author: O’Brien, J.

text:
    The United States Trust Company’of New York, App’lt. and Resp’t, v. The Mayor, etc., of New York, Resp’t and App’lt.

      (Supreme Court, General Term, First Department,

      Filed April, 1894.)

      1. Taxes—Erroneous assessment—Certiorari.
    In case of a merely erroneous assessment and voluntary payment of the tax, the remedy by certiorari is exclusive.
    '2. Same—Action.
    An action may be maintained to recover back any tax paid under compulsion upon a void and illegal assessment.
    3. Same—Assessment.
    An assessment upon the.capital stock of a corporation, based upon the value of the share-stock instead of the capital and surplus, though erroneous, is not void.

      4. Same—Voluntary.
    As the-presumption is that all payments of taxes are voluntary, no recovery can be had until the contrary is shown, even where the assessment is illegal.
    5, Same—Compulsory.
    What constitutes duress or compulsory payment is dependent upon the law of domicil relating to the enforcement of taxes.
    9. Same—Protest.
    Where the payment is voluntary, a protest with notice of an intent to reclaim is not sufficient to sustain a recovery.
    The action was brought to recover $139,765.71, being the aggregate amount paid for taxes in each of the years 1887, 1888, 1889 and 1890, on the ground that the assessments were void and the payment of the "taxes induced by duress and under mistake, and to cancel the assessments themselves. The plaintiff is a domestic corporation, transacting business as a trust company in the city of New York. In each of the years mentioned plaintiff was •assessed for taxation on its capital stock, pursuant to the provisions of the act of 1857 relating to taxing incorporated companies. § 3, chapter 456, Laws of 1857. In each instance plaintiff furnished the commissioners sworn statements showing its condition in those years for the purpose of assessment, and through its officers or attorneys appeared before the commissioners while the books were open for correction and applied for cancellation or reduction of the assessment. The grounds of application for cancellation or reduction of the assessment in each year were, that according to these statements the plaintiff had no personal property subject to taxation except for the year 1890; but the commissioners, instead of canceling, reduced the assessments. The result of these proceedings was that the assessments were confirmed for amounts in each year which in the aggregate make up the sum for which a recovery is, sought in this action. Plaintiff took no proceedings by certiorari to review any of the assessments, but paid the taxes as levied, either with interest accrued at the time of payment or less the rebate allowed by law for prompt payment. In the years 1886,1889 and 1890 the taxes were paid (excepting a small portion of the taxes of 1890) during the first weeks that the books were open, and in each of said years plaintiff received a rebate of interest, this being one of the inducements stated by the president of plaintiff for the early payments of taxes in those years. In the year 1887 payment of the tax was deferred until December 29th, on which day payment was made with interest, and at the same time a written notice was served, either upon the mayor or comptroller, or the receiver of taxes of the city, in the following form:
    “ The United States Trust Company of New York, being informed that you claim that it is indebted to you to the amount of $37,231.77 for a tax on personal estate of the said trust company, and, in response to your demand therefor, it hereby pays the same under protest, reserving all rights to recover the amount so paid under protest, or any part thereof, believing the tax above referred to have been unlawfully assessed and the demand for the payment, thereof to be unlawful.
    “ United States Trust Company of New York.
    “ By J. S. Clark, Second Vice President.
    “ To the Mayor, Aldermen and Commonalty of the city of New York; the Comptroller of the city of New York; the Receiver of Taxes of the city of New York.”
    No' proof was offered of an actual demand by the receiver of taxes on the plaintiff for the amount of the tax laid in 1887. The person who paid the tax on behalf of plaintiff had died before the trial of this case, and the receiver of taxes was also then deceased. Upon whom the notice of protest was served, or the manner of its service, is not made to appear. '“It does not appear that any officer of the defendant had authority at the time of payment of the tax of 1887 to enforce collection of the same, or that any officer threatened to enforce the same, or had made any attempt to seize the property of the plaintiff, under color of law or otherwise." The court at special term held that the tax of 1887 was paid under duress, and that the amount so paid might be recovered back in this action, and that the taxes .for the dther years-could not be so recovered. Judgment was entered accordingly, and both parties have taken appeals to this court.
    Omss-appeals from judgment of special term awarding plaintiff $50,255.55 for personal taxes wrongfully collected from it in the year 1887, and dehying it any recovery on account of the taxes, of 1888, 1889 and 1890.

      Edward W. Sheldon, for the United States Company ; William TI. Clark (George S. Coleman and James M. Ward, of counsel), for the Mayor, Aldermen and Commonalty of the city of New York. .
   O’Brien, J.

Upon the part of the plaintiff it was contended that the' disputed taxes were imposed without jurisdiction and' were void ; and to support this argument it is insisted, upon the authority of People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433 ; 38 St. Rep. 237, that the plaintiff’s capital stock was not taxable. In that case the question of the right to fix the tax in the manner in which it was done by the Commissioners here was directly involved ; and upon the merits, if plaintiff is in the position to avail itself of the rule of law in that case, it would be conclusive upon the rights of the parties; because it was therein held that the manner of ascertaining the value of the capital stock to be assessed, as provided by the act of 1857, by taking the value of the share-stock, instead of the capital owned by the corporation, ■was erroneous, and that in taxing corporations under said act the subject of valuation and assessment is never the share stock, but always the company’s capital and surplus, which should be assessed-at its actual value when that is known or can be ascertained. There the question was raised by the Union Trust Company by certiorari, unlike the present action, which is brought directly to recover back moneys paid after the plaintiff had neglected to avail itself of proceedings by certiorari. It is insisted that the present suit, unlike the case cited, involves a collateral attack upon assessments for taxation made by the proper authorities having jurisdiction of the person and subject matter, and that it, therefore, cannot be maintained. This argument, of course, is supported by the contention that, the plaintiff having omitted to avail itself of the full and adequate remedy provided by law for the review of illegal assessments, it cannot now be heard to question either the legality or the amount of the tax.

The determination of this contention must necessarily turn upon the point as to whether or not the assessment was illegal or merely erroneous. As said in Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 49, “ It is conceded that the plaintiff is entitled to recover if the assessment is to be regarded as illegal, and not simply erroneous. * * * The distinction is between an erroneous and illegal assessment. The former is when the officers have power to act. but err in the exercise of the power; the latter, where they have no power to act at all, and it does not aid them to decide that they have.” This distinction, is also pointed outin Dillon on Municipal Corporations, p. 1146, § 941, wherein it is said: “ Accordingly an action lies against a municipal corporation to recover the amount of taxes compulsorily collected by it upon an illegal assessment in respect of property not liable to taxation. So an unlawful tax for a local improvement exacted by the city under color of process, and paid to the city’s officers under protest, may be recovered with interest. The taxor assessment must be illegal or void, and not simply irregular, as, for example, an irregularity in mode of assessment, overvaluation, etc., to authorize its recovery back.” Many other authorities might be cited for the proposition that if the amount is merely erroneous, and its payment has not been compulsory, then the exclusive remedy is by certiorari, and one who fails to avail himself of this proceeding is remediless. Where, however, the assessment or tax is illegal and void, or where one pays money upon,an illegal or erroneous assessment, to prevent an illegal seizure of his person and property by one claiming authority to seize the same, such may be recovered back in an action on the ground that the payment was compulsory or by duress or extortion.

Here, therefore, if the plaintiff’s claim is right, that the assessment was void, then the failure to proceed by certiorari, is no bar to the maintenance of this action. What the commissioners, as shown, undertook to do was to assess the capital stock under the act of 1857, and what they did was, in fixing the value of the capital slock for the purpose of taxation, to erroneously take the value of the share stock instead of the capital of the company and its surplus. If the commissioners had jurisdiction over the person and subject matter, then the fact that they proceeded upon a wrong basis, and thus made an erroneous assessment as distinguished from an illegal one, woul d not render the assessment void. We think that here the commissioners had jurisdiction of both the person and subject matter. They were authorized to fix a tax on the capital stock, and in ascertaining the value thereof they erroneously determined it by taking the value "of the share stock, and not that of the capital and surplus of the corporation. Their jurisdiction over the person is not denied, and it seems equally clear that they' had jurisdiction of the subject matter; but by taking a wrong basis of valuation they assessed the plaintiff too much, and hence were guilty, not of an illegal act, but of an erroneous valuation of plaintiff’s property subject to taxation. In all the cases to which we have been referred by plaintiff, and wherein the assessment was held to be void, it will be found that the decisions proceeded upon a finding that the assessors had no jurisdiction either over the person or the subject matter, and as illustrating this we may refer to but one or two cases. Thus, in Nat. Bank of Chemung v. City of Elmira, supra, an attempt was made to tax the stock of a national bank which was not the subject of taxation. And In re N. Y. Catholic Protectory, 77 N. Y. 342, the real estate was exempt from taxation and the Commissioners of Taxes were, therefore, without jurisdiction to assess it. In McLean v. Jephson, 123 N. Y. 143; 33 St. Rep 490, it is said : “ In view of the fact that the authorities on this point are all uniform, we will only refer to In re N. Y. Catholic Protectory, 77 N. Y. 342, because it •recognizes as an established principle that the determination by assessors that a person or his property are taxable is jurisdictional, and that an error made by them in such determination against the taxpayer is fatal to the validity of the assessment.’’ That very case, McLean v. Jephson, was one -where the assessors had no jurisdiction over the person, and, as therein said, “Assessors cannot acquire jurisdiction to make such assessments by determining that they have it, and their authority to act must always depend upon the existence of the jurisdictional facts described in the statute.” We think we have indicated with sufficient clearness the opinion we entertain that this is a case of an erroneous, and not an illegal, assessment.

