Covenant of quiet enjoyment — Failure to give possession—Damages.
    For breach of the covenant of quiet enjoyment in a lease by reason of failure to obtain possession of the premises, the lessee is entitled to recover the expense incurred by him in preparing to occupy them for the purposes of his business, where possession is denied by a person having a superior title.
    2. Same—Measure of damage.
    Where the lessee purchased a stock of goods which he was obliged to dispose of at auction because of failure to obtain possession, the difference between their cost and the amouht realized is not the measure of damage, but is only evidence for the consideration of the jury in determining the question of damage.
    S. Same—Bad faith.
    The fact that the lessee had knowledge before he incurred expense that .another tenant was in possession and claimed the right to remain, is not evidence of bad faith on his part, as’he has a right to assume that the landlord would put him in possession rt the time specifledin the lease, especially where the landlord assures him that he can do so.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      Wm. Bernard, for app’lt; B. N. Cardozo, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for the breach of a covenant of quiet enjoyment contained in a lease.

It appeared upon the trial that the defendant had signed a written lease of premises in the city of New York for five years from, the 1st of May, 1890, to the plaintiff, the premises to be occupied for the purposes of a drug store, which lease contained the usual covenant for quiet enjoyment. On the 1st of May, 1890, when the plaintiff sought to enter upon the premises in accordance with the terms of the lease, he found a tenant in possession who refused to surrender such .possession, claiming under a lease made prior to that given to the plaintiff, and possession was not acquired. The plaintiff, relying upon the covenants in the lease, incurred numerous expenses in preparing to occupy the premises for the purposes of his trade, procured certain fixtures to bo made, employed certain clerks, and purchased a stock in trade, all ■of which were useless because of his failure to obtain possession ; .and these fixtures and stock were subsequently sold at auction at a considerable depreciation. Other elements of damage were claimed upon the trial, but were disallowed by the court, and the jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered, and from an order denying motion .for new trial, this appeal is taken.

It is claimed upon the part of the appellant that it was error to .allow a recovery upon the part of the plaintiff for the expenses incurred in preparing to occupy the premises, because of the general principle that for breach of the covenant for quiet enjoyment the •ordinary measure of damages is the difference between the rent reserved and the actual value of the lease. The rule is undoubtedly as stated. The general principle, however, is subject to the qualification that a lessee may recover any special damages not •speculative in character, especially when such damage can be claimed to have been foreseen by the parties to the lease. This ruléis recognized in the case of Bernstein v. Meech, 130 N. Y., 304; 41 St. Rep., 700, where a party was allowed to recover, as part and parcel of his damage for i,he failure of the landlord to let the party in possession, the expenses incurred in preparing and providing for the business which the plaintiff proposed to carry on upon the premises. The sanie principle is recognized in the case of Griffin v. Colver, 16 N. Y., 489, and it is only those losses which are speculative and uncertain which are excluded.

•Applying this rule to the case at bar, it would seem that the expense which the plaintiff was put to in preparing to occupy the premises in question clearly were such as he was entitled to recover, when possession was denied by a person having a superior title.

Some question is raised in regard to the proof of damage, and that the difference between what the plaintiff paid for the drugs and what he sold them for was not the measure of damage. This the court expressly charged and stated substantially to the jury that the difference between the cost of the goods and the amount realized was not the measure of plaintiff’s damage, but it was ■only evidence for the jury to consider in determining the question •of damage.

The point raised as to the knowledge on the part of the plaintiff of the claim of the tenant in possession, and that because thereof the plaintiff acted in bad faith, having learned of the alleged letting before incurring the expense, cannot be sustained. The plaintiff had a right to assume that he would be let into possession of the premises at the time the landlord had covenanted he should be so let into possession. He had a right to make such preparations as were necessary in order to make that possession valuable to himself at the earliest possible moment. The landlord gave him no intimation that he would not and could not get possession. On the contrary, he seems to have insisted that he might do so. Under these circumstances it does not seem that there was any bad faith on the part of the plaintiff in making the preparation which he did. ■

It is claimed that the case of Engelsdorf v. Sire, recently decided by this court, establishes the proposition that the plaintiff cannot recover in this action. It is to be observed that the facts in the case cited were entirely different from those in the case at bar. In the case cited it was attempted to recover the cost of fixing up other premises for occupation, not for the expenses incurred in anticipation of getting possession of the premises which had been leased. There was no rule which would justify a recovery of expenses of the character disclosed by the evidence in the case of Engelsdorf v. Sire; and the two cases are not in any respect analogous.

