author: Follett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HEZEKIAH STURGES and WILSON T. BASSETT, Appellants, v. G. POMEROY KEESE and DAVID A. AVERY, Respondents.

      Religious corporation — Episcopal churches — 1868, chap. 808, only applicable to such existing corporations as adopted it— chartered rights, whether acquired under a general or special law, cannot be impaired — who are entitled to vote under chap. 79 of 1801 — chap. 195 of 1813.
    Chapter 808 of 1868, amending the acts relating to churches in connection with the Protestant Episcopal Church, and prescribing and altering the qualifications of the electors therein, wa.s not intended to apply to any then existing corporations, whether created by a special charter or formed under the general act, unless the vestry thereof should determine to adopt the same as provided in the second section of said chapter.

      It seems, that if it had been made to apply to such corporations, it would have been void as to all those formed prior to the adoption of the Revised Statutes, as violating the obligation of contracts.

      The rights and franchises of a private corporation organized under a general law are as inviolable as the rights and franchises of a corporation organized under a special charter.
    The word “belonged,” used in section 1 of'chapter 79 of 1801, and section 1 of chapter 195 of 1813, prescribing that the electors of Episcopal churches shall consist, among others, “ of all who shall have belonged to such church or congregation for the last twelve months preceding such election,” is incapable of an exact, inflexible definition. Whether the person whose right to vote is questioned belongs to the church or congregation, within the meaning of the statute, is and must remain principally a question of fact, though doubtless a mixed question of law and fact.
    The right of particular individual voters to vote, considered and passed upon.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was in the nature of a quo warranto to oust the defendants from the office of wardens of Christ Church, in Cooperstown.
    The case was tried before Mr. Justice Follett, who, upon directing the complaint to be dismissed, delivered the following opinion:
   Follett, J.:

Prior to the act of April 4, 1784, the religious corporations of the Colony and State of New York were organized under special charters. At this date a general act was passed which provided for the incorporation of such corporations, the ninth section of which prescribed the qualifications entitling persons to vote at elections. (1 Jones & Yarick, 104 ; 1 Greenl, 71.)

This act not being satisfactory to the Episcopal church in this State, an act, entitled “An act for the relief of the Protestant Episcopal Church, in the State of New York,” was passed March 17, 1795. (8 Greenl, 188.) The fourth section of this act prescribed the qualifications of voters at elections.

In 1801, all prior statutes relating to religious corporations were revised and became a part of the Revised Laws of that year. A comparison of the previous- acts with the Revised Laws, shows that the Revised Laws were a complete revision of the prior statutes relating to religious corporations.

It was provided (chap. 189, vol. 1 [R. L., 1801],p. 619), “that all acts and parts of acts heretofore passed by the legislature of this State, which come within the purview or operation of any of the acts passed during the present session of the legislature, commonly called the revised acts, shall be and the same are hereby repealed from and after the first day of October next.” (October, 1801.) A statute which embraces the whole subject of, and revises former statutes, repeals the statutes revised. (Rochester v. Barnes, 26 Barb., 657-663; Potter’s Dwarris, 157; Sedg. on Stat. and Const. Law [2d ed.], 365.)

Christ Church of Cooperstown was incorporated in 1811. It was conceded on the trial to have been incorporated under the act of 1795. This concession does not express the fact, the act of 1795 having been repealed by the Revised Laws of 1801. Both parties to this action claim to be officers of this corporation, and both are estopped from denying its incorporation.

It is conceded that it was incorporated in 1811 as an Episcopal church, and there being no other statute under which it could have been incorporated, it must have been incorporated under the Revised Laws of 1801. By these laws it was provided (1 R. L. [1801], chap. 79, p. 336), ££ that it shall be lawful for the male persons of full age, of any church or congregation in communion with the Protestant Episcopal Church in this State, who shall have belonged to such church or congregation for the last twelve months preceding such election, and who shall have been baptized in the Episcopal church, or shall have been received therein, either by the right of confirmation or by receiving the holy communion, or by purchasing or hiring a pew or seat in said church, or by some other joint act of the parties and of the rector, whereby they shall have attached themselves to the Protestant Episcopal Church, and not already incorporated,” may organize a religious corporation. ££ The persons qualified, as aforesaid, shall in every year thereafter, on the day in Easter week so to be fixed for that purpose, elect such church-wardens and vestrymen.” By this act the qualifications of persons entitled to vote for church-wardens and vestrymen in the Episcopal church was fixed, except as to religious corporations previously created by special charters or under general laws, and except, of course, such churches as have been incorporated under subsequent laws. In 1813 the laws of this State were agaiq revised pursuant to chaptei 195 of that year. (2 R. L. [1813], p. 555.) This revision embraced the whole subject of religious corporations, but no change was made in the qualifications of voters in Episcopal churches. The language prescribing their qualification is the same in both revisions, except the word “other” preceding the words “joint act of the parties,” in the revision of 1801, was omitted in the revision of 1813. it was provided (vol. 2, B. L. [1813], chap. 202, p. 556], that all prior acts within the purview of the Bevised Laws of 1813, were repealed from and after December 1, 1813. The section repealing prior laws is an exact copy of the repealing section of the Laws of 1801, above quoted. March 5,1819 (chap. 33, Laws 1819), a further act relating to the incorporation of Episcopal churches was passed, which, however, in no wise changed the qualifications entitling persons to vote after the formation of the corporation. The first section of this chapter (the only one relating to this subject) was repealed in ,1868. (Chap. 803, § 3, Laws 1868.)

The Bevised Laws of 1813 were again amended by chapter 47, Laws 1826. The third section of this act is the only one relating to the qualification of voters, and this was declared inapplicable to Protestant Episcopal churches by section 4 of chapter 803, Laws of 1868.

In 1868, the Bevised Laws of 1813, so far as they relate to churches in connection with the Protestant Episcopal Church, were again amended.

This act, among other things, provides how Episcopal churches shall .thereafter be incorporated. The qualifications of persons entitled to vote upon the question of incorporating churches, is pre- ' scribed by subdivision 4 of section 1:

“ 4. The persons entitled to vote at such meeting shall be the male persons of full age belonging to the church or congregation, qualified as follows, and none other :

“ First. Those who have been baptized in the Protestant Episcopal Church, or who have been received therein, either by the rite of confirmation or by receiving the holy communion, or

Second. Those who have purchased, and for not less than twelve months next prior to such meeting have owned a pew or seat in such church; or who, during the same period of time, have hired or paid for a pew or seat in such church; or who, during the whole period aforesaid, have been contributors in money to the support of such church.”

The ninth clause of section 1 provides that the male persons qualified as aforesaid, provided they shall 'also have belonged to such church or congregation for twelve months immediately preceding the annual election, shall elect the wardens and vestrymen. Section 2 of this act provides :

“ 2. The provisions of the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth clauses of section one of this act shall apply to any church or corporation in communion with the Protestant Episcopal Church in this State, heretofore incorporated under the act hereby amended, or. under any of the acts amending the same, or under the several acts to provide for the incorporation of religious societies, passed April sixth, seventeen hundred and eighty-four, March twenty-seventh, eighteen hundred and one, or the act for the relief of the Protestant Episcopal Church in the State of New York, passed March seventeenth, seventeen hundred and ninety-five, or by any special charter made or granted before or after July fourth, seventeen hundred and seventy-six, whereof the vestry, at a regular meeting, shall by vote determine to adopt the same.”

The vestry of Christ Church has not adopted the provisions of subdivisions 9 to 17, inclusive, of section 1, chapter 803, Laws 1868. Notwithstanding, the relators . contend that subdivisions 4 and 9 are by section 2 made applicable to all corporations organized under general laws without being adopted by the vestry, and that the qualifications of voters contested in this case are to be determined by that act. In support of this construction it is urged that the words “ whereof the vestry at a regular meeting shall, by vote, determine to adopt the same,” are only applicable to churches incorporated “ by any special charter,” which term, it is said, is the immediate antecedent of the term “ whereof the vestry,” etc.

An antecedent is not contained in that part of the sentence commencing with the words “ or by any special charter,” but it is left to be implied or imported from the preceding lines of the section. The sentences, or parts of sentences, of the section connected by the disjunctive “ or,” seem' to require that “ or ” be construed as a conjunctive. Had these parts of the sentences been connected by “and” instead of “or” the relators’ construction would hardly have been contended for. “And” and “or” are convertible as tbe sense of the statute may require. (State v. Myers, 10 Iowa, 448; Townsend v. Read, 10 C. B. [N. S.], 308; Boyle v. Murphy, 55 Ill., 236.)

In the quaint language of Dodderidge, J., in Creswick v. Rokesby (2 Bulstrode, 47, 51): “ When the sense is the same they are all one, and the words conjunctive and disjunctive are to be taken promiseueP (Potter’s Dwarris, 286, 291, 292.)

