text:
    CHRISTINA V. EVANS, as Executrix, etc., of AURELIA T. BUCKLAND, Deceased, Respondent, v. GROVER CLEVELAND, Appellant.

      Beviml of action against sheriff — when hwrred hy one-yea/r statute — effect, of order allowing supplemental com/plaint to he filed.

    The original plaintiff in this action died after the joinder of issue herein, and on December 8, 1874, leaving a will by which plaintiff was appointed executrix. Letters testamentary were issued to her thereunder on February 9, 1875. On December 26, 1876, on a notice served December 18, 1876, an order was granted, after hearing defendant’s counsel, that plaintiff have leave to file and serve a supplemental complaint for tlie purpose of reviving and continuing tbe action in the name of plaintiff
    On January 3, 1877, this order was served with a supplemental complaint. The action was "brought against the sheriff of Brie county for acta done in virtue of his office. The defendant set up in his answer, among other defenses, that more than a year had elapsed between the appointment of the plaintiff and her application for a revival of the action, and claimed that the one-year statute was a bar to this action. Held, that plaintiff’s right to revive the action was "barred, and a nonsuit should have been ordered.
    Appeal from a judgment in favor of tbe plaintiff entered upon a verdict of a jury, and from an order made in tbe said action, allowing tbe plaintiff to make and file a supplemental complaint.
    Tbis action, originally, was in tbe name of Aurelia T. Auckland as plaintiff, against tbe defendant, wbo was sheriff of Erie county. It was commenced in April, 1874, and was in trover for a stock of drugs, etc.
    Tbe answer was a general denial, and also that tbe property belonged to one Hull, and was taken by defendant, as sheriff, on an attachment against Hull, and afterward sold on execution against him. Buckland died on December 8, 1874, leaving a will, with plaintiff Evans as her executrix. Tbis will was proven, and letters testamentary issued to Evans on February 9, 1875, sbe qualifying that day. On 26tb December, 1876, upon affidavit and notice served December 18, 1876, and proposed supplemental complaint, an order was granted by tbe Erie Special Term, on motion of plaintiff, after bearing defendant’s counsel, “ that tbe plaintiff have leave to file and serve a supplemental complaint, for tbe purpose of reviving tbis action, and continuing it in tbe name of Christina V. Evans, tbe executrix of Aurelia T. Buckland, plaintiff, deceased.” On January 3,1877, tbis order and supplemental complaint was served. Tbis complaint set out tbe original cause of action, a history of tbe proceedings, death of former plaintiff, appointment of Evans, alleged that tbe cause of action survived, and prayed for tbe revivor of tbe action in name of tbis plaintiff, and that sbe as such plaintiff, have judgment for the value of tbe property. Tbe answer to this set up tbe same matter as tbe former answer, and also that more than one year bad elapsed since tbe plaintiff’s appointment, and her application to revive, and therefore tbe action was barred. Upon tbe trial it appeared that defendant was sheriff; that the acts complained against him were done by him as sheriff, and that more than a year elapsed after the appointment of plaintiff and her attempt to revive the action. The defendant thereupon moved for a nonsuit, on the ground that the one year statute wás a bar.
    This was denied on the following grounds :
    That the right of a representative of a deceased party to continue an action pending at his death is not an absolute right, but rests in the legal discretion of the court, and may be granted or refused according to the particular circumstances of each case.
    That in this case the court had exercised such discretion and allowed the substitution, and such order was in force and unreversed.
    That when the laches was such as to bar, it was a bar to the proceedings to revive the suit, and was not available as a plea in bar to the plaintiff’s cause of action set forth in the complaint.
    That the answer setting up the defense of the statute of limitations was not a bar to the plaintiff’s recovery upon her alleged cause of action. To which ruling and decision the defendant’s counsel then and there duly excepted. The case then went to the jury on the facts, and they found for plaintiff.

      Ml A. Whitney, for the appellant.
    This action comes within the provision of chapter 733, Session Laws of 1871, and must be brougnt within one year after the cause of action has accrued. Prior to 1871 the limitation was three years. (Dennison v. Plumb, 18 Barb., 83) Cumming v. Brown, 43 N. Y., 514; People v. Schuyler, 4 id., 173 ; Goddington v. Ga/rnley, 2 Hilt., 528.) It is now well settled that the right to serve a supplemental complaint is not absolute, but one resting in the sound discretion of the court, and for which leave of the court must first be obtained. (Sohnv. Fa/rgo, 47 IIow., 288.) The order does not nor can it adjudicate in advance, upon those issues which it is the office of the sxipplemental complaint and answer to present, and one of the most important of those issues may relate to the capacity and legal right of the plaintiff to continue the action. {Bobbins v. Wells, 26 How., 15 ; Wing v. Ketchum, 3 How., 385; Arthur v. Griswold, 60 N. Y., 143; Medbury v. Swan, 46 id., 200.) The statute of limitations presented a “ flat bar ” to the right to revive in this case. {Huntington v. Brinlc&rhoff, 10 Wend., 278; 2 Barb. Ch. Pr. [2d ed.], 53; Beach v. Reynolds, 53 N. Y, 1.)

      J. M. Humphrey, for tbe respondent.
   Merwin, J.:

The only point is whether the defendant can avail himself of the one-year statute of limitations, by reason of the fact that more than one year elapsed after the appointment of the plaintiff as executrix, and before her motion for leave to file a supplemental complaint. The act of the defendant complained of was within the statute (chap. 733 of 1871, § 2), and I see no reason why this statute should not be interpreted the same as any other statute of limitations.

It was held in this department, in Beach v. Reynolds (64 Barb., 506, 521), and affirmed in Court of Appeals, in same case (53 N. Y., 1), that the statute of limitations was a good plea to a bill of revivor, and that was declared to be the settled law and a fiat bar to proceedings to revive. That was an appeal from an order, ordering the suit to be revived and continued on a supplemental complaint, on the ground the court had no discretion to deny it. That order was reversed and motion to revive denied.

If it is true that the statute is a flat bar to proceedings to revive, then, as the facts of the case are not disputed, there ought to be some way in which the defendant can get the benefit of his clear right. ^

As far as the applicant is concerned, the order to revive is discretionary, but, query, whether the court, in Beach v. Reynolds, meant to hold that the rights of a defendant in such a case could be cut off by the exercise of the discretionary power of the court. If the statute to defendant was a flat bar, there was no discretion about it; the order, if it assumed to pass upon it, necessarily involved the merits, and would be reviewable on appeal from the judgment.

In Arthur v. Griswold (60 N. Y., 143) it was held that the objection that the cause of action did not survive could be raised, and be available at the trial, notwithstanding an order at Special Term reviving the action.

If that objection, why not any other, going to the right to revive ? (See Robbins v. Wells, 26 How., 15.)

In the present case, the order at Special Term does not assume to pass upon the right to revive. It merely gives leave to file and serve a supplemental complaint, for the purpose of reviving and continuing the action. Such complaint, when served, alleges the facts on which plaintiff claims the right to revive, and prays for a revivor. The answer puts these at issue, and sets up an affirmative defense to the revivor, being the statute. One of the issues, therefore, by the pleadings, as voluntarily made by both parties, is whether there shall be a revivor. Upon such issue, with others, the parties go to trial. It is too late then for the plaintiff to say that the issue of revivor was disposed of by a discretionary order at Special Term. The defendant has acted upon the supplemental complaint, which presented to him that issue to answer.

I think, therefore, the issue of revivor should have been passed upon at Circuit. The facts were conceded, and within the rule in Beach v. Reynolds, the defense of defendant to the bill to revive was fully made out, and he was entitled to a nonsuit.

The judgment should be reversed and new trial ordered, costs to ah'de event.

Present — Talcott, P. J., Sv.tth and Merwin, JJ.

Judgment reversed and zuw 'rial ordered, costs to abide event.


source: Caselaw Access Project

author: Mebwin, J.:

license: Public Domain

text:
    No. «
    CHARLES BURLINGAME, as Assignee in Bankruptcy of HENRY E. WOLCOTT, v. JOSEPH Y. PARCE, THE TRADERS' NATIONAL BANK OF ROCHESTER and others.

      Assignee in bankruptcy — power of, to maintain actions in State courts — Beceirer of .mortgaged premises — when appointed,.

    An assignee in bankruptcy may maintain an action in a State court to foreclose a mortgage belonging to tbe estate of tbe bankrupt.
    To authorize the appointing of a receiver of the rents and profits of mortgaged premises, pending an action of foreclosure, it must clearly appear that they are an inadequate security for the debt, and that the mortgagor, or other person personally liable for tne debt, is insolvent.

      Appeal by defendant Hubbell, from an order made at tbe Monroe Special Term, appointing a receiver of the rents and profits of tbe premises covered by tbe mortgage, for tbe foreclosure of which this action was brought by tbe assignee in bankruptcy of tbe mortgagee.
    Defendant Hubbell is tbe assignee of tbe mortgagor, under a general assignment for tbe benefit of creditors.

      W. B. Hubbell, appellant, in person.

      McDonald d¡ Hoyes, for tbe respondents.

       See post p. 220.

   Mebwin, J.:

It is claimed by tbe appellant that tbe court has no jurisdiction of the action by reason of the fact that plaintiff, an assignee in bankruptcy, seeks hereby to enforce tbe collection of a portion of tbe assets of tbe bankrupt.

Under tbe law as it stood prior to tbe passage of tbe Revised Statutes of tbe United States, June 22, 1874, it was held, in Claflin v. Houseman (3 Otto, 130), by tbe United States Supreme Court, that State courts bad jurisdiction of suits to recover tbe assets of tbe bankrupt, although, as in that case, tbe cause of action accrued solely under tbe provisions of tbe bankrupt law; it was an action to recover for a preference in fraud of tbe act.