The plaintiff, anticipating that the decision might be against it upon its claim that the assessment was void, further contends that, though it should be held to be an erroneous and not an illegal assessment, still it was not confined to its remedy by certiorari, but can maintain an action such as this to recover it back. Support for this position is claimed to be found in the case of People ex rel. Warren v. Carter, 119 N. Y. 657; 30 St. Rep. 116, wherein the court says: “ Where, however, one pays taxes imposed uftder an assessment which is not void, but simply excessive and unequal, and gives notice of his proceedings to review and correct same, thus indicating that he intends to reserve his rights and does not intend to waive or abandon his proceedings, we know of no principle of law upon which a payment under protest can be set up as a bar to. the further prosecution of the proceedings. By such payment he waives no rights, and he does no wrong and creates no embarrassment to the municipality or officer taking his money, and he cannot be estopped thereby.”

This does not change the rule which has been held ‘in the other cases to which reference has been had, because in the case last cited, unlike the one at bar, the payment was made under protest after the writ of certiorari was issued and while such proceedings were pending. And if here the plaintiff had taken the proceeding given by law to test the amount of the assessment by certiorari, and thereafter had had it cancelled on such proceeding, then undoubtedly it could recover, even though the money ha'l been paid. But in a case where the assessors have jurisdiction to impose the tax, which is paid, it cannot be recovered back by the taxpayer without first setting aside the assessment. Trimmer v. City of Rochester, 130 N. Y. 401; 42 St. Rep. 382. And where, without first taking proceedings for such purpose, a voluntary payment is made, no recovery can be had, even though it be held that the assessment was excessive and erroneous. That this is true can be well illustrated by taking the case of two who are claimed to be severally liable upon an instrument upon which judgment is rendered against them. ' If one after demand should pay, and the other appeal and upon such appeal succeed, could it be argued that the former would be entitled to recover the moneys which he had voluntary paid? We think under the authorities that this could not be done. And yet that is the position of the plaintiff here.

After making some futile protest with respect to the tax of 1887, voluntary payments were made in the succeeding years during which the Union Trust Company was proceeding by certiorari to test the manner in which the, assessment was levied upon its capital stock. If, solely because the latter succeeded in having the assessment canceled, the plaintiff were permitted to recover in this action, then all the cases which make a distinction between voluntary and compulsory payments would be overturned. We do not think that where, as here, all the taxes, except for the. year 1887 (which we will consider separately), were voluntarily paid, and the amount so paid has been appropriated by the city to meet its obligations, both state and municipal, that return thereof should now be had at the expense of the other taxpayers, unless such return is justified in law. The general principle that a tax voluntarily paid cannot be recovered back we regard as elementary, and that it is immaterial that it has been illegally laid, the presumption being that all payments are voluntary until the contrary is shown. Cooley on Taxation, 2d ed., p. 809.

These conclusions would result in affirming the decision of the learned trial judge respecting the taxes paid in 1888, 1889 and 1890, and leave for determination the question as to the tax for the year 1887. It is insisted that this tax was paid under duress or compulsion, and many authorities are cited, in this state and in others, as defining what constituted compulsion, duress or coercion, with respect to the collection of a tax. For example, the case of Boston & Sandwich Glass Co. v. City of Boston, 4 Metcalf, 181, 187, 190. But in relying upon these cases, counsel overlooks what must always be considered, and that is, the difference in the laws of differeAt states relating to the enforcement of taxes, and the proceedings that may be taken in determining the question whether there is coercion or duress. Thus, as shown by the language of the opinion in the case last referred to, which arose under the laws of Massachusetts, the payment was held not to be voluntary. It was therein said: “It arises from the power and authority placed 'in the hands of a collector of taxes, by virtue of his warrant, to levy directly upon the property or person of every individual whose name is borne on the tax list in default of payment of the taxes. * * * Such warrant is in the nature of an execution against the property and person of the party, upon which he has no day in court, no opportunity to plead and offer proof and have a judicial decision of the question of his liability.” That being the state of the case, the payments made to a collector of taxes may be considered compulsory and made under such circumstances as would authorize the party paying the money to recover it back if the tax were illegally assessed. Ho such features appear in the case at bar, because when the tax of 1887 was paid in December of that year the receiver of taxes had. no authority to take any hostile proceedings against the plaintiff, nor could he authorize any such proceeding until after the 15th' of January following. There is no proof that the receiver had made a proper demand of the tax, without which even a suit to collect the tax would not lie. Consolidation Act, § 848; McLean v. Manhattan Medicine Co., 54 N. Y. Super. 371; 6 St. Rep. 805. As correctly urged by the defendant, even if a lawful demand had been made, the receiver of taxes was then powerless to enforce it. He could not issue his warrant to the sheriff or city marshal until January 15, 1888. Consolidation Act, § 853. Even if the receiver had had the power to issue his warrant, he was not compelled to resort to force, nor did he threaten to do so. The authority to proceed by distress and sale is permissive, not mandatory. McLean v. Myers, 134 N. Y. 480; 48 St. Rep. 232. In the absence of any power or authority to compel payment on December 29, 1887, and of any threat to do so, and of any seizure of person or property, or of any irreparable injury reasonably to be apprehended, there was no compulsion to render the payment involuntary. And the mere fact that a written protest was served on some one or in some way, or even if'it had been properly served, would not prove coercion.

" Where there is compulsion, actual, present, potential, in inducing that payment by force of process available for instant seizure of person or property, and the demand is really illegal, then the party, by giving notice of the illegality and of his involuntary payment, can recover back the money so paid in an action brought for that purpose. Where the payment is voluntary, as in this case, a protest, with notice of an intent to re-claim, is not sufficient to sustain a recovery. The voluntary character of the payment' still remains, notwithstanding the notice, and is fatal to the action.” Peebles v. City of Pittsburgh, 101 Pa. St. 304, 309; Railroad Co. v. Com'rs, 98 U. S. 541.

That none of these features was present in any proceedings taken to enforce the tax of 1887, we think clearly appears, and the payment made should be held to be voluntary. The application of this rule of voluntary payments to the plaintiff is not harsh. It had several remedies open, and it might either have waited, or, if it deemed that improper because not desiring to have a claim against it unpaid, which in some way might affect its standing, it could have taken proceedings by certiorari, as -was done in the case of Warren v. Carter, supra, and after obtaining the writ, paid the amount and gone on with the proceeding.

Notwithstanding the written protest, our conclusion is that no coercion or duress having been applied as against plaintiff to enforce payment, such payment was voluntary and cannot be recovered back in this action.

In our opinion, therefore, the judgment, in so far as it permitted the" recovery for the tax of 1887, should be reversed, and in other respects affirmed, with costs and disbursements to the defendant.

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


source: Caselaw Access Project

author: Van Brunt, P. J. O’Brijim, J.

license: Public Domain

text:
      Leopold Sinsheimer et al., Resp’ts, v. United Garment Workers of America, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April, 1894.)

    1., Injunction—Combinations.
    • Combinations for the assertion of rights or protection against wrongs are not the subject of injunction, unless they infringe upon provisions of law.
    3. Same.
    Courts of equity will not permit the forms of law to be used on behalf of one party against another, where each is endeavoring to secure his ends by similar means.
    3. Same.
    Nor will they intervene, where the plaintiff is equally implicated and does not come into court with clean hands. ,,
    4. Same.
    A preliminary injunction will not be granted, where there is no proof of any acts of violence, injury to property or threats or intimidation on the part of defendant.
    Appeal from an order granting a motion restraining the defendants, individually and in their respective capacities, from issuing circulars directed against plaintiffs to tradesmen in various cities requesting the discontinuance of trade with plaintiffs, and from boycotting the plaintiffs, or in any manner interfering with their business.

      A. L. Fromme, for app'lt; Wm. N. Cohen, for resp’ts.
   Van Brunt, P. J.

It is exceedingly difficult to determine what the precise facts are from an examination of the papers submitted upon this appeal. The complaint and affidavits upon the part of the plaintiff certain allegations as of the personal knowledge of the party verifying the same of which it is apparent that such party could not have had such knowledge. The affidavits also contain allegations of conclusions drawn from letters which are not produced, which method of allegation has been often enough condemned. The affidavits and answer of the defendants .are subject largely to the same criticism. What the true facts are in reference to the claims of the two parties to this action can only be established upon the trial of the issues involved, when .assertions without knowledge can be sifted from the case, and conclusions reached based upon legal testimony.

The main facts in reference to which there seems to be sufficiency of legal proof are that the plaintiffs formed part of a combination of clothing manufacturers, having for its ostensible object protection from unjust claims upon the part of their operatives,, with a secret purpose to break down, if possible) any organization made by operatives for the purpose of advancing wages and protecting themselves in their employment. The defendant, upon the other hand, is a combination of operatives associated together for the purpose of protection against the exactions of employers, the advancement of their wages and the compelling of employment of only those persons who belong to their association. ¡Naturally, the, interests and purposes of these two associations lead to contest and strife. I know of no law which prevents combinations either for the assertion of rights or protection against wrongs, as long as the acts of such associates do not infringe upon the provisions of law.

Various differences had arisen between the plaintiff and the defendants ; negotiations were had ; claims of bad faith upon both sides were advanced, and the result was the issuance of circulars by the defendants, some time prior to the commencement of this. action, to tradesmen in other cities,.complaining of their treatment by the plaintiffs and others, and substantially asking that they discontinue trading with them as long as this condition of affairs existed. And, finally, in March, 1893, the clothing manufacturers adopted a resolution (claiming bad faith upon the part of the operatives and that a strike had been ordered in the shop of one of the members of the association), that unless the operatives receded from their position, all persons in their employ belonging to the association of operatives should be discharged.