If the construction contended for prevails, the lines between the word “incorporated” and the words “by any special charter,” are senseless and surplusage, and the statute should have read: “ This act shall apply to any church or corporation in communion with the Protestant Episcopal Church in this State, heretofore incorporated by any special charter,” etc. Such a construction would violate the rule that, if possible, effect must be given to every clause, sentence and word of a statute, rejecting none as surplusage unless the part rejected renders the statute senseless. (Sedg. on Stat. and Const. Law [2d ed.], 200, 201.)

It is further urged by the relators, as a reason for believing that their construction expresses the true intent of the legislature, that the legislature wras without power to change the qualifications of voters of religious corporations created by special charters, without the assent of the corporations, but had the right to make such changes in the qualifications of voters in religious corporations organized under general laws. This argument is based upon a misapprehension of the law. The rights and franchises of a private corporation organized under a general law are as inviolable as the rights and franchises of a corporation organized under a special charter. (Miller v. The State, 15 Wall., 478-492; Hewitt v. The Midland Railroad, 12 Blatch., 452.)

It was settled in the Dartmouth College ease (4 Wheat., 518) that the charter of a private corporation containing no reservation, or the right to change it, was an irrevocable grant of the franchises given, possessing the nature of property, and that subsequent acts of legislation altering the terms of the charter, increasing its members or changing its conditions, was a law impairing the obligation of a contract and unconstitutional.

This doctrine is applicable to every species of corporation, excepting those owned by the State or established for governmental purposes, and has been applied to religious corporations. (Terrett v. Taylor, 9 Cranch, 43; Pawlet v. Clark, Id., 292.)

Religious corporations are not governmental. The national and State constitutions forever separate church and State. The charter of Dartmouth College was to enable Doctor Wheelock to instruct the Indians in the Christian religion and to educate the people.

The application of ’ this doctrine to the property and rights of religious corporations is in conflict with the rule in England and on the continent of Europe, where churches have been .disestablished and their property appropriated to secular uses. But where this has been done the church and State are united, and the rights and property of churches are held to be governmental as distinguished from private. In those countries the power of the government is not limited by written constitutions but is omnipotent; and while such governments have usually avoided exercising the power of abridging the rights of private corporations, still their power to do so is unquestioned.

In 1828 the legislature, by the Revised Statutes, reserved to itself the right to repeal and alter the charters of all corporations thereafter granted (1 R. S., 600, § 8), and in 1846 the provision was incorporated into the Constitution. (Art. 8, § 1.) But these provisions are not retroactive and do not affect vested rights. (Dodge v. Woolsey, 18 How. [H. S.], 331; Jefferson Branch Bank v. Skelly, 1 Black. [U. S.], 436.)

Religious corporations consist of their members who own and, through their trustees, control the property. (Robertson v. Bullions, 11 N. Y., 243; Gram v. Prussia, etc., Society, 36 id., 161.) The members are persons entitled to vote. A statute introducing a new class of members, or members not possessing the qualifications required by the original charter, would be an impairment of the vested rights of the corporation and its members.

Chapter 803, Laws 1868, does not enlarge or restrict the classes of persons entitled to vote at the elections in Christ Church, nor does it modify the Revised Laws of 1801 in respect to the qualifications of voters in the church, for two reasons: 1. The legislature did not intend by chapter 803, Laws 1868, to introduce a new class of voters, or voters possessing different qualifications, unless the vestry of the church should adopt its provisions. (Hoffman’s Ecclesiastical Law, 317.) 2. The legislature was without power under the Constitution of the United States to effect such a change without the assent of the corporation, which has never been given.

The qualifications of the persons whose votes are contested must be tested by the Revised Laws of 1801.

■ By these laws two classes .of persons are entitled to vote for wardens and vestrymen: 1. Male persons of full age who have belonged to such church for the last twelve months next preceding such election. 2. Male persons of full age who have belonged to such congregation for the last twelve months next preceding such election.

To entitle persons belonging to the first class to vote they must, in addition to having belonged to the particular church in which the vote is taken for the last twelve months preceding the election, be members of the Protestant Episcopal Church in one of four ways:

1. By having been baptized in the Episcopal church.

2. By having been received in the Episcopal church by the rite of confirmation. . .

3. By receiving the holy communion.

4r. By some other joint act of the parties and of the rector whereby they shall have attached themselves to the Episcopal church..

These qualifications are ecclesiastical. The first three are so on their face and the last is copied from Canon 15 .of 1798, which remained the law of the church until 1832. The first three need not have been acquired in the particular church in which the vote is taken. If the persons have become members of the Episcopal church in an ecclesiastical sense, through the action of some church other than the one in which the vote is taken, it is sufficient to give persons of the first class the necessary ecclesiastical qualifications.

The term the rector,” in the fourth qualification, I think refers to the rector of the particular church in which the vote is taken, and is a local qualification. '

To entitle persons belonging to the second class to vote they must (in addition to having belonged for the last twelve months preceding the election to the particular congregation in which the vote is taken) have purchased or hired a pew or seat in said church.

In construing this statute it must be borne in mind that it assumes the existence of an unincorporated church or congregation-in communion with the Protes'tan’t Episcopal Oliurch, the persons belonging to which desire to form a religious corporation. It seems plain that the period of belonging refers not to the period during which the person may have belonged to the Episcopal church, but to the period during which he has belonged to the particular church or congregation in which the vote is taken; and a person of either class is not entitled to vote unless he has belonged to the particular church or congregation in which the vote is taken for one year next preceding the election. ' The relators insist upon a definition of the term “belonged * * * for the last twelve months,” which shall specify the facts constituting belonging and the facts excluding a person from falling within the term. It is dangerous to lay down general rules for the determination of questions not before the court. The questions which may arise and the facts underlying them cannot be foreseen, and for that reason cannot be wisely discussed. To illustrate, the definition contended for on the one hand, that a member of the church loses his right to vote if he ceases to be a stated attendant and contributor for twelve months preceding the election, would exclude from the polls the most devoted member, regular attendant and contributor who had not changed his residence or separated from the church, but who by illness and poverty should become unable to comply with the conditions. This rule would exclude members who had possessed every qualification for years, if by reason of illness or business they should voluntarily absent themselves from the church and their home for a year, even though without the slightest intention of changing their residence or severing their connection with the church. Should we attempt to define the word “ belonged ” by the term “ stated attendance,” unless confined to actual cases, the facts of which are known, confusion would necessarily ensue; one man might attend many times and yet not in any sense belong to the church or congregation, another might attend but few times and still belong. The facts existing anterior to the twelve months and the circumstances surrounding each particular person must be taken into account. Many cases may be supposed, but the wit of ma,n is incapable of supposing or anticipating the variety of questions which may arise turning upon the definition of the word “ belonged.” After much reflection, aided by tbe briefs of counsel, I am of tbe opinion that the term is incapable of an exact inflexible definition which will fit the eases that may arise so as to enable it to be said that this man does, and this man does not, “ belong ” within the meaning of the statute. Whether the contested voter belongs to the church or congregation within the meaning of the statute is, and must remain principally, a question of fact, though doubtless a mixed question of law and fact. Upon this theory this case will be decided without attempting an exact definition of the term. In the case of each person who at some period has unquestionably possessed the right to vote in this church, the statute and the evidence should be so construed as not to disfranchise such person unless it appears by a fair preponderance of evidence that the right has been lost. In such cases the doubt (if any) must be resolved in favor of the continuance of the franchise. This is the legal and charitable rule.

T. E. voted for the defendants. He had been baptized and confirmed in the Episcopal church. His name appears upon the list of communicants of Christ Church, in which he had received the holy communion though not for nearly two years prior to the election. His family attended this church, but he had not more than five or six times during the year. He had neither owned or rented a seat or pew. He had never attached himself to any other church or congregation.

E. P. X. voted for the defendants. He had been baptized and confirmed in the Episcopal church. His name appears upon the list of communicants of Christ Church, in which he had received the holy communion though not within five years preceding the election. He had attended this church at least twenty times within the year, but not regularly since August preceding the election. He had not owned or rented a seat or pew for several years. For two months preceding the election he had attended the Presbyterian church with considerable regularity, and on a few occasions other churches in the village.

X. I. W. voted for the defendants. He had been baptized and confirmed in Christ Church. His name appears upon the list of communicants of this church though he had never received the holy communion. He may have attended the church and joined in the service by the use of the prayer book fifteen times during the year, but had more frequently attended the Presbyterian church. He had not purchased or hired a pew or seat within five years; and for the last three years when in attendance had not occupied the pew of his father’s family. He had occasionally attended other churches in the village.

W. S. B. voted for one of the relators and one of the defendants. He had been baptized and confirmed in Christ Church. ■ His name appears upon the list of communicants of this church, in which he has received the holy communion several times. From December preceding the election, and to about the date of the election, he was absent from Oooperstown attending a medical college. Prior to December, and during the year preceding the election, he •attended this church about twice in each month. He had contri-buted to the support of the church at the Sunday offerings when in attendance. He had occasionally attended other churches. He was selected as one of the inspectors at this particular election.. It does not appear whether he had purchased or hired a seat or pew in this church.