There does not seem to have been any substantial error committed on the trial of the case in the court below.

The judgment and order should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.


author: O’Brien, J.

text:
    Mary S. Douglas, Resp’t., v. Fred. H. Smith, Assignee, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Reference—Delivery of report—Termination.
    A delivery of the referee’s report to the attorney for one of the parties on the assurance that it should not he filed until the referee's fees are paid is not a delivery within the meaning of the statute, so as to take away the right to terminate the reference.
    Appeal from order directing defendant assignee to pay referee’s fees.

      J. A. Shoudy, for app’lt; Rollin H. Lynde, for resp’t.
   O’Brien, J.

—This action was brought to compel an accounting on behalf of all creditors by Smith, as assignee of Benjamin M. Harris, and for a distribution among the creditors, and for the discharge of the assignee. By an interlocutory' judgment a reference was ordered which directed the referee to pass upon the claims of creditors, and also directed “ that the fees and expenses of the said referee be charged upon and paid out of the funds in the hands of Frederick H. Smith, as such assignee, unless otherwise directed by the court or said referee.”1 It appears that the reference was closed February 16, 1892, that the referee’s fees had not been paid, and that the appellant had refused to take up the report. After the lapse of more than sixty days from the "time of final submission the appellant gave notice in pursuance of § 1019 of the Code that he elected to terminate the reference, which notice was served upon the attorney for the plaintiff and the other attorney who appeared before the referee. The report of the referee was not filed within the sixty days, and in respect to its disposition the affidavit of counsel for respondent shows that at least a week before the notice was served to terminate the reference the report was delivered to him, on the assurance that the same should not be filed until the referee’s fees were paid.” ■

Section 1019 of ‘the Code provides that “ the referee's written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when :the cause or matter is finally submitted; otherwise, either party ■may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. * * * In such a case * * * the referee is not entitled to any fees."

It will thus be seen that if neither party takes up the report, the referee must file it with the clerk within sixty days. It being conceded that it was hot so filed, the question presented is as to whether the facts show that within the meaning of this section it was delivered-to the attorney for one of the parties within the time so as to take away the right to terminate the reference.

We think that a compliance with this section demanded an unqualified delivery of the report so that it should be, as stated in Birdseye v. Goddard, 17 Weekly Digest, 228, “subject to the control, use and disposition of the attorney who received it.” Here the report was delivered upon an assurance that it should not be filed until the referee’s fees were paid. Thus it will be seen that the delivery, if delivery it can be called, was a qualified one, being merely entrusted to the custody of the counsel for the plaintiff upon the express condition that no use should be made of it until the fees were paid. We do not ‘think that this 'was sufficient.

The suggestion that, notwithstanding the promise made not to file the report until the referee’s fees were paid, it was still left in the physical power of the attorney to file the report on the day it was delivered, does not hplp respondent’s contention, because it would be recognizing that what at best was but a qualified delivery could be converted into an absolute and unconditional delivery of the report by sanctioning what would practically amount to a violation of a condition and a breach of trust. The report, therefore, not being either filed or delivered within sixty days, as provided by the Code, it was within the power of any of the parties, which was availed of by the appellant here, to terminate the reference.

The learned judge below was no doubt impressed with the same •suggestion that has been urged upon us, that the provision of the interlocutory judgment which has been quoted above, requiring the assignee to pay the referee’s fees, was controlling irrespective of whether the reference was terminated or not.