By tbe United States Revised Statutes it was provided (§ 711, sub. 6) that tbe jurisdiction vested in tbe courts of tbe United States should be exclusive of tbe courts of tbe several States, “ of all matters and proceedings in bankruptcy,” that tbe District Courts (§ 563, sub. 18) should have in their respective districts “ original jurisdiction, in all matters and proceedings in bankruptcy,” that (§ 4972, sub. 2) such jurisdiction should extend “ to tbe collection of all tbe assets of tbe bankrupt,” that (§ 630) the Circuit Courts should have jurisdiction in matters in bankruptcy “ to be exercised within tbe limits and in tbe manner provided by law.”

These provisions, whether inadvertently or not, as is intimated in Claflin v. Houseman, operated to make tbe jurisdiction of tbe United States courts exclusive in all cases legally within their operation.

The question therefore, is, whether the present action is such a case.

In Olcott v. Maclean (10 Hun, 277), the cause of action wag based on an alleged violation of the bankrupt act, being to recover for a preference made void by its pi’ovisions, and the General Term, first department, held that the State court had no jurisdiction.

The same court, in Brewers and Maltsters’ Insurance Company v. Davenport (10 Hun, 264), held that the State court had jurisdiction of an action brought by a debtor of the bankrupt to determine whether the assignee in bankruptcy, or an attaching creditor were entitled to certain moneys that plaintiff was ready to pay. In Goodrich v. Wilson (119 Mass., 429) which was an action by an assignee in bankruptcy to recover for money paid in fraud of the bankrupt act, it was held the State court had jurisdiction. The force of section 711 of the United States Revised Statutes, above referred to, does not seem to have been considered, but construction was given to section 2, chapter 390, of the Laws of 1874, winch provided “ that the court having charge of the estate of any bankrupt, may direct that any of the legal assets or debts of the bankrupt, as contradistinguished from equitable demands, shall, when such debt does not exceed $500, be collected in the courts of the State where such bankrupt resides, having jurisdiction of claims of such nature and amount.” The effect of this provision, it was there said, is not to confer or take away jurisdiction of the State- courts, but simply to allow the federal courts of original jurisdiction to decline to entertain certain actions. This seems to me a reasonable view o'f that law.

The decision of the present case depends, I think, on the proposition whether or not it is a case arising under any law of the United States. Of such cases, exclusive jurisdiction may be conferred on the United States courts. (Constitution, art. 3, § 2, sub. 1.)

Olcott v. Maclean (supra), was clearly such a case, and was so considered by the court. (Page 280.) '

If the present is not such a case, it is not within the legal operation of the law of congress.

The subject of the present action is the mortgage and the rights conferred by it or claimed under it. Those in no sense arise undex any law of .the United States.

The question is not whether the construction of some law of the United States may not be incidentally involved, but whether the case anises under the law. Does it there originate — have its base ? That cannot be here truthfully said. In Story on Constitution (§ 1646), it is said, a case in the sense of this elause arises when some subject touching the Constitution, laws or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law. In Osborn v. United States Bank (9 Wheat., 738), it was said that any suit brought by the United States Bank was a case arising under a law of the United States, for the reason that the bank was incorporated under such law. 'A distinction was, however, admitted between the party and the cause (page 827), and it was said that the party may originate under a law with which the cause has no connection, and if the act of congress was a simple act of incorporation, it was admitted the distinction might be entitled to great consideration. (See Bank v. Devaux, 5 Cranch, 61.)

The Osborne case was an action brought to restrain the officers of the State of Ohio from collecting from the bank a tax, imposed on one of its branches for doing business in that State without being allowed to do so by the laws thereof, and of course it involved the construction of the law chartering the United States Bank, and was based on the law itself. It may be, as is said in that case, that all contracts made with an institution so chartered would be cases arising under a law of the United States, and still it would not follow that, where the only operation of the law was to provide for the transfer of certain causes of action already existing, those causes of action, when sought to be enforced by the assignee, would all be cases arising under such law. As well might all actions of ejectment, in which the source of title was an United States land patent, be cases arising under an United States law. As well might all real-estate actions brought by a foreign-born citizen, after naturalization, be such cases. Suppose the assignee of a bankrupt should assign a mortgage, or any chose of action, that had been previously owned by the bankrupt and came into the hands of- the assignee as assets, would it follow that the suit on such assigned claim must be brought in the United States courts ?

It will be observed that, by section 5049 of the bankrupt act, a copy of the assignment, duly certified by tbe clerk of tbe court, is conclusive evidence of the right of tbe assignee to sue for tbe property of tbe bankrupt.

My opinion is that tbis is not a case arising under any law of tbe United States, and is not, therefore, affected by, -or within tbe operation of tbe United States statute, giving exclusive jurisdiction to tbe.courts of tbe United States.

Proceeding, then, to tbe merits, tbe question is, whether the receiver was properly appointed. At tbe commencement of tbe suit, an injunction order was granted restraining tbe defendants from interfering with, or taking away any of tbe trees or stock, tbe premises being a nursery. Were tbis in force still, not modified or waived, it would seem to me almost a necessity to have a receiver to properly care for and market tbe stock on tbe premises. But it appears by tbe papers that tbe parties, since tbe injunction, have agreed that defendant Hubbell might dig and use tbe stock, and bold tbe avails subject to tbe order of tbe court. Tbis,'therefore, disposes of any occasion for having a receiver, by reason of tbe injunction being in force, and leaves tbe propriety of tbe appointment to be determined upon tbe other facts in tbe case.

To entitle a mortgagee to have a receiver appointed, it must appear that tbe mortgaged premises are an inadequate security for the debt, and that tbe mortgagor, or other person personally bable for tbe debt, is insolvent. (Bank v. Tallman, 31 Barb., 201; In the Matter of Prime, 1 id., 306; Bank of Ogdensburgh v Arnold, 5 Paige, 38; Shotwell v. Smith, 3 Edw. Ch. [m. p.], 588, Sea Ins. Co. v. Stebbins, 8 Paige, 565; Astor v. Turner, 11 id., 436; Frelinghuysen v. Colden, 4 id., 204.)

Tbe inadequacy should be clearly made out. (Shotwell v. Smith, 3 Edw. Ch. [m. p.], 588.) Is'it so in tbe present case ? Tbe plaintiff, in bis verified complaint, alleges generally, that tbe premises are a very doubtful and inadequate security for tbe mortgage, and will not, in bis opinion, bring any such sum at forced sale.

Tbis is denied by Hubbell and Parce, and by Deland, an apparently disinterested party. Tbe burden is on tbe plaintiff to show tbe inadequacy. I don’t think it can be fairly said, on tbe papers presented, that that fact is established.

It is suggested Hubbell has no defense, still he has the right to contest the propriety of this provisional remedy.

The order appointing a receiver should therefore be reversed, with ten dollars costs and disbursements.

Smith, J., concurred in the result. Talcott, P. J., concurred on the ground that this court, in Wente v. Young, have held in favor of the jurisdiction.

Order appointing receiver reversed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    No. 1.
    No. 2.

    CHARLES BURLINGAME, as Assignee in Bankruptcy of HENRY E. WOLCOTT, Plaintiff, v. JOSEPH Y. PARCE. and others, Defendants. THE TRADERS' NATIONAL BANK OF ROCHESTER, Plaintiff, v. JOSEPH Y. PARCE and others, Defendants.

      Two actions brought for the same purpose — second action, when stayed.

    1 mortgagee assigned, a mortgage owned by Mm to a bank, as collateral security for a debt of about one-half the face thereof, due from Mm to the bank. Subsequently, Burlingame, having been appointed his assignee in bankruptcy, applied to the bank to foreclose the mortgage, and, upon its refusal so to do, commenced an action asking a foreclosure and an equitable distribution of the avails, to which the bank was made a party defendant. Thereafter the bank commenced an action for the same purpose, to which the assignee was made a party defendant. Held, that, upon the application of the assignee, the prosecution of the second action should be stayed until the determination of the first.
    Appeal from an order made at the Monroe Special Term, denying the motion of plaintiff in action No. 1, for a stay of proceedings in action No. 2.
    Parce executed to Wolcott a mortgage of $5,000, which Wolcott afterward transferred to the Traders’ National Bank of Rochester, as collateral security for obligations of Wolcott to about half the amount. Plaintiff in No. 1 afterward became assignee in bankruptcy of Wolcott. Default having been made on the mortgage,Burlingame, plaintiff in No. 1 after requesting the bank, plaintiff in No. 2, to join with him, and it refusing to do so, commenced an action to foreclose the mortgage, making the hank a party defendant, and asking for an equitable distribution of the avails as between the plaintiff and the bank. Afterward the bank commenced action No. 2, for the foreclosure of the same mortgage, the parties to both suits being the same, the plaintiff in No. 1 being a defendant in No. 2, and the plaintiff in No. 2 being a defendant in No 1.

      McDonald <& Noyes, for the plaintiff in No. 1.
    This court has jurisdiction of actions by or against assignees in bankruptcy, and can even determine questions arising under the bankrupt law. {Dougwn v. Trans. Co., 56 N. Y., 1; Cooh v. Whipple, 55 id., 150; Carroll v. Stat. I. R. R. Co., 58 id., 143; 65 Barb., 444; 63 id., 339; 15 Bank. Reg., 49; Mayo v. Fritton, 20 Wall., 414; Glaflinr. Nousemam, 8 Otto, 130; Alb. Law Jour., Dec. 2,1876, p. 373; Goodrich v. Wilson, 119 Mass., 434.) As the assignor of the appellant only pledged the mortgage for a less sum than the amount secured by it, even if he was assignee by an ordinary assignment, he would have an undoubted right to bring an action to foreclose the mortgage. (Norton v. Warmer, 3 Ed. Oh., 106; Simson v. Satterlee, 64 N. Y., 657.) Hence the commencement of action No. 2 was entirely unnecessary. Its prosecution is unnecessary; and in such cases it is the uniform rule to stay proceedings in the action last commenced, until the first action is decided. (<Jackson v. Schauber, 4 Cow., 78; BamJe r. Leonarrd, 20 How. Pr., 93; Read v. Fuller, 15 id., 236.)