An action was subsequently commenced by the members of the Clothing Manufacturers’ Association collectively against the defendants for the relief prayed for in this action, which was denied, and a motion made for an injunction upon the ground of misjoinder of parties. Thereupon, in April, this action was commenced, and a motion for an injunction argued in June and decided in ¡November.

I fail to see how the injunction m this action can be sustained. There is no proof of any acts of violence upon the part of the defendants, or of any injury to property, or of any threat or intimidation. At best the circulars were but one of the instruments used by the defendants in their contest with the association of which the plamt'ffs were members. It was a pursuing of precisely the same course against the Manufacturers’ Association as the Manufacturers’ Association were urging against them. The Manufacturers’ Association claimed the right tha't their members should discharge from their employ all persons connected with the defendants’ association unless they receded from certain demands made upon one of their members. The defendants notified persons engaged in the trade of the-controversies which were existing and virtually requested such persons not to deal with the plaintiff’s firm unless such differences could be adjusted. I fail to see that there is any infringement of any provisions of law in the issuance of such a circular.

It is further to be observed tnat at the time of the argument of this motion and subsequent to the beginning of the action it would appear that the differences between the plaintiffs and the defendants had been adjusted, and an agreement entered into; and there-is no proof that any of the circulars affecting the plaintiff's firm were issued by the defendants for some time prior to the commencement of this action; and the intention to issue such circular is expressly denied. It is true that in one of the affidavits reads upon the part of the plaintiffs it is said that certain circulars were distributed through the mails as late as the 27th of May, 1893. But it is not claimed that any of these circulars were issued in respect to the plaintiff’s firm; nor is there any legal evidence that any such circulars were distributed at all. It is at most hearsay, and there is no reason whatever given for the failure to produce the affidavit of some person who had personal knowledge of the facts. And, as already observed, this seems to be a feature which characterizes all the papers upon this application.

It seem to me obvious that the clothing manufacturers had the right to lock out all operatives connected with the defendant’s association because of demands which they considered unjust made by the defendant upon one of their number and that the defendants had an equal right to endeavor to persuade those who had been accustomed to deal with members of the manufacturers’ association to discontinue' their trade.

It is a familiar principle in equity that the plaintiff must come into court with clean hands. Under the circumstances disclosed by the papers in this case, if the defendants were "guilty of any violation of law the plaintiffs were certainly equally implicated; and under this condition of affairs it is difficult to see how they would have the right to the intervention of a court of equity. In dealing with questions of this nature, the court should be studious to see that the rights of all parties are protected; and that the forms of law should not be permitted to be used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist

Upon the whole case, therefore, I am of the opinion that the injunction should not have been granted, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett, J., concurs.

O’Brijim, J.

(concurring.)—I concur in the result. The assertion of a right or the attempt to redress a wrong on the part of either employer or employe is legal and proper. When the means employed, however, are unlawful, the courts will intervene.

If the plaintiffs here can show that, while legally asserting their rights as employers, their business has been unlawfully interfered with by the defendants to an extent entailing grievous and irreparable injury, then I think there would be presented a ease wherein the court could by injunction restrain the unlawful means employed. From the affidavits used upon the motion, I do- not think that either of these propositions sufficiently appears to justify an injunction during the pendency of the action./ 'That the plaintiffs were entirely without fault is by no meaps made evident, nor at the time the injunction was granted was the threatened injury serious. The defendants having denied under oath any intention to issue any more circulars, and none having been issued since those complained of in the prior action, there was little, if any, necessity for a preliminary injunction, and no injustice would have resulted if the questions at issue had been re-, served until the trial.

Without expressing an opinion, therefore, as to whether, upon the facts here alleged, an injunction could or could not issue, I am of opinion that upon the evidence on which the motion was made the preliminary injunction should not have been granted, and I concur, therefore, in the reversal.


author: Lawrence, J.

text:
    Maximilian Toch, Individually and as Administrator, etc., Pl’ff, v. Henry M. Toch et al., Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    Will—Legacies—Charge.
    If, in the absence of an express direction, the intention of the testator to charge legacies upon the real estate can be fairly gathered from the provisions of, the will and extraneous circumstances, a court of equity will so decree.

      M. L. Townsend, for pl’ff; Wahle & Stone, Dittenhoefer <£’ Gerber, Eugene Cohen, Goldsmith & Doherty, for def’ts.
   Lawrence, J.

Moses Toch died on the 27th of July, 1884, leaving a last will and testament, which was duly admitted to probate on the 19th of August, 1884, in and by which he appointed his brother, Bernard Toch, as his sole executor, and letters testamentary, on the latter day, were duly issued to Bernard as such executor. After making a provision for his wife, in lieu of dower, and for the support of his children, consisting of a trust fund of $25,000, upon the cessation of the trust he bequeathed the said sum absolutely to his brother, Bernard Toch. The said will contains the following provision : “ I give, devise and bequeath to each of my children who shall attain the age of twenty-four years the sum of one thousand dollars absolutely and forever, and I direct my executor to pay the said sum to each child on its twenty-fourth birthday. In case any child should die before attaining the age of twenty-four years, no benefit to my other children or to my wife is to accrue therefrom, but the money bequeathed to such child shall follow the residue of my estate and be inherited by my brother, Bernard Toch.” He then devises and bequeaths all the rest, residue and remainder of his property to his brother, Bernard Toch, absolutely and forever.

Bernard Toch died on the 14th of April, 1886, leaving a last will and testament, which was duly probated May 21, 1886, and letters testamentary thereon were duly issued to Henry M. and Jacob B. Toch, on that day as executors. Bernard Toch never filed any inventory or account as executor under the will of Moses Toch.

On or about the 8th of October, 1886, the plaintiff was, by the Surrogate of the County of New York, duly appointed the administrator, with the will annexed, of the estate of Moses Toch, deceased, and since then has acted and is still acting as such administrator. The defendants, Henry M. Toch and Jacob B. Toch, have not filed any inventory of the estate of Bernard Toch, deceased, nor have they made any account of their acts as such executors. The other defendants in this action are the children of Moses Toch and Bernard Toch, and parties with whom said children have intermarried. Bernard Toch died without having paid the legacies to the children of Moses Toch, mentioned in the latter’s will. In his will, Bernard directed his executors to take out of and from his estate “a sum of money which will be sufficient to pay and satisfy all unpaid legacies which my respective brothers Leopold and Moses Toch did, in and by their respective last wills and testaments, bequeath and leave to their respective children, to be paid to such children as each of them attain the age of twenty-four years, and to pay and deliver said sum of money to the person or persons who may hereafter be duly appointed as administrators, with the wills of said Leopold and Moses Toch annexed, in such sums or portions thereof as may be necessary for the purpose of carrying out the said wills and testaments of Leopold and Moses Toch, respectively.”

Ho question arises in this case under the will of Leopold Toch.

After making certain specific and general bequests, the will of Bernard provides as follows: “All the rest, residue and remainder of my estate, both real and personal, which I have not heretofore specifically given, bequeathed and devised, it being my intention not to die intestate as to any portion of my estate, either real or personal, subject to the execution of the next following clauáe, I direct to be divided into two portions or shares, and I hereby devise and bequeath one equal portion thereof to my children living at the time of my death, share and share alike in absolute ownership, and the other portion to the children of my brother Moses Toch living at the time of my death, share and share alike, in absolute ownership.” See clause 9 of the will.

By the tenth clause it is provided: “ I hereby empower and authorize my executor and executors hereinbefore named, or such of them as may duly qualify as such, in his or their discretion, and at such times as they or he deem best, to sell any or all of my real estate, except the premises known as numbers 298 and 295 ¿last Tenth street, in the city of New York, and mentioned in the eighth clause of this my last will and testament, at public or private sale, or on such terms as he or they may, in his or their discretion, deem best and proper, and to execute good and valid deeds thereof, for, the proper conveying and assuring the title thereof, and for the purpose of carrying out any and all of ihe provisions and directions contained in this my last will and testament, and also for the purpose of paying off and discharging, the principal sum which may at the time of my death or thereafter become due on any mortgage on any real estate of which I may die seized, and substituting a new mortgage in its place.”

By the eleventh clause of Bernard’s will it is provided as follows : “ I hereby empower and authorize my executor or executors hereinbefore named, or such of them as may duly qualify as such, to mortgage all or any part of the real estate of which I may die seized, except the premises numbered 298 and 295 East Tenth street, in the city of New York, and apply the proceeds thereof towards the carrying out of any of the provisions contained in this my last will and testament, or the paying off or discharge of the principal sum due or any mortgage on any of said real estate as aforesaid, and if upon so applying the said proceeds to either of said purposes, there be any surplus, I direct that the same, that is, said surplus shall form and be considered a portion of 'my residuary estate, and be divided as is directed by the ninth clause of this my last will and testament.”

From these provisions I think it very clear that it was the intent of the testator to declare that the legacies to the children of Moses Toch, directed to be paid, should be a charge upon his real estate. Whether such legacies are so payable is always a question of intention, and, even if there be no express direction that legacies shall be a charge upon thp real estate, if the intention of the testator so to do can be fairly gathered from the provisions of the will and extraneous circumstances a court of equity will so decree. Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 id. 605 ; Tracy v. Tracy, 15 Barb. 503; McCorn v. McCorn, 100 N. Y. 511.