To this two answers may be suggested: First, that if the reference has been terminated, the referee is not entitled to fees; and,. second, that the construction placed upon the terms of the interlocutory judgment by the respondent is not in our opinion the correct one. We think it exceedingly doubtful as to the power of the court to adjudge, except perhaps as a condition for a favor granted, that a party other than the one succeeding upon a reference should be compelled to pay the referee’s fees and take rrp the.report. The judgment here does not in terms, nor by fair implication, require that in the first instanceQthe assignee should pay out of the fund in his hands the referee’s fees; nor does it change the rule that upon the successful party paying the fees he shall be entitled, in addition to any other recovery, to a judgment for such fees. In other words, the interlocutory judgment here provides what in the absence of such provision the law would supply, namely, that the judgment to be entered upon the report of the referee on the accounting should, in addition to the other relief, provide for the payment by the assignee out of the funds in liis hands, either to the referee, in case he had filed the report, or to the one who had taken up the same and paid the fees, the amount thereof. ¡>

We do not think, therefore, that the interlocutory judgment decreed that the assignee should in the first instance take up the report and pay the fees; nor do we think it at all clear that the court had any power in a summary manner, such as this upon a. motion, to so compel the assignee. Without, however, directly passing upon this question, we think, for the reason first assigned,, that the reference had terminated, and the referee had thus lost, his right to the fees, the assignee could not be compelled to pay the same, and that the order to that extent was erroneous, and should be reversed, and motion denied, with ten dollars costs and disbursements. “

Van Brunt, P. J., concurs.


author: Per Curiam

text:
    Albert J. Beckley, Resp’t, v. Winfield S. Chamberlain, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Pleading—Verification op answer—Fraud.
    An answer in an action to recover money paid on a sale induced by false representations must be verified. The privilege of serving an unverified o answer where the party pleading would be privileged from testifying as a witness concerning an allegation in the pleading, given by § 523, is expressly taken away by § 529 in actions for fraud.
    Appeal from order denying motion to compel plaintiff to receive an unverified answer. 0 -

      James P. Dill, for app’lt; L. R. Beckley, for resp’t.
   Per Curiam

—The complaint in this action shows that it is-brought to recover the consideration. paid for certain shares of stock sold by the defendant to the plaintiff, which it is alleged the plaintiff was induced to purchase by reason of certain false and fraudulent representations, which are fully set forth in the ■complaint. The defendant served thereto an unverified answer, which was returned with a notice that it did not comply with the provisions of the Code of Civil Procedure, §§ 523 and 529, which refer to the verification of a pleading. A motion subsequently made by the defendant to compel plaintiff to receive the unverified answer was denied upon the ground that the answer to be served must be verified under § 529 of the Code.

We have been referred by the appellants to the case of Frist v. Climm, 6 Civ. Pro., 30, as directly applying to the question here presented, and in which it was held that the defendant had the right in such a case to serve an unverified answer. We cannot, however, after an'examination of §§ 523 and 529, of the Code, agree with the conclusion reached in that case. The former section (523) provides'^ when a pleading must be verified; and in regard to when such verification may be omitted thus states the rule: “ In a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading."

This section contains the general rule, and was undoubtedly intended as extending the privilege to parties of omitting to verify their pleading in cases where the same would have a tendency to expose them to a penal liability or to a criminal charge. But it will be noticed that an exception has been made with respect to cases wherein a verification “ is otherwise specially prescribed by law.” Such an exception to the general rule thus laid down by § 523 is to be found in the cases referred to in § 529, wherein the defendant is not excused from verifying his answer. In addition to actions relating to confessed' judgments, fraudulent conveyances, and actions affecting specific property, the last paragraph of § 529 states that a defendant is not excused from verifying his answer to a complaint charging him “ with any fraud whatever affecting a right or the property of another.” This paragraph, being disjunctive, is not related necessarily with the cases enumerated in the preceding paragraphs of the,section, and its language is general, applying to any case of fraud whatever affecting a right or the property of another. So far, therefore, as an exemption is provided by § 523 in cases ¡of fraud, § 529 must be regarded as qualifying, and as constituting the exception which is otherwise specially prescribed for, depriving a defendant of the privilege extended by that section of not being compelled in certain actions to verify his answer.