      J. C. Cochrame, for the plaintiff in No. 2.
   Merwin, J.:

The question of the right of Burlingame - as the assignee in bankruptcy to sue in this court, is considered on the appeal from the order in No. 1, appointing a receiver; I here assume such right ¶ to exist.

I must also assume that Burlingame, having still an interest ia fclie mortgage, liad a right to foreclose it. (Simson v. Satterlee, 61 N. Y., 657; Norton v. Warner, 3 Edw. Ch. [m. p.], 106.) It was transferred as collateral for an amount less than, its face; and the pledgor under such circumstances, ought certainly to have the right to protect himself, although the pledgee should not wish to foreclose, and the pledgor ought not to be left to the remedy of tender or repayment. No authority is cited requiring this.

Where two suits are commenced, and the subject of the action and the parties are the same and the entire relief sought for in the one can be obtained in the other, the one last brought should be stayed. (People v. Northern R. R. Co., 53 Barb., 98; McCarthy v. Peake, 18 How., 138.) This doctrine applies to the present case. The bank having refused to join with its co-owner, cannot now. complain. None of its rights will be lost. It is entitled to be first paid, the fund being realized the court will make the proper disposition of it.

I think the order should be reversed and the proceedings in No. 2 stayed until the determination of No. 1, with ten dollars costs and disbursements.

Present — Talcott, P. J., Smith and Merwin, JJ.

Order of Special Term reversed and proceedings in No. 2 stayed until the determination of No. 1, with ten dollars costs and disbursements.


text:
    DAVID P. THOMAS, as Executor, etc., of HANNAH GRISWOLD, Deceased, Appellant, v. CHARLES PARDEE, Respondent.

      Will — life estate, with power of consuming principal — gift of remainder — validity of.

      k testator, by his will, bequeathed to his wife the use of so much of his library and furniture as she might wish to retain for life, with power to dispose of the remainder thereof; and also all his real and personal estate, “ to be possessed and used by her at her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agreed to devote it; ” he further bequeathed al 1 his “ estate, real and personal, goods and chattels, of whatever nature or kind soever in her possession and held by her, up to and at the time of her decease,’ after payment of her funeral expenses, to certain benevolent societies therein named, “ to be held in trust by my executor, hereinafter named, and after her decease he is to have it divided equally between the societies above named. ” Held, that the legal title to the whole of the testator’s estate was, immediately upon his death, vested in his executor, with a right in the widow to draw from the estate, out of either principal or income, so much as she might judge necessary for her comfortable support and maintenance, and that, upon her death, the whole estate as it then existed, together with all accumulations thereon, was to be paid over to the residuary legatees named in the will.
    Appeal from a judgment,.entered upon the report of a referee, dismissing the complaint herein.
    The action was brought by the executors of the last will and testament of Hannah Griswold, deceased, for moneys had and received by the defendant from said Hannah, and as her agent, to her use. The defense was, that the moneys in question belonged to the estate of Levi Griswold, deceased, and were, after the death of Hannah, his wife, and with the consent of plaintiff, paid over to the executor of that estate.
    Levi Griswold was a resident of Middlesex county, Connecticut, and there died prior to May, 1860, leaving a last will and testament, with codicil, which were there jaroved on May 15, 1860, and letters testamentary issued to David Dibbell, executor, named in the codicil.
    The portions of will and codicil material to this case were as follows:
    ■ “ Second. I give and bequeath to my beloved wife, Hannah, during her natural life, so much of my library as she may wish to retain for her personal use and edification, she disposing of the remainder to some indigent and worthy student of theology or minister of the gospel, or to the children of my brother Eben, but more especially to my sister, Mary Birchard, and her children, on whom it is my wish, and long has been, to have some valuable remembrance bestowed. I leave all this, however, for her to judge of in the circumstances of the case.

      “ Third. To my dear and beloved wife, Hannah, who has been' all I could expect in life, in labor, in health and in sickness, and more than all the world else to me, I give and bequeath all my real and personal estate, to be possessed and used by her at her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agreed to devote it.
    “ Fourth. It is my wish and will, if after my decease she finds it agreeable to occupy our present dwelling, that the goods, furniture and all things remain about as they were -before, except in the case of those things which to her would be useless or burdensome, or expensive, in which case she is at liberty to dispose of all such, to tbe best of her judgment, so as to be as much exempt as possible from care and labor in her loneliness and advanced age.
    “Fifth. As my property has none of - it been inherited from friends and relatives, and as none of them are, to my knowledge, in want, but, on the contrary, all received directly from the Lord, to whom it of right belongs, so all my estate, real and personal, goods and chattels, of whatsoever nature or kind soever,’in the possession and held by her, up to and at the time of her decease, after her funeral expenses and grave arrangements are made, I give and bequeath, for the glory of God and the spread of truth and righteousness in this and in heathen lands, to the following benevolent societies, viz.: to The American Board of Commissioners for Foreign Missions, The American Home Missionary Society, formed in the city of New York in the year eighteen hundred and twenty-six, The American Tract Society, instituted in the city of New Fork, and The American Bible Society, formed in the city of New York in the year eighteen hundred and sixteen, to be held in trust by my executor hereafter named, and, after her decease, he is to have divided equally between the societies above named, share and share alike, and the same to be paid over as soon as can be conveniently and economically done, to the persons who, when the same is available, shall be acting severally as the treasurers of said societies, to be applied to the charitable uses and purposes of said societies, and under their direction.
    “ Sixth. Should the event of my wife’s death occur at the time or before my own, an event which I have not contemplated in the previous arrangements, then, at my own decease, my executor is authorized to proceed immediately to take possession qí and dispose' of all real and personal estate, of every name and nature whatsoever, belonging to me at the time, as above directed, and, after my funeral expenses are met and debts are paid, is to pay over the same, whether more or less, as soon, as can be conveniently and economically done, to the several societies, or to the persons at the time tlie acting treasurers of the societies abpve named, to be shared in equally, and to be applied and used by them for the benevolent purposes for which those societies were formed.
    “ Lastly. I do hereby nominate and appoint my worthy and confidential friend, Walter P. Munger, of Madison, county of New Haven, and State of Connecticut, to be the executor of this, my last will and testament, revoking all other wills by me made.
    “ In witness whereof I have hereunto set my hand and seal this twentieth day of June, in the year of our Lord one thousand eight hundred and fifty-seven.
    [l. b.] “ LEYI GRISWOLD.”
    “Whereas, on the twentieth day of June, in the year of our Lord one thousand eight hundred and fifty-seven, I made and executed my last will and testament, I now make and annex the following addition to said will in the form of a codicil to said will:
    “ Item. I make and direct this alteration in the fifth article of my last will and testament: I give and bequeath, for the glory of God and the spread of truth and righteousness in this and in heathen lands, to the following benevolent societies, in four shares, viz.: To the American Board of Commissioners for Foreign Missions, one share; to the American Home Missionary Society, formed in tire city of New York in the year eighteen hundred and twenty-six, one-half share; to the Church Extension Fund, New School Presbyterian, one-half share; to the American Tract Society, instituted in the city of New York, one share; to the American Bible Society, formed in the city of New York, in the year eighteen hundred and sixteen, one share; to be held in trust by my executor hereafter named, and after her decease he is to have divided between the societies above named as this codicil directs. Lastly, I do hereby nominate and appoint my worthy and confidential friend David Dibbell, of Clinton, county of Middlesex and State of Connecticut, to be the executor of this my last will and testament, revoking all other wills by me made.
    “ In witness whereof, I have hereunto set my hand and seal this 3d day of May, a. p. 1860.
    [L. B.] “LEYI GRISWOLD.”

      Hannah Griswold, plaintiff’s testator, afterward removed to this State, bringing with her certain bonds and mortgages, bonds, stocks and cash portion of the estate of said Levi Griswold, and gave therefor, on June 6, 1860, to'executor Dibble a receipt, stating that the said property was to be “ possessed and used by me for my support and comfort during my natural life, and if necessary to use any of the property hereafter specified and particularized, I am to notify the executor, and he to get the approbation of the judge of probate and grant such sums as are needed,” and after specifying the property, then said: “ If any of the above property is shifted from the security it now has, I am to notify the executor immediately.” Real estate of the deceased was afterward sold and the proceeds or part thereof placed in the widow’s hands on the same terms as the other pi’ope2’ty ah-eady in her hands. The widow delivered the g2’eater part of the securities and money so received by her to the defendant, to receive moneys which might be paid in thereon, and reinvest such po2’tions thereof, whether principal or interest, as were not needed by hei\ She retained in her own hands a pa2’t of said 2noneys, and made reinvestments of the same as they were paid in; and such reinvestments, whether made by defendant or by he2’, were made in her own name for convenience of collection, she giving to the executor, from time to time, a statement of the securities taken.
    Mrs. Griswold died March 23, 1874, then being a resident of Cayuga county, and leaving a last will, in which plaintiff was appointed executor, and which' was afterwards duly proved and letters issued to plaintiff April 18, 1874. In this will she did not assume to bequeath any part of the property which is the subject of this action. At her death, she had in her own hands two mortgages, which, as the refe2'ee found,were afterwards delivered by the plaintiff to the executor, Dibbell, who, with the knowledge and consent of plaintiff, placed them in the hands of the defendant with the other securities for collection. To this finding the plaintiff excepted. The referee also found that all the moneys and securities in defendant’s hands, which were the subject of this action, including the two mortgages above named, had gi-own out of the moneys and securities placed in Mrs. Griswold’s hands by said executor, Dibbell, and represented the principal, together with the increase and accumulation of interest thereon, not used or needed by her for' her support and maintenance during her life.
    To this finding plaintiff excepted. Defendant afterwards converted all the securities into money, plaintiff executing assignments to enable defendant to do so, and afterwards paid over the proceeds to' Dibbell. Whether he did this before having notice of plaintiff’s claim is not found by the referee, and the evidence is conflicting on the subject. What part of the fund is principal and what interest does not appear.
    The referee held that the fund in defendant’s hands being the principal of the estate of Levi Griswold, or such accumulations as were not needed or used by the widow for her support, belonged to that estate, and the executor, Dibbell, was entitled to the possession thereof, and plaintiff was not.