It will be noticed in this casé that the power of sale which is given to the executors is confided to them, for the purpose of carrying out any or all of the provisions and directions contained in the will. This, in my opinion, clearly evinces an intention on the part of the testator that a resort should be had to a sale of the real estate, in order that the legacies in question might be paid, and, if such was the intention of the testator, inasmuch as by the 4th clause of Bernard’s will the legacies are directed to be paid to the person or persons who may hereafter be duly appoirited as administrators with the wills of Leopold and Moses Toch annexed, the plaintiff as administrator of Moses is entitled to maintain this action. I am, however, of the opinion that; as respects the $14.-000 of personalty, consisting as the evidence shows, of Moses’ undivided one-half interest in the business carried on by him and Bernard, valued at $9,000, and the amount of the policies of insurance collected by Bernard, amounting to $5,000, the plaintiff is not entitled to the relief which he seeks in this action. There is nothing in the case to show that the sum of $25,000 referred to in Moses Toch’s will, has not been invested, as in said will directed, and as to that Bernard Toch upon the cessation of. the trust was to become the absolute owner. He is also made the absolute residuary legatee under Moses Tocli’s will.

There is nothing to show that there are other debts than the legacies which, as we have seen, are chargeable upon the land. If there are such other debts, it seems to me that in respect thereto, the plaintiff is a general creditor of the estate of Bernard Toch, and that this action should have been brought under the provisions of the Code of Procedure, contained in §§ 1837 to 1860, and in §§ 2749 to 2801.

The motion to dismiss the complaint which was reserved upon the trial will therefore be denied, and a judgment in favor of the plaintiff decreeing that the legacies given to Moses’ children are an equitable lien and chargeable upon the real estate, and that the land should be sold for the payment of said legacies and interest, will therefore be entered.

Findings to be settled on two days’ notice.


author: Ward, J.

text:
    Jonas J. White, Pl’ff, v. John Lowden et al., Def’ts.

      (Supreme Court, Erie Special Term,

      Filed April 25, 1894.)

    1. Fraud—Opinions.
    Where the purchaser has not the same opportunity of forming an opinion as the vendor, hut must, to a greater or less extent, depend upon the latter’s judgment and opinion, the vendor's statements as to the value may become statements o£ fact and if false, vitiate the transaction and subject him to damages.
    2. Same—Speculative.
    The representation by one, who assumes to have peculiar knowledge in relation to the property, to those who have no opportunity to examine it or ascertain its surroundings, that its value is a certain amount, is not speculative but an affirmation of fact.
    3. Same—Examination.
    The law does not impose upon the purchaser the duty of examination where lie has no opportunity to do so.
    4 Same—Knowledge.
    Statements made, without knowledge as to their truth or falsity, to one who has no opportunity to test their truth, are as fraudulent and actionable as though known to be untrue.
    S. Same—Pupping.
    When a party goes to a distant place to seek a purchaser who has to, and does, rely upon his word, he must indulge in no “puffing.”
    S. Same—Rescission.
    The vendee owes the fraudulent vendor no duty of active vigilance, and if he acts promptly after actual discovery of the fraud, he has a perfect right to rescind.
    Action to foreclose a contract for the sale of land in Erie 'County. Defense, fraud and false representations as to the subject matter of the contract and counterclaim for damages.

      George Clinton, for pl’ff; George H. Frost and William, L. Woodcock,, for def’ts.
   Ward, J.

The plaintiff resided in Buffalo, N. Y., and the defendants interested in the contract all resided at or near Altoona, in the state of Pennsylvania, a distance of about three hundred and. seventy-five miles by the usual traveled route frtim Buffalo. On the 16th of April, 1892 the plaintiff was the. owner, subject to a ten thousand dollar mortgage, of twenty-three acres and about a half of land situate between the northern corporate limits of the city of Buffalo and the southern corporate limits of the village of Tonawauda, in the county of Erie, N. Y., said limits being from three to four miles apart and the lands situate about midway between them, being on lot 39, fronting east on Delaware 'avenue and extending west across Elmwood avenue to the Military road.. The plaintiff intrusted one William R. Johnson'a real estate broker in Buffalo who had been in the business there a year or two and who was familiar with the property and the lands surrounding it to sell or syndicate the property and for which services Mr. Johnson was to receive $100.000 per acre. About the 16th of April, aforesaid, a contract was prepared in Buffalo, for the sale of the lands at $2,300 an acre payable in monthly payments covering a period of fourteen months after a payment of about three thousand dollars down, and at the end of which payment a bond and mortgage was to be given for the balance on the property of ten thousand dollars. The contract was all complete except the names and signatures of the purchasers, having been signed and sealed by the plaintiff, and delivered to the said Johnson. Johnson proceeded to Altoona where he had some friends, obtained an introduction to the defendants, and had personal interviews with seven of them, and an interview with a cousin of the eighth who represented Mrs. Dysart, a lady defendant. None of these defendants had any knowledge of the property in question or its surroundings and were therefore obliged to rely entirely upon Johnson’s statements as to the quality, amount, value and. condition of the land and of the surrounding territory and of the prospects as , to the advance of land in the future. Johnson represented to all of these parties that he was authorized as the agent of the plaintiff to sell the premises and pointed out to them substantially its location upon a map or paper which he had, and told them that nearly all of the land in the vicinity and surrounding the premises had been taken or bought up and were held for higher prices than $2,300 per acre ; that the premises were worth that amount per acre and that it was low at that price. There were some- variations in his statements to the several defendants but not to any great extent, which appear in the findings of fact herein. In addition to these statements he gave most encouraging accounts of the future prospects of the territory between Buffalo and Tonawandá and expressed the opinion that the defendants would be able to realize within a short time a handsome profit on their investment by re-syndicating it or otherwise. The statements of Johnson as to the value of the property and the value of surrounding property that was held for higher prices than $2,300 per acre made such impressions upon the defendants that they entered into the contract, relying upon the truthfulness of the same. How much importance they attached to Johnson’s statements as to future prospects do not clearly appear, but that they did rely upon the other statements and without such state* ments would not have entered into the contract, was manifest from the evidence. Johnson returned to Buffalo with his contract signed and the defendants without making further investigations of importance as to the property or as to the truth of the representations made to them made six monthly payments upon the contract, commencing with April 16, 1892, and ending September 16, 1892, paying in all $17,660.40.

After the September payment they began to discover that fraud had been perpetrated upon them through the representations of Johnson, they refused to make further payments, repudiated the contract for fraud, and in February following this action was commenced, setting up the contract, the amount paid thereon, the amount still due thereon, and demanding performance on the part of the defendants, or in case of their failure to perform that the contract be foreclosed and the defendants deprived of all right and equity in the contract. The defendants answered alleging that they were induced to enter into the contract by means of these representations which were false and fraudulent and asked that the contract be rescinded and cancelled for such fraud, and they recover as damages the amounts paid by them upon the contract with interest. The defendants had never had possession of the property or received any benefits therefrom. These issues were tried by the court at special term and upon the trial the defendants by an instrument in writing offered to surrender and re-assign to the plaintiff all right or claim they might have under the contract to the land and tendered the said instrument to the plaintiff which he refused to accept.

It is stenuously contended by the learned counsel for the plaintiff that the statements of Johnson as to the value of the land were mere expressions of opinion, and as such cannot be considered in any sense as representations of fact. While it is true that mere statements as to the value of property in negotiations for sale standing alone and disconnected from other statements and not made with a fraudulent intent and where the subject of the representations is equally open to all parties for examination, and where the party making the representations has not special or superior knowledge to the other, and is in no sense speaking as an expert, such statements do not form a ground of action; but where the parties do not stand upon equal ground and the situation is such that the purchaser has not the same opportunity of forming an opinion as the seller, or there are circumstances which place the seller in a position to know the condition, qualities or values of the property over and above those enjoyed by the purchaser, and the purchaser must to a greater or less extent depend upon the judgment or opinion of the seller in reaching his own conclusions as to whether he will make the purchase, and the seller’s statements do not appear upon their face unreasonable, and the purchaser has not fair and present opportunity to see for himself, and the seller knows that the purchaser relies or has reason to believe that he relies upon his statement, and the statements are made that he may rely upon them, then the statements as to the value may become statements of fact and may be so found by the court or jury; and if such statements are false and made with the intent to defraud, and do defraud the purchaser they vitiate the transaction into which they enter and subject the seller to damages. In Simar v. Canaday, 53 N. Y. 298, the court speaking through Folger, Judge, at page 306 uses this language:—“ The defendant contends that the representations alleged to have been made by the defendant were not such as to afford a ground for an ■action. It is first insisted that the statement as to the value of the land and of the mortgages thereon were mere matter of opinion and belief, and that no action can be maintained upon tiiem if false. If they were such no liability is created by the utterance of them; but all statements as to value of property sold are not such. They may be under certain circumstances affirmations of fact. When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury they avoid the contract, citing Stebbins v. Eddy, 4 Mason, 414-423, and where they are fraudulently made of particulars in relation to the estate which the vendee has not equal means ■of knowledge and where he is induced to forbear inquiries which he would have otherwise have made and damage ensues, the party guilty of th'e fraud will be liable for the damage sustained.” (Citing several cases).

The same court in Hickey v. Morrell, 102 N.Y., 463; 2 St. Rep. 408, confirms this view and citing with approval the last case cited.

Nor is the case of Ellis v. Andrews, 56 N. Y. 83, in conflict, as none of the exceptional circumstances in this case appeared in that.

The same remark is true of Long v. Warren, 68 N. Y., 426, cited by the plaintiff’s counsel, although the authority of that case was seriously questioned in the later case of Albany City Savings Institution v. Burdick, 87 N. Y., 40 and 49.

And in Schumaker v. Mather, 133 N. Y., 590, 595; 44 St. Rep. 754; the court of appeal cited with approval on page 595 the views quoted from Simar v. Canaday, supra, and criticise that of Long v. Warren, supra.