We think that the purpose of this section (529) was to meet a •case like the present, which, were it not for this provision of law, would enable a defendant in a case based upon his fraudulent acts to serve an unverified answer. We do not think, therefore, as said in Frist v. Climm, supra, that § 529 is limited simply to fraudulent transfers of property, but, on the contrary, that effect must be given to every provision of that section ; and it will be entirely meaningless in its last sentence unless the interpretation? now put upon it is given to the words “ or with any fraud whatever affecting a right or the property of another.” And we are-also of opinion that this construction given to § 529 does not entirely destroy the privilege provided for by § 523, but that so far as § 523 extends the privilege of serving an unverified answer to cases' where the party pleading would be privileged from testifying as a witness concerning an allegation contained in a pleading, such privilege was expressly taken away in actions of fraud. This would still leave the privilege provided for by § 523 to extend to-all cases covered by such section excepting those which are otherwise specially provided for by § 529, which, as we have seen, covers a case such as the present, which is an action for deceit for false representations in the sale of stock.

We are of opinion, therefore, that the order appealed from-should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


author: Patterson, J.

text:
    T. Thomas Fortune, Resp’t, v. James Trainor, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1., Juitv—Examination—Peejudice.
    • In an action against a person who is a saloonkeeper it is not error io> exclude a.question to jurors as to whether they have any prejudice against a man who retails drinks by the glass, as this refers only to a prejudice against the business and such prejudice would not disqualify the juror.
    2. Masteb and sebvant—Liability of masteb fob sebvant’s acts.
    Where a servant while acting within the scope of his duty unjustifiably assaults a person and as part of the same transaction and claiming to act under his master’s authority causes his arrest, the master is liable for the false imprisonment as. well as the assault.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Charles Strauss, for app’lt; T. McCants Stewart, for resp’t.
   Patterson, J.

—The plaintiff at the circuit obtained a verdict in this action, the complaint in which contained two counts, one for assault and battery and the other for false imprisonment; both wrongs haying been perpetrated as was alleged by á servant of the defendant while acting within the scope of his_, duty as such servant. The answer put in issue thh> authority of the servant to act in the matters complained of for the defendant and also contained denials of the facts alleged as constituting the wrongs stated to have been committed. From the judgment entered on the verdict and from an order denying a motion for a new trial this appeal is taken.

The verdict of the jury, as the testimony was put before them and under the charge of the trial judge (to which no exception was taken by the defendant’s counsel), was fully justified. _ Errors-of law, however, are claimed to have been made by the_ judge in his rulings, and the first relates to the exclusion of a question asked by the defendant’s counsel of the jurors empanelled to .try the-cause and before the case was opened. It appeared that the-plaintiff is a colored man and the defendant the keeper of a liquor saloon, and the difficulty between the parties originated in the refusal of the defendant’s barkeeper" to furnish the plaintiff with beer on his applying for it. The plaintiff’s counsel asked the jurors several questions directed to an ascertainment of the condition of their minds as to race prejudice, which questions were properly not allowed to be put. Thereupon, the defendant’s counsel asked the jurors collectively: “Has any gentleman of the jury any prejudice against a man who conducted business in which he has a bar and over which he retails drinks by the glass ?” The judge on objection also overruled that question and the defendant claims he was entitled to an answer to it.

It is the right of every litigant in cases tried before a jury, to have a fair, impartial and unbiased panel, and to interrogate the jurors drawn to ascertain their fitness for service in respect thereto. Any appropriate question framed to elicit the condition of mind of the jurors respecting the parties or the general subject matter of the action may be addressed to the panel or its individual members. But where an answer one way or the other to a proposed question would not disqualify a juror, it is not error to disallow it. Here the question related only to the particular business in which the defendant happened to be engaged. The presumption is that in all other respects the jurors were competent and had no prejudice, and could render an impartial verdict, for the record discloses nothing further on the subject. It has been held in this court, fifth department, De Puy v. Quinn, 40 St. Rep., 837, that a juror who declared “ he did not think much of the business of selling liquor, and was prejudiced against it,” was not disqualified, even in an action under the Civil Damage act, from sitting in a case in which the defendant was a liquor dealer, and it is very aptly said in the opinion of the court, “ had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party, it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case.” Here the prejudice referred to in the question, notwithstanding its form, was against the business, and we think no error was committed in sustaining the objection to it.