      John D. Teller, for the aj>pellant.
    The plaintiff, as executor of the will of Hannah Griswold, is entitled to all the property in the possession of the defendant as her agent at the time of her decease, and subsequently, for the purpose of settling her estate and making such distribution as the law and the rights of parties required. (Ilirschfeldt v. Fanton, Anth. N. P., 361; Boyce v. Brochway, 31 N. Y., 490; Parsons v. Iyma/n, 20 id., 113; /Spralcer v. Davis, 8 Cow., 132.) At the time of her decease, Hannah T. Griswold was the absolute owner of all the property, principal and interest, in the defendant’s possession, and of the mortgages subsequently held by him, except, perhaps, that portion of the said property which represented the real estate left by her husband. So far as the real estate is concerned, as the will does not give her power to devise the samé, the estate in remainder created therein must be assumed to be valid, although she had the legal title during her life, and became the absolute owner of the income thereof, but, as to the personal chattels, the attempted executory bequest thereof is void as being a limitation repugnant to an absolute gift. (Weldon v. Filing-ton, Plowd., 521; Brookes’ New Cases, § 334; 1 Rolls. .Abr., 610 [5 Jac., 1] ;. Cro. Car., 346 [9 Car., 1] ; Hyde v. Parrot, 1 P. Wm., 1, decided in 1695 ; Tissen v. Tissen, id., 500; Hpwell v. Halsey, id., 651, decided in 1720; Fearne on Rem. [Bult. ed.], 401-416 ; Sjprangc v. Barnard, 2 Brown’s Oh., 585 ; Bushman v Filliter, 3 Yes., 8; Wynne v. Ila/wki/ns, 1 Bro. Ch., 179; Fearne’s Ex Dev. [Powell’s ed.], 167, 226.) The following authorities sustain the rule that if the person having a life estate is prohibited from defeating the limitation over by any act of his own, then the remainder or executory devise over may be valid; but if the first taker has power to dispose of the whole fund, and thereby defeat the limitation, the bequest over is void : Attorney-General v. Hall (Fitzg., 311-321); Hpwell v. Halsey (1 P. ¥m., 651); Flanders v. Clark (1 Vesey, Sr., 9); Butterfield v. Butterfield (id., 133); Bradley v. Peixalto (3 id., 321); Bossy. Boss (1 Jac. & W., 151); Randall y. Russell (3 Mer., 193); Idéy. Ide (5 Mass., 500); Jackson v. Butt (10 Johns., 19); Jackson y. Robbins (16 id., 537); Patterson v. Ellis (llWend., 259); Borland y. Borland (2 Barb., 63); Pinckney v. Pinckney (1 Bradf., 269); Colt v. Heard (Weekly Dig., vol. 1, No. 9); Norris v. Beyea (13 N. Y., 286); Hull v. Culver (31 Conn., 101); 11 Massachusetts 196; 1 Pickering, 318; 17 Pickering, 339; 1 Hilliard on Real Property (chap. 57, § 9). The will in question is analogous to one’ containing a specific bequest for life of things qguae ipso usu consumuntur, in which case a bequest over is void. (Covenhoven v. Shuler, 2 Paige, 132 ; Rapalye v. Rapcdye, 27 Barb., 610; Smith y. Van Nostrand, 3 Hun, 150; Hill v. Hill, 2 Bans., 13.) The moneys in the hands of Mrs Hannah T. Griswold, or in the hands of the defendant, as her agent, at the time of her decease, and which the defendant has not shown to be a part of, or to represent, the pi’ineipal of Levi Griswold’s estate, were either accumulations of interest or increase arising from the use of the same during her life, or property obtained by Mrs. Griswold independently of her husband’s estate. The said moneys belonged absolutely to her, and must pass to her executor and be distributed among her next of kin. (Barber v. Ba/rber, 3 M. & C., 688; 2 P. Wms. Ch., 500-501; 2 id., 26, 27,119; 1 Brown Ch., 81, 335 ; 5 Yesey’s Ch., 335, 522; G id., 520; 7 id., 95; 2 Black. Com. [Cliitty], 511; Covenhoven v. Shuler, 2 Paige, 122; WillAamson v. Williamson, 6 id., 298; Brundagey. Brundage, 60 N. Y., 511; Tissen v. Tissen, 1 P. Wms., 503; Pinckney v. Pinckney, 1 Bradf., 269.)

      Le Roy Morgan, for the respondent.
   Merwin, J.:

There is abundant evidence to sustain the findings of the referee that the two mortgages held by Mrs. Griswold were delivered by plaintiff to the executor Dibbell, and by him delivered, with the knowledge and consent of plaintiff, to defendant, for collection, and that all the funds and securities in defendant’s hands represented the principal of Levi Griswold’s estate, or such accumulations of interest as were not used or needed by Mrs. Griswold for her support. There is no doubt about the identity of the fund. The question in the case is, what were the rights of Mrs. Griswold under her husband’s will ? Was she entitled to the principal or interest absolutely, or was her right limited to such parts of the principal or interest, either or both, as she might actually use or need for her support and comfort during her life? There is evidence in the case showing what construction she put on the will, but that docs not control. There is no estoppel here, especially there is none against the defendant by reason of his being Mrs. Griswold’s agent, and not, therefore, competent to dispute her title. He only did with the property, after her death, what is very evident she wished to have done. He was agent for the estate as well as for her. He could pay to the owner, a foreign executor, unless others had legal rights thereto The very object of his agency was to keep the fund invested for the benefit of the estate after her death. There was nothing to prevent his saying that her rights ended with her death.

We then come to the will of Levi Griswold, ne, in the first place, gives to his wife, during her natural life, such portions of his library as she may wish, and, in effect, authorizes her to dispose of the remainder in such manner as she shall deem best. He then gives to his wife “all my real and personal estate, to be possessed and used by her at her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agreed to devote it.” Then he authorizes her, in a certain contingency, to dispose of the household goods and furniture. Then, after stating the reason therefor, he gives to certain benevolent societies “ all my estate, real and personal, goods and chattels, of whatsoever nature or kind soever in her possession, and held by her np to and at the time of her decease,” after her funeral expenses are provided for, and, in the same clause, adds to be held in trust by my executor,” and after her decease he is to divide and pay over to the societies. It will be observed that he áuthorizes her to dispose of the library and household goods, but does not, in terms at least, authorize her to dispose of any other part of his estate. As to the duration of her right, he expressly says during her natural life. As to the extent of her right, he says to be possessed and used by her at her discretion, and for her support and comfort; and he has confidence in her that she will so use and retain, that the amount, increase and residue, whether more or less, will be properly preserved for the residuary legatees. The objects of her use and possession are specified as her support and comfort; the manner of such use and possession are left in her discretion. The title to the whole is provided for in the residuary clause, in the expression to be held in trust by my executor, and with the direction to divide and pay at the wife’s decease. In order to divide and pay, the executor must, of course, have legal control. It certainly was not contemplated that the widow had any rights that survived her. It was the will of the testator that the executor should all the time hold the property in trust, should permit the widow to enjoy, in the use and possession, such rights as were given her, the testator not fearing that she would use any more than was proper, and then, at her death, he providing for her funeral expenses out of his estate; whatever was left, the executor, the trustee, should divide. The estate was to be kept together, its title in the executor, its physical custody in the widow, its accumulation was to continue, the widow was to take what she chose for her support and comfort, and whatever, at her death, was left, be it principal or interest, was to be divided by the executor. It seems to me there can be no doubt as to the intention of the testator. lie did not design to give his wife either the principal or interest as such, but whatever she needed for her comfort and support, she being tire judge. She could take out from the estate as a whole, but what she did not take out, what remained at her death, was to go to others. The same principle, exactly, as a question of intent, as would have existed had the whole fund been deposited in bank at interest, with the right to the widow to draw as she chose for certain purposes, and what she did not draw to go, at her death, to others.

It remains to consider whether there is any legal principle to interfere with the operation of the intent of the testator as above indicated. The case of Smith v. Van Ostrand (64 N. Y., 218) is authority for the proposition, that where there is a pecuniary legacy to a widow for her support, with power to use such part of the principal as may be necessary for that purpose, and 'remainder over, such remainder is valid, although the fund is placed in the possession of the first taker, and the bequest over will carry whatever is left, not used by the first taker. The conditional power of disposition in the first taker does not render the gift over repugnant and therefore void. That action was trover by the remainderman for the security which represented the balance of the fund left and such form of action was sustained. If the gift over. of the balance of the principal was good, the gift of the balance of the principal and interest, if that was the intent of the testator, would also be good, unless there is a legal objection to such an accumulation. Such objection I do not understand to be made in this case. There would be none at common law (Bryan v. Knickerbocker, 1 Barb. Ch., 409), or under our statute. The first taker, as far as she had control, would be a trustee for specific purposes. .It was her duty to preserve the identity of the fund. She did so, and left the property in such shape, that the holder of the legal title, the executor of her husband, could immediately at her death retake and resume the custody that followed the legal right to control.

