text:
    Jacob Rauth, Pl’ff, v. William B. Davenport, Ex’r, Def’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    •Landlord and tenant—Liability of landlord for damages occasioned BY DEFECTIVE ROOF.
    Where a portion of a building is leased, the landlord retaining control of the roof, and upon the tenant’s threatening to leave on account of its condition the landlord, to induce him to remain, agrees to put the roof in proper condition, Held, that the landlord is liable for damages sustained by thedenant by reason of a failure to keep such agreement.
    Motion by the plaintiff for a new trial upon exceptions taken to the dismissal of the complaint at the circuit.

      Albert I. Sire and Chauncey Shaffer, for pl’ff; Charles II. Otis, for def’t.
   Daniels, J.

The plaintiff was the lessee of a store, situate in the building known as No. 323 Third avenue in th.e city of New York, from the 1st of September, 1886, until the 1st of February, 1889. The lease was for the period of three years and eight months, but the premises were vacated by the plaintiff because of the condition of the roof of the building, by which the water passed through the story above, which was occupied by another person, into the store of the plaintiff, who was a pawn broker, and wet and injured his goods. And the action was brought by him to recover the damages which m this manner were alleged to have been sustained. The building consisted of two stories and an attic, and neither of these occupants were under any obligation to repair or keep the roof m a sound and water tight condition. The evidence given upon the trial by the plaintiff, and witnesses sworn in his behalf, was to the effect that after the commencement of the term, and in August, 1888, the water passed through the roof down into the store, and that the testator and his agent, Mr. Reynolds, were notified of the fact and informed that in case the roof was not fixed the plaintiff would be bound to vacate the premises. His testimony is that he had then arranged to move at that time, and was about to do so, and that he told the testator that he was about- to move, who replied to him that he should remain, that he was going to fix the roof. And said he would put it in a proper condition, that the plaintiff would not sustain any more damage, even if he had to put on a new roof. And upon that promise the plaintiff stated that he consented to and did remain in the occupancy of the store But instead of placing the roof in a water-tight condition, slight repairs appear to have been made to it, in no manner preventing the water from passing through the roof in rainy weather. And that a heavy storm afterwards following, and in or about the month of November, 1888, the water passed from the roof through the second story into the store in such quantities as to seriously wet and injure the plaintiff’s property, and that the accumulation was so great that the goods could not be placed where they were protected from the water. This condition of affairs is- also stated to have been reported to the agent of the testator, who again promised to put the roof in repair, But that was not done, and the plaintiff was finally obliged by a repetition of the injury to abandon his possession of the store.

After this evidence had been given, and proof had been added of the extent of the injury suffered by the plaintiff, an application was made to dismiss the complaint, and that disposition was made of it by the court at the trial. It was considered that neither this state of facts nor the additional fact that the testator repaired the premises from time to time, nor the covenant for quiet ■enjoyment which was in the lease, were sufficient to impose upon him the obligation to put this roof in a reasonably fair and secure •condition. And upon the effect of Doupe v. Genin, 45 N. Y., 119, the dismissal of the complaint was directed. But that case in its leading facts is so entirely different from the circumstances which have just been mentioned, and which the jury were at liberty to find to have been established by the proof, as to render it wholly inapplicable to this controversy. The claim there made was that the landlord was obliged to rebuild or repair premises, which had been injured by fire, for the benefit of his tenant. But the court held that no obligation of that description existed. There was nothing said or intimated in the case which would relieve the landlord from liability under circumstances of the description. of those which this evidence tended to support

The roof of the building was under the entire control of the testator and his agent It was no part of the premises leased to the plaintiff, or the tenant of the story above. And it was maintained clearly for the general benefit of the occupants of the building, under the control and management of the testator. And that would seem to be sufficient to impose upon him the obligation of maintaining the roof in a reasonably safe condition for the benefit not only of the plaintiff alone, but of the other occupants of the building, who were equally affected by the passage of the water from it through their apartments, down into the store. Alperin v. Earle, 27 N. Y. State Rep., 806.

But the right of the plaintiff to maintain the action is not dependent upon the existence of such an obligation arising out of the control of the roof for the benefit of the tenants by the landlord, tor he was notified that the plaintiff was about to leave the premises because of the unsafe and injurious condition of this roof. And to prevent that occurrence he promised to put it in repair. And that promise was stated to have been repeatedly made both by himself and his agent, Mr. Reynolds. Upon the faith and expectation of its observance the plaintiff remained in the use and occupancy of the store. To induce him to do so was the object of the promise itself. And his consent to and the fact that he did afterwards remain, was a consideration supporting this promise on the part of the landlord and the landlord’s agent It was placing the plaintiff in a position of risk and danger to his property, against which he accepted the assurance of the landlord that the roof should be placed in a secure condition. And under the case of Vann v. Rouse, 94 N. Y., 401, that would seem to be sufficient to impose the observance and faithful performance of this obligation upon the landlord. There the premises were flowed with water from other parts of the building owned by the landlord and under his control, and which were thereby made untenantable. And this was held to be sufficient to justify the tenant in vacating the premises and to justify his surety in resisting the payment of rent. It was there added “ that the tenants were justified in abandoning the premises, and that they did sustain damages by reason of the plaintiff’s omission to keep in order water pipes and closets in rooms under his control, after notice that they were defective and causing injury to the plaintiff.

“He might have been held liable for a breach of covenant for quiet enjoyment which the law implies in a case of that kind, * * * or for failing to keep his promise after notice to remove the cause of damage.” Id., 407. This is a plain recognition of the obligation on the part of the landlord to observe and fulfill a promise made by him to his tenant under circumstances of this description, and of his liability for damages caused by his omission to perform. And the cases of Henkel v. Murr, 81 Hun, 28, and Marsh v. Chickering, 25 id., 405, follow the same principle.

The complaint sufficiently presented this phase of the plaintiff’s case to entitle the proof to be received as it was upon the trial, for it was alleged that the roof was under the control of the testator and that he exercised that control in such a careless and negligent manner as to permit the water to leak through the roof and pass into the plaintiff’s premises and thereby injure and destroy his goods. The duty had been assumed by himself, and the proof would have warranted the jury in concluding that he had negligently omitted to perform that duty.

And with those facts established, and the injury which was sustained by the plaintiff, he was entitled to recover in the action. The verdict should, therefore, be set aside and a new trial ordered, with costs to the plaintiff to abide the event.

Van Brunt, P. J., concurs.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Rufus Foster, Ex’r, Resp’t, v. Bentamin Wetmore, Ex’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Executors and administrators—Trust—Interest.
    Where a trust fund is to he provided by the conversion of one species of property into another, and the time of such conversion is left indefinite, intere t will not be chargeable until the sale has been made and the fund realized, provided, ordinarily, that the delay does not exceed one year from the issue of letters testamentary.
    2. Same. " °
    Where both a specific trust fund and legacies are to be provided for and paid out of the proceeds of land directed to be sold for such purpose, the fact that the sale was postponed beyond one year in order to realize better prices for the benefit of the legatees would not be a legal excuse for delay in setting apart such trust fund.
    3. Same.
    The will directed the deposit of the fund with a certain trust company. The proceeds of the sale were deposited with another trust company pending a suit which was commenced for the construction of the will, partly for the benefit of and at the request of the cestui que trust, to procure some disposition of the trust fund by which- more interest would be realized from it than would be received if deposited according to the will. After the termination of the suit, which resulted in a refusal of the request, the fund was paid over to the trust company named in the will. Held, that during the pendency of the suit the executor was not chargeable with any greater amount of interest than was actually received upon the fund during its temporary deposit.
    Appeal from a judgment recovered by direction of the special term.

      John Bright Stevens, for app’lt; Edward B. Sanborn, for resp’t.
   Daniels, J.

This action was brought by the testatrix, Annie E. Foster, to recover' a balance of interest claimed on the sum of $10,000, directed by the will of Mary Hopeton Drake, deceased, to be by the defendant, as her executor, deposited with the United States Trust Company, and the interest and income thereon to be paid to Annie E. Foster during her life. The testatrix Mary Hopeton Drake departed this life on the thirtieth day of Juné, 1884, but the money directed to be held in trust was not deposited by the'defendant with the United States Trust Company until the 19th of June, 1889. After the receipt of the money by the defendant, it was deposited by him in the Central Trust Company, where it remained until it was deposited with the United States Trust Company. During this interval, the defendant received about $600 interest on the deposit from the Central Trust Company, and that was by him paid over to the beneficiary in the trust directed to be created. And by the judgment which has been recovered he has been charged with the difference between that interest, and the yearly sum of six per cent since the time of the decease of the testatrix, and this appeal brings in question the correctness of that decision.

The defendant was the only witness sworn upon the trial, and he testified that the testatrix left personal estate amounting to the sum of $38,000, $13,000 of which was specifically bequeathed and that the balance was devoted to the payment of funeral expenses, probate and other expenses of the will, debts, and other expenses afterwards paid, leaving real estate only out of which this and other trust funds could be realized. And as his evidence was in no respect controverted, there seems to be no impropriety in assuming this to have been a truthful description of the condition of the estate, especially as that evidence was followed by the court in making its decision.