And in Cullen v. Hernz, 13 St. Rep. 334, 335, Judge Daniels says: “But while it is true that for a mere opinion expressed by one person to another as to the value of the property no liability would be created against the person expressing it, when it turns out that he was mistaken, still the law will not exonerate him 'if he resorts to that mode of expression knowing the opinion to- be unfounded, with the object of deceiving the person to whom it may be expressed to his or her prejudice.”

The fact that Johnson represented before the execution of the contract by the defendants to each of them, in effect that he was ■familiar with the property and its value, and that it was worth at least $2,300 per acre, stating to most of the witnesses that it was low or very low at that price, appears overwhelmingly from the evidence and was admitted by Johnson upon the stand. This statement of value was coupled with the further statement that all or nearly all of the land surrounding and in the vicinity of the property had been taken up and was held for higher , prices than the $2,300 per acre, and that the property in question was about the cheapest remaining, and the last opportunity for investment; and he went further and stated to some of the defendants that the lands so taken up embraced substantially all the land along the avenues mentioned in the contract. There can be no question but what these statements as to the surrounding property were statements of fact, and not matters of opinion, and that they were relied upon by these defendants and formed a part, if not the leading inducement, in the purchase of the property.

To a person unacquainted with the localities this condition of the surrounding property would naturally have a powerful influence in determining the action of the purchaser; if it be true that the persons familiar with this property and with its surroundings had invested money to a large extent in property in the vicinity and would not sell as low as $2,300 per acre, it would go a great ways to establish the market value of the property in question at the figure at which the defendants purchased it. So if we leave out altogether the testimony as to Johnson’s statement of value, we still have a substantial representation of facts upon which the defendants relied and had a right to rely in the purchase of this property.

It is true that Johnson denies these statements as to the surrounding property, but his denial can have but-little weight against the concurrent testimony of seven of the defendants and Mr. Pennock, the agent of Mrs. Dysart, to the contrary.

I will assume, therefore, that Johnson made these statements as to the surrounding property. Were they true? I am satisfied they were not. The evidence clearly is that the great bulk of the land in the vicinity of the said twenty-three acres was not held for higher prices and was not worth to exceed $1,000 -or $1,200 per acre, and the preponderance of evidence is decidedly to the effect that the twenty-three acres were not worth the $2,300 per acre at the time of the contract, or at any time thereafter ; that $1,000 to $1,200 per acre was its fair value at the time of the sale, and I am led to the conclusion that the statement of value of the property in question under all the circumstances and connected with the other statements as to the surrounding property went beyond the mere expression of opinion and amounted to an affirmation of fact.

The plaintiff’s contention at this point is that the value of all these lands was speculative; that the intrinsic value was only what they would be worth for farming purposes, and that the defendants understood they were speculative and therefore a statement.as to their value was speculative and not to be relied upon.

I cannot concur in this view. If this were so then all lands ■$hat were not actually used for building purposes in cities or villages or in their suburbs, and whose values depended upon the' surroundings, and the probable use in the future to be made of them, might be regarded as speculative; so all lands in the vicinity of cities or improvements of various kinds that is at present only used for farming purposes and not yet adapted to other-purposes.

The present value of property depends upon what it will bring in the market, and whatever influences surround it, conditions adhere to it, or prospects attend it, that form a well grounded belief in the minds of the public as to its value, imparts a value to it. So that when a man who is familiar with real estate as Johnson was and engaged in the business of selling it and assuming to have peculiar knowledge in relation to it, represents to a far off •people who have no opportunity to examine the property or ascertain the conditions that surround" it, that its value is a certain-amount, it ceases to be speculative and becomes an affirmation of fact. That is a fact based upon his knowledge and experience- and judgment, all of which he is supposed to marshall together as a basis of his statement as to the value.

The counsel for the plaintiff realizing the difficulty of applying-the rule of caveat emptor to these defendants, says they might, have gone to Buffalo while-the negotiations were pending, and as they had but a night to ride and have seen this property for themselves, the law did not impose any such duty upon these defendants. Had they gone to Buffalo they could have learned but. little about it except they spent considerable time in the investigation of the property, its value and surroundings; and it does not lie in the mouth of the plaintiff to say that he is protected from the fraudulent statements of his agent upon any such hypothesis.

The defendants situated as they were had the right to rely upon those statements and did rely on them, and they were false. They worked an injury to the defendants. Johnson must have known they were false or at least highly exaggerated. He assumed to state that they were true. He assumed to know to these defendants that they were true. If he did not know the exact facts that he represented were true (as he claimed upon the stand), he should have known them, and as he represented them to be true with a fraudulent intent to these defendants who had no opportunity to test their truth,- his statements are as fraudulent and as actionable as though he knew they were not true.

The plaintiff’s counsel says that no doubt Mr. Johnson puffed' up the lands or engaged in some puffing to these defendants. Under the circumstances of this case, Johnson should have indulged in no puffing. If a man has a horse before him or a farm in sight which he is trying to sell and the purchaser being present and having an opportunity to judge of the exact value of any exaggerated statement he may make, he may be pardoned perhaps in the course of trade and in the anxiety to make a good bargain to do a little “puffing;but when he goes to a distant state and seeks a people who are entirely unacquainted with the property he seeks'to sell, and who have to rely and do rely upon his word, ne should indulge da no “puffing,” no exaggeration, but simply tell the unvarnished truth in all particulars. Frauds of this character are entirely too .common. They seem to increase with the growth .of great cities, and in the hot strife of booming localities, and they deserve condemnation whenever a clear case is established.

Finally the plaintiff contends that assuming the defendants’ contention to be true, they have ratified the contract, after knowledge ■of the fraud. The evidence leads to a different conclusion. The ■defendant® reap no benefit whatever from the contract, but expended over $17,000 in the first six payments specified therein. While there was some correspondence and acts of these defendants looking to a desire to sell the property before they had full knowledge of the fraud perpetrated upon them, and while they were in doubt as to it, they did not sell, and they took decided action as soon as the truth was learned and repudiated the contract, and refused to perform it further.

“ Where a vendee has been induced to purchase property by means of fraud on the part of the vendor, mere want of diligence in discovering the fraud does not deprive the vendee of his right to rescind because thereof. He owes the fraudulent vendor no duty of active vigilance, and if he acts promptly after actual discovery of the fraud, he has a perfect right to rescind. Baker v. Lerer, 67 N. Y. 304, 309, 310, and cases there cited.

The contract should be annulled and set aside for fraud, and the defendants should recover of the plaintiff the amounts paid by them upon the contract, being $17,660.40 and the interests on the several payments that made up that sum from the time of such payments respectively; and defendants should also recover costs of this action.


author: McAdam, J.

text:
    Matilda Stevenson et al., Pl’ffs, v. George M. Kaiser, et al., Def’ts.

      (New York Superior Court, Equity Term,

      Filed April, 1894.)

      1. Pleadings—Admission.
    Admissions in pleadings are conclusive.

      2. Infants—Contracts.
    A transfer of real estate by infants is voidable by them and must be declared void on their application.
    3. Evidence—Age.
    The testimony of plaintiff as to his own age is competent.
    4. Execution—Redemption—Limitation.
    The owner of the equity of redemption has twenty years within which to bring an action to redeem.
    Bill filed to redeem from sheriff’s sale under an execution issued on a judgment against one Dunning, a former owner of the property, which was transferred by him to the plaintiffs while the judgment was a lien upon it.

      D. M. Porter, for pl’ffs: Brann & Henderson, for def’t Schluterg James Demarest, for Columbia College j Babe & Keller, for def’S Brook.
   McAdam, J.

The litigation concerns a Columbia College lease of property on Murray street, in this city, having a number of yeaas to run, with privilege of renewal, one of which has been granted.

The pleadings admit the plaintiffs’ chain of title, and such admission is conclusive. Smith v. Tuttle, 70 N. Y. 299. It is admitted that Dunning transferred the lease to the plaintiffs, May 4, 1875, and the defendants claim that the plaintiffs transferred it to the defendants, George P. Brook and John P. Meyer, May 13, 1875. The plaintiffs deny that they executed any such instrument, and have proved that they were infants at the time, of the respective ages of eleven and twelve; so that the transfer, if made, is voidable by them, and must be declared void on their application. It does not appear that any consideration was ever paid to them; therefore they have nothing to return as a condition of rescission. The record of the transfer to the plaintiffs is prima facie evidence of delivery to them. Cases cited in Gifford v. Corrigan, 105 N. Y., at p. 224; 7 St. Rep. 7; Lawrence v. Farley, 24 Hun, 293 ; Gilbert v. North American Ins. Co., 23 Wend. 46; Van Valen v. Schermerhorn, 22 How. 418.

The evidence of the plaintiffs proving their own ages was competent. Banks v. Metcalfe, 1 Wheel. Cr. Cas., 381; Cheever v. Congdon, 34 Mich. 296; Morrison v. Emsley, 53 id. 564; Wharton Ev., 3d ed., § 208; R. R. Co. v. Coggin, 73 Ga. 689, and see 31 Pac. R. 790; Penal Code, § 19, and cases cited in note thereto.

The execution was issued September 28,1877, and the sale was thereafter made under it.

The plaintiffs had twenty years within which to bring their action to redeem. Code, § 379 ; Schriver v. Schriver, 86 N. Y. 575; Howell v. Leavitt, 95 id. 617; Clark v. Gibbons, 83 id. 107; Acker v. Acker, 81 id. 143. Where the title of a party in possession of lands has become fixed and absolute by reason of the statute of limitations, it is not affected by a subsequent statute extending the time of the limitation. Schriver v. Schriver, supra. The rule, however, does not apply to the defendants, who, in the light of the evidence, do not stand in the position of a party in possession with title, but as strangers to the plaintiffs, the possessors of the title. Id.