I see nothing that will interefere with carrying out the intent of the testator. It follows that the plaintiff was entitled to no portion of the fund.

Judgment should be affirmed, with costs.

Present — Talcott, P. J., Smith and Merwin, JJ.

Judgment affirmed, with costs.


text:
    JOHN L. BEERS, Executor, etc., of JOHN BEERS, Deceased, Respondent, v. MARK SHANNON, Impleaded with ROBERT L. SHANNON, Appellant.

      Action by executin' — how entitled— Bond to pay incumbrances — interest on penalty recoverable upon.

    Where a complaint is ontitled “ John L. Beers, executor of the last will and testament of John Beers,” the death of the testator and the appointment of the plaintiff being alleged therein, and it appearing from the whole structure thereof that the action is brought by the plaintiff, in his representative capacity, to recover assets of the estate, he may maintain the action as such representative, even though thew'ord “as” be omitted before the word executor in the title of the action.
    In December, 1852, the defendant, R. L. Shannon, sold to the plaintiff’s testator certain land, agreeing to discharge all liens thereon. In December, 1S53, the said R. L. Shannon, together with the defendant Mark Shannon, executed a bond, in the penal sum of $500, reciting the sale and the agreement to discharge all liens, specifying,- among others, a mortgage, and conditioned that if they should, within two years from the date thereof, cause all liens and incumbrances which were on said premises December 25, 1852, including said mortgage, to be duly discharged of record, and should fully indemnify and save the said Beers harmless from all costs, damages, charges and trouble which he might sustain on account of the same, then the obligation to be void, otherwise to remain in full force and effect. The mortgage was not paid before April, 1874, at which time it was foreclosed. In an action by the plaintiff on the bond, held, that he was entitled to recover the penalty of the bond, with interest thereon from the expiration of two years from the date thereof.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tbe trial of tliis action by tlie court without a jury.
    Tlie complaint is entitled “ John L. Beers, executor of tlie last will and testament of John Beers, deceased, against Robert L. Shannon and Mark Shannon,” and alleges that the testator, late of Cameron county, Pennsylvania, in March, 1873, duly made his last will, appointing plaintiff sole executor; that after his death, and in April, 1873, said will was duly proved in said county, and letters testamentary issued to plaintiff, which are still in force; that said deceased having left assets in Tates county, in this State, the plaintiff caused said will to be duly proved there in June, 1875 ; and in December, 1875, letters testamentary were duly Lsued to plaintift oy the surrogate of Tates county, which are still in force, and that by reason thereof plaintiff has full power and authority to administer the goods, etc., left by deceased in said county; that, on the 25th December, 1852, defendant R. L. Shannon sold and conveyed to said deceased certain nineteen and one-half acres of land in Yates county for consideration of $950, and agreed to discharge the premises from the lien of a certain mortgage then existing thereon, and held by a New York trust company, and from all the incumbrances on the lands, and to indemnify the deceased against all costs, damages, charges or trouble by reason thereof; that, afterwards, on December 24,1853, in fulfillment of said agreement, both defendants executed to said John Beers a bond in the penal sum of $500, dated December 24,1853, reciting the purchase by Beers, the agreement to discharge the mortgage specified, being for $1,000 and interest, and closed with the following condition : “Now, in consideration of the said sale and conveyance, and of the said agreement so made by said Robert L. Shannon to and with said Beers, as well as in consideration of one dollar to the said Robert L. Shannon and the said Mark Shannon duly paid, the condition of this obligation is such that if the said Robert L. Shannon shall, within two years from the date hereof, cause all liens and incumbrances which were on said premises on said 25th day of December, 1852, including the said mortgage, to be duly discharged of record, and shall fully indemnify and save the said Beers harmless from all costs, damages, charges and trouble which he may sustain on account of the same, then this obligation to be void; otherwise, to remain in full force and virtue ; ” that said mortgage was not discharged, but was foreclosed, and the premises in question sold thereunder in April, 1874, and plaintiff compelled to pay by reason thereof for mortgage, costs and expenses, $1,000, for which plaintiff demanded judgment. The defendant Mark Shannon duly answered, setting up a general denial, the statute of limitations, and that deceased left no assets in Yates county, and the surrogate of that county had no jurisdiction to grant letters.
    _ TJpon the trial the plaintiff offered in evidence the probate of the will in Cameron county, and letters testamentary there issued to plaintiff, and also the letters issued by the surrogate of Yates county, reciting that testator left assets in Yates county. Defendant •objected, that plaintiff does not sue in his representative capacity, and also tliat the surrogate of Yates county had no jurisdiction to issue letters. These objections were overruled and exceptions taken.
    The plaintiff showed that the bond in suit was in Yates county at the time of the death of the deceased. It was also shown that the mortgage referred to in the bond had not been discharged, but was foreclosed, and the premises sold thereunder in May, 1874.
    No evidence was given of payment in fact by plaintiff. The court held that plaintiff could recover the amount of the bond and interest from December 24, 1855, amounting to $1,216.43. The plaintiff entered judgment for $1,000, as claimed in the complaint, remitting the balance.

      D. B. Prosser, for the appellant.
    The utmost the plaintiff could recover under any circumstances, under the proof as against the defendant Mark Shannon, is the $500 named in the penalty. It is well settled that when the condition of the bond is one of indemnity, or for the performance of covenants, the recovery cannot exceed the penalty. (Clark v. Bush, 3 Cowen, 151; Raynor v. Clark, 7 Barb., 581; Mower v. Kiy, 7 Paige, 88 ; Long v. Gla/rk, 8 N. Y., 148.) All the authorities agree that the liability of the surety cannot be extended beyond the penalty. (Rayner v. Clark, 7 Barb., 581; Cla/rk el al. v. Bush, impleaded, etc., 3 Cowen, 151; Mower v. Kip>, 6 Paige, 88.)

      W. S. Briggs, for the respondent.
   Merwin, J.:

The appellant claims the plaintiff cannot maintain this action, because he does not sue in his representative capacity. The point is based on the fact that the word “ as ” is not inserted in the title of the action before the word executor.”

In the cases cited to sustain this proposition (Merritt v. Seaman, 6 N. Y., 168; Sheldon v. Hoy, 11 How., 11; Worden v. Worthington, 2 Barb., 368), the complaints were considerably different from the present one. In the 6th New York, a cause of action on a note was set out without reference to plaintiff’s representative character, the promises were all laid to the plaintiff individually and no allegation of his appointment. In the case in 11 Howard, the action was in trover, and there was no allegation of appointment or that 'the plaintiff sued in his representative capacity. In the case in Barbour, the action was on the common counts for goods, etc., and the promises were all alleged as being to the plaintiffs, and there was nothing showing a debt or promise to the intestate. In the present case the action is based and alleged on promises to the testator, the appointment of plaintiff is in issue, the recovery is assets, the structure of the complaint shows the suit is • in plaintiff’s representative capacity, the finding of the court is that the plaintiff as executor had competent authority to bring the action and that he is entitled to recover. In 1 Chitty on Pleading, 315 [ed. of 1837], it is said the representative character of assignees and executors should be stated in the commencement, though it would suffice if it appeared in the other parts of the declaration. (See, also, 1 Chitty PL, 284.) That I think is this case. The defect, if any, was a formal one, and the title should be deemed amended according to the allegations and the proof.

It is further claimed the surrogate had no jurisdiction to grant the letters. The surrogate having passed upon the question of there being assets in the county, it is at least doubtful whether that question can be reviewed in a collateral proceeding. (Roderigas v. East River Savings Institution, 63 N. Y., 460.) The letters were certainly prima facie evidence. (Belden v. Meeker, 47 N. Y., 307.) And there is no finding of fact to the contrary, or request to find, There was in fact no evidence to rebut the presumption in their favor, but such as tended to sustain it. The letters were properly received in evidence.

The appellant further claims the court erred in finding that the land described in the complaint was sold under the foreclosure. The answer to this is that there is no exception to this finding. Besides, the concession in the case was undoubtedly intended to go just as far as the finding goes.

In construing the bond, the court below held the plaintiff could recover the amount of the penalty with interest from the time of the breach, being the expiration of the two years named in the bond as the time within which the lie'ns should be discharged.

In Juliand v. Burgott (11 Johns., 478) the condition was “ to see the lands freed from all incumbrances by the 20th day of February, 1812.” No eviction was alleged, and on demurrer it was held not necessary. This is quite analogous to the present case, and nothing is cited to the contrary in this State. It was held different in Bradford's Admrs. v. Whitesides, 16 S. & R., 320), in 1827. It will be seen that the condition of bond in suit contains an absolute and definite provision, that if the obligors shall within a fixed time cause all liens, including a specified mortgage to be discharged, and in addition thereto should indemnify, etc., then to be void, otherwise to remain in force. This, as far as the main part of the condition is concerned, is substantially an agreement to do a particular thing by a fixed time or pay a certain sum of money.

Time is an essential of such a contract, and it cannot be thrown aside by construction, which would be the case if it were held to be only a bond of indemnity.

I am inclined to follow the case of Juliand v. Burgott, and treat the bond as for the payment of money in case of breach. If so, it would follow within the cases of Lyon v. Clark (8 N. Y., 148) and Brainard v. Jones (18 N. Y., 35) that interest would be allowable from the time of the breach.

It follows the judgment should be affirmed.

Present — Talcott, P. J., Smith and Merwln, JJ".

Judgment affirmed.


author: Herwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JACOB SANDMAN, Appellant.

      Highway commissioners — change in the number of, how made — Amendment of answer — refusal to allow, not appealable.