So much of the will as is in question in this action is the following:

»“All the rest, residue and remainder of my estate, both real and personal, I order and direct my executor hereinafter named, or whoever shall undertake the execution of my will, to sell at public or private sale or sales, and at such time or times as they may think for the best interest of my estate, and to convert the same into cash.
“And I hereby authorize and empower my said executor to-give good and sufficient deeds for the conveying to the purchaser or purchasers of said real estate the title thereto. Out of the proceeds of such sale or sales I order and direct my said executor to pay over the following amounts to the following persons and parties, respectively, and I do hereby give and bequeath the same as follows: * * *
“I order and direct my said executor to pay over the sum of $10,000 to the United States Trust Company in the city of New York, and I direct the said company to hold the said money in trust and invest and keep the sum invested upon such securities as they may deem safe, to receive the interest and income therefrom, and to pay over the same as received unto Mrs. Annie E. Foster, wife of Rufus Foster, now living in Quincy, Massachusetts, for and during her natural life, and upon her death I order and direct my said trustees to pay $5,000 of the principal of said trust property to her daughter, Susan B. Foster, and the remaining $5,000 of the same to her daughter, Mary Hopeton Drake Foster, to whom I give and bequeath the same.”

To obtain the money to create this trust, it was within the contemplation of the testatrix, Mary Hopeton Drake, that her real and personal estate must be sold, and it was out of the money to be thereby obtained the trust was intended and directed to be created. This sale was not to be immediately made, but at such time as the person undertaking the execution of the will might think for the best interest of the estate. And while an indefinite postponement was not within the power vested in that person, it is still evident that the testatrix was aware of the fact that it could not take place immediately after her own decease. The money to create this trust was obtainable from no other source, and it was only after it should be so obtained that the deposit was directed to be made, and the interest and income therefrom to be paid over to the plaintiff commencing this action, and who seems to have died after the appeal was taken. It therefore could not have been intended or expected from these directions in the will, that she would receive any benefit from this trust until some period of time after the decease of the testatrix. The defendant, who is the person who undertook the execution of her will, was entitled to a reasonable time to raise this sum of money before he was obligated to deposit it in the United'States Trust Company, and during that time the beneficiary was entitled to no benefit, interest, or income from the trust. The judgment charging him with legal interest from the decease of the testatrix was therefore not warranted by these directions contained in the will.

. Authorities have been brought to the attention of the court sustaining the right of the beneficiary to interest from the decease of the testator, where similar trusts have been directed. But the circumstances in those cases were such as to provide the executor with the means of creating the trust at once, by the appropriation of interest bearing securities owned by the estate, and directed to be devoted to that object.

In Townsend’s Appeal, 106 Penn., 268, this principle was applied to a general direction, which seems to have been capable of immediate observance. And it was said by the court that “ when a sum is left in trust, with direction that the interest and income shall be applied to the use of a person, interest will run from the death of the testator, especially when it appears to have been the intention of the testator that the legacy shall be paid by transferring securities bearing interest at the time of his death. Under such circumstances all the authorities concur in holding that the accruing interest upon the securities, from the time of the testator’s death, should go to the use and maintenance of the beneficiary.” Id., 273, 274. And many other cases will be found illustrating and applying the same principle. Among them are the cases of Pierce v. Chamberlain, 41 How., 501; Powers v. Powers, 49 Hun, 219; 16 N. Y. State Rep., 770, and its correctness is sanctioned by Cooke v. Meeker, 36 N. Y., 15. But where one species of property has been directed to be converted into another, which is the direction contained in this will, and applicable to this case, there it has been said “ to be consistent with the will of the testator to consider the life interest as commencing when the conversion takes place, or the investment is made, either within the year or at the expiration of that time.” Williamson v. Williamson, 6 Paige, 298, 305. And that was approved in Cooke v. Meeker, supra. Interest cannot be demanded until the principal is payable. Valentine v. Ruste, 93 Ill., 585; Brown v. Knapp, 79 N. Y., 136, 144. And this principal was not payable until the property could be converted into money from which it was to be obtained, which was sometime subsequent to the decease of the testatrix, whose will provided for the creation of the trust.

The circumstances and condition of the estate are to be consulted to ascertain and discover the design of the testatrix in giving the directions to be complied with. Lyon v. Industrial School, 52 Hun, 359; 24 N. Y. State Rep., 443; Wheeler v. Ruthven, 74 N. Y., 428. And where the time for the conversion of the property has been left indefinite, as this will has left it, there interest will not be chargeable until the sale has been made and the fund has been realized, provided ordinarily that it will not be allowed to exceed one year from the issuing of letters testamentary on the estate of the testator. Loder v. Hatfield, 71 N. Y., 92; Van Rensselaer v. Van Rensselaer, 113 id., 207, 215; 22 N. Y. State Rep., 947; Clark v. Butler, 4 Demarest, 378. Matter of Lynch, 52 How., 367, may be considered to be at variance with this rule, but so far as it shall be found to be so, it cannot be followed as authority. In Ayer v. Ayer, 128 Mass., 575, there was no obstacle in the way preventing the immediate appropriation of the fund, which distinguishes it directly from this action. The books abound with other authorities creating exceptions to this rule, and arising out of the presumed intention of the testator, where the provision is designed to afford support to an infant, or to compensate a widow for relinquishing her dower, or for the final disposition of the residue of the estate, but neither of these circumstances enter into this action, as the plaintiff resided with and was supported by her husband, and that class of decisions have no application here. But as there -was no conversion of the estate into money during the year from the issuing of the letters testamentary, .and the defendant cannot be said to have unreasonably delayed the sales made by him during that time, interest should not have been charged against him until the year expired, and when he should have had the fund in hand to deposit in the United States Trust Co. 3 R. S., 6th ed., 98, § 54.

Legacies and funds to be held in trust under the 7th paragraph of the will amounted to upwards of $120,000. And the sales of the real estate to obtain money to satisfy them continued, according to the defendant’s evidence, from April, 1885, to the early part of May, 1886. The sales were deferred to secure better prices for the property, and thereby afford a benefit to the persons and societies included in subsequent portions of the will, and whose legacies cannot now be paid in full, but will be subject to a large proportionate abatement This, however, was not a legal excuse for not providing the fund for the creation of this particular trust within one year from the decease of the testatrix. But whether this will equitably subject the defendant to the payment of six per cent, interest during that delay, or its further continuance in the omission to make the deposit with the United States Trust Company, is certainly not so clear. The money was deposited with the Central Trust Company, and the interest allowed by that company was paid over to this beneficiary. But whether any greater rate would have been allowed by the United States Trust Company was not shown, and it, therefore, did not appear what injury had resulted from the failure to deposit in the company named in the will as the depositary of this trust fund. That the defendant was liable for interest while the sales were delayed by him of the letters testamentary for the benefit of later legatees must be conceded. But whether that interest should exceed the rate which the United States Trust Company would have paid is by no means so clear. Livermore v. Wortman, 25 Hun, 341. And in the present condition of this action, it will not be proper to attempt a solution of that question.

The defendant further testified that the beneficiary in this trust, Mrs. Foster, applied to him to make some disposition of this trust fund by which she would obtain more interest than the trustee would pay; and as a suit was to be commenced for the construction of other parts of the will, requested him to make that subject a part of the suit. This request he stated had been made by letter, which he was made to produce. But in the statement made by him he has been corroborated by the form given to the complaint in that action, and the answer of this beneficiary and the letters received in evidence which were written to her attorney. This suit was begun early in 1887, and completed in March, 1889. And it resulted in a refusal of this request, and three months after that this trust fund was taken from the Central Trust Company, and deposited under the will with the United States Trust Company. And during the pendency of that suit the defendant has also been charged with interest on the fund at the rate of six per cent.

This was an erroneous charge, for while the suit was pending in part for her benefit, and the money remained with the Central Trust Company, with her assent, she was entitled to no greater rate of interest than was allowed by that company. During that time he was not in default, but was endeavoring to secure a benefit applied for by her, and should have been charged with no more interest than he received. It is for the default of the executor that he can be charged with legal interest, and while the suit was in progress he was not in default for not paying the money to the United States Trust Company. State v. Adams, 71 Mo., 620. The suit was there instituted by the legatee and others and it was said in the decision that, “ While the suit contesting the will was undetermined, the executrix could not carry into effect the provisions of the will and could not, therefore, be in default to the legatees. Interest should have been allowed only from the time the suit to contest the will was dismissed.” Id., 622. And this principle is applicable to the disposition of so much of this charge of interest. And it was followed in Vandergrift's Appeal, 80 Penn., 116, and Hamilton v. Porter, 63 id., 332, proceeds on the soundness of this rule. Matter of Godon, 1 Dem., 118, and Kent v. Dunham, 106 Mass., 586, may not be entirely harmonious with it, but its essential justice must still, under the facts of this case, commend it to the approval of the court.