The plaintiffs are, therefore, entitled to redeem, and to that end an accounting must be had on equitable principles to be declared in the decree. Judgment accordingly.


text:
    Bennett J. King et al., Pl’ffs, v. Alfred Munzer et al., Def’ts.

      (New York Superior Court, Equity Term,

      Filed April. 1894)

    1. -Judgment—Confession.
    . Where the confession purports to have been made to secure a sum actually due for money loaned when, as matter, of fact, only a contingent, liability as indorser existed, the judgment is void.

      2. Same—Conspiracy.
    Where a fraudulent combination to defraud creditors is established, all judgments confessed, though for honest debts, are void.
    8. Same.
    It is the intent of the debtor which controls in such case.
    4 Same.
    As to the creditors defrauded, the judgments, if void in part, are void in toto.

    5. Mercantile aqencIss—Misrepresentations.
    Any misrepresentation by persons in furnishing information to mercantile agencies as to their pecuniary responsibility, is a fraud for which they are answerable to those deceived.
    6. Witness—Adverse party.
    Weight to be given to the testimony drawn from the adverse party as a witness.
    Bill filed by the plaintiffs, as judgment creditors, to set aside three judgments confessed by the firm of A. Munzer & Go., in fraud, as is alleged, of the plaintiffs and other creditors, and to set aside a transfer of book accounts on the same ground.

      Blumenstiel & Hirsch, for pl’ffs ; M. L. Erlanger, for def’ts A and B. Munzer and J. and S. Mayers ; 0. 0. Leeds, for def’t Bees; J. M. Allen, for def’t Misch.
   McAdam, J.

The plaintiffs, as judgment creditors of the firm of A Munzer & Co., composed of Alfred Munzer and Jacob Mayers, attack three confessions of judgment made by that firm; one in favor of Moses Misch for $2, 518.40, one in favor of Bachel Munzer for $1,168.40 and one in favor of Henry P. Bees for $1,018.40. The ground alleged is that these judgments were confessed to hinder, delay and defraud creditors of the firm, and especially the plaintiffs.

The plaintiffs also seek to set aside as fraudulent a transfer of the firm’s book accounts, made by it to Samuel Mayers, a brother of Jacob Mayers, one of the firm. The confession to Mose¡3 Misch, though purporting to be made for a firm liability, included an individual debt of $1,200 owing by Jacob Mayers, one of the firm, which the firm endeavored to transform into a partnership transaction. The confession to Bachel Munzer, the wife of the defendant Alfred, was for moneys advanced by her to the firm, but these moneys were the savings of contributions which Alfred had previously made to her, which in the form of accumulations were returned. The confession to Bees was in point of fact given to secure him for discounts which he had procured for the firm on its notes endorsed by him. If the confession had been made to secure his contingent liability as indorser on these notes it might have been upheld. Code, § 1273. But the confession purports to have been made to secure a sum actually due for money loaned when as matter of fact there was no such debt in existence. The effort to prove that the transaction was a loan failed. The nature of the transaction should have been truly described, as statements in a confession of judgment contrary’ to the fact may lead to unpleasant inferences as to the motives which induced the misstatement. If the confession to Rees had stated the facts truthfully, his judgment could not have been enforced until the contingent liability he was under had ripened into a debt. Code, § 12-77. The purpose evidently was to give him a judgment he could use at once, and this to the injury of creditors of the debtors. It has been held that a statement may be set aside in part, and upheld as to the residue. Hoppock v. Donaldson, 12 How. 141; Marks v. Reynolds, 12 Abb. Pr. 403 ; Frost v. Koon, 30 N. Y. 428. But where the confessions are made to cheat and defraud creditors they must be held to be inoperate against the latter for any purpose. As to the creditors defrauded, the judgments if void- in part are void in toto. This is the elementary rule applicable to all fraudulent devices. The three confessions of judgment were drawn by Mr. Erlanger, who acted as attorney for all the parties, and were-filed December 29th, 1892. On January 10th, 1893, a further confession was filed in favor of Mr. Erlanger, the attorney, for the sum of $600 for legal services rendered by him between December 26th, 1892, and January 10th, 1893. The parties to the transaction are all related to each other by blood or marriage, and by the confessions and transfer aforesaid all the property of the firm was appropriated by them to the prejudice of the other creditors having claims to the extent of about $18,000.

On December 27th, 1892, there was drawn out of the People’s Bank by the debtors $735, which they divided and retained for their own use, and on December 29th, the- day the judgments ■were confessed, they drew $830 and paid it over to Morris Mayers, another brother of Jacob, for the purpose of securing him on an accommodation note which he had indorsed for the firm, which was not then due and would not have matured until the January following; so that in every conceivable form the family and relatives took care of themselves, leaving the other creditors out entirely. In addition to these circumstances, goods belonging to the firm, which were in Chicago, were brought on to New York that they might be levied on under the confessions and the proceeds turned over to the favored creditors, and by foi'ce of the general scheme, which was successfully carried out, the firm stripped itself of everything in the nature of assets, and became hopelessly insolvent.

In February, 1890, in its report to the Dun Mercantile Agency the firm states its assets to be $17,400, and in January, 1891, it placed them at $22,632, with no liabilities. In April, 1892, it reported to Bradstreet’s Agency that “its assets were $20,500; no borrowed money,” and yet eight months afterwards, to wit: in December, 1892, without any satisfactory account for the sudden change, such as fire, robbery, or other unusal calamity, the firm is found .to owe $18,000 to creditors, without including the confessions of judgment ■ or the indebtedness to Samuel Mayers, for which the accounts were assigned. It is familiar law that persons furnishing information to mercantile agencies as to their means and pecuniary responsibility are to be presumed to have done so to enable the"agency to communicate the information to persons interested for their guidance in giving credit, and any misrepresentation in respect thereto is a fraud for which they are answerable to those deceived. Eaton, Cole & B. Co. v. Avery, 83 N. Y., 31; S. C., 38 Am. R., 359. See cases cited in Macullar v. McKinley, 99 N. Y., at p. 354; Moak’s Underhill on Torts, 525.

The $4,000 expressed in the transfer of the accounts to Samuel Mayers was made up of about one-half for money lent to his brother, Jacob, on his individual account, which the parties, by subsequent transactions, undertook to make a firm liability. The circumstances stated are so strong and cogent that, taken together, they establish to the judicial mind, beyond any reasonable doubt, the material fact that there was a combination and conspiracy between all the parties, not only to hinder and delay the honest creditors of the firm, through the means employed, but to defraud them by rendering futile all efforts to collect their demands by the usual legal means. See White v. Benjamin, 3 Misc. R., 490; 23 N. Y. Supp., 981. The fraudulent combination and purpose having been established, it would have made no difference in the result, even if the persons holding the confessed judgments had been firm creditors to the full extent thereof. Every transfer of property must be made on a good consideration and bona fide. If it is not made in good faith it is void, although the grantee pays a full consideration ; for the law never allows one man to assist in cheating another, see cases collated in Bump, on Fraud. Convey. 230, and this principal, as will be seen presently, applies to judgments as well.

In Simons v. Goldbach, 56 Hun, 204; 31 St. Rep. 118 ; 9 N. Y. Supp. 360; aff’d, 123 N. Y., 637; 33 St. Rep, 1028, the court said: “ There was evidence adduced by the affidavits that there was a scheme upon the part of these defendants to remove their property from the reach of their creditors, and that the attorney who issued this execution and who was the attorney for the entry of the confession of judgment, was cognizant of this intention. The entry of the judgment and the carrying out of the intention was evidently one scheme ; but it is urged that the knowledge of this attorney of this attempt cannot affect the plaintiff because his action cannot be said to involve the plaintiff in a scheme to cheat the creditors of the defendants, so as to have his honest judgment set aside. In this proposition the learned counsel forgets that it is not necessary, in order to invalidate this judgment, that the plaintiff had cognizance of ike scheme to defraud the creditors. It is sufficient, even if this judgment was confessed upon an honest debt, that it toas part and parcel of a plan by which some portion of defendants’ property was to be removed and concealed from their creditors to render such judgment absolutely" void, because all the acts of the defendants in the carrying out of such a scheme are necessarily tainted with the same infirmity. In the case of an assignment with preferences, although honest debts may be preferred, yet if any portion of it is tainted with the intent to defraud creditors the whole assignment falls.. So in the case of a confession of judgment,'if it is part and parcel of a scheme to remove property from the reach of creditors, although the plaintiff" in the judgment may be entirely innocent', and although his debt may be entirely honest, the judgment is tainted by the intent of the parties confessing the judgment.”

In Galle v. Tode, 74 Hun, 542 ; 56 St. Rep. 851, the court said ; “ The most strenuous argument against the validity of the judgment is, that inasmuch as the judgments were confessed for bona fide debts, and there was a failure to show any fraudulent intent upon the part of some, at least, of the persons in whose favor the judgments were confessed, this is fatal to a conclusion that such judgments were fraudulent. In answer to this argument, we would repeat what we have frequently endeavored to point out in construing the Statutes of Frauds, that it is not the intent of the person in whose favor a conveyance is made or a judgment confessed, that is to control, but it is the inteni of the debtor. By the terms of the first section of the statute of frauds we find it expressly stated that every conveyance of property, and other, acts done as therein enumerated, including a ‘decree or judgment suffered, with the like intent as against the persons so hindered, de-, layed or defrauded, shall be void,’ 4 R. S. Banks, 8th ed., 2593. And to emphasize the purpose of this statute as to those who alone can be protected against its sweeping provisions, we find by a subsequent section that protection is extended only to bona fide purchasers for value. 4 R. S. Banks, 8th ed., 2592.”