    Prior to the annual town meeting in 1873, the electors of the town of Alden had adopted a resolution providing that there should be three commissioners of highways, and at such meeting the defendant Sandman was elected for three years, one Ruhling for two years, and one Patterson for one year. In 1874 Patterson was duly re-elected for the term of three years. At the meeting in 1875, it was resolved, in pursuance of chapter 455 of 1847, to return to one commissioner. At the opening of the polls, and before noon, at the meeting in 1876, and before any votes were cast, a resolution was adopted rescinding the resolu tion of 1875, and tlie defendant was subsequently, at such meeting, elected a commissioner of highways.
    In an action to evict him from that office, held:

    That under chapter 455 of 1847 the resolution of 1875, providing for a return to one commissioner, could not be rescinded until the expiration of the terms of the commissioners then in office; and that as one had been elected in 1874 for the term of three years, there was no vacancy in 1876.
    That the resolution of 1876 was void, for the reason that it was adopted before the time fixed by the statute (chap. 173 of 1874) for the transaction of business of that character, viz., noon.
    A refusal at the Circuit to allow an amendment setting up an entirely new defence, is not a subject for exception available on appeal from the judgment.
    Appeal by defendant from a judgment, entered upon tbe decision of tlie court at Special Term, adjudging that defendant be ousted from tbe office of commissioner of highways, of the town of Alden, in the county of Erie.
    The complaint alleged that, prior to the annual town meeting in March, 1873, said town, by resolution duly adopted, resolved to thereafter elect three commissioners of highways instead of one as theretofore; that pursuant to such resolution, three commissioners were duly elected, Sandman, the defendant, for the term of three years, Ruhling for the term of two years, and Patterson for one year, all of whom duly qualified and entered upon the discharge of their duties; that at the annual town meeting in March, 1874, Patterson was re-elected for the full term of three years, qualified and entered upon his duties, and is still such commissioner; that at the town meeting in March, 1875, Frederick Zoller was duly elected a commissioner for the full term of three years, duly qualified and entered on his duties and still is such commissioner.
    These allegations are specifically admitted by the answer. It was further alleged in the complaint that at the meeting in March, 1875, it was duly resolved to return to one commissioner, and that after that meeting no other commissioner be elected except as by statute provided; that in March, 1876, defendant’s time expired, but he still continued to act and has usurped the office. The answer, among other things, alleged, that at the meeting in 1876, the town resolved to return to three commissioners and rescinded the resolution of 1875, and that thereupon defendant was-duly elected and qualified.

      Upon the trial it appeared that at the meeting in 1875, in the afternoon, while voting was going on for town officers, the electors voted to return to the plan of having but one commissioner.
    It does not appear whether this resolution was, as alleged in the complaint, not to affect that town meeting. It appears, however, that Zoller was voted for, and declared elected commissioner and has entered upon his duties. The defendant showed the adoption of a resolution at the meeting in March, 1876, at the opening of the polls and before any votes were cast, rescinding the resolution of 1875 and resolving to have three commissioners, and that after that, at the same meeting, defendant was elected commissioner. The defendant offered to show that the resolution of the town meeting of 1873, admitted by the pleadings, was in the afternoon of that meeting rescinded. This was objected to, on the ground that the adoption of the three-year system in 1873 was admitted by the answer. This objection was sustained and defendant excepted. Defendant asked to amend by putting in issue such adoption. This application was denied and defendant excepted.
    The court held that, under the act of 1847, chapter 455, section 1, the town having resolved in 1875 to change from three to one, it could not go back to the old board of three until the change was actually accomplished, aud that as in 1876, Patterson elected in 1874, was still in office having one. year to'serve, the town had no power to elect defendant.

      Thomas Corbett, for the appellant.

      George W. Cothran, for the respondent.
   Herwin, J.:

The evidence offered by defendant of rescission in 1873 of the resolution then adopted, was immaterial if within the issue. For if that resolution had not been adopted, only one could have been legally elected in each of the following years, and the term of office would have been only one year, of course then creating a vacancy in the spring of 1876, which could have been legally filled by the election of defendant.

But the issue of such rescission was not in the case; the fact was otherwise admitted by the answer, so that the court ruled'correctly in sustaining the objection. The reasons for refusing the application to amend do not appear. It is said in such a case we are bound to presume that the application was properly refused. (Burnet v. Bookstaver, 10 Hun, 485.) It was matter for special motion, and its refusal at Circuit, an entirely new defense being involved, is not a subject for exception available on appeal from the judgment.

It is claimed by defendant that there is no proper allegation of classification of these commissioners elected in 1873. Be that as it may, it is certainly admitted that in 1874 Patterson was elected for the full term of three years and is still such commissioner. That fully raises the point claimed by plaintiff to be fatal to defendant’s claim

The resolution of 1875, as alleged in the complaint, was not to affect the then present town meeting. All this allegation was denied by the answer, and the evidence showed the resolution to be unlimited and is so found. Whether under such a resolution the election in 1875 was valid is of no importance here, nor is it of any importance whether the legal conclusion in plaintiff’s complaint based upon the limited resolution is right or not. Neither reaches the question of defendant’s rights.

Had the resolution been limited, it may be that the town could have rescinded it before any election was had under it. That point, however, is not here.

The defendant’s rights depend upon (1) whether the resolution of 1876 was properly passed, and (2) if so, whether the town had the power to so act. Upon this last proposition the court held against the defendant. But defendant’s counsel claims the Revised Statutes were amended in 1865 and 1866, so as to materially change the effect of the act of 1849, and that these amendments were not considered by the court below. The Revised Statutes (part. 1, chap. 11, title 2, § 3) simply provided for the choosing at the annual town meeting in each town “ three commissioners of highways;’’ chapter 180, of 1845, section 2, gave the electors power to determine by resolution whether there should be chosen one or three, and if three were determined upon, their terms of office were to he one, two and three years, to be classified by lot, and thereafter one to be elected each year for the term of three years, and-provision was also made for filling vacancies. In 1847, by chapter 455, the act of 1845 was amended by adding, in substance, that towns, by resolution, might return to one, and that, when such resolution shall, have been adopted no other commissioner shall be elected or appointed, until the term or terms of those in office at the time of adopting such resolution shall expire or become vacant; and they shall have power to act until their terms shall severally become vacant or expire, as fully as if the three continued in office.” In 1865, by chapter 522, section 6, the section of the Revised Statutes above referred to was amended by making it read “ one or three commissioners of highways,” and in 1866, by chapter 30, section 1, by making it read one, two or three commissioners of highways.” These in no way refer to the act of 1847, and are not inconsistent with it, so far as one or three is concerned, and there is no claim here that the town ever resolved to have two. The Revised Statutes, as amended, left the manner of fixing one or three to be determined by the law then in force. Such law was, in fact, necessary to their proper operation. I cannot see how the acts of 1865, 1866 affect the present question. I do not understand that the construction of the act of 1847 is otherwise questioned. There is certainly much reason in the position that that law after the benefit of its provisions were invoked and entered upon, prevented further action on the part of the town until the terms of those then in office should expire. "Were this not the construction various complications might arise, annoying as well as detrimental to public interests.

However, on looking at the provisions of chapter 173, Laws of 1874, section 1,1 am of the opinion, that the resolution of 1876, under which defendant claims, was not properly passed. By that statute, the time for transacting such business as requires the vote of the people is fixed at noon, and then to continue without adjournment till finished, excepting the balloting for town officers and the duties connected therewith, that is with the balloting.

This resolution had nothing to do with the balloting, but was clearly business requiring the vote of the people. The exception only referred to the casting and taking of ballots and canvassing. Nor is the statute directory simply. It establishes a rule, valuable, impórtant and to be relied upon, and for the essential benefit of the electors.

To call it directory would substantially repeal it. Its plain object would certainly be frustrated. The resolution in question was passed at the opening of the polls and before any votes were cast, and it is not questioned but that it was before noon.

It follows that the judgment should be affirmed, with costs.

Present — Talcott, P. J., Smith and Merwin, JJ.

Judgment affirmed, with costs.


author: Talcott, J.:

text:
    CHARLES SHEARMAN, Appellant, v. JAMES W. HENDERSON and ORRIN A. CARROLL, Respondents.

      Motion for a new trial on justice’s minutes — Code, §284 — when it may he made.

    The fact that a defendant, upon the trial of an action before a jury, omits to move for a nonsuit or to request that a verdict be directed in his favor, or to except to the submission of -any particular question to the jury, does not prevent him from moving to set aside the verdict, as being founded on insufficient evidence, at the same Circuit, upon the minutes of the justice before whom the action was tried.

      PeaTce v. Bell (7 Hun, 454) not followed.
    Appeal by plaintiff from an order setting aside a verdict in his favor at the Yates County Circuit, granted upon á motion made at the same Circuit, upon the minutes of the justice before whom the action was tried, on the ground that it was founded upon insufficient evidence.

      Charles E. King, for the appellant.
    The failure of the defendants to move for a nonsuit, or to ask the court to direct a verdict for the defendants, was an admission that there was sufficient evidence to go to the jury, and the defendants were thereby precluded from moving -to set aside the verdict on the ground of insufficient evidence. (Peahe v. Bell, 14 N. Y. S. C. R. [7 Hun], 454; James v. Chamberlin, N. Y. Weekly Dig., April 2, 1877, vol. 4, No. -8j
      Ross v. Colby, 10 N. Y. S. C. R. [3 Hun], 548; Barrett v. The Third Am. R. R. Co., 45 N. Y., 632; S. C., 8 Abb. [N. S.], 216; Rowe y. Stevens, 12 id., 389; St. John y. SMnner, 44 How., 198; Sickles y. Gillies, 45 id., 94; Hamilton v. Third Ave. R. R. Co., 13 Abb. [N. S.], 318.)