Other authorities have been cited, which do not require further notice, except perhaps Loder v. Hatfield, 71 N. Y., 93. But there a charge had been made upon lands, which was held to become obligatory on the devisee from the time of the testator’s decease, as the land yielded an income from that time. This latter circumstance, which was there held to be controlling, renders it inapplicable here for the reason already given.

The judgment is erroneous, and it should be reversed, with costs to the appellant to abide the result of another trial to be ordered.

Van Brunt, P. J., concurs.


author:
Ehrlich, Ch. J.
      McGown, J. Fitzsimons, J., (dissenting).

text:
    John Standfast, Pl’ff, v. John G. Crotty, Deft.

      (City Court of New York, General Term,

      Filed February 17, 1891.)

    1. Reference—Liability for referee’s fees.
    In an action for a co partnership accounting a referee was appointed to take the account. The referee made his report, which was not confirmed, but he was directed to ascertain and report additional matters. The parties, however, did not appear before him thereafter. Held, that the referee’s duties were performed, and that the plaintiff was liable for his fees.
    13. Same—Appointment of clerk as referee—Constitutional law.
    Section 90 of the Code, prohibiting the court from appointing a clerk of the court as referee is unconstitutional. Even if it were not, it will be inferred, in support of the action of the court, that the parties consented to such appointment as authorized by said section.
    (Fitzsimons, J., dissents.)
    The plaintiff sues as assignee of ¡Nathaniel Jarvis, Jr., to recover fees due the latter for services as referee in an equity action in the court of common pleas, wherein John Gr. Grotty (the defendant herein) was plaintiff, and one Eobert S. Jarvis, defendant. An interlocutory judgment was entered in that action, wherein it was, among other things, adjudged that an account should be taken between the parties as copartners, and it was referred to the assignor as referee to take and state such an account.
    The referee performed his duties under the judgment, and his fees amount to $327.
    The referee’s report was not confirmed, and by the order refusing to confirm it the referee was directed to ascertain and report additional matters. The parties never appeared before the referee under this order.
    Upon these facts the defendant’s counsel moved to direct a verdict in favor of the defendant upon the following grounds :

      First. A referee cannot sue for his fees until the end of the reference, and it has been shown by the testimony of the last witness and by the admissions that nothing has been done since Judge Bookstaver’s order sending the report back for further testimony.

      Second. On the ground that Mr. Jarvis, being a clerk of the court of common pleas, had no authority to act as referee.

      Third. On the ground that a referee cannot sue a party against whom a report is made, particularly after the court has denied the motion to confirm.

      Fourth. That the suit should be against the receiver mentioned in the interlocutory judgment introduced in evidence.
    Thereupon the court directed the jury to find a verdict in favor of the defendant, subject to the opinion of the court at general term.
    The parties now move for judgment on this verdict, pursuant to the Code, § 1234.

      J. Brooks Leavitt, for pl’ff; James E. Kelly, for def’t.
   Ehrlich, Ch. J.

The four grounds stated will be considered in order.

First. The referee had made his report and his duties terminated under the interlocutory judgment. The fees became due when the report was delivered. In this respect the case differs from Clapp v. Clapp, 38 Hun, 540, which is therefore inapplicable here. The. defendant here (plaintiff there) is clearly liable for the fees of the referee. Hinman v. Hapgood, 1 Den., 188; Geib v. Topping, 83 N. Y., 46.

Second. Section 90 of the Code, prohibiting the court from appointing a clerk of the court as referee, is clearly unconstitutional, as the legislature could not divest the court of common pleas of its ■constitutional powers as a court. Popfinger v. Yutte, 102 N. Y., 38; 1 N. Y. State Rep., 334. Even if this were not so we would infer, in order to sustain the action of the court of common pleas, which was presumably legal, that the parties consented to the ■appointment as authorized by § 90, by means of which the prohibition is inapplicable. The order appointing the referee was affirmed by the general term of the court of common pleas, and that affirmation determines that there was no lawful objection to the appointment.

Third. The defendant, as the plaintiff in the court- of common pleas action, was clearly liable for the referee’s fees. He obtained a dissolution of the partnership and an accounting. He was successful in this sense at least. The accounting was had on his application and for his benefit and without regard to its result; he neached the conclusion he sought in an accounting. He was the moving actor in the matter, and whether the accounting turned out to his liking or otherwise, he was liable on the theory of the law laid down in Geib v. Topping, supra.

Fourth. We think the action was properly brought against the defendant apd that the suggestion by his counsel that the receiver should have been sued is without merit.

Under these circumstances, and according to prescribed practice, we reverse the finding for defendant and direct judgment on the verdict in favor of the plaintiff, with costs.

McGown, J.

I hold with Ehrlich, Cli. J., in the conclusions at which he has arrived and has stated in his opinion herein, and shall only consider the second point raised by defendant’s-counsel herein.

Section 90 of the Code of Civil Procedure provides as follows r

“ Sec. 90; No person holding the office of clerk * * * of a court of record * * * within either of the counties of New York or Kings shall hereafter be appointed by any court or j udge * * * a referee * * * except by the written consent of all the parties to the action, * * * other than parties in default for failure to appear or to plead.”

The above section merely prohibits the appointment by any court or judge of any person as referee holding the office of clerk of a court of record. It does not expressly prohibit such person from acting as referee and does not say that such appointment shall be void. It will be presumed that a court of competent-jurisdiction acted within its jurdisction. The presumption is, always, that a court or public officer acts within its or his authority and properly and discharges its and his duty until the contrary appears. Bosworth v. Vandewalker, 53 N. Y., 599.

The defendant alleges in his answer “ that no written consent-was given.” He offers no proof, however, to sustain such allegation, and in the absence of such proof we must assume that the-court of common pleas, in appointing the referee, acted within^the scope of its authority and not in violation of the laws. The court of common pleas had jurisdiction of the action, the subject and the parties. It had jurisdiction to appoint a referee. It could properly appoint its clerk such referee upon the written' consent, of the parties appearing, and such appointment without such consent would be a mere irregularity which the parties might, waive. Moore v. Taylor, 40 Hun, 56. .

On the appeal from the interlocutory judgment entered on November 13, 1882, the appeal was taken from “the whole and every part of said judgment ” including the appointment of the. referee.

The general term by the order of May, 1883, affirmed said judgment “ in all respects ” and the decision of the general term was res adjudicata not only upon every question raised or adjudicated upon, but that could have been raised or adjudicated upon on such appeal. Jordan v. Van Epps, 85 N. Y., 436 ; Patrick v. Schaffer, 94 id., 430; Lorillard v. Clyde, 122 id., 41; 33 N. Y. State Rep., 303.

The defendant accepted the ruling of the court, attended before said referee with his counsel without objecting to the power of the referee to act, and accepted his services and produced his, testimony. On the motion to confirm the report no objection was made as to the referee’s power to act, but, on the contrary,, on the motion of his (defendant’s) own counsel, the matter was referred back to said referee to ascertain and to report upon other matters not embraced in the first order of reference. The referee rendered his services to the parties. The defendant herein, attended before him and accepted his services without objection obtained the accounting asked for in his complaint through the efforts of the referee, and from aught that appears, defendant waived therein the irregularity by acquiescing in the appointment and by not appealing from the order of the general term of the court of common pleas. There was an implied contract on the part of the defendant to pay the referee for the services rendered what they were reasonably worth. Geib v. Topping, 83 N. Y., 46.

The general term of the court of common pleas having passed upon the appointment of the referee and being the only court authorized in the first instance to review the decisions of this court, we must consider their ruling binding upon us.

Defendant’s counsel admitted upon the trial that the services rendered by the referee were as set forth in the bill of particulars, and that if any sum is due, the plaintiff is entitled to recover the sum of $327, with interest from June 30, 1885, amounting in all to the sum of $430.80.

The verdict directed in favor of the defendant must be set aside and judgment ordered for the plaintiff for the sum of $430.80, besides costs.

Fitzsimons, J., (dissenting).

I disagree with the conclusion reached by the learned Chief Justice, which is concurred in by Justice McGfown, and also the reasons which induce this conclusion. So that the points in difference between us may be readily apprehended, I shall state my views of the question raised by this appeal in the same order they have presented theirs.

1. Thp referee is not entitled to recover compensation for his services until he fully performs all the duties required by the order appointing him; it appears that he failed to so perform his duties, and by order of February 8, 1888, Justice Bookstaver refused to confirm his report, and sent the matter back to him to take t estimony upon a question which was evidently within the purview of the first order of reference, viz.: “To report the re spective amounts which each of the partners had drawn from said business.” His failure to do so in the first instance was evidently a non-compliance with the order appointing him, and which required him “to take and state an account of all dealings and transactions between plaintiff and defendant, as partners, since January 10, 1881.” Surely it was necessary for the court to know how much money was withdrawn from the partnership funds by each partner during the partnership, for in the absence of such testimony how could the court determine the rights and interests ■of the respective parties, and the dealings and transactions between them. Therefore, as I view the matter, the referee did not fully perform his duty as required by the first order of reference, and is not entitled to receive pay until he does so, unless it appears that the parties refused to go on with the reference, which does not ■appear to be so here. In that event, of course, he would be entititled to compensation for the services rendered by him.