The court said, with respect to proof of a conspiracy : “ The result would be, as we understand the appellants’ argument, that, before the declarations or acts of any of these people, who had conspired together and arranged a plan by which their creditor» were to be defrauded, can be used in evidence against them they are all to be brought together in one place and then interrogated,, and that only the admissions or declarations so made would be binding; and that with respect to their acts, unless it was likewise shown that what each one did was- done in the presence of all the others, the evidence of such acts would be incompetent. It is not necessary, however, to pursue a discussion of these objections and many others which have been urged, and which we regard as frivolous, because though one or two of them might be technically right, they would not affect the validity of this judgment.”

, The plaintiffs were obliged to prove their case by the defendants, who are charged with the wrongdoing.

In Becker v. Koch, 104 N. Y. 402; 5 St. Rep. 688, the court said: “With regard to such witnesses it is well settled that all the rules applicable to the examination of other witnesses do not in their strictness apply. An adverse witness may be cross-examined and leading questions may ■ be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse. * * * What favorable facts the party' calling him obtained from such witness may be justly regarded as wrung- from a reluctant and unwilling man,while those which are unfavorable may be treated by the jury with just that degree of belief which they may think is deserved, considering thew nature and the,,other-circumstances of the case" (page 404). “It is,>a. good general rule that, the credibility of a witness is matter for the jury, and the fewer technical obstructions there are to the practical operation of that rule the better"

And in Victor v. Levy, 72 Hun, 263 ; 55 St. Rep. 720, the court said: “In examining and weighing the evidence which induced the judgment we should have in mind that he who alleges fraud must prove it; that the burden rests upon him to show affirmatively the facts and circumstances necessarily tending to establish the probability of guilt, and at the same time remember that those who attempt to perpetrate frauds take all the precautions that occur to them, to make the transaction appear honest, and rarely confess, their misconduct, whether under oath or otherwise ; that in such case proof of fraud must be established, if at all, by facts and circumstances which deny the protestation of commercial virtue, which nearly always falls from the lips of those who try to outwit the law.”

In criminal cases, a circumstance calculated to excite suspicion against the prisoner is insufficient even to put him on his defense. But, the moment additional facts are shown to have existed in the-same case, giving rise to additional presumptions against the accused, though individually of the same slight kind, a chain or body of evidence begins to form; and from the mere circumstance of the-concurrence or coincidence of such presumptions, bearing upon one point, or in one direction, and mutually aiding each other, they acquire a force and weight eventually sufficient, not only to ■ shift the burden of proof, but in some cases to amount to evidence of the most convincing kind. Burr on Cir. Ev., 65, 66. The circumstances disclosed by the evidence dove-tail and link one with the other symetrically, and form a solid chain of evidence pointing to the direction of combination and conspiracy on the part of the defendants that is so cognate and cogent in character as to-exclude every hypothesis of anything different.

If necessary effect is to be ascribed to its author-cause, the conclusion is strengthened—not impaired.

In view of the facts, the surrounding circumstances, the inferences to be drawn from them, and in the light of the adjudications cited it follows that the plaintiffs are entitled to judgment declaring the confessions of judgment and transfer fraudulent and void as against the plaintiffs, and directing the defendants to account for the proceeds of the property which may have reached their hands.

Decree accordingly, with costs.


author: McAdams, J.

text:
    John Zorn, Pl’ff, v. Peter McParland, Def't.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

      1. Vendor and purchaser—Incumbrance—Lis pendens
    A Us pendens is not an incumbrance on property, nor does it furnish any reason why a purchaser should not complete his purchase.
    2. Same.
    No equity attaches to property in the hands of one who took without, knowledge or notice and prior to the filing of the Us pendens.

    3. Same—Recovery by Vendee.
    A vendee may recover moneys paid in anticipation of performance where the title of the vendor is doubtful and not marketable.

      4. Same—Time as essence.
    The vendee has a right to insist that the contract be closed on the day finally fixed for closing the same, especially if he has notified the vendor that he will.insist upon strict performance at that time.
    5. Same— Recovery.
    If the vendee seeks to recover damages for breach of the contract, he must prove sufficient tender on his part.
    ' 6. Same—Fees for examining title.
    Where he has tendered full performance, he is entitled to recover any deposit made with reasonable fees for examining title.
    7. Same—Equitable relief.
    Where, in an action by the vendee to recover deposit money, equitable relief is.not demanded either by the complaint or answer, both parties are concluded by the form of the action.
    Trial by the court without a jury.

      E. F. Hassey, for pl’ff; B. R. Arnold, for def’t..
   McAdams, J.

This is an action at law by the plaintiff, the vendee, in a contract for the purchase of real estate, against the vendor therein, to recover $750, a deposit made by the plaintiff at the time of the execution of the contract, and also the sum of $278, paid by him for examining the title, which was rejected by the vendee’s lawyer, on the ground of the existence of certain incumbrances affecting the title which, it is alleged, disabled plaintiff from carrying out the sale.

The contract was to have been closed on May 10, 1892; but the time was extended for the accommodation of the plaintiff to May '26, 1892, at the office of the vendor’s attorney, and the vendee notified the vendor-that he would then insist upon strict performance of the contract by the vendor. On the adjourned day the parties met, and it appeared that' there were outstanding of -record nine certain blanket mortgages, coving the lot in question, with-four others. There w.ere also unsa.tisfi.ed of record a mortgage to one William “Gault” (described on the record as “Ganed”) for' $3,100.

It appears by the evidence that the holders of the nine' blanket mortgages were-either present or were- represented at the office of the vendor’s attorney with releases of the lot, ready to deliver such releases upon receiving the proportionate amount of their several mortgages; that the Gault or Ganed mortgage had been paid and a satisfaction piece executed and delivered, together with the bond and mortgage; so that the Gault mortgage, as a subsisting obligation, had ceased to exist, though -it was unsatisfied of record. The reason why it was not satisfied, as explained on the trial, was that by a clerical error the copyist in the register’s office inserted in the record of the mortgage the name “Ganed" instead of “Gault” as the mortgagee. The error was not a fatal one, for it appeared pn the' face of the original mortgage itself as well as upon the index book in the register’s office, in which the mortgage, at the time it was left for record, was entered, yet it was sufficient to prevent the cancellation of the, record in ordinary course. Mr. Arnold, the vendor’s attorney, offered to go over to the register’s office and have the error corrected and the mortgaged canceled of record.

This would have caused delay, for the register had already re» ftsed to cancel the record, except on a satisfaction piece executed by “Gfaned,” the mortgagee of record. The register, after satisfying himself that the error occurred in his office, discharged the mortgage of record some days afterwards. It was of record, however, on the day appointed for closing the title, and its presense there constituted one of the reasons why the title was rejected.

The vendee’s attorney raised another objection, in respect to which the vendor declined to do anything. The vendee insisted that a lis pendens filed in an action of one Hamilton against Mc-Uiece (a former owner of the property), constituted a fatal objection to the title offered. That was an action to impress in favor .of Hamilton as against McEiece a trust in the lot in question and other property. Mr. Arnold explained that this objection was without force, for the reason that McEeice had conveyed the property to the defendant before the lis pendens in the Hamilton suit had been filed; that defendant was not chargeable with notice of that action, was not a party thereto, and that if the searches interposed by the vendee had been put in in the usual form, the lis pendens would not have been returned upon it, for it would not have appeared in the chain of title.

The court of appeals, in Hayes v. Nourse, 114 N. Y., at page 604; 24 St. Rep. 569, holds that a lis pendens is not an incumbrance on property, nor does it furnish any reason why a purchaser should not complete his purchase. The court in that case aptly said: “ All that the registration of a lis pendens does is to require persons to look into the claims of the plaintiff who registers it. ” See, also, Aldrich v. Bailey, 132 N. Y. 85; 43 St. Rep. 568; Simpson v. Del Heyo, 94 N. Y. 193; Valentine v. Lunt, 115 N. Y. 503; 26 St. Rep. 254; Jacobs v. Morrison, 136 N. Y. 101; 49 St. Rep. 83.

Upon looking into the claims of Hamilton, the person who filed the Us pendens against McEiece, it would have appeared that, no matter what equity she liad as against McEiece, it could not attach •to the property in the hands of the defendant, who took without knowledge or notice and prior to the filing of the Us pendens. As against the defendant it was not operative for any purpose, nor would it have been against the plaintiff if he had taken title.

With thea Hamilton Us pendens out of the way there remains the question, whether the vendor was able at the time appointed for closing the title to carry out literally the terms of his contract.

In Morange v. Morris, 3 Keyes, 48; 3 Abb. Ct. App. R. 314; 32 How. Pr. 178, the court held that if at the time appointed for -closing a title the premises are incumbered by taxes and assessments, the vendor is not in a position to convey, and the vendee, owing to such inability, has a right to recover his deposit, without any tender whatever upon his part. This case, explained in Bigler v. Morgan, 77 N. Y. 312, and Rinalds v. Hausmann, 52 How, 190, has never been reversed, and must be recognized as an authority on the subject in controversy.