Another error assigned is that the court was wrong in refusing to dismiss the complaint as to both causes of action. The principal ground urged in that connection is that it was not proven that one Ennis, who instigáted and was charged with having committed the assault, was acting within his employment in doing so, and that at all events it was not shown he was authorized to cause the arrest to be made, or to prefer a complaint against the plaintiff at the police station, and that the defendant is especially not answerable for any wrong done growing out of the second cause of action, and it is argued in effect that inasmuch as the verdict was rendered upon a submission of both causes of action, and it is impossible to know how far the jury were influenced by the testimony respecting the second cause of action, the judgment should be reversed. The motion toVlismiss was made at the close of the plaintiff’s case, and was renewed on the whole testimony on both sides at the close of the proofs.

We think there was enough evidence to show that Ennis’ acts are binding on the defendant. He "was the manager of the business and it was for the jury to say whether he acted or not within the scope of his employment; at all events that question was left to the jury with instructions not excepted to by the defendant.. As matter of law, under the particular facts as they appeared in the plaintiff’s case, there can be no separation of liability from the-initiation of the wrongful acts by the alleged assault and ejection-of the plaintiff from the premises down to and including his arraignment and committal by the police authorities. t The torts, comprised in both causes of action were connected directly with each other. Had they been independent the defendant would not have been liable for the false imprisonment, but in a case very like that at bar, Hamel v. Brooklyn & N. Y. Ferry Co., 25 St. Rep., 153; aff’d, 125 N. Y., 707; 34 St. Rep., 1013, it was held that in. an action for assault and battery and false imprisonment the court; properly ruled that if the plaintiff’s employee unjustifiably assaulted the plaintiff while acting within the scope of his duty and as part of the same transaction and assuming to act under defendants’ authority caused the plaintiff’s arrest the defendants were liable.

The evidence fairly presented the issues and they were sent to the jury .under very full, clear and satisfactory instructions, and the judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., and O'Brien, J., concur.


author: Patterson, J. Van Brunt, P. J.

text:
    Augustus P. Dudley, App’lt, v. The Congregation of the Third Order of St. Francis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Mortgage—Benevolent corporations.
    A mortgage of real estate made by a charitable or benevolent corpora. tian without obtaining leave of the supreme court is void.
    2. Same—Foreclosure—Judgment cannot be had on bond.
    In an action brought solely for a foreclosure of such a mortgage, plaintiff cannot be granted a judgment for the amount due on the bond, although the complaint contains allegations setting forth an indebtedness on the bond.

      (Loeb v. Willis, 22 Hun, 509, followed.)
    3. Same—Cancellation.
    The invalidity of such mortgage appearing on the face thereof, the court cannot, in such action, decree a cancellation of the mortgage.
    Appeal from judgment at special term dismissing complaint and granting defendant affirmative relief.

      William R. Shepard, for app’lt; Peter B. Olney, for resp’t.
   Patterson, J.

—This action was brought to foreclose a mortgage executed and delivered by the defendant to the plaintiff as collateral to a bond to secure the sum of $2,000. The defendant is a benevolent corporation organized under chapter- 319 of the Laws of 1848. There was contained in the mortgage a clause' permitting the mortgagee, on default in payment of interest as and when it became due, to elect to consider the whole amount of the principal as due; and upon a failure to pay an instalment of interest the election was made ahd this suit instituted. On the trial it was not shown that permission had been obtained by the mortgagor from the supreme court to make this mortgage, but it appeared that it was given without such permission, and no order had been applied for or made providing for the application of the: money arising from the mortgage. The j ustice presiding at the special term held that the mortgage was void because of the failure to procure an order of the supreme court, and he directed judgment that the complaint be dismissed ; that the mortgage be cancelled of record as a cloud on the title (that relief having been asked by the defendant in its answer) ; and he refused to render judgment for the plaintiff for the amount of the bond; the plaintiff having claimed that, although the relief prayed for, viz.; the foreclosure of the mortgage, could not be granted, he was entitled, nevertheless, to recover on the bond precisely as if the action had been based upon that instrument alone.