2. Section 90 of the Code, prohibiting the appointment of a clerk of the court as referee, unless such appointment is consented to in writing, in my opinion, is constitutional. That section does not divest the court of common pleas of its right to appoint, referees. The legislature, by the enactment of that section, simply prohibited that court from appointing as referees persons occupying certain public offices (named in that section). Legislation of this character is, in my opinion, clearly constitutional, and is a part of the legislative and sovereign power of the state to maintain social order. 50 N. Y., at p. 458. I hardly think that it conduces to social order to find a clerk of a court acting as referee, and subsequently fixing his own compensation (which he does), when the parties appear before him to tax their costs, which, of course, includes his fees. I think it was to avoid the disagreeable-consequences which would sometimes follow such dual relation that caused the enactment of said § 90.

The case of Popfinger v. Yutte, 102 N. Y., 38; 1 N. Y. State Rep., 334, upon which the learned chief justice relies, and which he claims justifies his conclusion that said section is unconstitutional, I think does not apply here, for the reason that in that cáse it appears that a court was by legislative enactment divested of certain of its constitutional powers; certainly no such act is constitutional, and no such attempt was made in the enactment of § 90, as I have herein endeavored to show.

I think that it is a condition precedent, and must be proved before the plaintiff herein can recover judgment, that Jarvis obtained the written consent required by § 90 ; that he failed to do, and on the argument of this appeal it was admitted by counsel for both parties that no such consent was obtained. It is a nice legal fiction to say “ that we infer in order to sustain the action of the court of common pleas that the parties consented to the appointment, as required by § 90,” but it does seem to me that such a legal fiction dissolves into nothingness when the parties in open court admit that no such consent was obtained. As I view this matter, the opinion of the general term of the court of common pleas affirming the order of reference does not cover or affect the question under discussion. That opinion was simply to the effect that the order of reference was properly made, and that the action was a proper one for a reference. The precise point I am now considering was not necessary for the determination of the question then before the said general term, and was apparently not discussed, and is therefore now open.

Said § 90 of the Code forbid the appointment of Mr. Jarvis, and his appointment was, therefore, unlawful (there being no written consent), and any services rendered by him -have no money value, although the services so rendered may have been of great value to the persons for whom they were rendered, simply because rendered in violation of law.

I, therefore, think that the finding for the defendant should be-sustained, with costs of appeal.


author: Ehrlich, Ch. J.

text:
    George W. Fuller, Jr., Resp’t, v. David S. Tuska, App’lt.

      (City Court of New York, General Term,

      Filed February 17, 1891.)

    Pleading—Action for damages for conversion of stock—Demand NOT NECESSARY.
    A complaint alleging the loan of certain stocks to defendant, his failure to return them, and an acknowledgment of indebtedness to the amount of the damage sustained by plaintiff, and demanding judgment for such amount, sufficiently sets forth a cause of action. In such a case no demand of the stock is necessary, and the commencement of the action is a sufficient demand for the money.
    Appeal from interlocutory judgment entered on order overruling demurrer, etc.

      B. Tuska, for app’lt; W. W. Fuller, for resp’t.
   Ehrlich, Ch. J.

The complaint alleges that the plaintiff loaned to the defendant 150 shares of the stock of the Chicago, Milwaukee & St. Paul Railroad Co., which the defendant failed to return, to plaintiff’s damage $744.35. That the defendant thereupon acknowledged an indebtedness to the plaintiff to that amount on the transaction stated, paid on account thereof $1.30, leaving $743.05 due. The defendant demurred, on the ground that the-complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled at special term and properly so. The complaint in substance shows, that after the defendant failed to return the borrowed stock, and acknowledged in consequence his liability in the form of an indebtedness for $744.35, the plaintiff waives the tort and sues upon the contract to pay this amount of money. No demand for the stock was necessary under such circumstances, and the commencement of the action is a sufficient demand for the money. The Code has done away with all technical rules of pleading, and nothing more need be alleged than is necessary to be proved. Code, § 518 ; Mann v. Morewood, 5 Sandf. at page 564; Glenny v. Hitchins, 4 How. Pr., 98; Oswego Co. v. Rust, 5 id., 390. And the complaint sufficiently sets out the cause of action. It follows, that the demurrer was properly overruled, and that the interlocutory judgment must be affirmed, with costs.

McGown and Fitzsimons, JJ., concur.


author: McGown, J.

text:
    Prince, Resp’t, v. The Never Rip Jersey Co., App’lt. Matthews, Resp’t, v. The Never Rip Jersey Co., App’lt. Jayne, Resp’t, v. The Never Rip Jersey Co., App’lt. Hoskinson, Resp’t, v. The Never Rip Jersey Co., App’lt. Butterworth, Resp’t, v. The Never Rip Jersey Co., App’lt.

      (City Court of New York, General Term,

      Filed February 18, 1891.)

    Bills and notes—Bona fide holder.
    In actions upon promissory notes given by defendant to one B., the answer alleged that the notes were given for goods to be manufactured by B. to correspond to sample; that the goods delivered did not do so. and counterclaimed damages for breach of the warranty. Evidence was introduced to show that the notes were transferred to plaintiffs after maturity for past due indebtedness, and evidence offered to sustain the defense was excluded. The court refused to allow defendant to go to the jury on the question whether plaintiffs were bona fide holders, as to the consideration for the notes and the damages set up in the answer, and directed judgments for plaintiffs. Held, error.
    The above cases, although not tried together, arose out of the same transaction, and present on this appeal substantially the same questions of law.
    The actions were brought on promissory notes made by the defendant, a foreign corporation, payable to its own order, endorsed by said defendant, and transferred before maturity to one James M. Beattie.
    The plaintiffs in all the cases, except in the Hoskinson case (No. 4), acquired them before maturity.
    In the Hoskinson case, Thomas J. Hoskinson, the father of the plaintiff Thomas N Hoskinson, acquired the said note before maturity and gave the same to his son after maturity.
    The consideration for the transfers were however in all the cases precedent debts, and the material questions on this appeal are:

      First. Whether or not the proof shows that the notes were taken in payment or discharge of the debts in such a manner as to constitute the plaintiffs herein holders for value.
    The answer admits the making of the notes, and alleges that they were given for goods ordered to be manufactured by the defendant of said Beattie, which goods were to be merchantable, and were to correspond in quality, color and texture with the sample from which they were ordered.
    That Beattie delivered goods not corresponding to the sample, and were not merchantable, etc. '
    That the goods, which, according to the sample, would have been worth seventy-five cents per yard, were only worth forty cents per yard, whereby defendant was damaged to the amount of $3,000, which amount the defendant herewith counterclaims' against any recovery on the part of the plaintiffs herein.

      Second. The other question presented by this appeal is, whether those facts constitute either a defense or a counterclaim to the notes in the hands of the plaintiffs.
    Hpon the trials, the plaintiffs offered the notes in evidence, and rested.
    :Evidence was then introduced on the part of the' defendant to show the consideration for the transfer of each of the notes by Beattie, and evidence was offered on the part of the defendant to establish the defense set up in the answers, which was excluded.
    Plaintiff’s counsel asked for a direction of a verdict in favor of plaintiff.
    Defendant’s counsel asked to go to the jury on the questions:
    I. Whether or not Mrs. Beattie parted with anything on the receipt of the note by her from her husband.
    II. Whether or not the plaintiffs were the bona fide holders of the notes for value, and whether they parted with anything upon the receipt of the notes from Mrs. Beattie.
    III. On the general issues as to the consideration of the notes, and the damages set up in the answers, which motion was denied, to all of which rulings defendant’s counsel excepted.
    By direction of the court, the jury in each case rendered a verdict in favor of the plaintiff for the amount claimed.
    It appears from the evidence: •

      First. That in the Prince case (No. 1,) the note was given by Beattie to Mrs. Beattie, his wife, for borrowed money, and by Mrs. Beattie given, by Beattie, her husband, as her agent, to the plaintiff, on account of rent due from her to the plaintiff.

      Second. In the Matthews case (No.- 2,) that Beattie gave the note and between $100 and $200 in cash to Mrs. Beattie, his wife, in payment of money borrowed of her, and took her receipt for the same, and closed the account with her. That he, on behalf of his wife, transferred the note to the plaintiff Matthews for money which Mrs. Beattie had borrowed of the plaintiff.

      Third. That in the Jayne case (No. 3,) Beattie transferred the note to the plaintiff in part payment of a loan of money ($2,300), and that Beattie confessed judgment in favor of plaintiff for the balance of the loan; that neither the note or any part of the loan has been paid, but that it is all due.

      Fourth. That in the Hoskinson case (No. 4,) Thomas J. Hoskinson received the note from Beattie on account of cash loaned Beattie in 1886. That after the note was protested he gave the note to his son, Thomas N. Hoskinson, the plaintiff, telling him he could take it, and that he could have the proceeds.