In Oppenheimer v. Humphreys, 31 St. Rep. 622; 9 N. Y. Supp. 840; aff'd, 125 N. Y. 733 ; 35 St. Rep. 996, the court held : “ It is well settled that, unless a seller of land tenders a title which is-free from reasonable doubt, the purchaser is not bound to complete. In the case at bar the records showr a mortgage of $22,000, with interest at seven per cent. The claim was made upon the part of the defendants that $6,000 had been paid upon this mortgage; and interest reduced to five per cent. They offered the certificate of Riggs & Co., bankers in this city, who were alleged to-be the agents of the mortgagee, who had possession of the bond and mortgage, and also of the satisfaction piece thereof, to the effect that such payment had been made, and such reduction of interest had occurred. We do not think that the plaintiff was bound to accept the title upon evidence of this character, that the apparent incumbrance upon the property had been partially removed. He was not bound to run the risk of being able at some future time to establish that Riggs & Co. were agents of the mortgagee; or, if the bond in question should happen to have been destroyed, to rest his claim of payment upon parol evidence, the benefit of which he might at any time lose. He was entitled to a clear record title. He had the right to claim that his title should be put beyond the contingency of human life, or the continued existence of papers which could not be the subject matter of a record. He was entitled to demand, if the mortgage had been reduced to the extent claimed, such evidence of the fact as would enable him to spread the same upon the record, so that, no matter who might die, or what might become of the original bond in question, the records would show precisely the extent to which the mortgage was a lien; and it does not seem that anything less than this would satisfy the requirements of the law.”

It has been held that in an action by a vendee to recover damages for the breach of a contract to convey, the plaintiff must satisfy the court that the title offered by the vendor was absolutely bad, and that it is not sufficient to show that it was doubtful. Ingalls v. Hahn, 47 Hun, 104; 13 St. Rep. 191; Bayliss v. Stimson, 53 N. Y. Supr. Ct. R. 225.

But this doctrine has since been repudiated, and it is now the law that the vendee may recover moneys paid in anticipation of performance where the title of the vendor was doubtful and not marketable. Moore v. Williams, 115 N. Y. 586 ; 36 St. Rep. 770. In this respect the equitable rule in regard to specific performance has been made applicable to actions at law.

In equity, time is not regarded as of the essence of the contract. But at law the rule is different, time being always regarded as an essential element. Oppenheimer v. Humphreys, supra ; Schmidt v. Reed, 31 St. Rep. 395, 9 N. Y. Supp. 705, aff’d 132 N. Y. 108; 43 St. Rep. 490. So that the vendee had a right to insist that the contract be closed on the day finally fixed for closing the same, particularly in view of the fact that he had notified the vendor that he would insist upon strict performance at that time.

Even assuming that the unpaid taxes might haye been deducted from the purchase money, Marsh v. Wyckoff, 10 Bosw. 202, and the releases from the banket mortgages obtained, there still remains the undisputed fact that there was unsatisfied of record the $3,100 mortgage to Gault or Ganed. True, it had been paid, and a satisfaction piece executed by Gault. But this was not sufficient for the purposes of the vendee. He was entitled to a clean record title, and it was the duty of the vendor to have had this mortgage satisfied of record prior to the time finally appointed for closing the sale. This is especially so, in view of the fact that the Begister had refused to discharge the mortgage of record on the existing satisfaction piece, on the ground that the record showed that the mortgage was made to Ganed and not to Gault, the party who executed the certificate for its discharge. The Begister having refused to cancel the mortgage, there was no reason why the vendee should assume that any application by him for a like purpose would have met with a different result. Nor was the vendee bound to assume the trouble and risk of inducing or compelling the register by proceedings at law to discharge the mortgage of record. This was a duty the law cast upon the vendor, and he could not impose it upon the vendee. If the record of the mortgage and the satisfaction piece had conformed, a different question might have been presented. But the vendee had the right to assume that the record, was correct, and as between him and the vendor, the latter was responsible for its accuracy.

The rule is that purchase money paid in advance by a vendee may, after demand, be recovered from the vendor on proof of his inability to perform, even though the' vendee could not have performed. Bigler v. Morgan, 77 N. Y., 312 ; and see Karker v. Haverly, 50 Barb., 79. But if the vendee goes further and seeks to recover damages for breach of the contract, he must prove sufficient tender on his part. Bigler v. Morgan, supra.

The existence of record of this mortgage, and that alone, was sufficient under the authorities cited, for the purposes of this action, to justify the vendee in refusing to take title; and, having tendered full performance on his part, he is entitled to recover the deposit made, with $278, the reasonable fees for examining title. Bigler v. Morgan, supra; Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492.

The fact that the vendee insisted strenuously upon the Hamilton objection does not amount to a waiver of the one urged against the “ Gault ” or “ Ganed ” mortgage. If, by his persistence in the Hamilton objection, he had prevented the vendor from satisfying the Gault mortgage, he might have been held to have waived his objection respecting that. But it nowhere appears, nor can it be inferred, that if the objection to the Hamilton lis pendens had not been raised the vendor could have gone to the register’s office and at once secured the satisfaction of the Gault or Ganed mortgage. It was not in, but out of, the ordinary course, particularly when the matter had once been passed upon unfavorably by the register ; and, even if a favorable result could have been obtained by waiting, plaintiff was under no obligation to do that. In Oppenheimer v. Humphreys, supra, and Hewison v. Hoffman, 15 Daly, 176; 23 St. Rep., 73 the vendor asked for delay to cure certain defects, which delay the vendee refused to grant, and the court held he was under no obligation to grant the time desired.

The rules enforced are those pertaining strictly to actions at law; foi* in equity, where the condition of the parties remains unchanged, specific performance may in some cases be ordered if the title is made good at the time of trial, Mott v. Ackerman, 92 N. Y., cases cited at page 545, and deductions from the consideration money may by decree of the court be made for almost any purpose necessary to carry the contract into effect. But the parties are not invoking the aid of equity, and stand on their strict legal rights, and plaintiff is entitled to have them enforced to the letter. Equitable relief is neither demanded by the complaint of the plaintiff nor the answer of the defendant, so that both parties are concluded bw the form of the action.

Defendant has cited certain authorities in support of his contention ; but they will be found on examination to be equity suits, and not actions at law, and for that reason inapplicable.

It follows that there must be judgment for plaintiff for $1,028, with interest, aggregating $1,153, and costs.


author: Sherman, S.

text:
    In the Matter of the Estate of Robert Newland, Deceased.

      (Surrogates Court, Chautauqua County,

      Filed April 18, 1894.)

    Executors, etc.—Commissions
    Where the personal property of the estate exceeds $100,000 in value, over all its debts, and two executors qualify and act together in its administration for more than sixteen months, when one of them dies, two full commissions will be allowed on final settlement: one to the surviving executor, as to a sole executor, and, in addition thereto, one-half of the legal commissions upon all property undistributed at the death of his co-executor; and another to the estate of the deceased executor upon all property paid out or distributed at his death, and also one-half commissions upon all property, not then distributed, but to be distributed upon final settlement.
    Application to determine commissions upon final settlement.

      Frank W. Stevens, for Fred. A. Bently, surviving executor, and Evelyn N. Post, sole legatee; Jerome B. Fisher, for Frank E. Gifford, executor of the estate of John J. Kinney, deceased, and his daughter Margorie Kinney, minor legatee under his will, and M. M. Skiff, her general guardian.
   Sherman, S.

The personal estate of the testator exceeded in value more than $100,000, over all his debts. By his will he appointed Fred. A. Bently and John J. Kinney, Esq., executors thereof, both of whom qualified upon probate of the will on October 8, 1891, and continued to act together in administering the estate up to the death of said Kinney, on February 19, 1893; since which time the surviving executor has acted alone in administering the estate. The executors during one year and four months prior to the death of Kinney, had collected, paid out, and distributed to legatees and others a considerable portion of the estate of the testator and then had in their hands, undistributed, money and securities of said estate of the amount and value of over $30,000. The learned counsel of the surviving executor strongly claimed, upon argument and by his brief, that only one full commission should be allowed upon this settlement, and that to the surviving executor, and none to the deceased executor.

I hold and decide that the surviving executor is entitled to receive as a compensation for his commissions upon the final settlement and distribution of the estate, the same that by law he would have been entitled to if he had been sole executor, and in addition thereto one-half of the commissions, allowed by law, upon all property of the estate on hand and undistributed at the death of his oo-executor, John J. Kinney, on February 19, 1893. And I hold and decide that the executor of the estate of said Kinney, represented in this proceeding is entitled to full compensation for commissions allowed by law upon all the property of the estate of the said Kobert New land actually received, paid out, and distributed to legatees and others by both of said executors up to the time of the death of said Kinney, on February 19,1893, and that the estate of said Kinney is also entitled to one-half the commissions allowed by law upon all property of the estate of the said Newland held by both executors and remaining on hand on February 19,1893, undistributed, the same being in this case one-half of one per cent.; thus allowing, in all, two full commissions upon all the property, real and personal, of the decedent, Robert Newland, authorized to be sold and distributed under his will. Section 2736, Code of Civ. Pro., as amended by chap. 686, Laws of 1893; Welling v. Welling, 3 Dem. 511; Matter of Garrison, N. Y. Law Journal, July 28, 1890; Matter of Kennedy, N. Y. Law Journal, June 13, 1891; Red. Sur. Pr., 5th ed., note 2, 813; Smith v. Buchanan, 5 Dem. 169, holding that the proceeds of sale of real property made by the executors under the will are to be recorded as part of the personal estate for the purpose of allowing commissions under § 2736, Code of Civ. Pro. Matter of Kenworthy, 44 St. Rep. 275, holding that where the estate exceeds $100,000 personal property, over all debts of the decedent, and there are but three executors, each is entitled to full commissions, based upon the whole estate, irrespective of which executor actually handled it. Opinion of Barnard, P. J., 2d Dept., S. C. The above authorities appear to be in line with justice to the rights of all parties concerned.

I direct decree accordingly, upon final judicial settlement and distribution of this estate; and that ten days’ notice, for the hearing and adjustment before the surrogate, as to values and amount of commissions, be given to all parties interested.