      Morris <& Leary, for the respondents.
    Section 264 of the Code expressly authorizes the judge who tries the cause, upon motion made at the same term, in his discretion, to set aside a verdict and grant a new trial for “ insufficient evidence.” There is no ambiguity in the language, nothing requiring a motion for a nonsuit, or otherwise, as a prerequisite to the motion in this statute. {Allgro v. Duncan, 24 How., 210; 39 N. Y., 313; Sharkey v. Torrilhon, 7 Hun, 343.)
   Talcott, J.:

This is an appeal from an order made at the Yates County Circuit, setting aside a verdict in the action found at the same Circuit on the minutes of the court, as being founded on insufficient evidence.

The case does not show that any motion for a nonsuit was made, or that there was any request that a verdict for the defendants be directed by the court, or that there was any exception to the charge of the court, by which the question whether there was a contract made between the parties was submitted to the jury, and the appellant insists that these omissions amount to an admission that the evidence was sufficient to be submitted to the jury, and that the defendants were thereby estopped or precluded from claiming that the evidence was insufficient, and from moving to set aside the verdict on that ground.

A decision of the General Term of the third department (Peake v. Bell, 7 Hun, 454) is cited to sustain this proposition. The case cited is directly in point, and an order setting aside the verdict in that case was reversed for the reasons stated. And sundry cases are cited by Mr. Justice Learned in the opinion, which establish the general rule, that an omission to move for a nonsuit, or for a direction to the jury as to their verdict, operates as an admission that the evidence is sufficient. This is adding to section 264 of the Code a condition or proviso, not contained in it, which authorizes fcbe judge wbo tries tbe cause, to entertain a motion on tbe minutes to set aside a verdict and grant a new trial, not only on exceptions, but for insufficient evidence, whether exception be taken or not, tbe motion to be made before tbe judge wbo tried tbe cause, and at tbe same term or Circuit at wbicb tbe trial was bad, and while tbe facts and tbe testimony,' together with tbe demeanor and manner of tbe witnesses, may be supposed to be yet fresh in tbe recollection of tbe judge and tbe counsel.

We think tbe cases of Allgro v. Duncan (24 How., 210, affirmed, 39 N. Y., 313) and McDonald v. Walter (40 N. Y., 551) must have escaped tbe attention of tbe learned court wbicb reversed tbe order in Peake v. Bell {supra). It does not appear in either of tbe cases above cited, from tbe decisions of tbe Court of Appeals that any motion bad been made on tbe trial, wbicb pointed to tbe insufficiency of the evidence; in fact it seems quite apparent that no such motion could have been made. (See opinion of Judge Emott in 24 How., 210.) And in tbe case of McDonald v. Walter, the verdict was set aside, because it was apparent that tbe jury must have adopted an incorrect measure of damages. At all events, ,we think tbe decision in tbe third department cited, is contrary to tbe cases in tbe court of last resort above cited.

Tbe appellant also insists and endeavors to show from a critical examination of tbe case, that tbe evidence on tbe subject of whether any contract was shown on tbe part of tbe plaintiff was sufficient to make a conflict of evidence, which has been decided by tbe jury in tbe plaintiff’s favor.

There seems some plausibility in tbe theory of tbe counsel for tbe appellant, but it is not so plain as to require us to reverse tbe decision on that subject of tbe learned judge wbo tried tbe cause, and wbo bad so recently beard tbe testimony and seen tbe witnesses, and could better understand tbe effect and weight to wbicb their testimony was entitled than we can, and -who thought that tbe case should be retried. • •

Order appealed from affirmed, with ten dollars costs and disbursements.

Present — Talcott, P. J., Sshth and IVIebwiN, JJ.

Ordered accordingly.


text:
    MICHAEL W. SHAW, Respondent, v. GEORGE E. COCK, as Treasurer of BUTTERFIELD OVERLAND DISPATCH, Appellant.

      Statute of limitations — Amendment of summons — power of court as to.

    The plaintiff was the assignee of a claim against ‘ ‘ Butterfield’s Overland Dispatch ” for freight, due to one Trivett for certain articles of merchandise transported by him between September 36, I860, and August 18, 1866. On or about August 5, 1873, the plaintiff caused a summons to be placed in the hands of the sheriff of New York, with intent that it should be actually served in an action against George .13. Cock and other individuals, and the Overland Dispatch Company.
    Butterfield’s Overland Dispatch and the Overland Dispatch Company wore two distinct joint stock associations, created under the laws of this State, and carrying on business in the city of New York.
    On July 39, 1873, the summons was served on the said Cock, and thereafter an attorney appeared for him and also for certain other of the defendants and the Overland Dispatch Company. On October 6, 1878,'an order was made by default, but, upon due notice, striking out the names of all the individual defendants except that of George E. Cock; and so amending the summons that it read “Michael W. Shaw vs. George IS. Cock, as Treasurer of Butterfield's Overland Dispatch.” The latter association appeared in the action and answered, setting up the statute of limitations. Held, that the action was not commenced against, nor did the court acquire jurisdiction over the Butter-field’s Overland Dispatch until the making of the order of October 6, 1873, and its appearance in the action; and that the cause of action was then barred by the statute.

      Quare, whether the court has power to so amend the summons and complaint in an action as to strike out the names of all the original defendants, and substitute that of another person having no connection with the former defendants.

      Davis v. The Mayor (14 N. Y., 506) cited and approved.

      McElwain v. Corning (13 Abb., 16) criticised.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of this actioi. by tbe court without a jury.

      Joshua M. Vcm Cott, for tbe appellant.

      O. R. Lockwood, for tbe respondent.
   Talcott, J.:

This is an appeal from a judgment rendered at tbe Chautauqua Circuit in an action tried by tbe court without a jury, a jury trial having been duly waived. The. defendant pleaded in bar that the cause of action did not accrue within six years before its commencement.

The action was brought to collect the agreed freight on certain articles of machinery and merchandise from the city of Atcheson to Bannock City and Virginia City, in the Territory of Montana. Thé plaintiff is the assignee of one Trivett, who contracted to carry the freight. The contract was made on the 28th day of September, 1805, and the delivery of the goods was completed on the 13th day of August, 1866. In the view we take of the case, the action was commenced against Butterfield’s Overland Dispatch after the 6th day of October, 1873, so that six years had expired before the commencement of the suit, and if our conclusion is correct as to the time of the commencement of the suit, the defendant was entitled to judgment instead of the plaintiff. The plaintiff seeks to avoid the effect of the statute of limitations by certain proceedings and the effect of an order made at Special Term of this court in October, 1873, the effect of which we proceed to consider.

After the 5th and before the 8th day of August, 1872, the plaintiff caused a summons to be issued in a suit entitled as follows : “Michael Shaw against George E. Gogk, Wm. McCook, Azel W. Spaulding, II. I. Messinger, A. D. McCook, William W. Bogg, I. Cook and the Overland Dispatch Company,” and caused the same to be delivered to the sheriff of the city and county of New York, with the intent and purpose that it should be actually served. On the 29th day of July, 1873, the before-mentioned summons was served upon George E. Cock, “he being the same person named therein by that name.” On the 12th day of August, 1873, Messrs. Van Cott and Winslow appeared in the suit then commenced for George E. Cock, and also for William Martin, H. I. Messinger, William II. Bogg, and the Overland Dispatch Company, a part of the defendants mentioned in the said summons, and served upon the attorneys for the plaintiff a notice of such appearance and a demand for a copy of the complaint before any further proceeding were had in the said action; and, on the 6th day of October, 1873, an order was made at a Special Term, in Cattaraugus county, upon a default, but after due service of the notice of the said motion upon Messrs. Van Cott and Winslow, by which it was ordered “ that the plaintiff have leave to amend liis summons and all proceedings in this action, as follows, tliat is to say: By striking out of the title of the action the names of A. McCook, D. McCook, William Martin, Azel W. Spaulding, H. I. Messinger, A. McD. McCook, William W. Foce, I. Cook; also striking out the word “ the ” after “ I. Cook,” also the word “ company,” the last word to said title, and inserting after the word “ George E. Cock,” in such title, the words “ as treasurer of Butterfield’s,” so that, after such amendment, the title of such cause shall be as follows: “ Michael Shaw against George E. Cock, as treasurer of Butterfield’s Overland Dispatch; ” and after the making of the said order, the complaint in the action, changed as specified in the order, was served on Messrs. Tan Cott and Winslow, and, as found by the court, “ the defendant appeared and answered.” No amended summons was served on anybody.

Butterfield’s Overland Dispach is a joint-stock association, organized under the laws of this State at New York, and having its chief office and place of business in the city of New York.

The “ Overland Dispatch Company ” is also a joint-stock association, created under the laws of the State, and existing at the time of the placing of the summons in the hands of the sheriff of New York, and having its chief office and place of business in the city of New York, carrying on the same kind of business as “ Butter-field’s Overland Dispatch,” and the said George E. Cock is the treasurer of “ Butterfields’ Overland Dispatch,” so that the amendment of the “ summons and all proceedings ” in the action changed the action from an action against the individuals named and the “ Overland Dispatch Company ” to an action against “Butterfield’s Overland Dispatch.”