      Fifth. That in the Butterworth case (No. 5,) Beattie transferred the note to the plaintiffs for and on account of interest on a loan of $1,000 made in 1886, and also gave up $2.14 balance of interest due, and on the same day Beattie gave him a judgment for the principal of the loan, that is, $1,000.
    Tracy, Mac Farland, Boardmen & Platt, for resp’ts; Blumenstiel & Hirsch, for app’lt.
   McGown, J.

One of the issues raised by the pleadings herein was as to whether the plaintiffs were the bona fide holders of the notes in question, and defendant was entitled to introduce evidence on that point. Such evidence was admitted and the defendants had a right to go to the jury upon that question as a question of fact, to be passed upon by the jury.

Defendants asked to go to the jury upon the evidence admitted, as to whether the plaintiffs parted with anything upon the receipt of the notes, and as to whether they were bona fide holders and owners of the notes, as questions of fact to be passed upon by the jury.

The ruling of the trial justice in excluding this evidence, we think, was erroneous.

As a question of law, if plaintiffs did^not part with anything on the receipt of the notes they were not bona fide holders within the rulings of the cases hereinafter cited.

In Potts v. Mayer, 74 N. Y., 594, the same question arose and was passed upon.

Defendant therein asked to go to the jury upon the evidence admitted, as to whether plaintiff was a bona fide holder of the notes, which the court declined to do, and directed a verdict for the plaintiff. Held, error.

It does not appear that in either of the cases the plaintiffs parted with anything at the time of receiving the notes, or at any subsequent time, on the strength of, or relying on said notes, or gave up any securities.

I think the law is well settled in this state, that a negotiable note transferred before maturity in payment of a pre-existing debt is still subject to all the equities between the original parties, although the holder has no notice of them. Coddington v. Bay, 5 Johns. Ch., 54; aff’d, 20 Johns., 637; Farrington v. Frankfort Bk., 24 Barb., 554; aff’d, 31 id., 183.

Plaintiffs not having parted with anything at the time of receiving the notes, they were not bona fide holders of the notes, but took them subject to all defenses which might have been set up as against Mrs. Beattie. Mrs. Beattie not having parted with anything at the time of receiving the notes, as she was not a bona fide holder, but took it subject to any defenses which might have been set up against her husband, who was the original party to whom they were delivered by the defendant See Lawrence v. Clark, 36 N. Y., 128.

Bockes, J., says, at page 130: “ The numerous decisions bearing on this question were all carefully considered in Farrington v. Frankfort Bank, 24 Barb., 554, and it was there determined that the rule laid down in Rosa v. Brotherson, 10 Wend., 85, and in Payne v. Cutler, 13 Wend., 605, to the effect that when a creditor receives the transfer of a negotiable note in payment of a precedent debt, without giving up any security, takes it subject to all equities existing between the original parties was the settled law of this state. I am not aware of any more recent case holding in hostility to this rule.” See Weaver v. Barden, 49 N. Y., 291.

In Phoenix Insurance Co. v. Church, 81 N. Y., 222, Andrews, J., says: “ Since the case of Coddington v. Bay, 20 Johns., 637, it has been the established law in this state that to constitute an endorsee of negotiable paper a holder for valué, so as to exclude the equities of antecedent parties, it is not sufficient that the transfer should be valid as between the endorser and endorsee, but, in addition, the latter must have relinquished some right, incurred some responsibility, or parted with value upon the credit of the paper at the time of the transfer.”

And at page 225: “ In view of this long line of authorities, it must be regarded as the settled doctrine in this state that the surrender by a creditor of the past-due note, of a debtor, upon receiving from him in good faith before maturity the note of a third >person in place of the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold, or money loaned, or under circumstances which would leave the original debt represented by the note in existence enforceable against the debtor, or whether, by surrendering the note, the creditor parted with his entire right of action.”

To constitute the plaintiffs holders for a valuable consideration, he valuable consideration must be either a new advance made at the time, or some security must be parted with, or an existing indebtedness actually discharged in order to complete the title of the holder. Farrington v. Frankfort Bank, 24 Barb., 554, 561; affirmed 31 id., 183; see, also, Lalor v. Yetter, 34 N. Y. State Rep., 63.

In Turner, Adm’rx v. Treadway, 56 How., 28; also, in 53 N. Y., 650, precisely the same questions arose as in the cases at bar.

Treadway and others gave their promissory note to Wilbur Turner. The note was transferred by the payee to plaintiff’s intestate, in payment of a precedent debt Such debt was not evidenced by any writing or written acknowledgment, and no security was parted with by the transferee. Defendants set up in their answer that the note was given for the purchase price of goods sold by the payee, and alleged a breach of warrantee in the sale, asking to recoup damages.

The court below held that payment of the precedent debt made plaintiff's intestate a bona-fide holder, and refused to submit any question to the jury, save as to whether the note was transferred before or after maturity. The jury found that it was transferred before.

Held, that the ruling of the court was error. That plaintiff’s intestate was not a bona fide holder within the uniform decisions from Coddington v. Bay, 20 Johns., 637, to Weaver v. Barden, 49 N. Y., 267, and that the note was, therefore, subject in his hands to any legal or equitable defense which existed against it in the hands of the payee.

In the cases at bar the notes in question were not deposited as security for the precedent debts. They were not transferred as collateral security, with an agreement for forbearance, followed by the surrender of any security previously held. There was no indication that they were taken in absolute payment, beyond that (in one of the cases) of a receipt for same in payment

The indebtedness of each of the parties who transferred the notes to the plaintiffs was past due at the time of the transfer, and there being no evidence of any agreement for delay, there was no implied agreement for delay, and the notes in question being for less amounts than the amounts of the original indebtedness, there cannot be any inferred consideration of forbearance or delay to constitute the holder on that ground a holder for value.

Second. Do the facts alleged in the answer herein constitute either a defense or a counterclaim to the notes in the hands of the plaintiffs?

The answer sets up as a defense a breach of the warrantee on the part of Beattie, and counterclaims the damages.

In an action brought by Beattie on the notes in question against defendants herein, the makers, the defendants could have set up such alleged breach as a defense. Farrell v. Krone, G. T. Sup. Ct., 24 W. Dig., 89.

It is immaterial whether it retained the goods or not. It was not bound to return or offer to return the goods, but it could retain and use the same, and have its remedy upon the warrantee. Day v. Pool, 52 N. Y., 417; Buhrman v. Baylis, 14 Hun, 608; Payne v. Cutler, 13 Wend., 605.

And the same defense would be available in an action brought upon the notes by parties who were not bona fide holders for a valuable consideration.

I think that the ruling of the trial justice in excluding the testimony offered to sustain the defense, in refusing to allow defendant to go to the jury on the several questions, as requested by defendant’s counsel, and in directing a verdict for plaintiffs, was erroneous, and that the exceptions taken to such rulings were well taken.

Judgment in each case must be reversed, and a new trial granted, with costs of appeal to abide the event

Fitzsimons, J., concurs.


text:
    William H. Crane et al., App’lts, v. Nathan J. Schloss et al., Resp’ts.

      (City Court of New York, General Term,

      Filed February 18, 1891.)

    Sale—Ox approval.
    In an action for gaá fixtures placed in defendants’ store, the defendants alleged that they were put in on approval without charge unless defendants elected to keep them; that they found it impossible to keep them owing to the amount of heat produced, and that they requested plaintiffs to remove them. The evidence was conflicting. JTeld, that any errors committed by the judge in his charge were corrected in his subsequent charge, and that the verdict in defendants’ favor would not be disturbed.
    The complaint alleges the sale to defendants of gas fixtures and other merchandise, and also that plaintiffs rendered work, labor and services to the defendant in erecting and inserting the said fixtures, etc., in the defendants’ store, at No. 653 Broadway, for which the defendants promised to pay the sum of $197.68, and that defendants have not paid the same.
    The answer alleges that the said gas fixtures, etc., were put in at the request of the plaintiffs; that they were to be put in on approval without charge to the defendants unless they elected to keep them, and that if defendants did not conclude to retain them, the said fixtures and lights were to be removed by the plaintiffs without any charge or expense to the defendants, and that the defendants were not to be liable either for the placing or removal of said lights, or the materials used, or for any other thing done in relation to the said lights.
    That upon the express understanding and stipulation aforesaid, the defendants gave leave to plaintiffs to put in the said fixtures, etc. That after said fixtures were put in and tried, defendants found that it was impossible for them to retain the fixtures and lights owing to the great amount of heat produced, and that they were of no use or value to them.
    That the defendants informed plaintiffs that they elected not to retain the fixtures, lights, etc., and requested plaintiffs to remove same.
    Evidence was introduced on the part of the plaintiffs and defendants upon the issues raised by the pleadings and the case submitted by the court to the jury, who rendered their verdict in favor of the defendants.
    Plaintiffs appeal from the judgment entered upon said verdict, and from the order overruling and denying plaintiffs’ motion for a new trial, and ask that the judgment be reversed and a new trial granted on the ground of errors committed by the trial justice in his charge to the jury ; that the charge was not supported by the evidence, and that the verdict was against the law and evidence. No exceptions were taken upon the trial by the plaintiff’s counsel, excepting those taken to the charge.