These several rulings of the court below are now brought up for review upon the appeal from the judgment entered on the findings made upon the trial.

The learned judge was right in holding that the mortgage was void. It was executed and delivered without any lawful authority, and could not constitute a valid lien upon the mortgaged premises. The only power a charitable or benevolent corporation has to mortgage its property is derived from chapter 50 of the Laws of 1854, which conferred upon societies of that character such power, and that was done in the following words: “ It shall be lawful for the supreme court of this state, upon the application of any benevolent, charitable, scientific or missionary society, incorporated by law, in case it shall deem it proper, to make an order for the mortgaging of any real estate belonging to said corporation, and to direct the application of the moneys arising therefrom by the said corporation to such uses as the same corporation, with the consent and approbation of the said court, shall conceive to be most for the interest of the society to which the real estate so mortgaged belongs.”

It is in consequence of this enabling act, which extends the powers of corporations of this character with respect to their real estate, that mortgages can be made; and that being so, it would necessarily follow that any attempt on the part of such a corporation without the consent of the court to place a lien by way of mortgage upon its real estate would be utterly ineffectual to create a valid incumbrance. The power is one qualified by the direct terms of the statute, and its exercise is conditioned altogether upon permission to be obtained from the supreme court. Hot only was there no authority existing previous to the passage of that act, but it was expressly interdicted" to corporations of this class to exercise any powers other than those contained in chap. 319 of the Laws of 1848, which authorizes their creation, or in. the general corporation act as it existed when the statute of 1848 was passed. By § 2 of the act of 1848 provision is made as to certain powers conferred thereby on corporations organized for benevolent, charitable, scientific or missionary purposes. But what is there granted is not altogether the full measure of their powers. Section 9 of that act provides that each corporation, formed thereunder shall possess the general powers conferred by, and be subject to the provisions and restrictions of the third title of the eighteenth chapter of the' third part of the Eevised Statutes. The reference to the. third part of the Eevised Statutes is evidently an error, which we find was cured by an act passed April 7, 1849, which makes the correction, namely: “The third title of the eighteenth chapter of the first part of the Eevised Statutes.” That title third defines the general powers, privileges and liabilities of corporations. In its first section it sets forth the general powers ; the power to mortgage is not enumerated among them. By section third it is provided: “ In addition to the powers enumerated in the first section of this title, and to those expressly given in its charter or in the act under which it is or shall be incorporatéd, no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated and given.” Nothing contained in the act of 1848 gives the power to mortgage. The learned judge who presided at the trial was, therefore, right in holding that the mortgage to foreclose which this action was brought never had a valid existence and did not constitute a lien; and the complaint in that regard was properly dismissed.

The refusal to allow judgment on the complaint as in a common law action in covenant was also right. • The suit was brought exclusively as one for the foreclosure of a mortgage. Such a suit is one in equity, and the statute provides what "may be done and what judgment may be Tendered therein. An action upon the bond could not be maintained without leave of tlie court while a suit to foreclose was pending." The remedy in foreclosure is distinctly against the land itself, and the whole scope of the action is to enforce the lien upon the land, to subject it to the payment of the mortgage, to realize out of the sale of the mortgaged premises the amount of the lien, and provision is made for a personal judgment for deficiency against the mortgagor or whoever may be liable upon the bond. It is in its nature and essence simply a suit to realize upon the collateral security, and the only office of the allegations of the complaint in foreclosure respecting the'bond and the amount due under it is to show that the principal debt for which the mortgage is collateral has accrued and is due, and that the plaintiff is entitled to enforce his security. The language of Mr. Justice Barrett in the opinion of the general term of this court in Loeb v. Willis, 22 Hun, 509, is quite appropriate. There judgment of foreclosure and sale had been entered. The plaintiff procured an order vacating the judgment and allowing an amendment by the introduction of an additional party. A prior mortgage was upon the property, and before, any further proceedings were taken in plaintiff’s suit that prior mortgage was foreclosed, u the mortgaged premises sold, and only-sufficient was realized to pay the first mortgage and costs. A motion was made by the plaintiff to vacate the order setting aside the judgment, and for a direction that a judgment for deficiency be entered against the defendant for the full amount due on the second mortgage and the bond. That was tantamount to asking judgment in that foreclosure suit for the full amount of the bond and as in an action upon the bond, and the court said : “ The defendant' is doubtless still-liable upon his bond. That liability may well be the full amount’ of such bond and interest. But in reaching that result the forms of law cannot be disregarded, and the plaintiff must resort to the appropriate action to enforce that liability. In the present form of action (a foreclosure suit) he could not, for instance, join a count upon the bond and seek an independent judgment in personam ; nor during the pendency of the foreclosure proceedings could he even bring a separate action upon the bond, without leave of the court. It is quite clear that while his pleadings and proceedings remain unchanged he cannot, upon a mere suggestion that his foreclosure as such has become futile, be permitted to enter what, though styled a deficiency judgment, is in reality equivalent to and in substance nothing moré nor less than a direct judgment in personam upon the bond.”