A joint-stock association organized under the statute of this State is a corporation within the meaning of section 99, of the Code, so that a suit is commenced against it by the delivery of a summons, with the intention of having the same served, to the sheriff or other officer of the county in which the corporation was established by law, or where it kept an office for the transaction of business. (Wescott et al. v. Fargo, President, etc., 61 N. Y., 542.) It is claimed on the part of the plaintiff that the order of October, 1873, was made under section 173, of the Code, which provides that “the court may, before or after judgment, in furtherance of justice and on snob terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party or by correcting a mistake in the name of a party or a mistake in any other respect,” and also under section 175, which provides that when the plaintiff shall be ignorant of the name of the defendant, he may bo designated by any name, and when the name shall be discovered, the pleading or proceeding . may be amended accordingly. The affidavits on which the order was made are not contained in the case, so that it does not appear upon what ground the order was made, nor does it appear that a mistake in the name of any party was made, and it cannot reasonably be claimed that by the addition of the name of any party, such party can be deprived of any defense which lie had at the time his name was added as a party. The action was first commenced against sundry individuals and the Overland Dispatch Company” a joint stock association existing in New York, and having the office required, in order to make the intent to commence a suit as specified, equivalent to the commencement thereof for the purpose of avoiding the bar of the statute of limitation. The suit which was instituted by the delivery of the summons to the sheriff of the county of New York was not thereby instituted against Butterfield’s Overland Dispatch, nor against George E. Cock as the treasurer thereof, but against George E. Cock as an individual and sundry other persons as individuals, and against the “ Overland Dispatch Company.” The assignment under which the plaintiff claims was of all claims, demands, etc., which Trivett had against “ Butterfield’s Overland Dispatch,” association or company, and distinctly recognized such as the name of the association, as a joint-stock company or association.

It may well be doubted whether the Special Term could make the order of October, 1873. In the case of Davis v. The Mayor, etc. (14 N. Y., 506), it is said by Denio, J. (p. 527), speaking of the amendments which might properly be allowed under section 173 of the Code. “A possible construction of the power to strike out and insert the names of parties would admit the striking out of all the existing ones, on the ground that they had no cause of action and inserting an entirely new set who really had such right, but this would be too unreasonable to have been intended. So with the unlimited provision to- correct a mistake.” Wright, J., who also delivered an opinion in tlie same case, but which is not reported in full, came to the conclusion that the amendment authorizing the attorney-general tobe made a party, was unauthorized and erroneous.

It is not necessary, however, to inquire in this case whether such an alteration of the summons as was made by the order obtained by default in this ease, was or was not within the authority of the court, since the order did not attempt to deprive the defendant of any right to plead the statute of limitations, nor did it attempt to declare what should be the effect of the summons previously delivered to the sheriff. “Butterfield’s Overland Dispatch” was not sued, and no summons was issued against it till the order of October, 1873, and its name was nowhere mentioned in the summons. When brought in by the amendment under the order of October, 1873, then for the first time, at all events, was a suit commenced against it, and its rights are preserved as they existed at that time. Was the summons against George E. Cock and the other defendants individually, and the “Overland Dispatch Company” the com mencement of an action against “Butterfield’s Overland Dispatch?” It seems to us it was not, and that the only mode in which the court got jurisdiction of “Butterfield’s Overland Dispatch” was by the amendment, and the subsequent appearance of that association. The defendant might appear gratis (Code, § 139), and from the time of such appearance, and not before, the jurisdiction over the party was complete as though it had been served with a summons

The defendant might be sued by the name of its treasurer, in other words, for the purpose of being sued the name of the treas urer as its treasurer is to be deemed the corporate name of the association. (Westcott v. Fargo, President, etc., supra) And the action was not commenced against the association until it was sued by its corporate name, or at least by some name intended as such. The suit against Cock, individually, was not a suit against the association.

In McElwain v. Corning (12 Abbott, 16), relied upon by the plaintiff on this appeal, so far as it is an authority for this practice, the right parties were sued, and duly served with process, but their rejmesentative character was misdescribed, and although the service was in time to save the six months’ limitation, yet the court took care to see that the defendants, relying on the six months’ limitation for commencing actions against executors after the rejection of a claim, were protected against responsibility for having paid out assets of the testator so that hut a small portion was left for the plaintiff. That case as an authority is not to be extended beyond the limits of the facts to which the principle was ajiplied.

It seems to us that this is the precise case put by Judge Denio in Davis v. The Mayor, etc. (supra). It was the striking out of all the existing defendants, against whom, so far as appears, no cause of action existed in favor of the plaintiff, and inserting an entirely new set, against whom a cause of action, perhaps, had once existed, which the judge, in the opinion referred to, terms a possible construction of the power conferred by the one hundred and seventy-third section of the Code, but pronounces “too unreasonable to have been intended.” The service upon George E. Cock as an individual, was long after the statute had run, hut such service did not, we think, give the court any jurisdiction to pronounce a judgment against “Butterfield’s Overland Dispatch,” which was only gained by the appearance of that association after the order of October, 1873. No notice was given to the corporation of an application for such order, but the amended complaint was served on Messrs. Tan Cott and Winslow, who were also the attorneys of the corporation thus sought to be made a defendant, and who appeared in the action without waiting for the service of a summons, but also long after the demand was barred by the statute of limitations. Wc think the court acquired no jurisdiction of the person till that appearance, and its rights in respect to the statute of limitations are to be determined by the length of time which had then elapsed.

The other questions presented in the case, though interesting and important, are unnecessary to be considered when, in our view, the statute of limitations, upon the facts found, was a bar to the action, and therefore will not be discussed.

Judgment reversed and new trial granted, costs to abide the emnt.

■ Present — Talcott, P. J., Smith and Merwin, JJ.

Ordered accordingly.


text:
    MARY HAUGHEY, as Administratrix of ANDREW BRADLEY, Deceased, Respondent, v. ERASMUS WRIGHT and BENSON SMITH, Appellants.

      Comparison of handwriting — -whenpermitted— Code, § 399.
    In an action by tbe bolder of a promissory note for $300 against tbe makers, tbe defense was forgery; tbe defendants claiming that they never gave a note for that amount, but bad given one for $2o0. Upon tbe trial, tbe referee, against tbe defendants’ objection that it lead to a comparison of bandwriting, allowed questions to be put to a witness to show that the body of the note, as well as tbe signature, was in tbe bandwriting of tbe defendant. Held, that tbe evidence was properly admitted.
    Under section 399 of tbe Code, proof leading to tbe inference that no personal transaction took place with tbe deceased is equally inadmissible with evidence that one did take place.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Btomsey <& Miller, for the appellants.
    The objection made to the question asked of defendant — “Is the body of the note in your handwriting ? ”— was improperly overruled. It was not a personal transaction with the intestate of the plaintiff, and the defendant was not incompetent under section 399 of the Code. (Simmons v. Sisson, 26 N. Y., 261; Franlilin v. Pinl&ney, 18 Abb. Pr., 186 ; Kerr v. McGuire, 28 N. Y., 116,152; Daniels' Exr. v. Foster, 26 Wis., 686, 692.)

      A. A. White, for the respondent.
    The several offers to prove by the defendant Smith that he did not sign the note were properly excluded under section 399 of the Code. (Barry v. Galvin, 37 How., 310; Mulqueen v. Duffy's Admrs., 6 Hun, 299 ; Baldwin's Admrs. v. Smidt, 5 id., 151; LeOlare v. Stewart, 8 id., 127; 62 N. Y., 80, 83; Howell v. Van Sielen, Exec., 6 Hun, 115 ; Bessequie v. Mason, 58 Barb., 89; Boss v. Boss and emother, Executors, 6 Hun, 182; Oonway v. Moulton, id., 650.) The answer to the question as to whether the body of the note was in Smith’s handwriting was properly received as the circumstances connected with the inception of the note were legitimate subjects of investigation. (Dubois' Admrs. v. Balcer, 30 N. Y., 355.)
   Talcott, J.:

This is an appeal from a judgment for the plaintiff entered on the report of a referee. The action was upon a promissory note claimed to have been given by the defendants as copartners, to the intestate in his lifetime.

The defense was, that the note sued on was a forgery. The appellant seeks .a reversal of the judgment on the ground that the referee made erroneous rulings concerning the admission and rejection of evidence.

The referee allowed questions to be put to witness to show that the body ” of the note, as well as the signature, was in the handwriting of the defendant Smith. The appellant objects to this evidence as immaterial and that it leads to a comparison of hands. A com parison of hands between papers legitimately in evidence in the case for other purposes is not inadmissible, but the inquiry as to the handwriting of the body of the note was particularly relevant in this case, as the defendants claimed that they never gave a note for $300, but did give one for $250. To prove, therefore, that the whole note, including the amount, was in the handwriting of Smith, one of the defendants, was pertinent. The defendants also excepted to the exclusions of certain questions which they proposed to put to the defendant Smith. All of which were attempts to prove by him that he did not sign the note, which, in the various forms in which the questions were worded, were objected to by the plaintiff as incompetent under the three hundred and ninety-ninth section of the Code. The note purported to have been made to Andrew Bradley, the deceased, personally; prvma facie, therefore, the plaintiff, when proving the genuineness of the note, proved a contract made with the deceased, personally.

The defendant, it seems, admitted the giving of a note by the defendants, who wei’e partners, to the deceased, personally, on a settlement with him ; it must have been claimed, therefore, that the note sued on was the note given by the defendants, and had been altered in regard to the amount, or that the note in suit had been substituted in place of a $250 note given to the deceased personally. The offer was therefore objectionable, under the three hundred and ninty-ninth section, as it seems that under that section proof that no personal transaction with the deceased took place is equally inadmissible with evidence that one did take place, and evidence leading to the inference, that such a transaction did or did not take place personally, with the deceased, is held to be within the mischiefs which the three hundred and ninety-ninth section was designed to guard against. (Dubois v. Baker, 30 N. Y., 355, affirming S. C., 40 Barb., 556; Howell v. Van Siclen, 6 Hun, 116.) The appellant, in his printed points, states that the objection that the testimony was forbidden by the three hundred and ninety-ninth section, was not made; but by a manuscript alteration of the case, it now appears that all the objections to the examination of the defendant Smith, were placed on the same ground as the first objection, which was, that it related to a personal transaction between the defendant and Andrew Bradley, deceased, and was offered against the administratrix of the latter.

The judgment is affirmed.

Present — Talcott, P. J., Siam and Merwin, JJ.

Judgment affirmed.