      H. R. Bayne, for app’lts; S. Wolf, for resp’ts.
   McGown, J.

The evidence shows that the fixtures, carbon lights, etc., were put in defendants’ store by plaintiffs who were interested in the albo-carbon light, and in gas fixtures generally, and that they were put in at plaintiffs’ request, on trial, with the consent of the defendants.

There was no question raised on the trial as to the value of the fixtures, lights, etc., as proven by plaintiffs, and the only question in dispute, and upon which the jury were required to pass, was whether the defendants were satisfied with the result of the trial. Defendants testified, which was not contradicted, that they could not use the same on account of the great heat caused by the lights.

This question was, we think, fully and fairly presented to the jury by the trial justice in his charge, and if any errors were committed by the trial justice at the’ commencement of his charge, such errors were corrected by the trial justice in his subsequent charge.

We do not find sufficient errors, if any were committed, to require a reversal of the judgment.

Judgment must therefore be affirmed, with costs.

Ehrlich, Oh. J., concurs.


author: Van Wyck, J.

text:
    Clarence H. Rose, Resp’t, v. Herbert I. Renton, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Attachment—Assignment for creditors—Excessive preferences.
    An assignment for the benefit of creditors which makes excessive preferences under Laws 1887, chap. 503, is valid and gives no ground for an attachment against the assigning debtor’s property.
    Appeal from order denying motion to vacate attachment

      Ira B. Stewart, for app’lt; M. L. Harney, for resp’t.
   Van Wyck, J.

This is an appeal from an order denying a motion made on the warrant and affidavits upon which it was granted to vacate the same. The warrant recites that defendant has disposed of his property with intent to cheat and defraud his creditors, upon which ground this attachment is granted.” The averments in the affidavits are that defendant has assigned and disposed of his property with intent to cheat and defraud his creditors, and that the facts and circumstances in relation to said assignment are as. follows: That defendant executed a general assignment of all his property to Henry Wellington, and that by said assignment he made preference to the extent of $2,104, and that the property so assigned did not exceed in value the sum of $2,500, and that deponent was informed by his counsel and believes that such assignment is null and void for the reason that the same does not conform to the statutes in such cases made and provided, in that the same makes preferences to an extent larger than one-third of the assets of the assignor.

The objection of the plaintiff to the notice of motion was without merit and was properly overruled at special term, and it is so recited in the order, and as defendant has not appealed from the order or any part thereof, he is precluded from seeking its review in reference to such recital upon this, an appeal by defendant. Hence is squarely presented the consideration of the question whether an assignment which gives preferences in excess of one-third of the assigned assets is a disposing of his property by an assignor with intent to cheat or defraud his creditors, and for this reason giving grounds of attachment against his property, or whether under the act of 1887, chap. 508, the.assignment is valid and merely the excessive preference is declared to be invalid.

No authority has been cited which directly considers or determines this question, but the court of appeals has given such a construction to chap. 828, Laws 1884 (which provides “ that wages and salaries due employees shall be preferred ”) as will lead to an intelligent determination of this appeal. In that case, Richardson v. Thurber, 104 N. Y., 606; 6 N. Y. State Rep., 489, it was held that the instrument of assignment was not rendered void by the omission to insert therein a clause giving such preference, that the instrument was to be read in connection with the statute of 1884 as if that provision of the act formed a part of it. so that the statutory preference would be impressed upon- the trust fund in the hands of the assignee. The final judgment in the Richardson case was for the affirmance of a judgment sustaining demurrer to the complaint of a judgment creditor, seeking to set aside an assignment on the ground that as it contained no preference for the wages known to be due employees, the assignor had violated the express provisions of the act of 1884.

Judge Finch in writing for affirmance in the Richardson case, frankly admits that “ the question is so close and evenly divided as to have produced conflicting opinions in the supreme court and drifted very able judges into disagreement,” and with commendable boldness adds, “ the principal merit of our judgment upon the question will be that it is final and settles the rule to be observed,” which clearly indicates that the court of appeals assumes the full responsibility of its authority as the final arbiter of disputed questions of law, and expects to receive, as it should receive, that willing and respectful obedience from courts of subordinate jurisdiction which alone can lead to the firm establishment of a harmonious system in the administration of justice that will command the respect of all. Section 30, Laws of 1887, which plaintiff contends that defendant has violated, in that he has given perferences clearly in excess of the one-third limit thereby fixed, provides as follows: “ In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preference created therein (other than the wages or salaries of employees) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries and the costs and expenses of executing such trust.”

Even if this statute had gone no further, still in giving full force to the rule laid down in the Richardson case that the statute should be read with and as a part of the assignment, the conclusion must be reached that there is no intention in the act to declare that an assignment shall be void simply because it gives preferences in excess of the one-third limit; for it is expressly provided in the act that the preference is not to be in toto invalid, for it says that the “ preference shall not be valid except as to the amount of one-third of the assigned estate,” which, of course, is simply saying that the preference shall be valid to the amount of the one-third limit, and hence by what process of reasoning can the conviction be reached that the excessive preference is by the act itself reduced to the one-third limit and •at that limit declared valid, and at the same time conclude that the assignment is void, it, the very instrument, creating the excessive preference which the act reduces to the one-third limit, and, .as so reduced, declares to be valid. However, the act does not ■stop here, but, anticipating the existence of just such a condition ■of affairs as is complained of by this plaintiff, continues to make provision as to how an assignee shall execute his trust and distribute the assets under an assignment which gives preferences greatly in excess of the one-third limit: for the same section continues as follows j “And should said one-third of the assets of the assignor or the assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of each of said preferred claims.” This last provision certainly contemplates the execution of the trust by the assignee and clearly negatives any contention that the assignment is void, or that the defendant assignor has thereby disposed of his property with intent to cheat and defraud his creditors.

Order reversed, with costs.

Ehrlich, Oh. J., and McG-own, J., concur.


text:
    Albert Waldheim, Adm’r, App’lt, v. The John Hancock Insurance Co., Resp’t.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Insurance (life)—Death op beneficiary.
    Where a wife, who is the beneficiary in a policy on her husband’s life, dies before him. and he does not surrender the policy, it will be presumed that he intended that her personal representatives should take and the policy is payable to them and not to his legal representatives.
    Appeal from interlocutory judgment entered in favor of defendant, sustaining demurrer to complaint.

      Guggenheimer & Untermyer, for app’lt; Langbein Bros. & Langbein, for resp’t.
   Ehrlich, Ch. J.

The action is on two policies issued by the defendant herein, which agreed to pay to Maria Wurster within twenty four hours after proof of the death of her husband, Christian Wurster, certain sums of money. Mr. Wurster died April 30, 1890, and his wife Maria died about four months previously.

Do the moneys go to his or to her legal representatives is the question to be decided. There is no doubt about the fact that on the death of the wife before the husband the latter could have surrendered the policy to the company, as was done in Bickerton v. Jaques, 12 Abb. N. C., 25, but not having done that, it must be inferred from the omission that the husband intended to continue it for the benefit of the personal representatives of the wife, in whose name it was made payable. Hutson v. Merrifield, 51 Ind., 24.

This seems to be the law as understood by our court of appeals, for it is said in the case of the United States Trust Co. v. The Mutual Benefit Life Insurance Co., 115 N. Y., 157; 24 N. Y. State Rep., 1: “It is true that it was the purpose of the act of 1840 to enable the husband to make provision for his family, but how that provision should be made was to be determined by the parties to the policy. The insurance could be for the benefit of the wife alone, in which case the amount insured would, upon the death of the husband, be payable to her if she survived. Bui if she died before him it would then vest in and be payable to her personal representatives and not to her children.”

So interpreted, the policy was under the control of the husband from the time of his wife’s death, and not having exercised any control inconsistent with an intent that her personal representatives should take, it will be inferred that he intended that the policy should take that course.

For these reasons we think the right of action on the policies, belonged to her personal representatives, and that the action is properly brought in their names. It follows that the interlocutory judgment in favor of the defendant must be reversed, and judgment ordered on the demurrer in favor of the plaintiff, with costs.

If the defendant desires leave to answer over, it "may apply at special term for leave, and the reversal directed is without prejudice to that application.

McGfowH and Yah Wyck, JJ., concur.


text:
    William H. Schmohl, Resp’t, v. Giuseppe Fusco, Impl’d, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    1. Pleading—Bab.
    Where judgment is directed on demurrer of one of two joint debtors, and the action severed and directed to proceed as to the other, leave should not be granted to amend the answer of the other defendant by pleading such judgment in bar.
    <3. Appeal—Dismissal op.
    Where such judgment was reversed before appeal from the order refusing leave to amend, such appeal will be dismissed as unnecessarily taken.
    Appeal by defendant Fusco from an order denying motion made for leave to serve a supplemental answer pleading in bar a judgment entered against the co-defendant of the appellant, upon the theory that such recovery against one of two persons jointly liable exonerates the other from liability.