L. B. 0. voted for the defendants. He had been baptized and confirmed in the Episcopal church. His wife and children had •been baptized in the church and his wife confirmed. For three years preceding May, 1811, he attended Christ Church regularly and received the holy communion therein, but had not received the holy communion for two or three years preceding the election. He had contributed to the support of the church at the Sunday offerings when present, and to some of the charitable enterprises of the church. For two year’s preceding the election he had not attended the church more than ten times, assigning as a reason that he remained at home-in charge of the children when his wife attended. He had never purchased or hired a pew or seat in the church, but has occupied a pew hired by another person.

The connection of these persons with the church had never been severed by any act of the church, nor is the evidence sufficient to justify the court in finding that they, or either of them, had severed ■their connection with the church and thereby lost the 'franchise which at one time they had clearly possessed. There is more doubt about the right of the last-named person, but the lenient rule adopted includes him. These persons were all legal voters and. their votes must be counted.

W. H. B. voted for the defendants. He had been a resident of the parish since 1873. He had been baptized in the Protestant Episcopal Church, but never had been confirmed or a communicant. Since 1873 he had hired and paid for pew No. 27 in Christ Church, though the rent was in arrear since October, 1879, but whenever rent had been called for it had been paid. Under this arrangement or practice he continued to occupy this pew down to the date of the trial. His family attended church .and his children the Sunday school. He had attended the church about twelve times during the year and contributed to the Sunday offerings when present, and also to the expenses of church music. He had never attached himself to or attended any other church within the meaning of the statute. He belonged to the congregation of Christ Church for the year preceding the election. Was a pew holder. Had one ecclesiastical qualification, to wit, baptism, and was entitled to vote and his vote must be counted. -

I). A. voted for. the defendants. Pie possessed none of the ecclesiastical qualifications, and never attached himself in any way to the Protestant Episcopal Church. He had not for a year preceding the election purchased or hired a pew or seat in Christ Church. He had attended that church but once during the year, and not more than twelve times in his life. He possessed none of the statutory qualifications of a voter. His vote ought not to have been received and cannot be counted.

J. B. PI. voted for the defendants. He had been baptized and confirmed in Christ Church. Never received the holy communion and his name is not entered on the list of communicants. He had rarely attended church and was unable to say that he had attended or contributed to the support of that or of any other church during the year preceding the election. He had never owned a seat or pew in this church. At the time of this election he did not belong' to the church or congregation within the meaning of the statute. He had lost his franchise, was not entitled to vote, and his vote cannot be counted.

R. M. T. voted for the defendants. He had been baptized, confirmed in and a communicant of a Protestant Episcopal Church in one of the towns of the county for many years, to which church he had belonged in every statutory sense. In February preceding the election he removed to Cooperstown, attached himself to Christ Church, in which he received the holy communion, hired á pew and contributed to the support of the church. It is clear that he belonged to Christ Church at the time of the election, but not having belonged for a year preceding the election was not entitled to vote and his vote cannot be counted.

O. N. H. voted for the relators. He possessed none of the ecclesiastical qualifications. For two years preceding the election he rentéd and paid for part of a pew in this church, which was occupied by his wife, who is ■ a member. He thinks he had attended during the two years once or twice, and on some occasion had contributed about a dollar to the support of the church. He was not a member of the congregation, not entitled to vote, and his vote cannot be counted.

T. L. B. voted for the relators. He was baptized in the Protestant Episcopal Church, in Ireland, but had never been confirmed or received the holy communion in any church in communion with the Protestant Episcopal Church in this State. His wife is a member of Christ Church and his children have been baptized therein. He had not paid for a seat or pew in Christ Church, or made any arrangement for having a seat or pew, until after or about the time of the election. He had attended church a few times during the year. He did not possess the. ecclesiastical qualification. He had not belonged to the congregation or owned or hired a pew or seat in this church for the year preceding the election; was not a legal voter and his vote cannot be counted.

E. "W. F. voted for the relators. He possessed none of the ecclesiastical qualifications. His wife is a member of the church and had occupied a pew paid for by her husband. He thinks he had attended this church once in the last six or seven years. He did not belong to the congregation, was not entitled to vote, and his vote cannot be counted.

T. S. voted for the relators. He possessed none of the ecclesiastical qualifications. He never owned or rented a pew or seat in this church. He had not been absent from service more than twelve times during the three years preceding the election, and had contributed to the support of the church at the Sunday offerings when present. He clearly belonged to the congregation, but lacking the ecclesiastical qualifications, and not having purchased or hired a seat or pew in the church, was not a legal voter and his vote cannot be counted.

James A. Lynes, for the appellants.

' E. M. Ha/rris, for the respondents.

D. L. B. voted for the relators. He had purchased and paid for a pew in this church for many years and had attended once or twice during the year preceding the election. Has no recollection that he has been baptized or confirmed.

The legality of this vote is quite near the line, and it may well be that if the facts had been fully developed he would have been found a legal voter. But assuming that the relations which he sustained to this congregation are fully disclosed by the evidence, I do not think it can be said that he belonged to the congregation during the year preceding the election ; was not a legal voter and his vote cannot be counted.

The result arrived at is, that five votes must be deducted from the number received by Sturges and Bassett, leaving seventeen legal votes cast for Bassett and sixteen legal votes cast for Sturges.

Three votes must be deducted from the number received by Keese and Avery, leaving twenty-two legal votes cast for Keese and twenty-one legal votes cast for Avery.

The complaint is dismissed, with costs.

By the Court :

The decision and opinion of Mr. Justice Eollett has the entire concurrence and approval of this court. In his admirable opinion the legislation affecting the case is carefully reviewed. He concludes that the act of 1801 prescribes the qualifications of voters applicable to this church controversy; that the act of 1868 does not apply because it has not been duly accepted so as to make it applicable ; that no rule can be formulated in words which can safely be adopted to define the right to vote in respect to individuals, and that each individual’s right to vote is a combined question of fact and law to be separately determined. Upon the facts before him he has decided who were and who were not voters, and has determ» ined that the defendants were duly elected by a majority of the legal votes.

In all these respects this court concurs in the opinion of the learned justice.

Thé year for which the defendants were declared elected has already expired, and continued litigation, so far as the present case and parties are concerned, is simply a contest ver the costs

The judgment is affirmed, with costs.

Learned, P. J\, and Bockes, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JOHN H. HINTERMISTER, Appellant, v. WILLIAM E. LANE, Respondent.

      Conditional sale — when a bona fide pureJiaser from the vendee acquires a good title.

    The plaintiff sold and delivered to one Mary Apgar an organ and stool, taking in payment therefor her two promissory notes for ninety dollars each, payable to him, or his order, one in one year and the other in two years from date, with interest. At the same time Mary Apgar executed a paper by which she acknowledged that she had leased the organ and stool from the plaintiff until the amount of the notes should be paid, from which time the notes were to be considered as a receipt in full for the instrument.
    One of the notes was subsequently paid in full; the other, together with the lease was transferred before maturity, and for value, to one Davis, who tkereaftei recovered a judgment for a balance due thereon, upon which an execution was issued and a levy made upon the organ, but the proceedings were subsequently discontinued by Davis. Thereafter, the lease and the judgment and the note upon which it was recovered were re-assigned to the plaintiff. Prior to the recovery of the judgment Mary Apgar had sold the organ and stool to the defendant for a good and sufficient consideration.
    In an action brought by the plaintiff to recover the organ and stool, upon the ground that the title thereto remained in him, and that he was entitled to retake the same upon the failure of Mary to pay the notes:

      Held, that he was not entitled to recover.

      Comer v.' Cunningham (77 N. T., 391) followed,

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought for an alleged conversion of a Swiss organ and stool. On the 17th day of November, 1876, the plaintiff, by a conditional sale, sold the organ in question to a Mrs. Apgar, at the agreed price of $180, for which sum the vendee gave her two. negotiable promissory notes to the plaintiff, in the sum of ninety dollars each, payable, respectively, in one and two years from date, with interest. The organ was delivered to Mrs. Apgar at the time, who gave back to the plaintiff a writing, of which the following is a copy:
    “ Leased of J. H. Hintei’mister or order, a Swiss organ, No. 6 A, with stool, ecc.,.until the amount of one hundred and. eighty dollars, with annual use, is paid, and which lease is accompanied by two notes of same date, payable to J. H. Hintermister or order, and maturing,, note No.. 1 in one year, note No! 2 in two years, payable in monthly installments of five dollars, and on payment of said noté at maturity the said note to be a receipt in full against said instrument..
    “Dated Groton, N.lY.,iVW 17, 1876.
    “MARY APGAR.”
    Mrs. Apgar-paid the first note in full. Within a few days af ,er •the notes were- given, the plaintiff sold the second note to one Davis,, and also the lease, so-called. Mrs. Apgar paid twenty-six-dollars and fifty-three cents on the second note about the time it became due. Afterwards, and while the said Davis was yet the owner of this second note and the lease, he sued Mrs. Apgar on said note in the Justice’s Court, and obtained a judgment against her for eighty-nine dollars and sixty-three cents, and caused an execution to be issued thereon, by virtue of which a levy was made upon said organ by Davis’ order. The execution was uncollected, Davis having directed the proceedings to be discontinued, and afterwards the plaintiff bought back said note and lease and took an assignment of the judgment.
    Prior to the recovery of the judgment, Mrs. Apgar had sold the organ in good faith to this defendant. Thereafter the plaintiff demanded the organ of the defendant, and, upon his refusal to deliver it to him, he brought this action for the conversion of it, while the judgment remained in full force and effect against Mrs. Apgar, his original vendee.