The contention of the plaintiff that, because he has failed to establish his equitable cause of action, he is entitled to a legal-remedy, for the reason that he has set forth an indebtedness upon the bond which would be sufficient to maintain a recovery at law, has no support whatever in any of the authoritative decisions of the courts of this state. The distinction between equitable and legal causes of action, and.the remedies appropriate to them, still exists, Graham v. Read, 57 N. Y., 681; Stevens v. Mayor, 84 id., 296; Gould v. Cayuga Bank, 86 id., 83, and no recovery can be had at law where the whole scope and purpose of the action is limited to equitable relief. Haywood v. Buffalo, 14 N. Y., 540; Bradley v. Aldrich, 40 id., 504; Mann v. Fairchild, 2 Keyes, 111; Peters v. Delaplaine, 49 N. Y., 362.

This rule is not affected by other cases which hold that where a complaint is broad enough in its averments 4o entitle the plaintiff to either equitable relief or a legal remedy, and where the demand for judgment is appropriate to an action which presents all the facts in the double aspect of a suit in equity or an action at law, failing one, relief as to the other may be granted. Such cases are: Sternberger v. McGovern, 56 N. Y., 12; Seeley v. N. Y. Nat. Exchange Bank, 8 Daly, 402; affirmed, 78 N. Y., 608; Cogswell v. N. Y., N. H. & H. R. R. Co., 105 id., 319; 7 St. Rep., 203. In the case at bar nothing was sought but a foreclosure, and the prayer is made, in the amended complaint for a sale, the bringing of the money arising from the sale into court, the payment of the amount of the bond out of the proceeds, and for a judgment for deficiency, if any should exist, against ' the mortgagor. No-judgment on the bond on the failure to establish the right to foreclose the mortgage could be allowed in such a case.

But with respect to the provision of the decree in regard to the cancellation of the mortgage, we think the learned judge inadvertently fell into error. The defendant was asking for affirmative relief, and certainly was not entitled to any more than would have been awarded to it had a bill been filed to remove a cloud on title. In such an action, if it appeared to the court that the instrument or incumbrance claimed to be a cloud is void upon its face, the genei’al rule is well summed up by Ruger, Ch. J., in Moores v. Townshend, 102 N. Y., 393; 2 St. Rep., 440, where it is said: “ When the invalidity of the disputed title appears upon the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever can be maintained in equity to set it aside, because it is said that a, title obviously void does not constitute even a cloud on the title of the true owner.” And the principle applies here. In order to enforce this mortgage lien, it would be necessary to show that the mortgage was authorized by the supreme court, it appearing upon the face of the mortgage that it was one made by a corporation having no power to deliver such instruments without the antecedent permission of the court contained in an order of the court, and which necessarily would be entered in the records of the court.

With the particular importance of this provision of the decree in the present action we are not concerned, but as we conceive it to be an improper provision, it should be stricken out. With this modification the decree must be affirmed, without costs.

Van Brunt, P. J.

—The case of Arnold v. Angell, 62 N. Y., 508, also illustrates the rule stated in within opinion. I concur.

O’Brien, J., concurs.