      L. O. Van Doren and L. C. Waehner, for app’lt; Bartlett, Wilson & Hayden, for resp’t.
   Ehrlich, Ch. J.

Technical pleas to defeat the collections of honest demands are not to be encouraged. Courts should not be astute m devising means for assisting debtors to deprive their creditors of their just dues, but should rather lend their aid to defeat any such scheme or intention.

Two defendants were sued. Angelo Adam, one of them, demurred, and an order was subsequently made directing judgment on the demurrer in favor of the plaintiff. An order was next obtained severing the action and permitting judgment to be entered against Adam on the demurrer, and directing that the action proceed as to Giuseppe Fusco, the other defendant, as if he had been -sued alone. Judgment was thereupon entered against Adam, and Fusco sought leave to plead that judgment in bar to the further prosecution of the action against him. The motion was properly denied.

The application was not. in furtherance of justice, but an effort to defeat it, and the order should be affirmed on the merits.

But apart from this, it appears that since the argument below •and before the appeal was taken, the judgment against Adam has been vacated by an order entered on consent signed by the plaintiff’s attorney and the attorney for Adam, of which the defendant Giuseppe Fusco had notice. The appeal by him was therefore unnecessarily taken, and if the appellant succeeded upon it he could acquire no beneficial purpose. The judgment he desires to plead in bar has been set aside, as if it had never existed, and the appellant is, of necessity, left to continue his defense on the merits.

For these reasons we will, instead of affirming the order, as we otherwise would have done, dismiss the appeal taken, without costs.

McGown and Van Wyck, JJ., concur.


text:
    John A. Gaylord et al., Resp’ts, v. John D. Karst, Jr., App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1891.)

    Trial—Limitation op time for summing up.
    The question as to the time to be allowed for summing up a case rests largely in the discretion of the trial judge, and "his decision, except in case of clear abuse, should be approved.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Lewis Sanders, for pl’ff; J E. Eustis, for resp’ts.
   Ehrlich, Ch. J.

A careful reading of the printed case and points satisfies us that the rulings made by the learned trial judge were correct, and that there is nothing in the exceptions requiring a new trial. The evidence amply sustains the verdict, which is not excessive in amount. The appellant’s counsel claims that he was limited to ten minutes’ time in summing up, and that this 'limitation was an abuse of discretion. There can be no doubt as to the power of a trial judge in limiting the time of counsel in summing up. The power has been frequently exercised and the authority sustained. This question must be left largely to the discretion of the trial judge to bo exercised according to circumstances, and his decision on the subject ought, except in case of clear abuse, to be approved. We think there was no abuse of discretion in this instance, and that on the entire case, the judgment appealed from ought to be affirmed, with costs.

Yan Wyck, J., concurs.


author: Van Brunt, P. J.

text:
    In the Matter of the Department of Public Parks. In re. Ann Bolton.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Eminent Domain—Deceit.
    An award for property taken for public parks was made to the estate of Ann Bolton; as an item therein damages were included for the forced removal of certain machinery. After confirmation the same parties who alleged before the commissioners that thp machinery belonged to Ann Bolton, presented claims for a share of the award upon the ground that they were part owners of the machinery, under a lease soon to terminate. Held, that they were guilty of bad faith, and that a court of equity would not assist them.
    2. Executors and administrators—Acting as agents entitled to be. . REPAID EXPENSES.
    Where executors, who had no title to real estate but had managed and controlled the same with the consent of the real owners, employed counsel and incurred expenses in establishing, before commissioners, the value of real property of their testatrix about to be taken for public parks, Held, that, as agents of the owners, they were entitled to be repaid such expenditures from the award made to their estate by the commissioners.
    Motion for relief upon filing the referee’s report.

      A. O. Salter, for petitioners; A. Thain, for ex’rs; Jas. R. Marvin, for contestants; G. P. Smith, for Daniel H. Watson et al.

   Van Brunt, P. J.

In this matter the commissioners having-made an award to the estate of Ann Bolton for land and property taken for the public parks, and there being claims against such award by the attorneys for services rendered and by the executors for expenses incurred in the procuring of such award, a reference was ordered to take proof and for the referee to report with his opinion thereon upon the claims presented. At the time of the confirming of the award to the estate of Ann Bolton, and at the time of the making of the order of reference in question, the court was entirely ignorant o£ the facts which have been disclosed upon this reference. If the court had been aware of these circumstances there would have been no confirmation of such award in the form in which it then stood.

It appeared from the report of the commissioners that the devisees of Ann Bolton were the owners of certain real estate included within the limits of the public parks and which was to be taken for this public improvement.

It further appeared that upon this property had been erected certain machinery which had been used for a considerable time in the carrying on of a certain business. The taking of this land necessitated the removal of the machinery, which would result in great damage to these owners, and therefore the commissioners made an award in which was included as damages to the realty some compensation because of the loss resulting from the necessary removal of the machinery; and this award was confirmed by the court upon the theory that although no award could be made for personal property, as the city had no right or authority to acquire the title to personal property, yet the owner of the realty, in order to receive due compesation for the property taken from him, was entitled to claim. and have awarded some compensation for damages sustáined by the compulsory removal from the land taken of machinery with which his business had been carried on.

Before the commissioners the claim presented by the present claimants was a claim of the estate of Ann Bolton as owners of this property, both of the realty and also of the machinery; and they presented their claim for a large award because the owners of the fee had the right to keep the machinery upon the real estate taken as long as they might choose; and the award was made upon that basis and in accordance with that claim, and the fact that the estate of Ann Bolton was not the owner of certain portions of this machinery was studiously concealed by these very claimants in order that the award might be enhanced.

Now what is the fact as disclosed by the evidence taken before the referee in this proceeding?

Claims are presented for a part of this award by these very persons who before the commissioners alleged this machinery to belong to the estate of Ann Bolton; they now alleging that they are the individual owners of a considerable share thereof, and as a consequence are entitled to a portion of the award.

We do not think that in a court of equity such a claim can be tolerated.

They knew that if the fact was known that they were the owners of a portion of this machinery under a lease which terminated in a very short period of time, that the amount of the award would be very seriously affected, because the damages arising from the taking of the land depended largely upon the absolute - right of the owner to keep the machinery in its then present condition. These claimants, however, being simply lessees, would be required in any event to remove it at the end of the term, and consequently their damages would be very much less.

Now, after resorting to this suppression of facts and presenting before the commissioners a claim which they knew to be false, can they be permitted in this proceeding to reap the fruits of their deception? We think not.

For the purpose of increasing the award they represented this property to belong to the estate of Ann Bolton. The award having been increased because of that representation, they cannot - now be permitted to deny it; and the award must be paid to the devisees or heirs of Ann Bolton to whom it was made, in pursuance of the. claim of such estate presented by the present claimants. It is apparent from the report of the commissioners to whom the award was made. It is apparent that such award is in accordance with the claim urged by these parties who are now seeking to prove the contrary of that which they induced the commissioners to believe, whereby the award they are now trying to seize tipon was largely increased.

It is clear that no part of this award can go to the personal representatives of Ann Bolton. It was made as an award of realty, for damages sustained by Ann Bolton by reason of the taking of the realty. The commissioners had no power to award for the taking of personal property and whatever damages arose attached to the realty, and consequently when the award was made to the estate of Ann Bolton it was made to the persons entitled to take her realty and they seem to be the devisees under her will.

We think, therefore, that the report of the referee should not be confirmed in this respect, but that the award should be paid to the persons to whom the present claimants alleged before the commissioners the property belonged.

The only other question which it is necessary to discuss is the question as to the right of the parties who were employed by the executors of Ann-Bolton to protect the rights of the estate before the commissioners, and to establish by proof the value of the property to be taken, to be paid out of the funds for the services thus rendered.

It is urged that because the executors had no title to the real estate, they could incur no obligations which could possibly be a charge upon the estate as against the owners thereof.

It appears from the evidence that although these executors had no legal title to this estate and were not entitled to the possession of the same, yet still they went into possession and managed the estate, paying insurance upon the buildings and taxes, paying off and reducing mortgages on such estate, doing -everything in fact, in the management of the estate which was necessary to be done; and this with the assent of all the owners. Such being the relation of these executors to this estate, they became necessarily the agents of the parties interested and were bound to exercise their best, efforts in the protection of the rights of the estate.

If these executors, having thus assumed the management of this estate, had taken no measures to protect the same before these commissioners, but had allowed the proceedings to go by default, and thereby an improper and inadequate award had been made, we should have had the present objectors, Mrs. Myers and Mrs. Littlewood, claiming with much more ardor than they now exhibit, that these executors were negligent in the performance of a trust which they had accepted and taken upon themselves, and they having been damnified by such negligence, the executors had become personally liable to them for the loss as they had a right to rely upon the efforts of the execntors to protect the estate, having assumed its management.