      Hare dk Stoddard, for the appellant.

      H. H. JDuell, for the respondent.
   Learned, P. J.:

The case of Comer v. Cunningham (77 N. Y., 391) sustains this judgment. It is not to be denied that the previous decisions as to the transactions which are, with some inaccuracy, called conditional sales of personal property are conflicting, at least in appearance. But in the opinion in that case, the most recent on the subject, they are examined and distinguished; and the true rules are laid down, First, that where there is a sale and delivery, though as between the parties the delivery is conditional, a bona fide purchaser from the vendee obtains a good title; according to Smith v. Lynes (5 N. Y., 41); Wait v. Green (36 id., 556). Second, that where one has possession of personal property only as bailee, with a conditional agreement for purchase, he can give no .title, until the condition be performed ; according to Austin v. Dye (46 N. Y., 500); Ballard v. Burgett (40 id., 314).

Now. in the present case the plaintiff sold and delivered the organ to Mrs. Apgar. She gave for it two negotiable notes. One of these she paid; the other was transferred by the plaintiff before the same was payable, and was partly paid by her. Thus Mrs. Apgar had paid, or was bound to pay, the purchase-price; and that too whether the organ should be destroyed or not.. She could have no defense against Davis, the assignee of the notes. The transaction was plainly an absolute purchase, with an attempt, by means of the so-called lease, to retain security on the organ for the purchase-price. This is not a ease of the bailment of personal property with a privilege to the bailee to purchase. (See Ballard v. Burgett, at foot of page 315.) But it was an actual sale and delivery; which always, “when consummated, transfers the title from the seller to the purchaser.” In Austin v. Dye (ut supra), the oxen were actually leased at a dollar per day, with a privilege of purchase. In the present case there was no real leasing, although there is an attempt by the word “leased” to give a meaning to the transaction, which it did not in fact have. The real intent of the parties was that Mrs. Apgar should purchase, and that the plaintiff should have security on the organ. The only legal way in which this could be done, as against a Iona fide purchaser, was by a chattel mortgage duly filed.

Furthermore, if any doubt existed, the assignee of the note given by Mrs. Apgar sued her thereon, recovered judgment and levied the execution on the organ itself. Thus the assignee, under whom the plaintiff now claims by reassignment, has affirmed two things: first, that Mrs. Apgar owed for the purchase-price. That shows that she did make a purchase. Second, that the organ belonged to her, since he levied upon it. The recovery of judgment was conclusive on the fact that there was a good consideration for the note; and that consideration was the sale of the property. So that the transaction was a purchase and sale and an attempt to take security for the price.

The judgment should be affirmed, with costs.

Bocees, J., dissented.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.: Boardman, J.

text:
    EMORY S. GARDINIER, Respondent, v. JAMES KNOX, Appellant.

      Bill of pa/rticula/rs — when it should he ordered in an action for slander.

    An unverified complaint in an action for slander set out four separate causes of action. .Tlie slanderous words set forth in the first were alleged to have been spoken on or about October 10, 1880; those in the second on or about July 10, 1880; those in the third on or about July 20, 1881, and those in the fourth on or about July 10, 1881. In each case the words were alleged to have been spoken at the town of Bussell, and in the presence of “ divers good and worthy citizens.” The defendant moved for a bill of particulars, alleging in his affi. davit that he had no knowledge, information, belief or suspicion as to the times or places, or in whose presence the plaintiff expected to prove that he had made any of the statements or utterances alleged to have been made by him, and that a bill of particulars was necessary to enable him to properly prepare his answer, and to prevent his being surprised at the trial.
    The plaintiff’s attorney made an affidavit, in the absence of his client, in which he stated that he believed the plaintiff to be ignorant of the times and places and to be unable to state them further than they were stated, but he further said that he had personally visited the witnesses by whom the slanderous utterances were to be proved, and knew what they would testify to.

      Held, that a bill of particulars should be ordered. (Boardman, J., dissenting.)
    Appeal from an order made at a Special Term, denying a motion made by the defendant for a bill of particulars.
    The action was brought by the plaintiff, a minister, to recover damages for slanderous utterances of the defendant, charging the plaintiff with having been guilty of adultery, fornication and lewdness, whereby the plaintiff was compelled to leave his congregation. Four separate utterances of different slanderous words were set out in the complaint, which was unverified, as separate causes of action. In the first they were alleged to have been uttered on or about October 10, 1880; in the second, on or about July 10, 1880; in the third, on or about July 20, 1881, and in the fourth, on or about July 10, 1881. In each instance they were alleged to have been uttered at the town of Russell, and in the presence of divers good and worthy citizens. The defendant moved for a bill of particulars, alleging in his affidavit:

      “ That deponent does not believe and cannot form an opinion as to the matters with which he is charged; that the charge is so vague that he does not know with what he is charged, except with the utterance of certain detached sentences at times and places and in the presence of persons not named and unknown to deponent. * * Deponent further says that he has no knowledge, information, belief or suspicion'as to the times or places or in whose presence plaintiff expects or intends to prove, or even to assert, that this deponent made said alleged false and defamatory utterances, or any of them. That, as deponent is informed and believes, this action was brought for the purpose of .vexing this deponent, and for the purpose of extorting money from him in settlement thereof. * * That plaintiff intends to surprise the defendant’s counsel at the trial of this action with evidence which deponent cannot be prepared to meet otherwise than with his own denial. That in order to enable defendant to properly answer said complaint, and in order to prevent surprise and to be prepared for the trial of this cause. and to protect the rights of this defendant, it is necessary that defendant be furnished with a bill of particulars of the particular times and places of said alleged false and defamatory utterances, and of each of them; where said alleged utterances were made, or any of them, and of the names of the persons in whose presence the plaintiff alleges and intends to offer proof that said alleged false and defamatory utterances, or any of them, were made, and of the names of the persons whose contributions plaintiff lost by reason of said alleged utterances, and the amount and value of each one of said contributions which plaintiff did not receive, but which he would have received but for said alleged false and defamatory utterances; and that plaintiff’s proofs be confined to the utterances, times, places and persons so stated in said bill of particulars; that without such a bill of particulars defendant cannot properly answer said complaint or safely proceed to trial of this action, or protect himself against false testimony and surprise.”
    Morris, Kellogg & Morris, for the appellant.

      Leslie W. Bussell, for the respondent.
   Learned, P. J.:

The pleadings in this case are very similar to those in Stiebeling v. Lockhaus (21 Hun, 457). The difference, that the words in that case were spoken in German and in this in English, is immaterial on this motion. The place is stated as “ at Russell; ” the time as on or about the 10th day of October, 1880, and again as on or about the 20th day of July, 1880; the persons present as “divers good and worthy citizens.” "Where the complaint used similar words, the court, in the case above cited, ordered a bill of particulars. Tilton v. Beecher (59 N. Y., 176) is authority for the power. The question, then, is one of discretion.

The case of Mitchell v. Mitchell (61 N. Y., 398), cited by the plaintiff, was an appeal from a judgment, and only determines that on an allegation in a complaint charging adultery with a person unknown to the plaintiff, evidence of adultery with a person not named might be admitted. That does not touch this case. But it is insisted by the plaintiff that he cannot furnish the particulars requested. This does not appear. The plaintiff makes no affidavit His attorney states the plaintiff’s absence, and says that he believes that the plaintiff is ignorant of the times and places, and is unable to state them further than they are stated. But the attorney himself says that he has visited most of. the witnesses by whom plaintiff expects to prove his cause of action, and knows what they have stated that they will testify .to. Therefore the attorney knows, or may know, at what spot the words were spoken; about'what day, and in whose presence. So that there seems to be no inability on the plaintiff’s part to give the information if it should be required. The defendant says, in his affidavit, that he has no knowledge, information, belief or suspicion as to the times or places, or in whose presence, the plaintiff expects to prove the alleged words. And certainly the complaint gives little information, for under it proof need not be confined to the day stated; it might be given as to any place within the town of Russell, and as to any persons shown to be present. If the defendant knew the times and place where the occurrence would be shown, he could obtain proof of his own whereabouts.

