author: Dykman, J.

text:
    Elie Weill et al., App’lts, v. Joseph Malone et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Contract—Recission.
    An agreement will not be cancelled on the ground of fraud, unless the benefits derived under it are returned or tendered.
    Appeal from a judgment entered on an order dismissing the complaint, and from an order denying a motion to open the judgment.

      Chandler & Kremer (Frederick S. Barnum and Eugene G. Kremer, of counsel), for app’lts;

      Charles J. Patterson, for def't Halstead;

      James C. Church, for def’ts Malone and others.
   Dykman, J.

This is an appeal from a judgment entered upon the decision of a justice of this court after a trial at the special term, and also from an order denying a motion of the plaintiffs’ to open the judgment. The facts are recited in the opinion of the trial judge, and, as we -concur in his conclusions, a recitation of the case by us would be unprofitable.

The judgment should be affirmed, with costs, on the opinion of the trial judge, and, as the appeal from the order is destitute of merit, it should be affirmed, with $10 costs and disbursements.

All concur.

The opinion of Mr. Justice G-aynor at special term is as follows :

The plaintiffs were commission merchants, while the defend-' ants Joseph Malone & Co. were manufacturers of corset steels and like corset materials. These parties entered into a written agreement by which the plaintiffs became the selling, agents of the entire product of the factory of the said Joseph Malone & Co. They were to guarantee all sales, and have a comission of five per cent.; and Joseph Malone & Co. were to fill orders for such manufactured goods as should be given to them by the plairitiffs. The contract also contemplated that the plaintiffs should make money advancements and deliver merchandise to Joseph Malone & Co., for it provides that they shall be credited with all such advances, and with the pricp of any goods shipped and invoiced by them to Joseph Malone & Co. Tt also provides that the balances should be struck monthly, and paid by the debtor side. Under this arrangement, when goods were manufactured, though still lying in the factory, and not yet delivered to customers, the plaintiffs were in the habit of creding Joseph Malone & Co. with them, and advancing to them their value, less the cash discount and the five per cent, commission. They were also in the habit of depositing at the factory quantities of steel bars, which Joseph Malone & Co. drew from and used to make the corset materials, notifying the plaintiffs from time to time of the quantity used, whereupon the plaintiffs would charge them with the same. During these dealings Joseph Malone & Co. purchased some machinery from the plaintiffs, and gave them a chattel mortgage thereon to secure the payment of $4,000, the purchase price. The said chattel mortgage is also in terms for the faithful performance of the aforesaid agreement, which, of course, embraced the payment of all balances found against them as aforesaid. Books of account, embracing the dealings, and showing the credits and debits between the parties, were kept by the plaintiffs. This being the condition of affairs, a fire occurred in the said factory of Joseph Malone & Co., by which the same and the machinery and the goods and materials therein were much damaged. At the time of the fir.e the plaintiffs’ books showed a balance against Joseph Malone '& Co. of about $5,500. The fire occurred on April 26, 1890. The plaintiffs claim that of the steel bars of which they had deposited with Joseph Malone & Go. at their factory from time to time, as aforesaid, there should have been as much as ninety-two casks, of the value of about $5,000, at the time of the fire. About §4,000 worth of manufactured stock also lay in the factory at the time. In these circumstances, both parties having suffered by the fire, and the insurance, namely, $14,000, being in the name of Joseph Malone & Co., about $7,000 of which was upon the stock and the rest upon the machinery and fixtures, the said parties entered into the following agreement:

“This agreement, made this 1st day of May, 1890 by and between Elie Weill & Co. and Joseph Malone & Co., witnesseth : The parties hereto agree to pool their joint loss on machinery and stock on the following basis, to wit: First. That the money received shall first be applied to cancel the indebtedness of Joseph Malone & Company to Elie Weill & Company, amounting to about $6,-000 in full; and the balance, if any, to be divided pro rata between the parties as follows, and in the. following proportion : Seventy-five per cent, to Elie Weill & Company and twenty-five per cent, to Joseph Malone & Company. And it is further-agreed that whatever salvage there may be left after the payment of the five per cent, to the adjusters shall be divided equally between Elie Weill & Co. and Joseph Malone & Co. There shall be a release of responsibility to Joseph Malone & Co, and they are hereby reléased from said responsibility; and, in consideration thereof they shall, and do hereby, assign their policies to Elie Weill & Company. In witness whereof, the parties hereto have hereunto set their hands and seals the year and day first above written.
“Elie Weill & Co. [Seal.]
“Jos. Malone &Co. [Seal.]
“In presence of Bernard Oberndoerfer.”

This agreement was carried out, in that the insurance money was paid and the salvage of stock divided in kind as therein provided; but the machinery was not divided, neither, party apparently understanding that it should be, for nothing was said or done in that view. It is conceded that the insurance money was more than sufficient to pay the said book balance .of $5,500. Afterwards, namely, in July, the plaintiffs began an action against Joseph Malone & Co. for an alleged conversion of about fifty-two casks (52,461 pounds) of the said ninety-two casks of steel deposited from time to time with them at this said factory by the plaintiffs as aforesaid. In the following month they took from said Joseph Malone & Co. the machinery mentioned in their said chattel mortgage thereon, professing to take it by virtue, of the said mortgage. In the following March, Joseph Malone & Co. brought an action against them for the alleged conversion of the said machinery. In this latter action the plaintiffs therein (Joseph Malone & Co.) claimed that the agreement above set out, and the carrying out of the same, was a complete adjustment between the-parties; and that the taking of the said machinery under the said mortgage was, therefore, without right, and a trespass. The present action was brought to set aside the said agreement for fraud ; or, failing in that, to have it so reformed or construed as to exclude the said mortgage from its intendment and operation. And now, at the end of the case, it is insisted, as it is in the complaint, that Joseph Malone & Co. having converted to their own .use about fifty-two casks of the said steel bars deposited in their factory as aforesaid, and the plaintiffs being unaware of such conversion when they entered into the said adjustment agreement, it should therefore be declared void for fraud. It is an answer to say that they have not restored, nor do they offer to restore, the money and the share of the salvage they got under it. Gould v. Bank, 99 N. Y. 333. But I also find that Joseph Malone & Co. converted none of the steel. They had used at least twenty casks in manufacturing, a large quantity was made worthless by the fire, and at least forty casks formed part of the salvage, which was examined, sorted, weighed, and divided by the parties without a word of dissatisfaction or accusation. I also find that the $4,000 for the machinery had been paid. But, as the mortgage also subsisted to secure the payment of any balances which Joseph Malone & Co. should owe the plaintiffs from time to time, it matters not whether any part of the balance of the said $4,000 remained unpaid, for in that case it formed part of the balance of $5,500; and that having been paid out of the insurance money, the mortgage had no more life. But, as the plaintiffs insists that their still remains money due from Joseph Malone & Co., it may be well to go further. The first words of the agreement are that the parties “ agree to pool their joint losses on machinery and stock.” The only interest the plaintiffs had in the machinery was through their said chattel mortgage on part of it. The agreement then proceeds to provide that the insurance money for loss of both machinery and stock “ shall first be applied to cancel the indebtedness ”of Joseph Malone & Co. It then provides that, if there be any overplus of insurance money, seventy-five per cent, of it shall go to the plaintiffs, and twenty-five per cent, to Joseph Malone & Co., and that the salvage shall be divided equally. As each suffered a loss on stock, this seemed to mean salvage on stock and the parties so interpreted it practically, as has been stated. And, finally, the agreement provides that “ there shall be a release of responsibility to Joseph Malone & Co., and they are hereby released from said responsibility.” The intention plainly was that the entire responsibility of Joseph Malone & Co. to the plaintiffs, "should be released; so that, if it can be made out that there was some indebtedness outside of the book account, which remains unpaid (which, however, has not been shown), nevertheless it was all contemplated by the agreement, and is released thereby. The intention was not to give the plaintiffs the advantage which was given to them for nothing. If it was meant that only the book account should be released, or released only to the extent which the insurance money should pay it, I do not see why Joseph Malone & Co. turned their policies over to the plaintiffs, and made with them such an agreement. Let judgment be entered accordingly.


source: Caselaw Access Project

author: Stephens, S.

license: Public Domain

text:
    In the Matter of a proceeding for the Probate of the Will of Josephine M. Lyman, Deceased.

      (Surrogate's Court, Richmond County,

      Filed November, 1895.)

    1. Estoppel—Equitable.
    When a party has, by his declaration or representation, induced another to act in a particular manner, he will not afterwards be permitted to deny the truth of his declaration, if the consequence would be to work an injury to such other person.
    2. Will—Second.
    A second will is only provable on an allegation that it has been discovered since the probate of the first will, and that .by it other persons besides those who take under the first will are entitled to some share of the estate.
    3. Same—Execution.
    Where the factum of a paper propounded for probate has been put in issue by the answer of the contestant, it is not alone sufficient that the formal execution and publication of the same are shown, but the questions whether the testator intended to make the particular will offered for probate, whether it conformed to his real wish, and whether in fact the particular instrument is his will, are all elements of the factum of the will, which are to be determined by a considerate examination of all the facts and circumstances attending the transaction.
    4. Same—Presumption.
    The presumption that the statutory formalities in the execution, publication and attestation of a paper propounded are complied with, may arise, and the court be justified in concluding that every essential requirement was complied with, but whether such a presumption arises in any particular case depends upon the facts of that case.
    5. Same—Proof.
    The evidence, in this case, was held such as to require a finding that there is not only an utter failure of direct proof to establish the statutory formality of a request by the decedent to the witnesses to sign their names as such, but on the contrary, to forbid the finding of any presumption that there was such a request.
    Proceeding for the probate of a will.