But the efforts of these executors and the fraudulent suppression of the truth from the commissioners by these executors having resulted in a large award to the estate, in which Mrs. Myers and Mrs. Littlewood participate, the latter now claim that the executors had no right to use the ordinary means which a person in charge of an estate would employ to protect the rights confided to his care.

We think no such claim can be sustained. They permitted and sanctioned the management of the estate by the executors, and accepted the benefits of such management; and they cannot now be heard to say that such benefits shall not be proportionately diminished to the extent of the expenses necessarily and properly incurred.

The referee finds, correctly, that these services and expenses largely augmented the award made to the estate and that they were reasonable. And there can be no question, under this finding, had the executors been the trustees of this real estate under the will, that it is a disbursement which would have been allowed them. How although they were not trustees under the will, they having become such by the consent of the parties, it is their right to have these expenses reimbursed out of the fund created largely through their efforts and those of the persons whom they employed.

We think, therefore, that the claims for services rendered and expenses incurred should be paid out of the fund in question.

Daniels, J., concurs.


text:
    In the Matter of the Application of James Brown v. James C. Duane et al., Aqueduct Commissioners.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Civil service act—Veterans—Mandamus.
    An employe of the Croton Aqueduct commissioners alleged that he was an honorably discharged soldier, that the commissioners were about to abolish the grade of employes to which he belonged and to establish another grade, that in the selection of candidates for the new grade the civil service law had been violated and that he had not been allowed to enter a competition held to decide upon appointees to the new grade. JELeld, not a proper case for mandamus; the offioe of which writ is not to redress an anticipated wrong but to remedy one which has been suffered.
    2. Same—Notice.
    This court will not take judicial notice of the proceedings of the board of Croton Aqueduct Commissioners.
    3. Statutes—Repeal by implication.
    Where a general act conflicts with a special act the special act is not to be deemed to have been repealed by implication; accordingly Held, that chap. 490, § 40, Laws of 1883, directing the manner in which superintendents and inspectors of the new aqueduct of New York shall be selected, was not repealed by the general civil service act of this state.
    Appeal from order denying motion of the appellant for a writ of mandamus.

      Roger Foster, for app’lt; D. J. Dean, for resp’ts.
   Van Brunt, P. J.

This application was founded upon a verified petition in which the appellant alleges that he was an honorably discharged Union soldier; that he was a practical mason; and that on or about the 18th day of July, 1888, he was appointed to the position of inspector of masonry upon the new Croton Aqueduct, having prior to the appointment passed the civil service examination ; that after such appointment he entered upon the duties of such inspector, and has ever since performed such duties, and is now engaged therein; that in July, 1889, the aqueduct commissioners passed resolutions that the office or grade of superintendent of dam construction be created, to rank next above inspectors of masonry, and that it should be the duty of such superintendent to superintend the construction of all dams subject to the order and instruction of the chief engineer, etc.; and such resolution requested the chief engineer to prepare rules for the guidance and instruction of the superintendents of dams, and requested the civil service board to make provision for the examination of candidates for appointment or promotion to the grade named, and further provided that before any person should be appointed as superintendent he should pass a special examination under the direction of the chief engineer of the commission in addition to the examination of the civil service board; that pursuant to said resolution, on notification from the commissioners, twenty-nine persons were permitted to appear before the civil service board at an examination held at the request of the aqueduct commissioners; that only five of such persons were honorably discharged Union soldiers holding office or employment under said commissioners and the petitioner was not one of the persons thus notified and examined ; that eleven honorably discharged soldiers and sailors, including the appellant, who were then in the employ of the commissioners, were excluded from such examination; that such examination was not held in accordance with the rules of the civil service board, and that no one except persons authorized by the commissioners were allowed to be examined; that the commissioners are about to appoint a certain number of superintendents of construction of dams and thát all the work upon the construction of the aqueduct, except the construction of dams and reservoirs, is nearly completed and will be completed in a very short time; and that the appellant and such other inspectors as are not appointed superintendents of construction of dams will thereupon be discharged from employment when no work other than the construction of dams and reservoirs remains to be done; and that the -duties of superintendents of dam construction are the same as those performed by the appellant as inspector of masonry.

The answer bf the commissioners alleges that thirty-two inspectors had been notified and permitted to be examined before the civil service board for promotion to the grade of superintendent of dams, and they aver that all of such inspectors were then holding office under the commission and not discharged for misconduct, and they admit that only those who were certified, were examined by the civil service board. They deny the failure to comply with the rules of the civil service board; and they admit that the work upon the construction of the aqueduct except the construction of dams and reservoirs is nearly completed, and aver that the duties of superintendents of construction of dams require more experience and knowledge of all that pertains to hydraulic masonry than is required to be possessed by inspectors of masonry.

It further appears that the appellant was not certified for examination and never applied to the board of aqueduct commissioners for certification for examination by the civil service board; nor has the appellant ever applied to the commissioners for the position of superintendent of construction of dams, and no official action has been taken with respect to the abolition of the force of inspectors of masonry on the new Croton aqueduct.

The affidavit of the secretary of the Civil Service Board is to the effect that the examination was held in accordance with the rules of the board in relation to promotion.

Upon this state of facts the motion of the appellant was denied, and from the order thereupon entered this appeal is taken.

It appears from the facts upon this application that the appellant is asking for a mandamus against the Board of Aqueduct Commissioners in anticipation of the cessation of the work in which he is at present employed, and that in view of such cessation he desires to be appointed to another position.

Now it has been determined in Re McGuire, 50 Hun, 203; 19 N. Y. State Rep., 431, that the provisions of the civil service law do not apply to promotions, and that they only apply to original appointments. The appellant therefore being in the employ of the commission, the requirements of the civil service law have been complied with; and although it is claimed by the appellant that such employment will soon cease, until that -event happens it is clear that he has no standing in court. The office of a mandamus is not to redress an anticipated evil or wrong, but can be only invoked to remedy a wrong which has been suffered.

This is a principle which has been repeatedly asserted in applications for mandamus and in actions brought to reinstate parties in various organizations or to prevent a threatened expulsion from such organization, in which cases it has been repeatedly held that until the wrong has been suffered the court cannot intervene. Thomas v. Musical Protective Union, 121 N. Y., 45 ; 30 N. Y. State Rep., 563.

The court below, therefore, if for no other reason, was right in denying the application of the appellant because he was in the employment of the Croton Aqueduct Board at the time of the application and was not entitled as matter of right, under any circumstances, to be appointed to another position at his will.

It might not be necessary to say anything further upon this point in the disposition of this case were it not for the claim made by the appellant that the court should take judicial notice that the Croton Aqueduct Board have since the initiation of these proceedings abolished the office of inspector of masonry, there being no further duties for officers of that character to perform.

We are not aware that the proceedings of the Croton Aqueduct Board are of that dignity which authorizes the court to take judicial notice thereof. Consequently in the disposition of this application that fact cannot be considered by the court.

But even if it were it would make no difference in the position of the appellant. By § 40 of chap. 490 of the Law's of 1883, it was provided as follows:

“ No person shall be appointed by the commissioners as inspector or superintendent who shall not be certified by at least three members of the commissioners to be competent and fit for the duties of the position for which he is an applicant, and experienced in the subject matter of the employment.”

There is no pretension that there has been a compliance with this provision of the law. But it is urged upon the part of the appellant that this provision has been superseded by the civil service act, which provides that in every public department and upon all public works in the state of New York and all cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment or employment; and that thus the provisions of the act above referred to have been repealed.

It does not seem to us that this position can be maintained. The act first referred to was a special act intended to provide for a particular work in respect to which the legislative regulations were particular and precise.

It is a familiar rule of construction that where a general act conflicts with a special act, the special act is not to be deemed repealed by implication. Applying this rule to the statutes in question, it will be clear that the provisions of the Croton aqueduct act in regard to the appointment of inspectors and superintendents cannot be deemed to be repealed by the civil service act.

There is no such intention manifested in the civil service act that in appointments of this character, which were considered of such importance as to require at least three members of the commission to certify to the competency of the applicant, that such safeguards should be repealed by its general language.

It is undoubtedly true that those persons who were certified by the members of the commission as competent and fit for the duties of the position must also undergo a civil service examination. But it is equally clear that it was the plain intention of the legislature that no person should have the responsible position of inspector or superintendent without making at least a moiety of the commission personally responsible for his appointment

They are required to certify that the applicant is competent and fit for the duties of the office and experienced in the subject matter of the employment, and the responsibility is thus placed upon them for the quality of appointees of this class.

The statute is peculiar in its language in relation to these particular appointees, the responsibility of the position being thereby expressly recognized, and the necessity of more than ordinary care in making appointments being manifested.

It seems to us it would be straining the view of a repeal by implication to assume that after the legislature had established such safeguards against the" abuse of the appointing power in reference to appointments of this important character, it should have intended to place these appointments upon the same level as all others to which the civil service act could apply.

Upon the whole case, therefore, it seems to us that the application for mandamus was properly denied and that the order should be affirmed, with costs.

Daniels, J., concurs.