The learned justice who denied the motion seems to have been influenced in his denial by the case of Turner v. James, decided by this court in January, 1882. But that case was quite different That was an action by a husband for the alleged seduction of his wife. The defendant asked a bill of particulars. It was shown, in. opposition to the motion, that much of the evidence on which the plaintiff relied consisted of such conduct between the defendant and the plaintiff’s wife as might lead a jury to infer that an. 'improper intimacy existed, while the jffaintiff did not know and could not ascertain any precise day or place at which the alleged adultery took place. If, therefore, he was limited to a precise day and place, he might bo shut out from proving the alleged acts of familiarity, which were claimed to be evidence that the alleged wrong had been done. Nothing of that kind exists in this present case. Slander is not to be proved by suspicious acts, while the act of adultery can seldom be proved otherwise. And, in that particular case, the plaintiff stated that he was not aware that any single witness could prove the fact of adultery. The plaintiff also stated other facts, which we need not specify, and which showed that it would be hardly possible for the plaintiff to state the times and places with particularity. Under these circumstances the court thought that it was not a proper case for a bill of particulars. But we do not think that, as is suggested by the learned justice, there is any difference between this department and the first department in the principles applicable to such motions. Neither department would think it right to require a bill of particulars when it was not in the power of the plaintiff to give one, and each would require such a bill when it would tend to the fair preparation of the case for trial. The language used in the opinion in the case of Stiebeling v. Zochaus seems applicable to the present ease.

We think the order should be reversed, with ten dollars costs and printing disbursements, and the motion granted; with ten dollars costs, to abide the event of the action.

Bocees, J., concurred.

Boardman, J.

(dissenting):

I think the complaint was good and sufficent. It is in no respect necessary to give the name of any person in whose presence the slanderous words were said, but they must have been said in the presence of others. That is a sufficient allegation in the complaint. That being so, I think no sufficient case is made why the plaintiff should give the names of his witnesses for the convenience or advantage of the defendant. I do not think'the practice of asking for pai’tfculars is to be encouraged. Slander and libel cases have long been disposed of without the preliminary aid of courts in finding out who the witnesses will be in advance of the trial. Such proceedings are generally simply obstructions to the progress and prompt disposition of litigations.

I think the order should be affirmed, with ten dollars costs and printing disbursements.,

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs, to abide event.


text:
    HARLOW G. BORTHWICK, Respondent, v. HELEN A. HOWE, Appellant, Impleaded, etc.

      Insolvent debtors — application for a discharge from, arrest — the petition must be presented to the court — all property owned by the debtor at the time of making the assignment must be assigned —the delivery of the property to the assignee must be proved.

    Where a petition for an insolvent debtor’s discharge is, after due notice, presented to and acted upon by the County Court at‘one of the terms held by it, the fact that the petition was addressed to the judge by whom the court was held, and not to the court itself, does not invalidate a discharge granted upon it. The statute (sec. 6 of 2 R. S., 82) requires the debtor to assign all the property he has at the time he is ordered to make the assignment, and not merely such as is described in, or as he had at the time of signing the petition.
    In order to authorize the making of an order discharging the debtor from arrest, some evidence must be given to show that he has actually delivered to the assignee the property directed to be assigned.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. 1
    ■This action was brought upon a bond for the liberties of the jail, given by the defendant Jepson as principal, and the defendants Howe and Warren as sureties, dated June 12,1878. Jepson had been arrested by the plaintiff, the then sheriff of Cortland county, upon an execution against the person, and thereupon this bond was given.
    While upon the limits, Jepson made application to the County Court of Cortland, as an imprisoned debtor, for a discharge, and such proceedings were had therein that, on the 26th day of December, 1878, a discharge was granted by the County Court, and Oepson then departed from the limits. The main question presented by the appeal was whether this discharge was valid.
    William H. Babcock was the plaintiff in the execution, and after Jepson left the limits he brought an action against the sheriff (Borthwick) for the escape, in which action the sheriff appeared and answered. That suit was tried before Justice Eollett without a jury, and a judgment rendered in favor of Babcock for the amount of the original judgment and interest. In the ease at bar, Borthwick recovered against Helen A. Howe, the defendant in this action, the amount of the judgment rendered against him, with interest.

      Buell do Benedict, for Helen A. Howe, appellant.

      Waters dk Knox, for the respondent.
   Learned, P. J.:

The question is whether Jepson was legally discharged. The order of discharge was insufficient in its recitals. The defendants endeavored to sustain it by proof aliunde.

The debtor’s petition was addressed “ To the Hon. Abram P. Smith, County Judge of Cortland County.” The statute requires a petition to the County Court. (2 R. S., 31, § 1.) In the Matter of Roberts (70 N. Y., 5), proceedings were had under article 5, by which the petition must be to an officer. (2 R. S., 28, § 1.) It was held that the proceedings were not in court, and could not be continued by another justice. In Matter of Brady (69 N. Y., 217), it was held that proceedings under article 6 were proceedings in a court. In Heishon v. Knickerbocker Insurance Company (77 N. Y., 278), it was held that where the Code of Civil Procedure (§ 873) authorized a judge to make an-order, such order could not be made by the court.

But none of these cases turn upon the mere form of the papers. They are decided on the question what court actually passed on the case. Now, in the present case, Jepson’s petition was in fact presented to the County Court, which was the proper tribunal. Notice had been given that it would be so presented. It was acted upon at a term of that court. If there had been no address at all, and if the petition had been in fact presented to the court with proof of the proper notice, could it be said that the absence of an address would make the proceedings void ? We think that naming the judge who held the court did not deprive him of jurisdiction to act as a court.

Upon, the question as to the time when the affidavit may be made, we need only refer to Richmond v. Praim (31 Sup. Ct. N. Y., [24 Hun), 578), in which, this court discussed that question, and came to a conclusion favorable to the defendant in this case. The question is now settled by the Code of Civil Procedure (§ 2204).

The order made by the County Court December 26,1876, directing an assignment to be made by the debtor, orders him to assign “ the' estate of the prisoner contained in the account stated and set forth in his petition, or so much,” etc. The assignment made by the-debtor the same day is of “all the estate, real and personal, in law and equity, contained in account within set forth, or so much,” etc.

It is objected that the statute (2 R. S., 32, § 6) requires an assignment by the debtor “ of all his property,” and that this must include alt the property which he has at the time when the assignment is ordered and made, which, in this case, would have been on December 26, 1878, while the assignment actually ordered and made was of what was set forth in the petition and account, and this account was of the property owned by the debtor September 21, 1878, nearly three months previous to presenting the petition, and more than that time previous to the assignment. We are of the opinion that the assignment ordered and made must include all property which the debtor has at the time when the same is ordered and made, and not merely such as he had at the time of signing his petition. The debtor might acquire property after he had signed his petition, and before the order for the assignment, which he ought not to withhold. The statute does not say, all the property which he had when he signed his petition. That signing might take place months before any proceedings in court.

Section 10 requires the debtor to furnish satisfactory evidence to the court of the actual delivery of the property directed to be assigned. No such evidence is réeited in the order for discharge. It is not shown that any such evidence was furnished to the court before the order was made. It is true that on the present trial the debtor testifies that the property named in his account was only his wearing apparel, and that he did not deliver any to the assignee. Rut the meaning of the law is, that before ordering the discharge the court shall have evidence of the delivery. (Sec. 11.) This implies that there was to be some judicial action on the question whether the debtor had delivered whatever he should deliver.

It is plain that the discharge is a matter of strict statutory right. To obtain it the debtor must comply with all the provisions of the statute. We need not examine the question whether the defendant was bound by the judgment against the sheriff, since the learned justice did not rest his decision on that ground.

The judgment and order are affirmed, with costs.

Present — Learned, P. J., BocKES'and Boardman, JL

J udgment and order affirmed, with costs.


author:
Learned, P. J.:
     Boardman, J.:

text:
    In the Matter of the Accounting of EDMOND RAYMOND, Assignee, etc.

      General assignment — fraudulent conveyance from the assignor to the assignee — it cannot be attacked upon the accounting of the latter before the county judge.

    One Seeley made a general assignment for the benefit of his creditors to one Raymond. On the same day on which the assignment was made, and prior to the execution thereof, Seeley gave Raymond a bill of sale of certain articles of personal property belonging to him, with the intent that such property should be held for the benefit of Seeley, and for the purpose of withdrawing the same fi'om the reach of his creditors. Thereafter Raymond was removed from his position as'assignee, upon the petition of Seeley and certain of his creditors, and a new assignee was appointed. Upon Raymond’s accounting, it was sought to charge him with the value of the property received by him under the bill of sale. Held, that the validity of the transfer and the liability of Raymond to Seeley’s creditors could not be determined in that proceeding.