      James L. Bennett, for proponent;

      Amasa A. Redfield, for contestant.
   Stephens, S.

Josephine M. Lyman died at the city of Philadelphia, in the state of Pennsylvania, on the 27th day of Lecember, 1874. She left, her surviving, her husband, William H. Lyman, now deceased, and her daughter, Josephine, the contestant in this proceeding. In the month preceding her death the decedent executed two wills, both in the handwriting of her'husband ; one bearing date the 14th, and the other the 20th, day of November, 1874. By the first will she devised (together with her personal property) all her real property, specifically describing three parcels, • situated, respectively, in Philadelphia, Pa., in Newark, N. J., and in Richmond county, N. Y., to her husband, William H. Lyman, in trust for her daughter, Anna Josephine Lyman (now Mrs. Nicholas,- the contestant), “ with full power to sell and convey the same, or any part thereof, and invest the proceeds in such property or securities in his name, as trustee, as he shall deem best for the estate; the said estate not to be delivered up to my daughter during the natural life of my husband, the-trustee above named; and I desire an increase in my estate, and all income, over and above the living and other necessary expenses of my husband and daughter, to be invested as my said trustee shall see best for the interest of said estate. On the death of my husband, all my property vested in him as trustee shall become absolutely the property of my said daughter Josephine.” By the second will she devised all her property to her husband, the said William H. Lyman, absolutely.

It is not open to question that, under the statutes of this state the fee of the Richmond county property was, by the first will, vested in the daughter, Josephine, subject only to be divested by a sale under the power conferred on the trustee, and to the partial interest of the husband in the rents; issues, and profits during his life. This will was, upon the petition of said Willian H. Lyman, duly admitted to probate in the office of the register of wills in the city and county of Philadelphia on the 7th day of January, 1875, and letters testamentary were on the same day issued to him; and thereafter he caused an exemplified copy of the same to be filed in the office of the surrogate of the county of Essex, N. J., and also in the office of the surrogate of the county of Richmond, N.Y. He immediately entered into possession of the property passing under said will, and from that date of the probate of the same until the date of his death, which occurred on the 8th day of August, 1893, he was, as executor and trustee, in receipt of the rents, issues, and profits thereof, and applied them, under the terms of this will, to the use of himself and his daughter; and, in addition to this, he exercised the power of sale conferred upon him by this will. It also appears from the evidence that on one occasion said William H. Lyman asked his daughter to unite with him in giving a mortgage upon the Newark property, which she did, in the presence of Minnie D. Lyman, the proponent of the will now in question, and that subsequently the said Minnie D. Lyman asked her to give her a mortgage upon her (the daughter’s) reversionary interest in the Staten Island property to secure her for money loaned to William H. Lyman. On the 26th day of April, 1882, William H. Lyman married Minnie Duke,- the proponent herein. She was his third wife. He died on the 8th day of August, 1893, leaving a last will and testament, which was duly admitted to probate in the office of the surrogate of the city and county of New York on the 28th day of November, 1894; and on the same day letters testamentary were issued to Minnie Duke Lyman, the executrix named therein. In and by said will he gave to his wife, Minnie D. Lyman, all of his property, of any kind whatsoever, that he may own at the time of his death. On the 22d day of September, 1893, the said Minnie D. Lyman filed with the register of wills in the city of Philadelphia a petition to set aside the probate of the will of Josephine M. Lyman, proved on the 7th day of January, 1875, and for the probate of the will of said Josephine M. Lyman, dated the 20th day of November, 1874,; and on November 6, 1893, after hearing the testimony of the witnesses and the argument of counsel, it was ordered and decreed by the register that the said petition be dimissed. On the 28th day of December, 1893, the said Minnie D. Lyman filed in this court a petition for the probate of said will of said Josephine M. Lyman, dated the 20th day of November, 1895. There are two matters to be determined in this proceeding: (1) Is the proponent equitably estopped from the right to invoke the interference of this court in admitting this will to probate or not? If not, (2) has the factum of the will been proved to the satisfaction of the court ?

1. It must be remembered that William. H. Lyman drew both wills, a period of only six days intervening between them, and that both were in his possession at the time of the death of his wife, Josephine M. Lyman; that he elected to cause to be admitted to probate the one bearing date the 14th day of November, 1874, and qualified as executor and trustee thereunder, and that he proceeded to and continued to administer the estate under said will until the time of his death; that he never showed this paper either to liis daughter or to his subsequently wedded wife, the present proponent; that she (the proponent) never saw it until after his death, when she found it in a bundle of papers which he handed her a short while before his death; and that she fouud two wills together in the same bnndle. At the time of the death of Josephine M. Lyman, her husband was the one most interested in her estate. He had both wills in his possession. He was the executor named in both, and it was in his power to offer for probate whichever he saw fit. He chose to accept the less estate rather than the greater. Why should he not be bound by his election ? It was his own free act and deed. There was no coercion about it. It was entirely voluntary on his part. Then why, it may be asked,, did he elect to take a life estate only, when he could as readily have taken an absolute estate? The reason is made plain by the testimony of the proponent herself, who says he had mentioned the Jact of a last will, but said he was afraid to probate it, lest a prior wife, from whom he was divorced, might claim an interest in the property. It is claimed on the part of the proponent that there is no election here, and that, even though there were, no forfeiture follows, but simply a question of compensation, and also that there is no estoppel, for the reason that there was no inconsistency in the act of Mr. Lyman, because there was nothing that he did under the prior will that he could not have done under the laten will, and whatever was done by him in no wise prejudiced the contestant. Whatever the rights of the proponent are in this proceeding, they are derived through and under William H. Lyman, so that she stands before the court in precisely the same position that he would, had he instituted it in his lifetime. By his acts during life-he surrendered and released the estate of inheritance purporting to have been given by the paper now propqunded, and elected, instead thereof, to accept, and did, as a matter of fact, accept, a lesser estate, under another instrument. Moreover, it is in evidence that repeated representations were made by him to his daughter, the contestant, that the fee of the real property was in her, and that, relying upon these representations, she obligated herself personally for $3,800 for his benefit, and secured the obligation by a mortgage upon a portion of the real property devised to her by the will which it is now sought to overthrow. It is a well-settled principle of equity that when a party has,' by his declaration or representation, induced another to act in a particular manner, he will not afterwards be permitted to deny the truth of his declaration, if the consequence would be to work an injury to such other person. See In re Rusko, 34 Hun, 334, and cases cited. The proponent seeks to take this case out of the operation of that principle by showing that the mortgaged premises were worth at least the amount of the bond and mortgage, and consequently the contestant was not injured. This is not an answer to the contention of the contestant. The mere likelihood that there will be no pecuniary loss does not take away from Mr. Lyman’s conduct its effect of an equitable estoppel. The case of Bates v. Gillett, 132 III. 287, would seem to have a direct application. The plaintiff, who claimed to be the guardian of certain infants, under the will of their grandfather. For twenty years he managed the property, dealt with it, and leased it in his name, as guardian. During all that time the children had understood that they were, the owners, deriving their title under the will mentioned, and not until after they had contracted to convey a good title did the plaintiff assert his claim. The court said: “ that it would be grossly inequitable to now permit the assertion of title by the complainant. At least, he does not come into equity with conscience, good faith, and reasonable diligence. His delay is wholly unexplained, and it must be held that his acquiescence for the length of time indicated amounts in equity to a complete bar to the relief sought by complainant’s bill.” In Foote v. Foote, 61 Mich. 181, it was held that when fourteen years have elapsed since the death of the testator, the will being notoriously in existence, and accessible throughout that time, it is too late for one of the heirs, who had agreed' to another scheme of distribution, to prove the will, and claim benefits under it inconsistent with his former agreement. A second will is only provable on an allegation that it has been discovered since the probate of the first will, and that by it other persons besides those who took under the first will are entitled to some share of the estate. In the case at bar the will now propounded was never lost or mislaid, and was not discovered, because it was in the possession of Mr. Lyman, the sole beneficiary, or under his control, from the time of its execution until the day of his death, a period of almost nineteen years. If, therefore, Mr. Lyman would have been estopped, the present proponent, claiming no more rights than he hand, is now subjected to the same principle of equity.

2. The factum of the paper now propounded having been putin issue by the answer of the contestant, is not alone sufficient that the formal execution aud publication of the same be shown; but the questions whether the testator intended to make the particular will now offered for probate, whether it conformed to her real wish, and whether in fact this particular instrument is her will, are all elements of the factum of the will, which are to be determined by a considerate examination of all the facts and circumstances attending the transaction. This will was witnessed by Joseph M. Cowell and Herbert H. Brower. Joseph M. Cowell died before the same was offered for probate, leaving Herbert H. Brower not only the sole surviving witness of the same, but also the only person living who was ift the room at the time it was executed. He testified that previous to the execution of this will the testatrix, who was his sister, “ made "a remark to me that her husband was not quite satisfied with the other will that was made, and she would have to make , another. Q. Did you have any conversation with her with reference to Josie (her daughter, the contestant) on the subject of the will ? A. I made the remark to her that I thought Josie ought to be taken care of and looked out for. Q. What did she say, if anything? A. She made no reply at that time, but after this will was executed, she said that Josie would have to take her chances with the rest of the world.” All this was said within six days from the time that the testatrix had made, while on her deathbed, the most natural and just will for any mother, leaving a husband and only child twelve years old, to make. The circumstances surrounding the execution and publication of the will were these: The will is in the handwriting of William H. Lyman. Mr. Lyman called the witness Brower into the room. The witness Cow-ell finally came into the room. He had been informed what he came in for by Mr. Lyman. Mr. Lyman then took the paper out of his pocket, and read it over. Then together with Mr. Brower and Mr. Brower’s father, who was present, he bolstered his wife up in bed. He then put a pen in Mrs. Lyman’s-fingers, and held the ink bottle in. his hand. After the paper was signed he took it away' from her, and passed it over to the witnesses to sign. After they had signed it was passed back to Mr. Lyman. The witness Brower testified that the testatrix signified her acceptance of the will, and when 'asked how she did this, other than by putting her name to it, he replied, “By Mr. Lyman asking her if that was her last will, in reply to which she bowed her head;" and also, in reply to a question, that she said nothing to the witnesses/ specially. This is the testimony as to the execution and publication o£ the will by the only living witness. This witness also testified on his direct examination, in answer to the question whether, at the time she executed the instrument, she was in her right mind, that “ she appeared to be. She waS more or less under the influence of stimulants to quiet her pain.” And on cross-examintionhe said he meant by stimulants “ opium suppositories.” In answer to the question, “ Do you know whether or not she was under the influence of these opiates at the time she executed this will? ” he testified, “ In my opinion, no more than she was at any other time.” And to the question, “She was as much under the influence of opium then as she was at any other time? ” he testified, “I think so.” The contestant testified that she was in the house in Philadelphia where this will was executed; that for some time previous, and continuously until the time of her death, opium suppositories were administered to her mother, the testratrix, and in addition thereto a solution of morphine alternately every two hours; and that the effect of these opiates upon her was, “They always clouded her," and “ seemed to produce a sort of stupor.” With these facts confronting it, the court is asked to hold that the factum of the will has been proved, and that the same be admitted to probate. Leaving out of consideration the question of undue influence, as well as the testamentary capacity of the decedent, the most that could be claimed by the proponent is a presumption that the statutory formalities in the execution, publication, and attestation of the paper now propounded were complied with. Such a presumption may arise, and the court be justified in concluding that every essential requirement was complied with, as witness the case of the testator, the late Homer A. Nelson (Matter of Nelson, 141 N. Y. 152; 56 St. Rep. 678), but whether such a presumption arises in any particular case depends upon the facts of that case. In the case at bar I cannot do otherwise; than find that there is not only an utter failure of direct proof to establish the statutory formality of a request by the decedent to the witnesses to sign their names as such, but that, on the contrary, the testimony forbids the finding of any presumption that there was such a request The petition must be dismissed. Decreed accordingly.


author: Bischoff, J. Giegerich, J.

text:
    Sidney Bell, App’lt, v. Patrick A. Gaynor et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    -Constitutional law—Dairy—Regulations.
    The question whether section 4, chapter 401 of 1887, as amended by the Laws of 1890, forbidding the sale of milk without consent of owner's agent is constitutional, was involved in this case, but on account of disagreement of judges, was not decided.
    Appeal from a judgment in favor of defendant.

      William J. Fanning, for appl’ts ;

      Marston & Eilan, for resp’t.
   Bischoff, J.

After careful scrutiny and mature consideration of the legislative enactment urged in support of the recovery in these proceedings (chapter 401, Laws 1887, as amended by chapter 25, Laws 1890), I am persuaded that it offends against the constitutional guaranty of protection to every person in the enjoyment ■of his liberty and property until deprived thereof by “due process of law.” Const. U S. Amend, art. 14, § 1; Const. N. Y. 1846, 1894, art. 1, § 6; Bertholf v. O'Reilly, 74 N. Y. 509, 519; 6 Am. &. Eng. Enc. Law, 43. Cans are necessary and useful implements in the shipment of dairy products, such as milk and cream, and the attachment to such cans of the names and initials of the owners or shippers is a necessary and usual method of indicating the particular dairy or locality from which the contents of the cans is the product. The use of such cans, marked with the names or initials of the owners or shippers, in the pursuit of lawful business, is, in and of itself, harmless. To inhibit their use and possession by persons other than owners or shippers, except with the consent of an intermediary, as criminal, is to deprive the cans themselves of one of their attributes of property (their sale and transfer), and to deprive the owners or shippers of one of their undoubted property rights (to sell and transfer the use and possession of their own cans). The same inhibition operates also to restrain both the owners or shippers, as well as the person or persons for whose ultimate Use or possession the cans are intended, in the enjoyment of their liberty to dispose of and acquire property, and to pursue a lawful trade, or calling. The logical sequence of the validity of the statute in question, if held valid, would be, therefore, legisla tive absolutism, so far as such incident is involved. With equal force might it be contended that the legislature can make of virtue a vice to be punished, of vice a virtue 'to be rewarded. Civil liberty, as an institution under our federal and state constitutions, implies more than mere freedom from physical restraint. It comprehends the right of every person living under our government to acquire and dispose of property by lawful means and for lawful purposes, and to pursue any lawful business, trade or calling, in such manner as to him shall seem meet, provided only that he does not thereby offend against any superior social right, or the equql rights of other persons. “ Liberty, in its broad sense, as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or' restraint, but the right of one to use his faculties in all lawful ways to live, and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, Or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of liberty, which are under constitutional protection.” In re Jacobs, 98 N. Y. 98, 106. “A person living under our Constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. The term ‘ liberty,’ as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are nscessary for the common welfare.” People v. Gillson, 109 N. Y. 389, 398; 16 St. Rep. 185. ‘i It is one of the absolute rights of the individual to be free from unreasonable restraints upon the sale or transfer of his personal property. The right to sell or transfer one’s property is as much an inalienable right as that of enjoyment of property free from unnecessary restrictions. Of course, the right to sell may be subjected to whatever regulations may be needed to prevent any threatened injury to the public or to third persons. In the discussion of the police regulation of trades and employments, the regulation and prohibition of the sale of personal property, as a trade or occupation, have been discussed at length ; and, inasmuch as all such regulations are designed to control the sale of merchandise, as a trade, they are considered and criticised in the character of restraints upon the liberty of exercising a lawful calling, rather than an invasion of the rights of property. In the main, the same objections apply to a police regulation, whether it is considered to be an 'infringement of personal liberty or of the rights of property.” Tied. Lirn. § 136, p. 489.

Section 1 of the act under review declares it to be “ unlawful for any person or persons, without the consent of the agent of the owner or owners or shipper or shippers, to use or sell, dispose of, buy or traffic in any milk or cream can or cans, belonging to any dealer or dealers, shipper or shippers of milk or cream residing in the state of New York or elsewhere, who may ship milk or cream to any city, town or place within this state, having the name or initials of the owner or owners or such dealer or dealers, or shipper or shippers stamped, marked or fastened on such can or cans or to wilfully mar^erase or change by remarking or otherwise said name or initials of any such owner or owners or dealer or dealers, or shipper or shippers, marked or fastened upon said can or cans.” Section 4, as amended by chapter 25, Laws 1890, imposes a penalty of fifty dollars for each can, upon any person who shall offend against the provisions of the act; that is to say, who shall use, sell, dispose of, buy, traffic in, or have possession of any can or cans, without the consent of the agent of the owner or owners, shipper or shippers, or who shall efface the names or initials of the owner or owners, dealer or dealers, shipper or shippers, attached to any such can or cans, without the like consent. Thus, the consent of the owners or shippers, as the case may be, is rendered wholly immaterial, and intended to afford no protection to the possessor of the can or cans, or the person or persons having effaced the names or initials of the owners, dealers or shippers of such can or cans. By rendering the possession of the cans, or the effacement of the names or initials therefrom, without the consent of the agent of the owners, dealers or shippers, criminal, and punishable as such, the owners, dealers' or shippers are prevented from parting with the use and possession of their own property and restricted in their liberty of pursuing a lawful trade or business, in the sale and shipment of milk or cream, while the person, or persons for whose ultimate use or possession the owners, dealers, or shippers may intend such can or cans are similarly restricted in the acquisition of property and prosecution of their calling, without the necessary employment of a middleman. The transaction of an otherwise lawful business is thus, iu effect, prohibited between the owners, dealers, or shippers of the dairy products mentioned, and their patrons, except indirectly, through an agent to be employed for such purpose. The act fails of support upon the hypothesis that it is an exercise of the public power vested in the legislature, no apparent public interest being thereby subserved. People ex rel. Nechamcus v. Warden, etc., 144 N. Y. 529; 64 St. Rep. 51; Health Department v. Rector, etc. of Trinity Church, 145 N. Y. 32; 64 St. Rep. 507; Tied. Lim. § 1; 18 Am. & Eng. Ene. Law, p. 739. “Any law which goes beyond that principle, which undertakes to abolish rights the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions.” Tied. Lim. § 1, p. 4. Any ' contention that the legislature sought, in disabling the owners or shippers of milk or cream from parting with their cans bearing their names or initials, and necessarily used in the pursuit of their business, to prevent the practice of fraud or deception upon the public, is sufficiently refuted by the fact that the act does not inhibit the transfer of the use or possession of such cans, but subordinates 'the owners, dealers, or shippers, in the matter of such transfer, to the will of a third person, the agent, for the latter’s private and personal advantage.

To my mind it i.s apparent from the act that its design was to subserve only the interests of a cías s of middlemen between the owners, dealers, or shippers of dairy products, and their patrons, and to such legislation the remarks of Judge Peckham in People v. Gibson, supra, are apposite:

“It is quite clear that some or all of these fundamental and valuable rights are invaded, weakened, limited, or destroyed by the legislation under consideration. It is evidently of that kind which has been so frequent of late, — a kind which is meant to protect some class in the community against the fair, free, and full competition of some other class; the members of the former class thinking it impossible to hold their own against such competition, and therefore flying to the legislature to secure some enactment which shall operate favorably to them or unfavorable -to their competitors in the commercial, agricultural manufacturing, or producing fields.”

In Monroe Dairy Association v. Stanley, 47 St. Rep. 365, the court had under consideration only the power of the legislature to change a rule of evidence by making certain relevant facts prima facie evidence of the main fact, with reference to section 2 of the act under review, which declares that the “ using, selling, disposing of, buying, trafficking in,” or having possession of any such milk or cream' cans, “ without the consent of the agent of the owner, dealer, or dealers, or shipper or shippers.” shall be “pre-; sumptive evidence of the unlawful use, sale, purchase or traffic in such can or cans.” Nothing in the case alluded to, therefore, conflict with my views herein expressed.

The judgment should be reversed, and since the plaintiff is not entitled to recover, in any aspect, no new trial should be ordered ; costs of this appeal and of the court below to be awarded to the appellants.

Giegerich, J.

I amconstrained to dissent from the conclusion reached bv my associate, that the statute (chapter 401, Laws 1887, as amended by chapter 25, Laws 1890) “ offends against the constitutional guaranty of protection to every person in the enjoyment of his liberty and property until deprived thereof by ‘ due process of law.’ ” The presumption is always in favor of the con-' stitutionality of a statute, and only in case of a clear, conflict with the fundamental law will an act of the legislature be adjudged invalid. Roosevelt v. Godard, 52 Barb. 533; People v. Durston, 119 N. Y. 569: 30 St. Rep. 203 ; Sweet v. City of Syracuse, 129 N. Y. 316; 38 St. Rep. 933; People ex rel. Carter v. Rice, 135 N. Y. 473; 47 St. Rep. 702. The general term of the supreme court in the Second department, all the judges concurring, have declared the statute now in question to be a valid enactment (Monroe Dairy Association v. Stanley, 65 Hun, 163, 166; 47 St. Rep. 365), and I see no reason for disregarding so authoritative an adjudication. For these reasons, in my mind, the judgment appealed from should be affirmed, with costs.

Failing an agreement upon the question presented by this appeal, a reargument at the present general term is directed. Code •Civ. Proc. § 281.


author: Per Curiam.

text:
    Henry C. Judson, App’lt, v. Flushing Jockey Club, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 12, 1895.)

    1. Courts—Jurisdiction—Fictitious action.
    Courts of judicature are organized only to decide real controversies between actual litigants.
    2. Same.
    When it appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court will decline a determination of the fabricated case so fraudulently imposed upon it.
    3. Same—Objection.
    The statement of reputable members of the bar that the action is a false and fictitious litigation suffices, at all events, for the postponment of the decision until the court shall be satisfied that it has to do with a legitimate forensic discussion.
    4. Same—Reference.
    In such case, the court may ascertain the fact either by the record, by affidavits or by reference.
    Action by Henry 0. Judson against the Flushing Jockey Club to recover a sweepstake won on a horse race. A judgment was rendered by the trial court in favor of defendant, on the ground that Laws 1895, chap. 570 (Percy-Gray Racing Act), under which the action was brought, was unconstitutional. On appeal to the general term, the two judges before whom the case was argued differed in their views, and each wrote an opinion. A reargument was then ordered, because of the failure of concurrence. Afterwards it was suggested that the litigation was fictitious.

      J. M. Marx, for app’lt;

      Benj. Steinhardt. for resp’t;

      Joseph T. Auerbach, Charles J. Patterson and Delancey Nicoll, intervening for the state racing commission, the Jockey Club, the Coney Island Jockey Club, and the Westchester Racing Association.
   Per Curiam.

When, on the call of the calendar, counsel for the ostensible parties to the cause answered “ Ready,” gentlemen of the bar, on behalf of interests not apparent upon the record, but involved in the decision, interposed an objection to the argument of the appeal, upon the allegation that the action is a fictitious litigation, contrived and presented to procure an adjudication of a question not actually in controversy between real contestants, but framed and pronounced by a person who, in fact, is at once plaintiff and defendant, and the issue which, according to the statement, is so sought to be determined, is of the utmost gravity, namely, whether a státute of the state passed with all the solemnities of regular legislative procedure be a constitutional enactment. Demarest v. Mayor, etc., 147 N. Y. 203; 69 St. Rep. 505.

Courts of judicature are organized only to decide real controversies between actual litigants. When, therefore, it appears, no-matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court,- from a sense of its- ■ own dignity, as well as from regard to the public interests, will decline a determination of the fabricated case so fraudently imposed upon it. Lord v. Veazie, 8 How. 255; Cleveland v. Chamberlain, 1 Black, 426; Wood-Paper Co. v. Heft, 8 Wall. 333; Bartemeyer v. Iowa, 18 id. 134, 135; San Mateo Co. v. Southern Pac. R. Co., 216 U. S. 138; Washington Market Co. v. District of Columbia, 137 id. 62; South Spring Hill Gold Min. Co. v. Amador Medean Gold Min. Co., 145 id. 300; Manufacturing Co. v. Wright, 141 id. 696, 700; California v. San Pablo & T. R. Co., 149 id. 308, 314; Hoskins v. Lord Berkeley, 4 Term R. 402; In re Elsam, 3 Barn. & C. 597; Wood v. Nesbitt, 47 St. Rep. 34.

If we may not accept the assurance of reputable members of the bar as proof that the action is a false and fictitious litigation, their statement suffices, at all events, for a postponement of the decision until the court shall be satisfied that it has to do with a legitimate forensic discussion. According to the precedents, we-may so ascertain either by the record, by affidavits, or by a reference. The last-named expedient we adopt as the more effective-method of investigation.


author: Daly, C.J.

text:
    Henry C. Judson, App’lt, v. Flushing Jockey Club, Resp’t. John C. Dudley, App’lt, v. Same, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1895.)

    Courts—Fictitious action—Recalling- decision .
    Where it appears, after the decision of a case on appeal, that the action, was fictitious, the court will withdraw from the files and cancel its opinion.
    Action by Henry G. Judson against the Flushing Jockey Club, and by John G. Dudley against the same defendant.

      J. M. Marx, for app’lt;

      Benj. Steinhardt, for resp’t;

      Joseph T. Auerbach, Charles J. Patterson and Delancey Nicoll, intervening for the state racing commission, the Jockey Club, the Coney Island Jockey Club and the Westchester Racing Association.
   Daly, C.J.

The report of the referee shows that the controversy before the court, was fictitious that the transactions out of which it was supposed to grow—a horse race for stakes—was a pretended contest, arranged so as to form the basis of suits at law in which, without real adversaries before the court, an adjudication might be procured to use for other purposes than the enforcement of the right involved in the pretended suits.

Upon the intervention of third parties having interests that might be affected by a decision in'those proceedings, we ordered a reference to ascertain the. facts; and, the report of the referee bearing out the contention of such parties, it only remains for us to dismiss the proceedings in this court growing out of the pretended and collusive transactions referred to. In addition to the oases already cited by us on the question of the right of third parties to intervene, we refer to the case of Haley v. Bank, in the supreme court of Nevada on March 10, 1891, reported in 12 Lawy. Rep. Ann. 815, with note (26 Pac. 64), in which it was held that an attorney, as amicus curiae, may move to dismiss an action as collusive, and it is his duty to do so if he knows, or has reason to believe, that the action is fictitious.

We shall therefore enter an order dismissing the appeal from the district court in the case of Judson v. Flushing Jockey Club, and the appeal and the action in this court in Dudley v. Same Defendant, and direct that the opinions of this court in those cases be withdrawn from the files, and that the costs of the reference be paid by.the parties to those appeals.

All concur.


author: Herrick, J.

text:
    Grace Blanchard Sherman et al., App’lts, v. Joseph Green, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Appeal—Justice’s court—Return
    ' Where, upon an appeal from a justice’s judgment, the entries in the justice’s return leave it uncertain as to whether a jury was demanded on the day of joinder of issue, or on a subsequent day on which the trial was adjourned, it is error for the county court to deny a motion to require the justice to amend his return so as to show exactly when the demand for a jury was made.
    Appeal from an order, denying a motion by plaintiffs for an amended return of the justice, and from an order reversing the judgment of the justice.

      Frederick W. Sherman, for app’lt;

      J. B. McCormick, for resp’t.
   Herrick, J.

The plaintiffs recovered a judgment in a justice’s court against the defendant. The defendant appealed therefrom to the county court. The justice, in his return, under the record of proceedings at the joining of issue, has these words: “Defendant appeared in person and by counsel, and filed an answer in writing, and demanded a jury, and stated that they were ready for trial.” The words “ and demanded a jury” had a line drawn through them in the return, as filed, and upon the margin of the return appeared these words: “ Defendant asks for a trial by jury, and asked that a venire be issued in the usual form required by the Code.” On the return of the second day’s proceedings, these words appeared : “ The defendant insists upon a trial by jury, and asks that the venue be issued in the usual form. That a jury was demanded by the defendant at the joinder of issue of the trial. Defendant objects to proceeding to trial in this issue without a jury, and now tenders therefor $1.75 for such jury. Plaiñtiffs object t.o the allowance of the jury, on the ground that the defendant joined issue and took an adjournment without making any demand therefor. ” It does not appear whether the demand for a jury by the defendant, which appeared upon the margin of the return, was intended as a record of the proceedings of the day of the joinder of issue, or the proceedings .upon the adjourned day. The plaintiffs insist that that refers to the demand made at the adjourned day. The defendant claims that it was the demand made at the joinder of issue. The plaintiffs made a motion to the county court for a further or amended return, which should show when this demand for a jury was made; claiming that the demand made at the joinder of issue had been waived by the defendant, and the demand set forth in the margin referred to the demand made by him upon the adjourned day. The motion for a further return was denied, and the judgment reversed upon the ground that, the defendant had been improperly deprived of a trial by jury of the issue in the action. The motion for an amended return was denied upon the ground that there was no power in the court to compel the justice to make an amended return which would contradict the original return.

. Section 2990 of the Code of Civil Procedure provides that, unless a jury trial is demanded at the time of the joining of issue,' the right to trial by jury shall be deemed waived. It will be seen, therefore, that it is important to have returned to the court the fact whether such demand for a trial by jury was made by the defendant at the time of joining of issue, and, if so, whether it was waived. The entry in the margin of the justice’s return leaves these questions unsettled. From the position'of the entry upon the record, it leaves it uncertain as to whether it refers to the day of the joinder of issue, or to the proceedings had upon the day to which the trial was adjourned. To ask the justice to make a return which will clear up this uncertainty is not to ask him to contradict or falsify his original return, but to cure it of all uncertainty; and it therefore does not come within the principle of the cases cited to us, that a justice cannot be asked to make an amended return which will falsify or contradict the one originally made by him.

The order of the county judge denying the further amended return should therefore be reversed, and an order made requiring such further or amended return as asked for in the plaintiffs’ notice of motion therefor; and the judgment of the county judge reversing the judgment should be reversed, with directions to the county court to hear the appeal upon the return of the justice as amended and corrected. Let an order be entered accordingly, with costs and disbursements of this appeal.

All concur.


author: Mayham, P.

text:
    Canton Lumber Company, App’lt, v. James Spears et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Mortgages—Right to redeem.
    Under the evidence in this case, it was held that defendant’s title was good and that the executory contract with the plaintiff, was not such exercise ol the mortgagee’s right to foreclose as to har the right of redemption.
    Appeal from a judgment dismissing the complaint as to the part of the defendants, and for separate bills of costs to each said defendants.
    In May, 1889, Horace D. Ellsworth held title to sawmill property, as the trustee of Harry P. Grange, who was an alien. The property was subject to a mortgage of $5,000, of which a foreclosure was threatened. One David Bice, a friend of Harry P. Grange, thereupon purchased the mortgage in the interests of Grange. On the 29th day of May, 1889, an agreement was entered into by and between all the parties interested, which was evidenced bv a certain instrument in writing executed by the defendant William H. Kimball and Horace D. Ellsworth. This agreement states that Ellsworth and his wife had that day delivered a deed of the premises to Kimball, who had accepted the same upon terms stated as follows: Bice was to hold the mortgage, and extend the time of payment thereof for one year. Grange gave his notes for the amount of the bond and mortgage, and agreed to pay the same as they fell due, to wit, a year from date. Kimball agreed, in case of default on the part of Grange, to convey the property to Bice, or to such person as he might nominate. If Grange made payment, Kimball was to convey the title as Grange directed. If Grange or his attorney, Ellsworth, should procure a purchaser for the property, Kimball agreed to convey as they might direct; provided, always, that the claims of Bice should be paid, or provided for in a manner satisfactory to him. The interest of Bice in the property was to cease absolutely upon satisfaction of the amount remaining unpaid upon his bond and mortgage. After the execution of these papers, Harry P. Grange and Ellsworth, as his agent, remained in possession of the mill for several years; in fact, until October, 1898. Grange did not pay on the bond and mortgage. • Various and successive renewals of the notes which he had given to Bice under the provisions of the agreement of May 29,1889, were executed by Grange, and accepted by Bice. The last note so given was dated October, 1892. Mr. Bice made no attempt to foreclose his mortgage. As late as July, 1893, he declared to Mr. Kimball, the holder of the title, that he did not want the property, and that all he want was the payment of the indebtedness of Grange to himself, to wit, the sum of $5,000 and interest. On or about the 1st day of October, 1893, said Horace D. Ellsworth and the defendant James Spears entered into an agreement in writing, whereby the said Ellsworth agreed to sell, and the said Spears agreed to buy, all the Grange sawmill property, with various appliances and belongings, for the sum of $5,500, $5,000 of which was to take up the mortgage held by Eice. The deed was to be delivered not latter than the 14th day of October, 1893. Mr. Kimball was notified of this arrangement, and directed by Ellsworth to execute a deed to Spears. On the day named in the contract for the delivery of the deed (October 14, 1893), the parties came together, but Kimball declined to execute a deed until he should hear from Harry P. Grange as to his wishes in the matter. The time for the consummation of the contract was then extended, by common consent until Kimball should communicate with Grange respecting the matter. Kimball began correspondence with Grange, who.was a resident of Canada; but before he had received answer from him, and on or about the 20th day of October, 1893, Ellsworth, executed a contract to sell the mill premises to the Canton Lumber Company, which agreed to purchase the same for $5,600, deed to be given on or before January 1, 1894. Along with the execution of the contract to the Canton Lumber Company, Ellsworth received direction from Laid Eice to convey to such company, bearing date October 20, 1893. On the 30th day of October, 1893, Kimball received a letter from Harry P. Grange, which consented generally to such a'disposition of the'property as might seem best to Kimball. Spears insisted upon his rights. Kimball consented to execute a deed to him, if he would purchase certain personal property not included in the contract, of which Harry P. Grange was the owner. To this Spears agreed. Thereupon Kimball notified Ellsworth of the conclusion he had come to, and Ellsworth acquiesced therein. The deed was then executed by Kimball and wife on December 4,1893, and delivered to Spears, who thereupon paid the purchase price. Ellsworth informed Kimbill that the amount remaining unpaid on Eice’s mortgage was a little less than $5,000. Out of the moneys paid by Spears, a draft for $5,000 was purchased, payable to the order of David Eice, to whom it was forwarded by mail. The draft was returned with the statement that Eice understood that 'his mortgage was_ to be satisfied by a deed to the Canton Lumber Company. Both purchasers claimed the mill, and right to possession thereof. Mr. Spears was finally locked out by the Canton Lumber Company. He thereupon began summary proceedings, which were stayed by the commencement of this.action.
    The opinion of Mr. Justice Landon is as follows:
    David Eice, by taking, May 29, 1889, an assignment of the Burnett bond and mortgage, and extending the time of payment upon the additional security of the notes of H. P. Grange and the deed of the mortgaged premises to W. H. Kimball pursuant to the trust agreement of the same date, simply became a mortgagee with additional securities. The mortgaged premises became the primary fund for the payment of the debt, but there is is no agreement that Eice should not foreclose the mortgage, and, in case of a deficiency upon the foreclosure sale, resort to the notes of H. P. Grange, and also to the bond accompanying the mortgage, to make good the deficiency. By the trust deed and agree-merit between Ellsworth and Kimball it was intended, in case of default in payment, that Bice should have the option to take title either to himself or his nominee directly from Kimball, without the expense and delay of a foreclosure. . Had Bice exercised that option, and actually taken the title, either in person or by his nominee, the title would have been good, and the mortgage debt satisfied, unless there had been such equities in favor of H. P. Grange or his creditors as would justify the court in decreeing a sale of the mortgaged premises, and, after 'paying Bice in full, awarding the surplus to H. P. Grange or his creditors. Suppose the mortgaged premises were worth $50,000 instead of $5,000, and Kimball had-given Bice a deed therefor, it is easy to see that the court would have to interfere in order to do justice. The, value of the equity over the mortgage debt does not affect the principle. The evidence shows that by the agreement of May 29, 1889, Bice did not accept the premises as payment, but took the assignment of the mortgage, notes, and said agreement as securities.
    The plaintiff cites Jewett v. Brownell, 22 St. Bep. 410, as authority to the effect that Bice had nothing but the mortgaged premises to resort to. If in that case the plaintiff had had a bond and notes besides the stock, it would resemble this. The plaintiff sought to recover upon a promise, and the court held there was none. The rule is, once a mortgage, always a mortgage; that is, until it is replaced by something else, or extinguished. Bice therefore remained a mortgagee when he was tendered the amount of the mortgage debt, unless meantime he or his nominee, the plaintiff, had acquired actual title to the mortgaged premises, or the indefeasible right to acquire such title. Actual title he had not ac•quired, since Kimball never conveyed to him or to the plaintiff. The single question, then, is whether Bice had acquired the indefeasible right to have Kimball give to him or his nominee, the plaintiff, a deed of the' mortgaged premises. If so, then H. P. Grange, or Ellsworth, whichever was the real party in interest, had absolutely forfeited beyond right of redemption the right to save the mortgaged premises by paying the mortgage debt. Let it be admitted that upon Grange’s default at the end of the first year, Bice’s right to direct Kimball to convey the property to him or to his nominee was complete. But he did not then give the direction; lie was not obliged to give it, and probably did not want to give it. On the contrary, he continued to collect his interest up to October 1, 1893, and even allowed Grange to renew his notes. These acts meant that he was resting upon his right to acquire title, and not excercising it.. So long as he rested upon it, so long he held the relation of a creditor holding securities, and so long Grange, as the" beneficial owner of the equity of redemption, could redeem. How, Bice gave Kimball, October 20, 1893, direction to convey to the plaintiff. Had he given the direction to convey immediately, it is possible that Grange’s right of redemption would then have been foreclosed, notwithstanding the previous disobeyed direction given to Kimball by Ellsworth in behalf of Grange, to to Spears. But Bice’s direction to Kimball to convey to the plaintiff must be construed in connection with plaintiff’s agreement to take the title, and that plaintiff. did not agree to take before December 31, 1893. Of course plaintiff could not be compelled to take title before that date. Thus Rice’s direction to Kimball to convey was to convey on or before December 31, 1893, and, until actual conveyance, was executory, instead of executed. Rice might have countermanded it. He could ha.ve sued Kimball for specific performance until after that day. He thus postponed the act of foreclosure, and thereby kept open Grange’s right of redemption. While it was yet open, and on December 4, 1893, Grange, through Ellsworth, directed Kimball to convey to Spears. Kimball did so, and from the-money thus realized offered Rice his pay in full, which Rice refused to accept. If this view is correct, the case is with the defendants without consideration of the other questions presented by counsel.
    Much was said upon the argument in respect of the rights acquired by Spears, and also by the plaintiff, under their contracts, and the direction given by Ellsworth to Kimball to convey to-Spears, and by Rice to Kimball to convey to plaintiff. But Spears and the plaintiff, each made the contract with Ellsworth with full knowledge of the contingency upon which Kifnball could convey upon the /direction of Rice instead of Grange, or of Grange instead of Rice, and neither party acquired anything more than the contingent right- to the title. Thus, if Spears should get the title and pay, or cause Rice’s mortgage to be paid before Kim-ball should convey, or be in duty bound to convey to Rice’s-nominee, then Spears’ title would be good. It was a race of diligence, and Spears came out ahead. It is true that Ellsworthsigned the agreement with plaintiff; that is, he signed it in the-interest of Rice. -There is nothing in the agreement of May 29, 1889, that requires him .to sign anything in case Rice should direct Kimball. Rice was the full master of his own directions, and Kimball was bound to obey them if the conditions of his obedience existed. If Ellsworth had not previously, in the interest of Grange, signed the contract with Spears, and given Kimball directions to convey, it might be urged, perhaps, that in signing the-contract with plaintiff--he was acting for Grange. Having already used his rightful power in favor of Spears, it is no’t easy to see-that he had the right to bind his principal by an unnecessary and gratuitous act in direct hostility to his existing authorized act. If Ellsworth acted either for Spears or for himself, he could not, after making the contract with Spears, impair that contract without Spears’ consent. His contract with Spears was in force. When that contract matured—October 14,1893—Spears was then-ready to perform. The delay was compelled by the act of Kim-ball. Spears could acquiesce, and lose no rights. He did acquiesce, whether he agreed to or not; and it was open to him to take-his deed whenever he could get it; and the act of Ellsworth in making the contract with the plaintiff did not impair Spears’ rights. He was not a party. That Spears actually bought additional personal property, and paid for that in addition to paying; for the mortgaged premises, is immaterial. He had the right to close his contract or negotiation for the title whenever he could close it, and submit to additional expense, if he thought best to do so. The real contest here is between plaintiff and Spears. Spears obtained the title from those who had the right to give it, while the right to give it in protection of the equity of redemption, was still open. It may be.that the plaintiff has ground to assert against Ellsworth that he deluded it with false expectations. But Spears did not. The plaintiff never had anything but a contingent right to the title, and the contingency turned against it. Judgment is directed for the defendants, with separate bills of costs to Spears and Kimball.
    If' any provision is necessary to secure cash payment of the mortgage, with interest from October 1, 1893, to December 6, 1893, it may be inserted in the judgment, or entry thereof may be stayed until payment. Decision to be submitted for signature.

      John C. Keeler, for app’lt;

      Hale & Bowers (Ledyard P. Hale, of counsel), for resp’t, Spears;
    Russell, Poste & Percy (W. A. Poste, of counsel), for resp’t, Wm. H. Kimball; Horace D. Ellsworth, for H. P. Grange.
   Mayham, P.

action was prosecuted to set aside a deed of a saw mill and water power known as the “ Gage Saw Mill,” executed by the defendant William Kimball to the defendant-James Snears on the 4th of December, 1893, and to have it adjudged that such deed was void ; and also for a decree directing the defendant Kimball to execute to the plaintiff a deed of such premises, and for such other relief as the court might deem equitable. The case was .tried before .Justice Landon without a jury, who decided that the plaintiff was not entitled to recover, and that the deed executed by the defendant Kimball to the defendant Spears was a proper and valid conveyance, and directed that the plaintiff’s complaint be dismissed, with costs in favor of the defendants Kimball and Spears. The learned trial judge, in handing down his decision, accompanied it by an elaborate and carefully considered opinion, in which, after a full examination of the records and the briefs and arguments of the respective counsel on this appeal, this court fully concurs. Judgment must therefore be affirmed on the opinion of the court below.

Judgment affirmed, with costs. .

Putnam, J., concurs; Herrick, J., not acting.


author: Pratt, J.

text:
    People ex rel. Patrick H. Corrigan, Resp’t, v. Mayor, etc., of City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.

    Office and officers—-Abolishing office.
    Under chapter 577 of 1892, a veteran cannot be deprived of his position by "a resolution of the city council abolishing the office for economical reasons, and devolving the duties upon another official, while such veteran is ready to perforin any part of the duties belonging to his office at such salary as council "may fix.

      Appeal from an order granting a peremptory writ of mandamus to issue.

      A. G. McDonald,, for app’lts;

      Charles J. Patterson, for resp’t.
   Pratt, J.

This is an appeal from an order granted at special term directing a peremptory writ of mandamus to issue, commanding the defendants to reinstate the relator to the position held by-him, and also from an order denying the motion made by defendant for a reargument of the original motion. We think the opinion filed below at special term fully answers the contention made by the appellants, and we therefore recommend that the same be( affirmed upon that opinion, and also that the decision upon the motion for a reargument be affirmed with costs.

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

On March 29, 1886, the relator, by a resolution of the common council, was appointed “ keeper of the Truant Home.” Thereafter he was called and was known as “superintendent.” On January' 3, 1895, he was removed from such position.by resolution of the same body, which is as follows: “ Resolved, that the position of superintendent and farmer at the Truant Home be, and the same is hereby abolished, from and after the first day -of May, 1895, fop economical reasons, and that the incumbents of the several positions be, from and after said date, dismissed, for the same reasons. Resolved, that the duties heretofore performed by the superintendent of the Truant Home be, from and after the first day of May, 1895, devolved upon Eugene Martyn, a teacher of said home. Resolved, * * * That John Eisemap be, and he hereby is, appointed janitor of the Truant Home, and that he receive for his services as such janitor the sum of four dollars per day. * * *

The relator, being a veteran of the war, and also a volunteer . fireman, was protected from removal, except for cause, after a hearing. Laws 1888, ch. 119; Laws 1892, ch. 577. The purppse, and force of statutes of the character of those invoked by the relator have been set forth and explained in the court of appeals in People v. Board of Fire Com’rs of City of New York, 72 N. Y. 445, and the statutes referred to have recently been applied in several cases in this court. The intent of these and similar statutes, it was said in the case cited, was “to continue in the subordinate positions of the city government those who had proved themselves faithful and trustworthy, as well as competent to discharge the duties of their stations, ” and the cause assigned for removal must be personal to the incumbent of the position. An officeholder has, however, no right to have the office retained for his benefit, and hence he may be removed when the office is abolished, or when the appropriation for payment of his salary is exhausted. But, as was said by Justice Cullen in the case of the clerks in the city clerk’s office, to deprive a person of his employment by the abolition of his position, the abolition must be real and substantial, and not formal and nominal. Applying these rules to this case, the facts stated in the moving papers may be examined." The resolution of the common council must be read as a whole. It abolished the office of keeper, and created that of janitor. It stated this was done for “ economical reasons.’’ If the effect of this was to substitute one man for another in the performance of the same duties at a reduced salary, it would, without doubt, fall within the prohibition of the statute, unless the incumbent refused to accept the reduced pay. Tne object of the statute being, as was said by the court of appeals, to continue in office faithful, trustworthy, and competent persons, it would not be a sufficient cause for their removal that another person could be procured willing to serve at a lower rate of pay. The incumbent should have an opportunity to remain in office at the reduced salary, and thus the “economical ” spirit would -prevail, and the city retain an experienced and faithful servant. But to remove an incumbent, without a hearing, because the appointing officers had determined to reduce the salary of the office, would be to defeat absolutely the plain purpose and intent of the law. The decision of this case therefore rests on the determination of the question whether there has been an honest and substantial abolition of the office, or whether there has been merely a’ change of names, and a devolution of the duties of the office upon a new appointee. So far as there is any conflict in the facts of the case upon this motion, those stated in the opposing affidavits must be taken as true. People v. Cromwell, 102 N. Y. 477; Code Civ. Proc. § 2070. By the resolution of the common council, the duties of the relator were, after his discharge, to be performed by Eugene Martyn, a teacher of the said home. The relator swears his duties were as follows: “It was my duty to make requisition for supplies for said home, and these were furnished through the department of city works, under contracts made by that department. I received all supplies, and certified to that department the correctness of all bills for the same. I also certified to the monthly pay roll of the institution, which contained the names of the employes of the home, and the sums due each for their work. There was a teacher in said home, named Eugene Martyn, and an assistant teacher. These two teachers were appointed by the common council of the city of Brooklyn. The other employes of the said home are enumerated in a schedule hereto annexed, and marked ‘A,’ and these latter were employed by me, under the direction of the committee of the common council having the matter of the home in charge. I directed and superintended the labors of all employes, except the teacher and assistant teacher, and even these latter reported to me at their.coming and going. I was in general charge and custody of the home and its inmates.” He further swears": “ Since my departure from said institution,' John Eiseman has entered said home, and has performed that part of my duties which consisted in the genéral charge of the inmates and employes of the said home, which is by far the largest part of said duties, while Eugene Martyn, said teacher, has done that part which consisted of making requisitions for supplies, receipting for the same, and certifying bills and payrolls.” Eugene Martyn swears: “That the statement in the relator’s affidavit .contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common council in the place of said relator, and is now performing the duties formerly performed by him,’ is untrue; that during the superintendcy of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction, but was usually performed by the laborers or the boys; that the only work the superintendent did during his superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the relator, pursuant to the resolution of the common council, as set forth in affidavit of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been performed by deponent.” Henry Vollmer, a member of the common council, swears: That the statement in the relator’s affidavit, contained on the fourth page thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common conn- ■ cil in the place of said relator, and is performing the duties formerly performed by him,’ is untrue ; that during the superintendency of the said Corrigan, that the duties that would naturally devolve upon a janitor of the institution were rarely if ever performed by the said superintendent; that the work may have been done under his direction,, but was usually performed by the laborers or boys; that the only work the superintendent did during his' superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution, and the hiring of domestic servants; that after the discharge of the said relator, pursuant to the resolution of "the common council, ns set forth in tfie affidavit 'of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been, performed by deponent.” It will he observed that the quotations from the affidavits of Martyn and Vollmer are almost identical in language, and that each swears he is performing the duties performed by the relator during his incumbency of the office. Of course, both affidavits cannot "be true, as one expressly contradicts the other; and, if I was permitted to determine the facts of -the case, I should reject both of them. Martyn’s affidavit is, however, consistent with the resolution of the common council, which devolved the duties of the office upon him, and the relator does not deny that a part of the duties "of the office are now performed by Martyn. But there is no- substantial contradiction that the relator was the janitor of the home. It is conceded that the duties now performed by Eiseinan were performed under the direction of the relator. He was originally designated “keeper” of the home. Afterwards he became known as “ superintendent,” and it is not denied that he had general charge of the institution, and that the duties of janitor were within his office. The common council could have devolved some of his duties on subordinate officers, or divided them, and given a portion to the new appointee; but as the relator was willing to perforin any part of the duties originally belonging to the office, at such salary as the common council should fix, he. was protected from removal, except for cause and after a hearing. Such construction only will give due effect to the intent of the law. The relator is entitled to be reinstated as janitor, and an order may be entered accordingly. x


author: Mayham, P. J.

text:
    Jane Robertson, App’lt, v. George A. Lawton et al., Resp’ts. Charles O. Husselbarth, App’lt, v. Same, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    ^Execution—Priority over attachment.
    A mere delivery to the sheriff of an execution against a judgment debtor who has made a general assignment, without any direction as to levy or offer of indemnity to the officer, where such execution was not delivered to be executed, will not create a lien prior to that of another creditor, who subsequently attaches the property in the hands of the assignee and procures a decision that the assignment is void.
    Appeal from an order, adjudging a warrant of attachment issued against defendant a prior lien to judgments and executions thereon in favor of plaintiffs against defendants.

      Lyman Jenkins, for app’lts;

      Charles R. Patterson and Louis M. Brown, for resp’ts.
   Mayham, P. J.

This was a motion to set aside a judgment in favor of the plaintiff, against the above-named defendants, entered -on the 21st day of September, 1894, and the execution issued thereon on the same day, which was placed in the hands of the sheriff of Warren county at eight o’clock in the forenoon of that day, mainly on the ground that the same was not executed by a levy on the property of the "judgment debtor before the 24th day of the same month, on which last mentioned" day one Marcus M. Terry seized all the property of the judgment liable to be taken on execution, uuder and by virtue of an attachment issued in his favor in an action brought by him against the defendants herein, and who claims on this motion that the execution issued on the judgment in favor of the plaintiff, as to his attachment, had become dormant before the property of the defendant was seized on such attachment. The affidavits used on this motion disclose that on the 24th day of July, 1894, the defendants herein made a general assignment, with preferences, to one Ezra Hartman, for the beneiit of creditors, and that shortly thereafter several judgment creditors commenced actions to set aside the assignment as fraudulent as against creditors of the assignor; and, during the pendency of such action, orders were obtained by creditors of said defendants, by the terms of which the sheriff of Warren county was directed to sell at public auction the property assigned to Hartman, but which had been seized by the sheriff under the attachment above referred to; and that the sheriff did, on the 5d day of October, 1894, sell the goods so seized, for $3,410. On the 3d day of May, 1895, Messrs. Bussey & McLeod, judgment creditors of the defendants, recovered a judgment declaringo said assignment made by defendants to Hartman void as against the creditors of the defendants. After satisfying the judgment of Bussey & McLeod, there remained in the hands of the sheriff the sum of.$873.36, the proceeds of the sale of the property of the defendants made ’ by the sheriff under the order above referred to; and the question here is whether that money shall be applied to the execution issued on defendants’ judgment, or to the execution issued on the attachment in favor of Terry.

No directions, except that contained in the execution, appear to have been given by the plaintiff or his attorney to the sheriff at the time of the delivery of the execution to him," or at any time thereafter; but the sheriff was informed by the plaintiff’s attorney that the defendants had made a general assignment, and that their property was in the hands of an assignee, and that he was about to commence an action to have the assignment declared fraudulent and void. No indemnity appears to have been demanded by the sheriff as a protection to him for the seizure of the assigned property, nor was any bond of indemnity offered to him ■by the plaintiff.

Upon these facts, the learned judge at special term held that the plaintiff’s execution, as between him and the execution issued on the Terry judgment, in which the attachment proceedings were had, was dormant, and that the execution issued on the attachment case had precedence, by virtue of a levy on the attachment, over that of the execution issued "on the plaintiff’s judgment, and Bases that finding apparently upon the idea, which he gathers from the affidavits, that the execution in the plaintiff’s judgment was not delivered to the proper officer to be executed.

It is true that the Code of Civil Procedure (section 1405) declares that goods and chattels of a judgment debtor not exempt from execution are bound by the execution from the time of the delivery thereof to the proper officer to be executed; but, the special term having found that it was not delivered to the sheriff to be executed, that, as against the process delivered subsequently to the same officer to be executed, the latter acquired precedence, by reason of the hazard taken in executing the doubtful process in a doubtful case, as against the less courageous and vigilant creditor, who failed to make an actual levy. We are inclined, assuming the facts to be as the learned special term found them, to hold his conclusion of law sound. We are therefore of the opinion that the order should be affirmed, on the opinion of. the special term judge.

Order affirmed, with costs.

Putnam, J., concurs in result; Herrick, J., concurs.

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

Upon the evidence, it is clear that the money in the hands of the sheriff now awaiting distribution has been secured in consequence of the diligence of Mr. Patterson’s clients, and the risks they incurred. Mr. Jenkins’ clients incurred no risks. In Cudahy v. Rhinehart, 133 N. Y. 253; 44 St. Rep. 898; Andrews, J., lays down the rule that, as "between attaching creditors, thóse who fight the battle and incur the risks take precedence over the laggards who first display their vigor upon the distribution of the fruits of the victory, although their attachments may be prior in time. So sound a principle of equity must govern here, unless the law forbids. Mr. Jenkins placed his executions in the hands of the deputy sheriff September 21, 1894. The deputy made no levy. September 24th Mr. Patterson placed the attachments of his clients in the hands of the sheriff, not the deputy, and procured him to levy upon the assigned property, and take it into his custody. The assignee had advertised the property for sale the same day. But for this seizure by the sheriff at the instance of Mr. Patterson’s clients, the property would, doubtless, have passed into the hands of innocent purchasers. The risks of this action was incurred by Mr. Patterson’s clients, and not by Mr. Jenkins’. The property was seized while the executions of Mr. Jenkins’ clients' were in the hands of the deputy sheriff, and the sheriff who made the seizure,had no notice of the existence of such executions. By the mere delivery of the executions to the deputy sheriff, without actual levy, Mr. Jenkins’ clients secured no lien upon the assigned property,' as against the subsequent actual levy under Mr. Patterson’s attachments.

The Code (section 1405) declares the goods and chattels of a judgment debtor not exempt, etc., are bound by the execution from the time of delivery thereof to the proper officer, to be executed. But, as between the judgment debtors and their assignee these goods were not the judgment debtors’, but their assignee’s goods. Brooks v. Wilson, 53 Hun, 173; 26 St. Rep. 173. The sheriff was obliged to levy upon them without indemnity (Chamberland v. Better, 18 N. Y. 115; Mumper v. Rushmore, 14 Hun, 591; affirmed, 79 N. Y. 19); much less without request, and Mr. Jenkins made none.

Mr. Jenkins in his affidavit, states that the deputy asked him •“if the defendants had any property subject to levy; that deponent said there was property, but that the defendants has assigned to Hartman, and he had possession, but deponent believed the assignment void; and that the deponent had the papers in a judgment creditors’ action to set aside the said assignment, and in aid of said executions, nearly prepared, and should bring said action at once.” It was subsequently shown that the assignment to Hartman was void. But fraud is not presumed; it must be proved and until proof is made, the presumption is in favor of the assignee’s title. Moreover, -the assignment is only voidable, and Mr. Jenkins’ clients might not elect to incur any risk in procuring it to be declared void. After the sheriff and seized the property, Mr. Jenkins proceeded without risk with a suit to have the assignment declared void, He used without any contest the minutes of the evidence which Mr. Patterson had adduced upon the trial of a contested suit at a previous term of the court in the actions brought by his clients for the like purpose. Since the sheriff was not bound to execute Mr. Jenkins’ executions, and was not requested to do so as the assigned property, and there was no other, and did not execute them, 'it is fair to conclude that they were not delivered to him to be executed, except contingently and were in effect dormant when Mr. Patterson’s attachments were executed. That being so, they fell behind in the race of diligence and. remain so. It is -true that Mr. Jenkins commenced an action in behalf of one of his clients in aid of his execution September 24, 1894, but after the levy of Mr. Pattetson’s attachments.

¡Now, it has been held in certain cases that an execution creditor may commence an action in aid of his execution without first making an actual levy, Stewart v. Beale, 7 Hun, 405. In real-estate cases no levy is necessary, since the.judgment binds the real estate without levy. W here no' levy can be made on the personal property, as in Stewart v. Beale, equity will dispense with it,, or remove The obstacle, so as to permit it to be made. Here Mr. Jenkins clients proceeded to judgment, valid, of course, as between the parties to it, but not affecting the prior rights secured by Patterson’s clients. Apart from the judgment thus secured, Mr. Jenkins’ clients would have no right to have the assigned property sold without first making the levy; and having elected not to make the levy until they obtained their judgment, they thus elected to treat the assigned property as belonging to the assignee until they should prove it did not, and thus stood out of the way ■of Mr. Patterson’s clients, who at the outset, sezied the property as the judgment debtors. In respect of chattels alleged to be fraudulently assigned, as between different attachment or execution creditors, it is obvious that each one should by his acts define his position. In respect to real estate fraudulently assigned, an excution; suit in aid of it, and notice of Us pendens would .give notice to all the world; and, since the real estate is immovable, no seizure of injunction is necessary to preserve the subject-matter of the litigation. But chattels are movable, and, unless timely seized, may be taken from the jurisdiction or be lost. An execution against their former owners is no notice of any claim to the chattels against the alleged title of his assignee, and, without more, in no way binds them. A suit in aid of the execution, where there is no levy or attempt to make one, or other seizure of the chattels, is a mere declaration that the judgment creditor will take the chattels if the court so adjudges and the assignee will be good enough to keep them on hand.'- This may be enough between the parties to the suit, but it is clear that it is not enough to obtain priority over the vigilant creditor,' who levies upon and •takes and holds the chattels, and by his action in equity first establishes tillé debtor's title to them. In such case the priority of actual levy determines the priority of right in distribution. Beck v. Burdett, 1 Paige, 308.

Mr. Patterson’s clients may take orders giving them priority, with costs. I do not think the judgments of Mr.-Jenkins’ clients should be set aside. He took the risk of finding an appearance by mail after he made his affidavit of default, but his affidavit was true when he made'it, and was not rendered untrue by any subsequent event. The practice is not commendable ; but as the event confirms the affidavit, and is regular in form, the judgment must .stand.

The other objections to the judgment rolls are amendable.


text:
    People ex rel. Elihu Lovett, Resp’t, v. William A. Randall, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Towns—Commissioner of highways.,
    Section 17, chapter 569 of 1890, as amended by chapter 344 of 1893, is not self-executing, and does not affect the term of the commissioner of highways in a town which has not by resolution determined that there shall be only one commissioner.
    2. Same.
    A commissioner who was elected before the passage of the act of 1893, and who held over by reason of the failure to elect a successor under the act of 1893 took effect, is not entitled to hold over for the the term of two years.
    Appeal from a judgment in favor of plaintiff.

      M. N. Kane, for app’lt;

      M. H. Hirschberg, for resp’t.
   Dykman, J.

This is an action to determine the title to the office of commissioner of highways of the town of Warwick in Orange county. Both parties claim the office under the following facts, which are undisputed: The town of Warwick had but one commissioner of highways since 1857. At the town meeting held in the month of March, 1893, the appellant, William A. Eandall, was elected commissioner of highways for one year. At the expiration of his term, he was a candidate for re-election, his opponent being the relator, Elihu Lovett. At that election, held in the month of March, 1894, no choice was made, the election resulting in a tie; and, by reason of the failure to elect a successor, Eandall held over, and continued to discharge the duties of the office, as permitted by the public officers’ law. At the next meeting, held in the month of March, Lovett was again regularly placed in nomination for the .office, and no one was nominated against him. He was elected, and accepted the office in writing, and qualified, and gave the proper bond, and entered upon the discharge of the duties of his office.

The theory of the defendant is that chapter 344 of the Laws of 1893, amending section 17 of chapter 569 of the Laws of 1890, •operated to extend the term of the commissioners in the town from one year to two years, and that, ujbon the failure of the electors to elect his successor, he could hold over for the full term of two years, and that his term was not abridged by the election of the relator.

Section 17 is as follows:

“ Commissioners of Highways. The electors of each town may at their annual town meetings determine by resolution whether ■ there shall be elected by their town one or three commissioners of highways. If only one shall be determined upon, and it shall be a town having but one commissioner of highways, one commissioner only shall thereafter be elected at each alternate annual town meeting who shall hold his office for two years.”

The electors of the town of Warwick failed to determine by resolution whether there should be elected one or three com missi offers of highways in that town after the passage of that statute, until March, 1895; and it is therefore very doubtful whether the term of that office has been extended to two years. The statute did not execute itself. It required action of the part of the electors of the town, and that essential prerequisite never received compliance. As we have said, the defendant was elected commissioner in March, 1893, for one year. The statute of 1893 did not become a law until'April, 1893, and did not extend his term or affect his tenure in any way. According to this view, his term expired in March, 1894; and, as there was a failure to elect his successor, he held over, under section 5 of the public officers’ law for 1892, until his successor was duly chosen and qualified, in March, 1895.

There is another view which conducts us. to the same result. Prior to the enactment of the public officers’ law 1892, an office was not deemed vacant while there was a person authorized to perform its functions, and was acting in it. Even now there is no physical vacancy, and by section 5, already mentioned, both officers, with the exception of those named, hold over and continue to discharge the duties of their office after the expiration of the term for which they were chosen,- until his successor shall be chosen, or after the expiration of such term of office it is vacant for the purpose of choosing his successor. Such successor must be chosen at the time of holding an annual town meeting, and the persons chosen to fill such vacancies hold their office for the residue of the unexpired term for which they were elected. Laws 1893, chap.'344, § 12. The statute is plain, and easily understood, and readily applied to this case. The defendant, having regularly entered upon the duties of his office, held over and continued to discharge the same until March, 1895, because no person was elected to succeed him. Then the office was deemed vacant for the purpose of choosing his successor, and the relator was duly elected and qualified, and so became entitled to the office.

The judgment should be affirmed, with costs.‘

Pratt, J., concurs; Brown, P. J., does not vote.