      It seems, that these questions could be determined in an action brought by the new assignee against his predecessor.
    Appeal from a final decree made by the Saratoga County Court upon the accounting of Edmond Raymond as general assignee of one Sidney Seeley.
    Seeley made a general assignment to Raymond for the benefit of creditors. Baucus was appointed assignee in the place of Raymond, removed. A petition was presented by the National Bank of Schuylerville, a creditor of. Seeley, to the County Court, asking for an accounting of Raymond, assignee. Seeley, the assignor, also petitioned for a like accounting. A citation was issued and served, and the matter was referred to a referee. The parties appeared before the referee, viz., Raymond, the Bank and Seeley, and presented their proofs. The referee made a report, charging Raymond with a balance of $1,111.31, and directed that this sum should be paid to the bank on its claim. The referee declined to charge the assignee with the sum of $11,160 received for certain potatoes, and declined to credit him with the sum of $8,589.13 hereinafter mentioned in the opinion of the court. The parties appeared before the County Court and were heard on applications to confirm and to modify the report. The court confirmed the report and ordered accordingly. The bank and Baucus, the substituted assignee, excepted and appealed.
    On the .hearing before the referee, the creditors and Seeley offered evidence tending to prove certain facts. This evidence was considered by the County Court; and the court found certain facts, which are set forth in the case. On these facts, the creditors and the substituted assignee asked the court to charge Raymond with an additional amount of $4,007.81, and interest, which the court refused to do.

      Charles S. Lester, for the National Bank of Schuylerville and A. Baucus, trustee, and Sidney Seeley, appellants.

      J. W. Sill, for Edmond Raymond, respondent.
   Learned, P. J.:

The first point made by the respondents is that the appellants failed to except to the report of the referee; and therefore no review could be made by the County Court. (Levy’s Accounting, 1 Abb. N. C., 177.) But the case before us states that all the evidence was submitted to, and considered by, the court. Nor does it appear that any objection was made, before the County Court, to the hearing of the question now presented by this appeal: The case seems to have been prepared with the view of presenting the point in issue in a compact shape. And it would be unreasonable to dismiss this appeal for a defect which is really only formal.

The facts on which the question is raised are these: On the same day on which the assignor made his assignment, he executed to the assignee a bill of sale of some potatoes and a canal boat, which bill of sale was dated the day previous; and the assignee took possession of them. It was intended by the parties that this property should be held and disposed of by Raymond for the benefit of Seeley. The bill of sale was made in contemplation of the general assignment, and with the purpose of withdrawing the property from the creditors of Seeley. The potatoes were sold by Raymond for $11,460. Raymond claimed to have paid, for the benefit ■of Seeley, out of the moneys, $8,589.13, leaving a balance of $2,870.87, not paid to Seeley or accounted for. Among the items so claimed to have been paid by Raymond out of these moneys is a note, called the Ames note, of $1,136.94, which was in fact paid by Seeley. The amount of this note, added to the above balance, makes $4,007.81, which sum the creditors and the substituted assignee claim should be charged to Raymond as assets, now remaining in his hands, on this accounting. Thus the question which the appellants present is this: One person makes a transfer •of property to another, alleged to be fraudulent as to the creditors ■of the former, in contemplation of the assignment about to be made, and then makes a general assignment to the same person, for the benefit of creditors. An accounting of the assignee is had before the county judge, after a new assignee has been appointed. Can the judge, on such accounting, and on behalf of the creditors ■of the assignor, investigate the transaction, and if he should decide that the transfer was fraudulent, compel the assignee to account for and pay over the property, or the avails thereof, thus fraudulently transferred before the assignment ? In examining this question we must first observe that the property thus fraudulently ■transferred is not, in terms, held on the trusts of the assignment. The assignor has a right to compel the performance by the assignee of these trusts. But if the assignor, prior to the making of the assignment, had transferred property to the person who was after-wards assignee, in fraud of the creditors of the assignor, such .•assignor could not afterwards reclaim that property. Though void .as to his creditors, the transfer would be good as to him.

The finding in this, case is that the potatoes were transferred, to be held and disposed of for the use of Seeley. If this trust were void as to Seeley’s creditors, still he could not assert its invalidity. If it were a valid trust, it could only be enforced by Seeley; and 4hat too, not in this proceeding, but in some independent action.

Hence it follows that the assignee cannot be held to an accounting here, on the ground that the property transferred was part of the assigned property, and was taken by the assignee on the trusts of the assignment. Indeed, the claim of the creditors and of the assignor is directly contrary to this view. They .-claim to hold the assignee, on the ground that the prior transfer was fraudulent as to the assignee, and that he could repudiate it; that it was his duty to do so, and to hold the property as assignee and adversely to the transfer.

Again, we do not see that the assignor has any right of this kind. Assuming that the transfer was fraudulent as to his creditors, Seeley has no right to attack that transfer, directly or indirectly. Whatever right his creditors may have, it is plain that he cannot, by the indirect proceeding of calling the assignee to an accounting, under the trusts of the assignment, reclaim property, transferred by him, previously to the assignment, in fraud of his creditors. Nor can he, in this indirect manner, reclaim this property for his creditors. To pursue that property may be their right, but is not his.

We pass then, to the rights of creditors of Seeley. The appellants' compare the position of the assignee to that of an executor. And it may be worth while to look briefly at the course of the law in similar cases as to executors. Where a person had made a conveyance of goods, fraudulent as to creditors, his executor could not, before the Revised Statutes, reclaim the goods. (Osborne v. Moss, 7 Johns., 161.) The remedy of the creditor was to treat the fraudulent grantee as executor de son tort. But since the Revised Statutes the personal representative of the grantor may controvert the validity of the sale. (2 R. S., 449, § 17; Babcock v. Booth, 2 Hill, 185.) And ordinarily he alone. (Bate v. Graham, 11 N. Y., 237.) Still, however, the voluntary assignee of the assignor could not impeach the validity of a fraudulent transfer (Brownell v. Curtis, 10 Paige, 210, at 219); although a receiver in' proceedings supplementary might. (Potter v. Clark, 12 How. Pr., 107.) But the act of 1858 (chap. 314) gave power to an assignee, as well as to .an executor, etc., to “ disaffirm, treat as void and resist all acts done, transfers and agreements made in fraud of the rights of any •creditor.”

Now it is insisted by the appellants that the assignee cannot sue .himself in order to disaffirm the fraudulent transfer; and therefore that, on his accounting, the county judge may pass upon the question of fraud in the transfer, and charge him with any property thus fraudulently received. And they rest upon the authority given by chapter 466 of 1877, amended by chapter 318, Laws of 1878, especially by subdivision 2 and subdivision 9, section 20. These subdivisions give the county judges such powers as the surrogate has in reference to the accounting of an executor.

It seems to be settled that a surrogate has jurisdiction to pass on the validity of a personal liability of an executor to the estate which he represents (Gardner v. Gardner, 7 Paige, 112); and of a debt from the testator to the executor personally. (Kyle v. Kyle, 67 N. Y., 400.) In the language used in these eases, and those like them, the courts have spoken of debts, or claims, which existed between the testator and the person appointed his executor,, in favor of one or of the other. And they have said that, for the reason that the executor could not sue himself, and might not pay himself, the claims must be adjusted before the surrogate. (Kyle v. Kyle, ut supra.) But none of these cases are quite like the present, inasmuch as the alleged liability here is one which in the analogous relationship could not exist between the testator and the person named as executor. No liability, as is well known, could arise in favor of the fraudulent assignor, or in favor of one claiming under him but not representing creditors.

To illustrate: A legatee, on an accounting of an executor, could insist on an adjudication that the executor pay a debt which he had owed to the testator, and which he still owed to the estate. But we suppose that the legatee, who is not a creditor, could not insist that an executor should disaffirm, etc., a conveyance made by the testator to some third person in fraud of creditors; and if not, then certainly not that the executor should account for property transferred to him in like fraud. This shows that the general language used as to the liability of an executor to account before the surrogate for a debt which he owes the estate cannot safely be extended to include, as such a debt, the right which the executor has to dis affirm, etc., conveyances which are fraudulent as to creditors. That, it would seem, is a right which, on general principles, exists solely for the benefit of creditors, not for any others interested in the estate. As to any others than creditors of the testator, it would seem that there would be no right to disaffirm. We dp not decide this point, but use it, by way of illustration, to show that the alleged liability in such cases would not be one owing to the testator.. And in the present case it is not a liability owing to the assignor. If the transfer had been to a third person, there would have been simply a right of action which the assignee, in the interest of creditors, might exercise, and which, in a proper case, he ought to exercise. ' -

The neglect of the assignee, in a proper case, to bring the necessary action against a third party, to set aside such a fraudulent transfer, might make him liable to the extent of the loss sustained. But the question of his liability in such a case would plainly involve , other considerations, than the niere amount of property alleged to have been fraudulently transferred. It would involve the assignee’s knowledge that the transfer was fraudulent, and the prospect of a recoveiy which would be beneficial to the estate. And it is worth noticing here that, while the findings hold that it was intended by the parties that the potatoes should be held for the benefit of Seeley, they do not find that Raymond accejited them with knowledge of a fraudulent design. Indeed it would seem that a large amount of the avails was used to pay certain creditors of Seeley.

There is certainly a serious difficulty in holding that when A. becomes assignee of ’ B., for the benefit of creditors, the acceptance of the assignment authorizes the county judge, on an accounting, to investigate any transaction, not barred by the statute of limitations, by which, in previous years, and before • the assignment, B. may have sold property to A., and to hold, after such investigation, that the sale was fraudulent, and to compel A. to account for the avails. Certainly nothing but necessity would justify such a doctrine.

And again, the assignee is now required to give bonds for the due accounting for all moneys received by him, etc. Now, if the - county judge can determine that the avails of the property previously transferred are moneys received by the assignee under his trust, then the sureties of the assignee may be made liable, not merely for the property actually transferred by the assignment, but for the avails of property long before transferred, on trusts entirely different, or on no trusts at all.

These are some of the reasons why we should be very reluctant to adopt the principle urged by the appellant, even, in a ease of necessity. But we think that no such case exists here. It will be seen by reference to the opinion in Kyle v. Kyle, and to other cases, that the reason for charging an executor, on his accounting, with a debt which he owed the testator, is the necessity of the case, because he could not sue himself. That reason ceases when the alleged debtor is not the executor. And the reason why the appellants claim that an assignee should be chargeable with property which had been previously transferred to him in alleged fraud of creditors, is because he, in like manner, could not sue himself. But no such difficulty exists in this case. There is a new assignee. He is abundantly capable of bringing and maintaining any proper, action, as such assignee, against Raymond, who is assignee no longer. The avails of the potatoes, as has been shown, were not properly a part of the property assigned by the general assignment, even though Raymond may be chargeable'’therewith in behalf of creditors. They have never come into his possession in his character as assignee. No necessity exists for charging him therefor, on his accounting, if any such necessity would arise under any circumstances.

We do not see why an assignee, who should learn that creditors claimed that a previous transfer to him was fraudulent, might not resign and have a new assignee appointed, so that he could defend his rights under the previous transfer in the ordinary modes of litigation, and not be embarrassed by the difficulty of a contest over that question, upon a mere accounting for the property received under his trust. At any rate, as this present case stands, there is no difficulty in the way. The present assignee, Baucus, can sue Raymond for any money fraudulently transferred by Seeley. And in such action the questions involved can be tried in the manner and by the tribunals to which such questions properly belong.

Judgment of County Court affirmed, with costs against appellants.

Boardman, J.:

The transfer of the potatoes, etc., by Seeley to Raymond was valid or voidable. If it was valid, the trust created was separate and independent from that created by the general assignment, and should not be mixed up with it. Raymond is still trustee under the first transfer, and Baueus is not his suécessor as to that. If the transaction were fraudulent the title to the property was still out of Seeley when his general assignment was made, and hence did not pass thereby. The creditors of Seelej in equity might attack that transfer as fraudulent. But in neither case do we think the creditors or Baueus, as their representative, could require Raymond to account for property which he did not acquire by virtue of the general assignment, which he did not inventory as assignee, and for which his bondsmen do not purport to be holden. It is a transaction outside of the general assignment, and whether it results in a surplus after discharging a valid trust for the payment of certain of Seeley’s creditors, or whether it was fraudulent in fact or in law as to the creditors of Seeley, the remedy must be by action, and not upon an accounting before the County Court.

I concur, therefore, in the affirmance of the judgment of the County Court.

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment of County Court affirmed, with costs against appellants.


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    GEORGE BARKLEY, Respondent, v. THE RENSSELAER AND SARATOGA RAILROAD COMPANY, Appellant.

      Bid of particulars — when the plaintiff may he compelled to furnish one— Code of Civil Procedure, sec. 581.
    Where, in an action brought to recover the price of wood sold to the defendant, the complaint alleges the delivery of the wood from time to time, and various payments made on account thereof, the plaintiff may, upon the demand of the defendant, be compelled to furnish a bill of particulars.
    Section 581 of the Code of Civil Procedure does not limit the right of the defendant to demand a bill of particulars to the case of an action upon an account stated; the word “account,” as used therein, applies to almost every claim on contract, which consists of several items.

      Johnson *. Mallory (2 Bobt., 681), disapproved of.

      Appeal from an order made at a Special Term, setting aside- a demand made by tbe defendant, for a bill of particulars.
    jS’. L. Fursman, for the appellant.

      fx. B. Wellington, for the respondent.
   By the Court:

The" complaint alleges the delivery of wood from time to time, and payments by the defendant on account thereof from time to time. The defendant demanded the items .of the account.

We see no reason for limiting the right to make such a demand to the case of an account stated, as seems to have been done in Johnson v. Mallory (2 Robt., 681). In ordinary language the word account is applied to almost every claim on contract which consists of several items. And there is no necessity for giving any limited meaning to the word as it is used in section 531, Code of Civil Procedure. No harm can arise to the plaintiff. He need only serve such a copy of the account as he deems sufficient. If that is thought by the defendant to be defective, the defendant may make a motion for a further account, and then the question, as to the particularity of the items may come up. It was very unnecessary for the plaintiff to make a motion to set aside the demand 5 and we are not willing to say that such a motion can ever be proper.

' If the plaintiff (as he says on the argument) is without the means of giving particulars, he could make that as an excuse when a motion should be made for a further account, after he should have made and- served the best in his power.

Order reversed, with ten dollars costs and printing disbursements,' and motion denied, with ten dollars costs.

Present — Learned, P. J., Bocees and Westbrook, JJ.

Order reversed, with ten dollars costs and printing disbursements,- and motion denied, with ten dollars costs.


text:
    WILLIAM C. LAMKIN and ALFRED S. FOSTER, Appellants, v. WILLIAM B. DOUGLASS, Respondent.

      Attachment — requisites of the affidavit to be used in an application for it — it máy be made by the party's agent — it need not contain the precise words used in the Code.

    It is not necessary that an affidavit upon which an attachment is applied for should contain the precise words used in the Code of Civil Procedure (sec. 686), if equivalent words be used. It is sufficient if the affidavit furnishes evidence from which the judge may be lawfully satisfied of the truth of the matters required to be shown.
    An affidavit was made by the plaintiffs’ agent, in which he stated that a cause of action existed in favor of the plaintiffs and against the defendant; and that the amount of the claim in the said action was $1,216.42, “ over and above all discounts and set-offs.” The affidavit then stated in detail facts showing the amount of the defendant’s indebtedness to the plaintiffs, and the manner in which it arose, and the other facts required to authorize the judge to grant the attachment.

      Held, that the affidavit was sufficient; that it was not necessary under all circumstances that it should be made by the plaintiff himself, and that the omission of the words “known to him” after the words discounts and set-offs did not affect the sufficiency of it.
    Appeal from an order made at a Special Term vacating an attachment.
    The affidavit, which was made by an agent of the plaintiffs, stated “ that a cause of action exists in favor of the plaintiffs against said,defendant, for which said action is commenced; and that the amount of his claim in said action is $1,216.42, with interest from the 9th day of January, 1882, over and above all discounts and set-offs ; and that the grounds of said claim and cause of action are that the defendant is indebted to the plaintiffs for gent’s wares and merchandise sold,” etc. It then stated facts, in detail, showing the existence of the indebtedness, and of the other facts required by the Code to authorize an attachment to be issued.
    The plaintiffs were engaged in carrying on business, as copartners, in Boston, Massachusetts.

      Lounsbery & Ghilds, for the appellants.

      Howard Ghipp, Jr., for the respondent.
   By the Court:

An attachment against property under the Code is auxiliary to an action. It is not the beginning of a distinct and special proceeding. We think, therefore, that papers should not be judged with that strictness which is used when they form the sole basis of jurisdiction.

The words known to him ” are intended rather in relief of the conscience of the affiant. One- might hesitate to state positively that the amount claimed was due to him, over and above all counterclaims, since some counter-claims might exist of which the affiant had no knowledge. The omission of these words, therefore, strengthens rather than weakens the affidavit. Nor can we adopt a construction which would render it necessary that the affidavit should always be made by the plaintiff, and could not be made by an agent. We must consider that the intent is to satisfy the court that the amount claimed is really owing. Sometimes the agent of the plaintiff may know more of the matter than the plaintiff himself.

We think that it is not necessary that the precise words of the Code should be used, if words are used which are equivalent. Proof is to be made, to the satisfaction of the judge, of such and such facts. If there is evidence on which he may lawfully be satisfied of the truth of the matters required to be shown, that is enough. (Ruppert v. Hall, 1 Civ. Pro. Pep., 411, 417.)

Now, without discussing at any length the precise etymological meaning of the words “ discounts and set-offs,” we think that, in ordinary use, they have such meaning that a judge might feel satisfied by their use that there were no counter-claims to the plaintiffs’ demand. Especially when, as in this case, the affiant sets forth, in detail, the facts and circumstances in regard to the transactions between the parties. The object of this part of the affidavit is to show that the plaintiff has, so far as he knows, a valid claim against the defendant, to the extent for which he asks an attachment. We think that enough was shown to justify the issue of the attachment, and that it should have been allowed to stand.

The undertaking was perhaps defective in respect to the mode of signature. At any rate, we think that the defendant should' not have any risk in that respect. The plaintiffs should, therefore, file a new undertaking, properly signed and acknowledged and justified.

The order setting aside the attachment is reversed, with ten dollars costs and printing disbursements, and the motion to set aside denied, providing the plaintiff, within ten days, file a proper undertaking, duly signed, justified and acknowledged.

Present — Learned, P. J., and Bockes, J.

Order reversed, with ten dollars costs and printing disbursements, and motion to set aside attachment denied, provided plaintiffs, .in ten days after motion, file an undertaking properly executed.


text:
    HERMAN VEEDER, Respondent, v. WILLIAM MUDGETT and Others, Appellants.

      Ooats — fees of the county treasurer for receiving and paying out money cannot be taxed as — allowances to creditors proving claims against an insolvent corporation must be determined by the court — the cost of printing papers, not required to be printed by the rules of the court, cannot be taxed as a disbursement.

    In an action brought by a creditor of a manufacturing corporation to compel the stockholders thereof to pay the debts of the company, a judgment was entered in favor of the plaintiff. It directed that he should recover the costs of the action; and that certain of the defendants should pay specific sums of money to the county treasurer; and that the latter should, from the amounts so paid into court, after paying his fees, pay the costs of the action as allowed and taxed, and divide the residue of the fund among the creditors.

      Held, that the fees of the county treasurer for receiving and paying out the money could not be considered as a disbursement and be included and taxed as suph in the plaintiff’s bill of costs, but should be paid from and charged upon the general fund received by him. .
    The judgment provided that each of the creditors whose claim was allowed by it should recover the costs of proving his claim.

      Held, that the amount of the costs to be allowed to each creditor could only be determined by the court, and that it was error to tax them as motion fees at ten dollars to each.
    That the cost of printing copies of the referee’s opinion and of the judgment could only be taxed by virtue of a written agreement signed by the attorneys for all the parties.

      Fourteen separate appeals from an order made at Special Term, affirming the taxation of the costs of the plaintiff and certain other parties under the judgment entered in this action.
    This action was brought by Herman Veeder, for himself and all other creditors similarly situated, to compel the stockholders of the Rochester Iron Manufacturing Company to pay the debts of said company under the provisions of sections 10, 11 and 24 of chapter 40, Laws of 1848. The case was tried before a referee. An interlocutory judgment was entered December 7, 1880, establishing the stockholders’ liability, and fixing June 28, 1881, as the date for the creditors to appear and prove their claims and come in as parties to the action, and directing the publication of a notice accordingly. The respondent creditors above referred to came in under the said notice, and their claims were established by the final judgment which was entered herein May 3, 1882. The interlocutory judgment directed the moneys to be paid into court to the county treasurer of Clinton county for distribution to the creditors; and directed him to pay therefrom the costs of the action to the plaintiff’s attorney, and such other and further costs' and expenses as the court might allow and direct. The final judgment allowed costs to the plaintiff, and the creditors whose claims were established, out of the fund to be paid to said county treasurer, and adjudged that the costs, as taxed, and the sums due to creditors be paid to the county treasurer; and directed the treasurer’s fees to be paid from the moneys so received.
    The costs as taxed, and included in the judgment, included the fee of one per cent to the treasurer for receiving. and disbursing the fund, and included also the expense of printing papers, which plaintiff claimed to have been requested by the defendants and the referee to have printed; and ten dollars and taxable disbursements were allowed to each creditor establishing a claim.
    The .appellants objected to the items of the treasurer’s fees, printing expenses and creditors’ costs, and moved for a retaxation and disallowance of these items. From the order denying the motion this appeal was taken.

      Saiterlee <& Yeoman, for the appellants.

      Edward 0. James, for the respondent.
   Br the Court :

The appellants urge that the language used in a part of the judgment shows, of itself, that the treasurer’s fees cannot properly be a part of the taxable costs. This part of the judgment directs the county treasurer, after paying his fees allowed by law, to pay the costs of the action, as taxed, to the attorneys. Therefore, the appellants say that the treasurer’s fees ought not to be a part of these costs, because, if these fees shall be included in the bills of costs, then the treásurer, after paying to himself his fees, will be required to pay the whole bill of costs to the attorneys, which bill will include these very fees; so that the attorneys will collect the amount of these fees in their bill of costs, and the treasurer will pay himself the fees out of the money going to the plaintiff and other creditors.

This, undoubtedly, is the strict meaning of the judgment. If it is the fair meaning, even then the defendants are' not the worse off, if, in justice, they are chargeable with the fees. But if these fees can properly be collected, then, undoubtedly, the judgment must be understood to mean that, after payment to himself of these fees, the county treasurer is to pay the plaintiff’s attorney the bill of costs, deducting therefrom the fees, which he will have paid to himself.

Passing, then, the matter of the language of the judgment, the true question must be whether, in such a case as this, the fees of the county treasurer can be included in the costs and disbursement. Plainly they cannot be included in the recovery, other than the costs and disbursements.

Section 1795 of the Code of Civil Procedure declares that the moneys for which the defendants are liable must be paid into court; that is, unless otherwise directed, to the county treasurer. Section 745 and section 3321 give him certain fees for receiving and paying out money paid into court. Now, it is claimed by the plaintiff that these fees are legal fees of officers, and hence are to be included in the bill of costs as disbursements, under section 3256.

If we examine this last section we shall see that it begins by stating that a party is entitled to include his necessary disbursements. Now the word disbursements means money which has been expended by the party, or, at least, money which he has or may become liable to pay. The section first mentions moneys which he has paid, or become liable to pay,.before the judgment and taxation of costs, such as fees of witnesses, of referees and other officers, and other similar expenses.

Then the section mentions prospective charges, and specifies particularly what these are. And all of these' are such as the plaintiff would be liable to disburse, whether he collected anything on the judgment or not.

It will be seen, then, that the general words, “ legal fees of other officers,” are only used in speaking of disbursements made, or incurred, before judgment; while as to prospective charges the fees of officers which may be taxed are particularly specified, and do not include those of the county treasurer in this case. So, too, it will be seen that there is nothing mentioned in the section which is not, or will not be, an actual disbursement; that is, an actual payment of money by the successful party. Now the county ti’easurer’s fees are not, and will not be, an actual disbursement. They are only a deduction from money collected. If nothing should be collected, there would be no fees. If less than the whole should be collected, the fees would be less than have been taxed. Yet the plaintiff has a judgment for the costs, including $1,318, county treasurer’s fees, when no such fees may ever be earned.

The plaintiff urges that these creditors ought to have their full recovery, not diminished by these fees. On the other hand, the defendants might say that they ought only to pay their just debt/not increased by these fees. The creditors might, in like manner, say that they should have their whole claim, not diminished by their counsel’s charges.

It not unfrequently happens that, in a litigation, the share of the recovery belonging to an infant is by the judgment to be paid into court. In such case the county treasurer’s fees, on receiving and paying such share, are paid from the share. It never was claimed that such fees should be added to the recovery or costs, and be collected out of the adverse party.

So in the present case there is no reason, either from the language of the Code, or from the justice of the case, that these defendants should be charged with these county treasurer’s fees, either as disbursements or otherwise.

Second. There are • charged four items for printing, viz., for printing the referee’s report and his opinion, the interlocutory-judgment and the final judgment. These are defended on the ground that some of the defendants’ attorneys requested that the papers in the action should be printed, and the expenses included in the disbursements; and also that the referee directed it.

The verbal request of some of the defendants’ attorneys cannot, have any weight. (Rule 11.)

The expense of printing papers is taxable only when required by a rule of court. (Sec. 3256, Code of Civ. Pro.) Such a rule exists as to papers for argument at General Term. The referee’s direction is not a rule of court; and these printing expenses are not taxable.

In addition to the costs of the plaintiff, the judgment declared that each of the creditors whose claim is allowed should recover the costs of proving his claim. Those costs were taxed at ten dollars and disbursements for each creditor. It would seem that the ten dollars were taxed as costs on a motion. The amount must be fixed by the court or judge. (Code of Civ. Pro., § 3251, sub. 3, paragraph 9; § 3236.) We do not see that there was any proceeding which could be called a motion; or, if so, that there has been any fixing of the amount on such motion by any court, judge or even referee.

We think that the order appealed from should be reversed as to the matters appealed from, viz., the item of $1,398, treasurer’s fees; the item of $191.25 for printing; and the items amounting to $130, costs of claimants, with ten dollars costs of printing disbursement, and the motion to disallow those items granted, with ten dollars costs.

Present — Learned, P. J., Boardman and Bockes, JJ.

Order denying motion for retaxation of costs reversed as to the parts appealed from, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs.