author: Earl, J.

text:
    William J. Syms, et al., Ex’rs, App’lts, v. Mayor, etc., of New York, Resp’ts.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Landlord and tenant—Lease—Reformation of—Covenant for renewal—Perpetuities.
    The city of New York, in 1810, leased certain premises to L. for thirty years, ana agreed to renew for twenty-one years, "with a like covenant for future renewals of the lease, as is contained in this present indenture.” In 1840, the city leased the same premises to Syms, as L’s grantee, for another term of twenty-one years, with a covenant for same renewal. In 1861, the city executed a third lease to Syms for twenty-one years, with no covenant for renewal, and in it Syms covenanted to surrender, etc., at the end of the term. He erected a valuable building, and died in 1868. In 1880 the city sold the premises to Haskin, when plaintiffs brought this action for a reformation of Sym’s lease, so as to give a renewal of twenty-one years, and that the sale to Haskin be set aside, etc. The court directed a verdict in favor of defendants. Held, no error, that the lease should not be so construed as to create a perpetuity, but its language was satisfied by holding that it gave the lessee the right to two renewals, and that the lease of 1840 gave but one renewal.
    S. Costs—Against executors—Code Civ. Pro., § 3246.
    Code of Civil Procedure, section 3246, éxpressly authorizes costs against plaintiffs as executors.
    3. Same—Double costs on appeal—Code Crv. Pro., § 3239, sued. 2.
    Having awarded costs to defendants, upon appeal by plaintiffs from the judgment, the general term has no power to award costs upon the appeal from the order denying the motion for a new trial.
    4. Practice—Informalities to be corrected bv motion.
    Informalities in the judgment should be corrected by motion. This court will not correct them upon a mere appeal from the judgment.
    Appeal from judgment of the general term of the superior court of the city of New York.

      H. Brewster, for app’lts; E. H. LaOombe, for resp’ts
   Earl, J.

On the 10th day of April, 1810, the city of New York executed to Peter Lorillard a lease demising to him certain premises for a term of thirty years, ending on the 1st day of May, 1840. The lease was executed by both parties, and in it the city agreed that at the expiration of the term, to wit, May 1, 1840, it would demise the premises to him, his assigns, etc., “for and during the term of twenty-one. years thereafter, with a like covenant for future renewals of the lease as is contained in this present indenture.” On February 1, 1839, Lorillard assigned the lease to John Syms, who thus became substituted in his place. On the 1st day of April, 1840, the city executed a lease of the same premises to John Syms for another term of twenty-one years, in which it covenanted that at the expiration of that lease, to wit, May 1, 1861, it would again demise the premises, “ in pursuance of this present lease, * * * for and during the term of twenty-one years thereafter, upon such rents as shall be agreed upon,” or determined by two sworn appraisers and an umpire. On the 20th of Ayril, 1861, the city executed a third lease rto John Syms for twenty-one years from May 1, 1861. That lease contained no covenant for renewal, and in it Syms covenanted that at the end of that term he would peaceably and quietly leave, surrender, and yield up to the city, or its successors or assigns, all of' the demised premises. Syms died in 1868, having some years before his death erected a valuable building upon the premises. In April, 1880, the city sold the premises to John B. Haskin. Thereafter, in October, 1880, the plaintiffs, as executors of Syms, commenced this action, alleging in their complaint, among other things; the facts herein before stated, and praying that the city be adjudged to reform the leases dated April 1, 1840, and April 20, 1861, by inserting therein a covenant for a further renewal of twenty-one years from May 1, 1882, and that the sale and conveyance to Haskin be set aside, and the plaintiffs be given a renewal lease for twenty-one years from May 1, 1882, or, if the defendants had put it out of their power to perform the covenant by having sold the premises, that they and Haskin be adjudged to pay the plaintiffs their damages by them sustained for the conversion" of the building on the premises to their own use and for damages by depriving the plaintiffs of a further renewal of the lease of the demised premises, to the amount of $18,000. Upon the trial, at the close of the evidence, the court directed a verdict in favor of the defendants.

We are of opinion that the verdict was properly directed. The lease executed in 1810 should not be so construed as to create a perpetuity. Rutgers v. Hunters, 6 Johns,, Ch. 215; Carr v. Ellison, 20 Wend., 178; Piggot v. Mason, 1 Paige, 412; Banker v. Braker, 9 Abb., N. C., 411. Its language is satisfied by holding that it gave the lessee the, right to two renewals, and those renewals were subsequently given; and it must be assumed that the parties so understood the first lease. The two renewals, signed by both parties, gave that lease a practical construction, which should have great weight with any court called upon to ascertain its meaning and effect.

But the second lease, executed in 1840, which then defined the rights of the parties, contained a covenant for but one renewal. In the last lease there was no covenant for renewal, and in that lease the lessee absolutely covenanted at the end of his term to surrender up the premises to the lessor. So long as that lease remained in its present form, neither the lessee, nor any person claiming under him, could assert any right to the premises after its termination. It defines the precise rights of the parties in the demised premises, and neither could assert anything’ in contravention of it.

This action was brought mainly for the purpose of reforming the last two leases. But there was no proof of any mistake, or fraud in their execution, or in the terms inserted in them; and, therefore, even if the statute of limitations did not furnish a bar to the action to reform the leases, there was no basis or ground for their reformation. The plaintiff’s action therefore utterly failed, and a verdict was properly directed for the defendants.

The judgment entered upon the verdict provides that the defendants should recover costs of the plaintiffs, and have execution therefor. At the general term it was also adjudged that the city should' recover of the plaintiffs, as executors, its costs, and should have execution therefor. The plaintiffs now complain of this provision for costs, and ■cite section 3246 of the code. That section expressly authorizes costs against them as executors. The court did not direct them to pay the costs personally, but the judgment for costs is against them in their representative capacity. After verdict had been directed for the defendants, the plaintiffs moved for a new trial upon the judge’s minutes, which was denied, and, after entry of judgment, they appealed to the general term, both from the order denying their motion for a new trial and from the judgment, and at the general term both the order and judgment were affirmed, and the court awarded against the plaintiffs, not only costs upon the appeal from the judgment, but also ten dollars costs upon the appeal from the order. Having awarded costs upon the appeal from the judgment the court had no power to award costs upon the appeal from the order. Code, § 3239, subd. 2. It is a small matter, and should have been corrected in the court below, and we have no means of knowing that it was not corrected in the judgment finally entered. The judgments in the court below should not have contained the provisions that the defendants should have executions for their costs. The judgments for costó could be enforced by executions only in case they were allowed by the surrogate, as provided in sections 1825 and 1826 of the code. But this is an innocuous informality. Any informality in the judgment should have been corrected by motion; and if the plaintiffs failed, upon such motion, in a matter affecting a substantial right not resting in discretion, they could have reached this court by an appeal from the order _ denying their' motion. We do not correct such informalities upon a mere appeal from the judgment.

The judgment should, therefore, be affirmed, with costs against the plaintiffs as executors.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jambs W. Chrystal, an infant, by Guardian, Resp’t, v. The Troy and Boston Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Negligence—Oe engineer, in not seeing child on track.
    The sole negligence charged was that the engineer ought sooner to have discovered plaintiff, a child seventeen months old, upon the track and stopped the train before it reached him. Reid, that an engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. He is not bound to expect helpless infants upon the track, without sufficient knowledge or ability to escape when warned of danger.
    2. Same—When bailboad not liable fob ebbob of judgment of engiNEEB.
    The defendant is not responsible for an error of judgment, if there was any, on the part of the engineer as to the speed of his train, the distance, age and peril of the child, and his ability to stop the train in time to protect him.
    3. Same—Contbibutoby negligence of motheb—Evidence.
    Counsel for defendant contended that the mother’s story that the child just able to walk, after being put to sleep sound, as comes to a tired, well-fed infant, woke up, got through or over a cliair at the door, down the steps, under the gate and down to the railroad track, about eighty feet, is so incredible, unnatural and contrary to human experience that the jury could not rely on it as sufficient to show such care of the child by the mother as the law exacts. Held, that while' the evidence is liable to criticism, this court cannot say that the story, in its essential features, is so impossible or improbable that as matter of law, the jury could not believe it and only rely upon it. Peckham, J., holding that it was too incredible to submit to a jury; Danfobtii and Andbews, JJ., dissenting.
    Appeal from decision of supreme court, general term, third department, affirming judgment for plaintiff on verdict of jury.

      E. L. Fursman, for app’t; B. A. Parmenter, for resp’t.

       Reversing 38 Hun, 641, mem.

   Earl, J.

This action was commenced to recover for injuries caused to the plaintiff by the defendant carelessly running an engine over him upon its road. It denies that it was guilty of any negligence or fault causing the injury, and alleges that there was negligence on the part of the plaintiff’s mother, a widow, which exposed him to the injury which he sustained. The accident happened on the 4th day of September, 1877, and the action was commenced on the 2d day of February, 1880, and was brought to trial an the 21st day of May, 1884. At the time of the accident the plaintiff was a nursing infant, seventeen months old, and in consequence of his injuries one of his fingers was amputated and also one of his legs above the ankle. The verdict of the jury was for $8,000.

The presence of the plaintiff, unattended, upon the railroad would, under the circumstances, if unexplained, have been conclusive proof of carelessness and inattention on the part of the mother, and hence it became important for him to show that he strayed upon the railroad track without any culpable neglect on her part." At the place of the accident the railroad runs in a northerly and southerly direction, and was crossed at right angles by Carey avenue, in a sparsely populated portion of the village of Hoosac Falls. The plaintiff resided with his mother on the north side of that avenue, about eighty feet easterly of the railroad, in a house which stood about twelve feet northerly from the line of the avenue. He had been able to walk for only about two months, was fat and chubby, and just before the accident had been playing in the yard in front of the house. His mother, as a witness, for the purpose of exculpating herself from the charge of negligence, gave the following statement of what then took place: She took him up and held him in her lap, sitting on the front door steps of the house. Finding that he was sleepy, she went into the house, and sitting in a rocking chair nursed him. Seeing that he was inclined to sleep, she laid him down upon the floor and saw that he was still, and she then put a chair across the open doorway, while she went into another room to fix his cradle. She was gone eight or ten minutes, and when she came back he was gone. The chair across the doorway was undisturbed, so that he must have crawled over the chair or through it in some way, and passed down the steps to the front gate, which was fastened. Under the gate there was a space of about six inches through which he must have crawled, and then he must have passed into the street eighty feet to the railroad, where he was hit by the engine and injured. All this transpired during the eight or ten minutes she was in the adjoining room. When she came out of that room, and commenced looking for him, she saw him on the railroad, and saw the train coming. He had never gone to that place before, and was never known-before to crawl under the gate.

The counsel for the defendant contends that this story that this child, just able to walk, after being put to sleep sound, as comes to a tired, well-fed infant, woke up, got through or over the chair, down the steps, under the gate, and down to the railroad track, all within eight or ten minutes, is so incredible, unnatural, and contrary to human experience that the jury could not rely on it as sufficient to show such care of the child on the part of his mother as the law exacts. While this evidence is liable to much of the criticism in which the defendant’s counsel indulges, we can not say that the story, in its essential features, is so impossible or improbable that, as matter of law, the jury could not believe it, and rely upon it. We have no power to weigh the evidence. The general term, however, having power to set aside verdicts which are contrary to the evi- dence, should not allow one to stand which is based simply upon evidence which may possibly be true.

But we are of opinion that the evidence failed to show any negligence on the part of the defendant. There is no charge that its road-bed or engine, or any of the appliances upon its train, were out of repair, defective or insufficient. Nor is there any claim that there was any omission to give the proper signals for this crossing, or that the train was run at an improper rate of speed. The sole negligence charged, ■as we understand it, is that the engineer ought sooner to have discovered the plaintiff upon the track, and stopped the train before it reached him. This is the first case that has come before this court, and, so far as we know, before any court in this state, wherein must be defined the responsibilities of a steam railroad company, not otherwise in fault, to one lawfully upon its track, for not seeing him, and stopping its train in time to avoid injuring him.

It was in evidence by a witness produced by the plaintiff that the plaintiff could be seen upon the track at a point about 500 feet from where he was injured. From the evidence of the defendant’s engineer it appears that, when he was about 40 rods from the avenue, he saw a little girl upon the crossing about eight or nine years old, and that she ran from the track, arid that then for the first time he saw the plaintiff. He immediately gave the signal for the brakes to be applied, and reversed his engine, and the evidence shows that everything was then done that could be done to arrest the speed of the train, and that only two of the small wheels of the engine passed over the plaintiff’s leg before it was entirely stopped. There was evidence on the part of the plaintiff tending to show that there was no little girl upon the crossing just previous to the accident, as testified to by the engineer; and it may be assumed that he, testifying a long time after the accident, was mistaken. But his evidence was not necessarily in conflict with that of the other witnesses, upon whose memory time may also have done its work. The little girl may have come upon the track and passed off undiscovered by the other witnesses, and the plaintiff may have come upon the track soon after, and may have been seen by the engineer immediately after he came upon the track, and after the girl had passed off. The facts testified to by the plaintiff’s mother showed that he must just have reached the track, and could have been there but a very brief time before the accident. It cannot be inferred that the engineer ought to have seen, or could have seen, him any sooner than he did. It is not probable, and there is no evidence to show, that he was upon the track at the time the train left the depot, about 1,500 feet from the avenue; nor is there any evidence from which it could be found that he was upon the track, and therefore visible to the engineer, at any time before the train came within forty rods of him.

Witnesses testifying after the great lapse of time might be mistaken as to the speed of the train, the distance at which the child was first discovered upon the track, and the place where the engine was reversed. But there can be no doubt upon this evidence that, after the engineer discovered that the 'child was in peril, he did all he could to arrest the motion of his train. That he wilfully or recklessly ran upon him after he discovered that he was in peril is inconceivable, and certainly cannot be assumed. An engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. He is not bound to expect helpless infants upon the track, without sufficient knowledge or ability to escape when warned of danger. He could not know, when he first saw the plaintiff, that he was too young to be conscious of the danger to which he was exposed; and without the imputation of negligence he could run on until he discovered that he was heedless of the danger. Reasonable care in the management of trainss which must make their time between stations and have the right of way, does not require more.

The defendant is not responsible for an error of judgment, if there was any, on the part of the engineer as to the speed of his train, the distance, age, and peril of the child, and his ability to stop the train in time to protect him. All the engineer was bound to do after the discovery of the peril was to use reasonable diligence and care to avert it, and there was no evidence which authorized the jury to find that he did not do this.

We are therefore of opinion that the judgment should be reversed, and a new trial granted; costs to abide event.

All concur. —Peckham, J., on the ground that the evidence exculpating plaintiff’s mother from negligence is so wholly incredible in its nature as not to be sufficient in law to be submitted to a jury,—except Danforth and Andrews, JJ., who dissent. _


author: Danforth, J.

text:
    People ex rel. James A. Wright, App’lt, v. Alfred C. Chapin, Comptroller, Resp’t.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Taxes—Comptroller’s judicial power.
    The state comptroller, as between the purchaser at a tax sale and the state, under whose authority he acted, may decide questions of regularity relating thereto. He has no judicial power to determine a controversy between other parties, but to “ discover ” a fact which, when found, is to determine his own conduct.
    2. Same—Laws 1855, chap. 427, §§ 83, 85.
    Laws 1855, chapter 437, sections 83 and 85, were enacted for the benefit only of purchasers who had paid their money on the strength of the title of the state, and gave no right to an owner of the lots either to make the demand that the comptroller cancel the sale, or upon his refusal, to renew that determination.

      W. B. Van Rensselaer, for app’lt; D. O’Brien, attorney-general, for resp’t.

       Reargument. See 4 Eastern Rep., 305, for opinion on former argument.

   Danforth, J.

On November 11, 1884, the relator by petition represented to the comptroller that in December, 1871, he became the sole owner of certain lots of land, numbered 18, 20 and 34, in the north half of Arthurboro patent, in the town of Morehouse, Hamilton county; that in 1877 they were sold for the taxes of 1870, and Nos. 18 and 20 conveyed to Ballou, and lot 34 to Peck; that the sale was void, because—“First, the corrected assessment-roll for the town of Morehouse (being the township in which said lots are situated) for the year 1870, as delivered by the supervisor of the town of Morehouse to the town clerk thereof, is incomplete and defective, because (a) there is no oath of the assessors on said assessment-roll or attached thereto; (6) that these lots belong to non-residents, and that the number of acres of each lot is not given; (c) that the values of the above lots are not given; (d) that there is no fifth column at all; (e) that there are no figures set down to show the respective sums, in dollars and cents, to be paid as a tax on said lots. 1 Rev. Stat., 395, §§ 33, 35. Second, that it does not appear fro.m any statement in the collector’s return, and affidavit thereto, or the county treasurer’s certificate, that the taxes for the year 1870 remaining unpaid were assessed upon the lands of non-residents.” And prayed therefore that, in pursuance of the authority conferred upon the comptroller by section 85 of chapter 427 of the Laws of the State of New York, passed in the year 1885, that the tax sale of 1877, so far as the same relates to lots, numbered 18, 20 and 34, in the north half of the Arthurboro patent, in Hamilton county, and state of New York, be canceled, and that any conveyance delivered by virtue of said sale of the said lots be set aside and discharged of record.

The comptroller, after hearing, denied the application. The relator by certiorari sought to review that decision. Upon return made, the supreme court affirmed it. The relator appealed to this court. Upon the argument the learned counsel for the relator repeated upon his points the statement of the petitioner that the application made by the relator on November 11, 1884, to the comptroller to cancel such tax sale was made under the authority of sections 83, 84 and 85 of chapter 427 of the Session Laws of 1855,” and ' in reply thereto _ the learned attorney-general, for the respondent, submitted as a distinct proposition that there is no statute authority for the demand made by the relator upon the comptroller to cancel the sale; that the sections above named and cited by the appellant were enacted for the benefit only of purchasers who had paid their money on the strength of the title of the state, and gave no right to an owner of the lots either to make the demand that the comptroller cancel the sale, or, upon his refusal, to review that determination.

This position was not answersd by the relator upon any authority, nor other statute than that of 1855 (supra). We sustained the view of the attorney-general, and without passing upon the merits, dismissed the appeal, March 2, 1886. A motion for a reargument is now made by the relator upon affidavit of his counsel showing that the point made by the attorney-general, as to the limitation of the statute of 1855, was not taken in the supreme court, nor anticipated by the relator as one which might be made in this court, and therefore that he failed to cite decisions and statutes bearing upon, if not controlling, the question, viz.: Laws 1873, chap. 120; Laws 1885, chap. 448; Clark v. Davenport, 95 N. Y., 477.

The beginning of this remedial legislation may be found in chapter 262 of the Laws of 1823, which enacted (section 52) “that if the comptroller shall discover, at any time before he conveys lands sold for taxes, that the sale was, for any cause whatever, improper, he shall not convey the land so improperly sold, but shall pay the purchasers of such lands the sum which they would be entitled to if .such land had been regularly redeemed by the owner, and the sum to be paid shall be a charge against the county from which the return of the tax wras made, if the cause why such sale was improper originated with the county.” By 1 B. S., 413, § 89, this provision was re-enacted so as to read: “ Whenever, the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was, for any cause whatever, invalid and ineffectual to give title to the lands sold, he shall not convey the lands so improperly sold, but shall forthwith cause the purchase money, and interest thereon, to be refunded out of the treasury to the purchaser, his representatives or assigns.” And by section 91 it was provided that “if the discovery that the sale was invalid shall not be made until after a ■conveyance shall have been executed by the comptroller for the lands sold, it shall be the duty or the comptroller, on receiving satisfactory evidence thereof, to refund out of the treasury to the purchaser, his representatives or assigns, the purchase money, and interest thereon; and to re-charge the county from which the tax was returned with the amount of tax and interest, at the rate of seven per cent from the time interest was charged thereon by him, and such county shall cause the same to be levied and paid as provided in the last section.” It is obvious that these provisions concern no one but the purchaser, the state and the county or town from which the tax was returned.

The act of 1850 (chapter 298, §§ 102, 104) contains the same provisions, with slight verbal alterations, among others directing that after such discovery the comptroller shall cancel the sale. This was evidently for no other purpose than to preserve the regularity of the proceedings in the refunding and re-charging process, and concerned only the state on one side, and the town or county, as the case might be, on the other. These provisions reappear in 1855 as sections 83 and 85 (Laws 1855, chap. 427). It should be noticed that in no case is the comptroller authorized to recall a conveyance made by him, nor by his decision avoid or cancel it, except as the cancellation of the sale might, by vitiating the precedent steps, destroy the regularity of the proceedings. The cancellation of the sale affected the purchaser by impairing his title in one case, and in another ■restored the purchase price of an ineffectual grant. It affected the. town or county by compelling it to bear the burden of retaxation. The power to cancel might be exercised upon misapprehension or misinformation, and perhaps for that reason it was enacted in 1873 (Laws 1873, chap. 120) that the comptroller should have power to set aside any cancellation of sale made by him under the act of 1855, supra, in either of three cases: “First, whenever such cancellation was procured by fraud or misrepresentation; second, whenever such cancellation was procured by the suppression of any material fact bearing upon the case; third, whenever the cancellation was made under a mistake of fact.” This also could concern only the rights or interests of the same parties.

The act of 1885 (Laws 1885, chap. 448) can have no direct application to the case at bar, for it was enacted after these proceedings were commenced, and after the decision of the comptroller. The statute also limits its operation by declaring that it shall not affect a proceeding pending at the time of its passage. It amends section 65 of the act of 1855, supra, by giving conclusive effect to the comptroller’s conveyances after a specified time, but declares that “such conveyances and certificates, and the taxes and tax sales on which they are based, shall be subject to cancellation, as now provided by law, on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid.” Neither its validity nor construction is-before us, except as it may bear by implication upon the power and duty of the comptroller under the act of 1855. It gives no new power. The comptroller had been given none to cancel conveyances; neither his own deed, nor that of a remote grantor. He might cancel a tax sale. The court in a proper case had power to do that also, and such other acts as were essential to the protection of those affected by them, whether an owner or mortgagee, or one otherwise interested. The statutory power of the comptroller, when exercised, is for the benefit of the purchaser, and, for reasons briefly stated in my opinion on the first argument, cannot he invoked, in any legal sense, by the owner. He may, indeed, as might any other person, put the comptroller in the way to “ discover ” errors in the sale, but he cannot compel an investigation, nor, if one is had, review his decision.

In Clark v. Davenport (95 N. Y., 477) the learned judge, in denying the right of the appellants to the relief sought, referred incidentally to the statute of 1855, as giving a remedy in certain cases by the action of the comptroller under sections 83, 85 (supra), and says: “No reason appears why the proceedings might not be reviewed by certiorari, or an application made by mandamus to compel him to do so;” i. e., to set aside the sale by reason of the irregularity and invalidity in imposing the taxes for which the sale was made. We were not there called upon to interpret the statute, and the remark made was suggestive merely, and not the resolution of the court upon any point to be determined, nor a direct opinion even of the learned judge by whom it was written, but rather a side blow put by way of argument. It was not necessary to the judgment rendered, nor was it put forth as ground or reason for it.

The office of comptroller was created, and his powers and duties are defined, by statute. As between the purchaser at a tax sale and the state, under whose authority he acted, he may decide the questions of regularity relating thereto. He has no judicial power to determine a controversy between other parties; but to “discover” a fact which, when found, is to determine his own conduct. People v. Fairchild, 67 N. Y., 334.

Looking at the case, therefore, in the light of the argument for a rehearing, we find no reason for a decision differing from that before made.

The motion for a reargument must be denied, with costs.

All concur.


author: Andrews, J.

text:
    John A. Bagley, App’lt, v. Peter Bowe, Sheriff, etc., Resp’t.

      (Court of Appeals,

      Filed March 25, 1887.)

    1. Assignment for benefit of creditors—What will be deemed an authority to sell on credit.
    In February, 1881, Dart, one of the firm of Swezey & Dart, made an assignment to plaintiff, with the following provision Second. To “execute acknowledge * * * for such consideration in money or other thing as he may deem sufficient, all such deeds, bills of sale or other conveyances in writing * * * as in his discretion may from time to time be necessary to carry into effect the intent and purpose of this instrument.” Held, that this should not be deemed to confer authority to sell the assigned property on credit, or to exchange it for other property.
    2. Same—Authorizing assignee to compound or compromise debts.
    A provision in a general assignment to compound or compromise debts owing to assignor, is valid. Following Coyne v. Weaver, 84 Ñ. Y., 386.
    3. Same—Question of fraud resting upon extrinsic facts for jury.
    The trial court or the general term is authorized to set aside a verdict, and direct the issue to be re-tried before another jury, if in its judgment the verdict is against the weight or preponderance of evidence; but in a case which of right is triable by jury, the court cannot take from that tribunal the ultimate decision of- the fact, unless the fact is either uncontradicted or the contradiction is illusory, or where the answering evidence is a scintilla merely.
    Appeal from judgment of general term of the superior court of the city of New York.
    Action by assignee for benefit of creditors to recover property of the assignors taken by defendant as sheriff under executions and attachments issued against them.

      Edwin B. Smith, for app’lt; Charles F. MacLean, for resp’t.
   Andrews, J.

The trial judge directed a verdict for the defendant on the ground that the assignment of February 3, 1881, made by Dart, one of the firm of Swezey & Dart, to the plaintiff, was void, as having been made with the intent to hinder, delay, and defraud creditors. The assignment in form was- a general assignment for the benefit of the creditors of the firm of Swezey & Dart, and individual creditors of Dart, and was executed by Dart in the firm name, and also as an individual. It purported to transfer and assign to the plaintiff all the property of the firm, “real, personal, ana mixed, not exempt from attachment by law,” for the benefit of the firm creditors, and also the individual property of Dart for the benefit of his individual creditors. The general term affirmed the judgment, and the sole point now presented is whether the' question of fraud should have been submitted to the jury. In support of the judgment it is claimed that the assignment was void on its face, but it is also insisted that the evidence of fraud extrinsic to the instrument was so conclusive that the court was justified in withholding the case from the jury, and in ruling, as matter of law, that fraud in fact was established.

The provisions in the instrument of assignment upon which the defendant relies to establish its invalidity, relate to the powers conferred upon the assignee. First, “to compound, compromise and release” debts owing to the assignor; and second, “to execute, acknowledge, and deliver, in the name of the said parties of the first part, assignors, as such copartners, or in the name of the said Joseph Dart, individually, for such consideration in money or other thing as he may deem sufficient, all such deeds, bills of sale, or other conveyances, in writing, under seal, or otherwise, and all such releases, contracts, and other instruments in writing or under seal, as in his discretion may from time to time be necessary to carry into effect the intent and purpose of this instrument. ” The validity of a provision in the general assignment for the benefit of creditors, authorizing the assignee to compound or compromise debts owing to the assignor, has been recently affirmed in this court, and is no longer an open question. Coyne v. Weaver, 84 N. Y., 386.

The stress of the argument against the validity of the instrument of assignment is placed on the clause conferring upon the assignee the power to execute deeds, bills of sale, or other conveyances in writing, “for such consideration in money or other thing ” as he may deem sufficient. This clause, it is insisted, authorizes the assignee to sell or dispose of the assigned property upon credit, or upon any consideration, whether in money or property. If this is the' true construction of the provision, there can be no doubt of its invalidity.

The law justifies and upholds trusts created by insolvent debtors of their property, through general assignments for the benefit of their creditors, only when they provide for the immediate and unconditional surrender and application of the assigned property to the payment of their debts; .and any attempt to confer upon the assignee the power to deláy the collection and conversion of the assets into money is held to be unlawful, and to vitiate the assignment. It has therefore been held that an authority contained in the assignment to sell the assigned property on “credit,” or for “cash or upon credit,” as in the judgment of the assignee may appear best, or to convert the property into “money or available means,” renders the assignment fraudulent and void. Nicholson v. Leavitt, 6 N. Y., 510; Burdick v. Post, id., 522; Brigham v. Tillinghast, 13 id., 215.

Construing the clause in question in view of the general rule of construction of written instruments, viz.: that a construction will be preferred which will uphold rather than one which will destroy them (a rule applicable as well to insolvent assignments as to other instruments), and the further rule that in construing a particular clause the whole context maybe considered, we are of opinion that the clause in question should not be deemed to confer authority to sell the assigned property on credit, or to exchange it for other property. The language of the whole paragraph seems more appropriate to a mere power of attorney than to an instrument of transfer or conveyance. It authorizes the assignee to execute deeds, bills of sale, etc., “in the name of the parties of the first part ” (the assignors), a power which they would very rarely, if ever, find it .necessary to exercise. But the power is in express terms limited to instruments which the assignee may deem necessary or requisite “to carry into effect the intent and purpose of this instrument.” Looking at the preceding parts of the assignment, it is found that the granting clause is followed by a declaration of the trusts upon which the assignee is to take the property, the first of which is “to take possession of and sell the same at public or private sale, and to convert the same into money,” and next to “apply the proceeds thereof,” after deducting necessary costs, charges and expenses, to the payment of the debts of the assignors, in the order specified.

This explicit authority and direction to sell the assigned property, and convert the same into money, cannot be reconciled with the subsequent power to execute, in the 'names of the assignors, deeds, bills of sale, and other conveyances “for such consideration, in money or other thing,” as the assignee may deem sufficient, provided the latter clause, as is claimed by the defendant, authorizes the assignee to dispose of the assigned property on credit, or to exchange it. But we are of opinion that this supposed inconsistency does not in fact exist. It is not difficult to imagine cases Where, in the adjustment of property interests held in common by the assignors and third persons, mutual transfers and releases might become necessary, setting apart in severalty to each owner his interest in the common property, or where, in the process of conversion, it might become necessary for the assignee to execute instruments upon a consideration other than the payment of money, affecting the assigned estate, but not involving any sale or exchange. It is not improbable that the draughtsman inserted this clause without any very definite purpose, following some former precedent. But, however this may be, the provision is quite too vague to overcome the explicit direction in the prior clause, requiring, in substance, that the property should be sold for money, and especially in view of the expressed purpose of the latter clause that the power thereby given was “to carry into effect the intent and purpose ” of the instrument.

Two extraneous matters are relied upon to establish the existence of fraud in fact: First, that the assignor, Dart, intended to withhold from the assignee and the creditors ninety-six bales of twine owned by the firm of Swezey & Dart, upon the false and fraudulent pretense that they belonged to the Wilton Company, of which his mother-in-law was the proprietor; and, second, the matter of the “Peerless ” trade-mark, belonging to the firm, used to designate warps manufactured for and sold by the firm.

The question whether the judge was authorized to take from the jury the question of fraudulent intent arising upon the extrinsic facts is to be determined in view of the settled rule that, to justify the court.in directing a verdict in any case upon the facts, the evidence must be undisputed, or so certain and convincing that no reasonable mind could come to any but one conclusion. If there is ground for opposite inferences, and a conclusión either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy. The trial court or the general term is authorized to set aside a verdict, and direct the issue to be re-tried before another jury, if in its judgment the verdict is against the weight or preponderance of evidence; but in a case which of right is triable by jury, the court cannot take from that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted, or the contradiction is illusory, or where, to use a current phrase, the answering evidence is a scintilla merely.

It is claimed, on the part of the defendant, that the 96 bales of twine were clearly and incontrovertibly the property of Swezey & Dart, and not of the Wilton Company. It was conceded on the trial that they were the property of the firm, and it appears that the fact was so found by a jury in an action of replevin brought by the Wilton Company against the sheriff after the assignment. The goods are not mentioned in the schedule of assets made by the assignee and verified by Dart, April 9, 1881. Dart was sworn as a witness on the trial. He testified that he did not intend to transfer those goods by the assignment, and the assignee had no information in respect to them until weeks after the assignment was made-. The twine was manufactured by the Wilton Company, under some. arrangement with Swezey & Dart, the particulars of which do not distinctly appear. There is much evidence tending to show, ' and which would justify a jury in finding, that Swezey & Dart owned the goods at the time of the assignment, and that Dart so understood and believed. Dart, however, testified that when the assignment was made he believed that the twine belonged to the Wilton Company, and that Swezey & Dart held it for sale only for the Wilton Company on commission, and that it was not until the decision of the replevin suit that he became satisfied that the title to the twine was in Swezey & Dart. The relations between the Wilton Company and Swezey & Dart were somewhat peculiar, and are not clearly disclosed. Without going into further detail, it is sufficient for our present purpose to say that, whatever may be our view as to the preponderance of evidence, we think the evidence is not of so conclusive a character as to preclude a jury from finding that the intent of Dart to withhold the ninety-six bales of twine from the assignee and the creditors was the result of an honest conviction that they belonged to the Wilton Company, and not to the assignors.

The matter of the trade-mark was also, we think, for the consideration of the jury. The assignment of the trade-mark to Reynolds purports to have been made for the consideration of $1,500, on the 2d of February, 1881, the day before the execution of the general assignment. There are certainly suspicious circumstances connected with the transaction. The consideration has never been paid. The trade-mark was transferred by Reynolds to a corporation organized a few days after the general assignment was made, of which Reynolds & Dart were two of the corporators. Reynolds, the nominal purchaser, is named in the schedule of Swezey and Dart’s indebtedness, made in April, 1881, as a preferred creditor, in the sum of $1,591.80, when it is clear upon the evidence that he was then indebted to the firm, after allowing all offsets, in the sum of about $1,400. It does not affirmatively appear that Dart was cognizant of the insertion of this debt in the schedule. The circumstances in respect to the transaction with Reynolds are attempted to be explained by Dart. It is not for us to say whether the explanation is satisfactory. Reynolds was not preferred in any specific amount in the • assignment himself, but generally for any claim which might be established by him against Swezey & Dart. The assignment transferred all the property of the assignors, whatever may have been their secret intention. The assignment may, nevertheless, have been a fraudulent contrivance to embarrass and delay creditors. Shultz v. Hoagland, 85 N. Y., 465. But this, we think, was a question for the jury.

The judgment should, therefore, be reversed, and a new trial ordered.

All concur.


author: Peckham, J.

text:
    John Bell, Resp’t, v. Mayor, etc., New York et al., App’lts.

      (Court of Appeals,

      Filed March 22, 1887)

    1. Mechanic’s lien—Public buildings—Laws 1878, chap. 315^Contract MADE WITH TRUSTEES OF PUBLIC SCHOOLS.
    A contract made with the trustees of public schools of the city of New York for the building of a school, is one made with “ an incorporated city,” within the meaning of chapter 315, Laws of 1878, entitled “An act to secure the payment of laborers * * * in the cities of the state of New York," and a lien may be filed against the city for failure of the comptroller to pay over moneys in his hands, due on such contract JDannat v. Mayor, 66 N. Y., 585, and Ham v. Mayor, 70 N. Y., 459, dis_ tinguished.

    3. Same—On whom notice to be served.
    The board of education is the department or bureau having charge of such work, and the comptroller of the city was the financial officer thereof and a filing of notice of lien with the clerk of the board and with the comptroller is sufficient.
    Appeal from judgment of the general term of the court of common pleas of the city and county of New York.
    D. J. Dean, for app’lts. Joseph Fettretch, for resp’t.
   Peckham, J.

This action is brought against the defendant, the mayor, etc., to foreclose a lien upon certain moneys alleged to be in the hands of the comptroller of the city of New York for the purpose of paying the amount due on a contract between the defendant Vanderbilt and the defendants Surland and others, who were trustees of public schools in the Twelfth ward of the city of New York, whereby Vanderbilt was to do the mason work on a building to be erected for school purposes in such ward. The other defendants were lienors who filed their claims upon the same moneys. The plaintiff and the other lienors were individuals who furnished the materials to Vanderbilt to enable him to complete his contract above referred to, and such materials went into the construction of the school house.

Upon the view taken by us in this case, the only question in it arises upon the construction of the act (chapter ,315, Laws 1818) entitled An act to secure the payment of laborers, mechanics, merchants, traders and persons furnishing materials towards the performing of any public work in the cities of the state of New York.” It is conceded, if that act apply to this case, the judgment herein is right. Prior to its passage there was no law by which any lien could attach upon public buildings, or upoii the moneys due from a city to the contractor who did any work thereon. The courts had held that such great inconvenience might result from the sale of public buildings to satisfy a lien that express and clear provisions of the statute must be shown to permit it. Darlington v. Mayor, etc., 31 N. Y., 164; Poillon v. Mayor, etc., 47 N. Y., 666; Leonard v. City of Brooklyn, 71 N. Y., 498. To give some security to those who furnished supplies, or did work for the contractor on public works in cities, this act was passed.

The counsel for the city challenges this contract as not being made with an incorporated city, as required by the provisions of the act; for he says that the school trustees who signed it were part of the educational system of the state, and did not represent the city or act in its behalf; and he cites the well known cases of Dannat v. Mayor, etc. (66 N. Y., 585), and Ham v. Mayor, etc. (70 N. Y., 459), and several others of like nature, to prove the correctness of his position.

The Dannat Case was where the contractor to do the carpenter work on a school house in New York bought lumber of plaintiff, and gave him an order on the board of public instruction for his payment when the next installment under his contract should become due, and the order was presented to and left with the board. After the next installment became due, the plaintiff presented his claim to the comptroller, and demanded its adjustment by him, which he neglected to make, and also refused to pay the amount of the order. This court held that the system of audits and payments of accounts provided by the act of 1873; reorganizing the government of New York, applied to all payments from the city treasury, including payments from school moneys upon contracts of the board of education, and that the act of 1851, relating to the common schools of the city remained in force. Thus, to obtain payment upon a contract with the board of education, it was necessary for the board to give its draft on the chamberlain as prescribed in the act of 1851, and this was to be delivered by the payee to the finance department as its voucher, and the other requisites of the act of 1873 were to be complied with before the payment could be secured. This was not done in that casé, and consequently the plaintiff was not successful in his action. The case is cited to show the separate and independent character of the board of education, and that it drew its own drafts, and had its own system outside of the city government.

The Ham Case was that of an action brought against the city to recover damages for injuries alleged by the plaintiff to have been sustained by him to his property in a certain house because of the alleged negligent acts of some of the employees of the department of public instruction. The liability was sought to be placed upon the doctrine of respondeat superior, which rests upon the right of the em-plover to select his servants and discharge them, and, while in ids service, to direct and control them. All this was held to be lacking in that case, and that the department of public instruction, although formally constituted a part of the city government by the law as it stood in 1871 (subsequently and in 1873 altered), yet it was charged with the performance of duties, not local or corporate, but relating and belonging to an administrative branch of the state government, and that such board had exclusive authority as to the employment and control of subordinates and servants.

Both these cases may and should stand in full force, and still it can be held that this contract was made with an incorporated city within the meaning of this act of 1878.

In the first place, there can be no reason given for intentionally excluding such a contract from the provisions of the act. The moneys to pay for services or materials performed or furnished under all contracts of that nature are raised by the taxation machinery of the city, and are paid into the city treasury, to be paid out in the same way as other city moneys, and by the same city comptroller. The lot upon which the building was to be erected was owned by the city, and the building would be its property; but under the control, for school purposes, of the board of education. Such a contract is therefore within every reason that operates in that of a technical and formal contract with the city by its corporate title. Did the legislature, by the use of the words in the first section of the act, “any contract made between any person or persons and any incorporated city in the state of New York,” mean to include only such technical contracts as above referred to, or did it not also mean to include in its beneficent provisions a contract made by somebody acting under authority of law, yet in fact and substance for the city, in regard to a public work,“the title to which was in an incorporated city, and was to be paid for by the moneys in its treasury, raised by taxation and disbursed by its own officer ? The exact and literal wording of an act may sometimes be rejected, if upon a survey of the whole act, and the purpose to be accomplished or the wrong to be remedied, it is plain that such exact or literal rendering of the words would not carry out the legislative intent. And the title of an act may be regarded also for the same purpose—of arriving at the real meaning of the legislature. Smith v. People, 47 N. Y., 330; People v. Davenport, 91 id., 574. By the title the purpose of this act is evident, and would include just such a case as is now before us. And while, if the legislative meaning in the words used by it in the body of the act were plain and free from any ambiguity, those words would control the title, yet such is not the case here.

The section speaks of a contract between a person and an incorporated city. Can it be contended that a lawful agent of the city could not make a contract in its behalf, within the scope of his authority, and within the meaning of this section, although not in so many words using the corporate title of the city in the contract ? And cannot an individual, or even a body corporate, be an agent of the city under this act, and to carry out its object, and yet for all other purposes be a separate and distinct entity ? The question is, what is a contract between one person and an. incorporated city, within the meaning of this act ? Is the answer so absolutely free from doubt as to preclude the reference to the title or the manifest purpose of the act, and the condition of the subject before its passage? It is thought not. It is seen that, before its passage, persons in the situation of the plaintiff had no lien upon buildings or moneys due or to grow due under the contract. The lien existed in all cases except in regard to public works. The reason for including such a contract as this is plainly just-as strong as if the trustees of the school board had been a formal part of the city government. We think it was not necessary that they should be such formal part in order to act, substantially and for the purpose of this act, as the agents of the city, legally appointed, and as such executing on behalf of the city this contract. It is not, of course, very important, but it appears that this was the capacity in which the trustees of the school district themselves-thought they were acting; for in the contract is this provision : “This contract shall inure to the benefit of the board of education, and of the mayor, aldermen and commonalty of the city of New York, as well as the parties of the first part, either of whom shall have a right of action under the same to maintain and prosecute any interest, right or power hereby reserved to or vested in the parties of the first part.” The city has recognized the agency of the school trustees by payments made under the contract, to the contractor before the filing of any liens.

It is further urged in amplification of the argument upon the part of the city, that there was in this case no head of a city department or bureau in which to file a notice of claim under the second section of the act in question, because the board of education or the trustees of public schools of the Twelfth ward formed no such department or bureau of the city government within the cases above cited. But having so construed the first section of the act as to include a case of this kind, and holding that a contract such as this was a contract, substantially and for the purpose of the act, with an incorporated city, there is no difficulty in holding that for the same purpose the board of education was the department or bureau having charge of the work, and the comptroller of the city was the financial officer thereof, and that a filing of the notice of lien with the clerk of the board and with the comptroller was a fulfillment of the provision of that section of the act.

Coming to these conclusions, it becomes unnecessary to consider the effect of the passage of the act of 1881, or the giving of the bond of indemnity to the comptroller.

The judgment of the common pleas should be afirmed, with costs.

All concur.


author: Rapallo, J.

text:
    In the Matter of the New York, Lackawanna and Western Railway Company, to acquire Real Estate of Minnie Van Zandt and Others.

      (Court of Appeals,

      Filed March 22, 1887.)

    Will—Construction—Contingent devise.
    The will in question contained the following clause “ I direct that in case my daughter, Minnie, should die without issue that my real and personal property should be possessed and enjoyed by my husband, Reuben W. and my sister Delia F., during their natural lives, and after their death the real and personal property to be divided equally between my brothers H, J,F,and T, or their representatives, share and share alike; the devise over to my husband,sister and brothers, to depend upon the contingency of my daughter Minnie dying without issue. Minnie was then a child of six years. Held, that Minnie took a base or conditional fee, defeasible by her dying without leaving issue living at the time of her death (I R. S., 724, § 22), that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them; and that an indefeasible title in fee could be conveyed, and the contingent expectant estate limited to the husband, sister and brothers of the testatrix in the event of Minnie dying without issue, cut off, by their joining with her in a conveyance.
    Appeal from order of general term, supreme court, fourth department, affirming order directing that money awarded Minnie Van Zandt for land condemned, be invested by county treasurer in bonds and mortgages, and that he pay the interest to Minnie for life, and at her death pay the principal to persons entitled under the will of Ellen M. Wisner. Minnie claimed that she should have the principal, under the following clause of her mother's will:
    “ Third. I direct that in case my daughter, Minnie, should die without issue, that my real and personal property should be possessed and enjoyed by my husband, Reuben P. Wonner, and my sister, Delia Fisk, during their natural lives, and after their death the real and personal property to be divided equally between my brothers, Henry 0. Fisk, John M. Fisk, Frederick D. Fisk and Thomas J. Fisk, or their representatives, share and share alike; the devise over to my husband, sister and brothers to depend upon the contingency of my daughter, Minnie, dying without issue.”

      M. II. Me Math, for app’lt, Minnie J. Van Zandt; Chas. J. Bissell, for resp’t.

       Affirming 29 Hun, 613, mem.

   Rapallo, J.

It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the life-time of the testator; and that, if such devisee survives the testator, he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, or an executory devise, but are merely substitutionary, and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator. .This construction is uniformly adopted, unless there is some language in the will indicative of a different intention on the part of the testator. The reason assigned for this construction has been that as death is a certain event, and the time only is contingent, the words of contingency in a devise of this description can only b,e satisfied by referring them to a death before some particular period; and no other being mentioned, the time referred to must be presumed to have been the testator’s own death. It is also founded upon the principle that, in construing wills, effect should be given, if possible, to all" the words used by the testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first-named devisee to an estate for life; for his death at some time is certain, and the words of inheritance attached to the devise to him would in every case be inoperative.

Nevertheless, it has been held that the same rule of construction is to. be applied where the alternative .devise is made to depend upon the death of the first-named devisee “without issue” or “ without children,” etc. This question is thoroughly discussed in the opinion of Andrews, J., in the case of. Vanderzee v. Slingerland (103 N. Y., 47), and the learned judge comes to the conclusion that, although the reason upon which the rule adopted in the first mentioned class of cases was founded does not exist in the second, yet that it is established by precedent. It would be useless now to go through the cases. They are very numerous, and not all reconcilable, and many of them contain special features. It is sufficient for present purposes to refer to a few of the cases.

In Gee v. Mayor, etc., of Manchester (17 Q. B., 737), the testator devised and bequeathed his real and personal estate to be divided equally among his children as follows, viz.: “I will and bequeath to my eldest son, A., one-seventh share of my property, to his heirs, executors, and administrators.” Then followed similar devises and bequests to each of the testator’s six other children, and afterwards a general provision in these words; And, in case any of my sons and daughters die without issue, that their share returns to my sons and daughters equally among them, and in case any of my sons and daughters die, and leaving issue, that they take their deceased parent’s share.”' It was held that the death, referred to was a death in the lifetime of the testator, and that, all his children having survived him, they each took a fee-simple in one-seventh of his realty. It must be observed that, unless that construction was adopted, the words of inheritance attached to the devise to each of the testator’s children must in every event be rejected. It was certain that each of the children would die either with or without issue. Construing the death referred to by the testator as a death at any time, the result would be that upon the death of either of the testator’s sons, for instance, without issue, his share would go to his brothers and sisters, not as his heirs, but as purchasers, by virtue of the limitation over to them. If he died leaving issue, such issue would take, in like manner, not as his heirs, but as purchasers. He would have no estate of inheritance in any event, and could make no disposition of the fee in the realty in-his life-time or by will. The words of the testator purporting to give him an estate in fee would thus be wholly rejected, and his estate, under all circumstances, cut down to a life-estate. It was on these grounds that Lord Campbell, in delivering the judgment of the court, held that the only mode of giving effect to all the words of the testator was by treating the words in the last clause of the will as words of substitution only, in case of a lapse and referring the death there contemplated to a death in the life-time of the testator.

In Clayton v. Lowe (5 Barn. & Aid., 636,) the devise was in the same form as in the case last cited. The estate was given to the testator’s three grandchildren forever. If either of them should die without lawful child or children, the share of .the one so dying was to be divided among the survivors; but, if either should die leaving lawful child or children, such child or children should take the share of the parent. It is obvious that, unless the death referred to was a death in the life-time of the testator, the first-named devisees could in no event take a fee.

Doe v. Sparrow (13 East, 359,) was a case of the same description, with additional significant words expressly referring to the testator’s own death. Woodburne v. Woodburne (23 L. J. Ch., 336), was the same as Gee v. Mayor, etc., of Manchester, and was decided the same way.

The caseso I have referred to rest on principles, and are founded on reasons, which are easily comprehended; but there are other cases in which the words “die without issue” are construed as referring to a death in the life-time of the testator where those principles are inapplicable, and the reasons do not exist, and of such cases Andrews, J., in the case of Vanderzee v. Slingerland, says that they stand more upon authority than upon reason.

It is stated in Jarman on Wills (5th Amer. Ed., 783,) that the general rule is that, where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator. In O’Mahoney v. Burdett (L. R. 7 H. L., 388, 393,) it was held that a bequest to A., and, if She should die unmarried or without children, to B., was an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time unmarried or without children, and that this construction could only be affected by a context which rendered a different meaning necessary. And in Britton v. Thornton (112 U. S., 526,) it was held that under a devise to one person in fee, and, in case he should die under age and without children, to another in fee, the devise over would take effect upon the death at any time, of the first devisee under age and without children. To the same effect is Edwards v. Edwards (15 Beav., 357). And see Doe v. Webber (1 Barn. & Ald., 713,) and Anderson v. Jackson (16 Johns., 382).

But it cannot be disputed that there are several cases holding that where there is simply a devise to A. in fee, and, in the event of his dying without issue, then to B. the death referred to is a death in the life-time of the testator; and, if A. survives him, he takes an absolute and indefeasible estate in fee. See Home v. Pillans (2 Mylne & K., 15, 19,) and cases cited. Ware v. Watson, 7 De Gex, M. & G., 248. Such appears to be the rule in Pennsylvania, Mickley’s Appeal, (92 Pa. St., 514,) and the same rule has been adopted in this court, Quackenboss v. Kingsland, (102 N. Y., 128), and was recognized in Vanderzee v. Slingerland, (103 N. Y., 47,) before referred to. But in that case the learned judge writing the opinion (Andrews, J.) says that the rule established by the courts applies only when the context of the will is silent, and affords, no indication of intention other than that disclosed by word of absolute gift, followed by a gift over in case of death, or of death without issue; and that, indeed, the tendency is to lay hold of slight circumstances in the will to vary the construction, and give effect to the language according to its natural import; and in the will which the learned judge was then construing he found such indications.

I think that similar indications exist in the will now before us. The testatrix does not charge the legacies upon her daughter, Minnie, personally, but upon the real estate Revised; so they would be borne by whomsoever should become entitled to that real estate. She devises the real estate to her, without words of inheritance. She then directs that, in case she should die without issue, her estate, real and personal, should be possessed and enjoyed by the others named in the will. ■ Her death without issue is a contingent event; but by adopting the construction contended for, and claimed to be established by the authorities, the court would add another contingency not specified by the testatrix; that is, that she die without issue during the lifetime of the testatrix. As if to make her intentions clearer, and to indicate that no other contingency was contemplated than the one which she had expressed, the testatrix adds at the end of the clause: “The devise over to my husband, sister, and brothers to depend upon the contingency of my daughter, Minnie, dying without issue;” this repetition clearly defining the testator’s intention that, in the event of her daughter’s dying without issue, her husband, sister, and brothers should enjoy the property, without reference to any other contingency. The daughter was an infant of about six years of age at the time of the Reath of the testatrix, and it would be a very forced construction of the language of the will to hold that the testatrix had an unexpressed intention that if the child should Rie the next year, or at any other time after the death of the testatrix, the devise over to her husband, sister, and brothers should not take effect.

Our conclusion is that Minnie Van Zandt took, under her mother’s will, a base or conditional fee defeasible by her dying without leaving issue living at the time of her death (1 Rev. St. 724, § 22); that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them; and that an indefeasible title in fee could be conveyed, and the contingent expectant estate, limited to the husband, sister, and brothers of the testatrix in the event of Minnie dying without issue, cut off, by their joining with her in a conveyance. See Emmons v. Cairns, 3 Barb., 243, 246, et seq.

For these reasons we think the order appealed from should be affirmed.

All concur.


author: Per Curiam

text:
    John Schenck, Resp’t, v. George Ringler et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1887.)

    1. Practice—Appeal—Reinstatement of, after default.
    Where a default has been regularly taken in this court, the case will not be reinstated on the plea by appellant that his failure to serve the printed case within the forty days was caused by sickness of his child and pressure of professional engagements, where it is claimed by respondent that the appeal was for delay and against the desire of appellants, and there are no exceptions in the return worthy of the consideration of the court.
    2. Same.
    The question as to the verdict being excessive cannot be reviewed here.
    This is a motion to open a default and reinstate the appeal upon the following affidavit of appellants’ attorney: “Isaac Kugelman, being duly sworn, says that he is the attorney for the defendants and appellants herein; that this appeal was taken in good faith, but, through the sickness of his child and pressure of professional engagements, he neglected to serve the printed case within the forty days-Deponent further says that he has never received any notice whatever to serve the case, as required by rule 7 of this court before the appeal can be dismissed; that no previous application has been made to vacate the default herein; that deponent is ready to serve said case within forty-eight hours after the default is opened.”
    The following affidavit ivas interposed by respondent in opposition to the granting of said motion: “ Matthew Marx, of said county, being duly sworn, says that he is the attorney for the respondent in the above-entitled action, and that Isaac Kugelman is the attorney for the appellants; and upon information and belief, and circumstances hereinafter alleged, states that the appeal was not taken in good faith, as the attorney for the appellants has brought this appeal without the knowledge and consent of the parties named as appellants, they having informed the sheriff of Queens county, who went to them to enforce the judgment and collect the execution, that they did not know of the existence of this appeal, and had been deceived by their said attorney, and did not desire to appeal. Deponent further says that on the 6th day of January, 1887, the appeal herein was perfected, and that the twenty days having elapsed on the 26th day of January, 1887, and no return was filed by the appellants, as by the rule of this court required herein, and that on the 29th day of January, 1887, deponent served the notice required by rule 2 of this court, by handing the same to Isaac Kugelman, Esq., the attorney for the appellants, personally and leaving it with him in the court-house of Kings county, in the city of Brooklyn, requiring him to file the return within ten days thereafter, and that in failing thereof depanent would cause an order to be entered with the clerk of this court dismissing the appeal; and the ten days having also elapsed, and no return having been filed, deponent caused the order of dismissing the appeal to be entered five days after the lapse of the twenty days. Deponent further states that, at the time the forty days had elapsed, in which time the appellants’ attorneys were required to serve their printed case, the motion to dismiss the appeal had been filed with the clerk of this court, and on the 17th day of February, 1887, the appeal has been dismissed, and the case was out of the court, and no movement has been made by the appellants’ attorney to make and serve a printed case. Deponent further says that the motion to open default by the appellants’ attorney had not been made upon this dismissal of the appeal, but on the failure to serve his printed case within forty days, and the said motion, having been irregularly made, should be denied, with costs and disbursements necessarily created on part of the respondent in opposing this matter.”

      Isaac Kugelman, for motion; Matthew Marx, opposed.
   Per Curiam

The default herein was regularly taken, and the counsel for defendants asks to have it opened and the case restored. We have looked into the return upon which the case would have to be argued in this court. It is very brief, and not an exception in it worthy of a moment’s consideration. The question as to the verdict being excessive cannot be reviewed here. Under these circumstances, the motion to open the default should be denied, with ten dollars costs.

All concur.


text:
    The People, etc., ex rel. William H. Bacon, v. Board of Supervisors of the County of Kings.

      (Court of Appeals,

      Filed April 19, 1887.)

    Officers—Salaries—Agreement to take less than fixed by law.
    In August, 1877, the Supervisors of Kings county fixed the salaries of the district-attorney’s office, among the rest that of chief clerk at $3,000 per annum. But in November they included in the budget for said office a sum_ much less than the aggregate of the salaries fixed by the August resolution. The district-attorney offered the position of chief clerk to relator at a salary of $1,500, which he accepted, and accepted from the county treasurer and gave receipts for his salary, at the rate of $1,500 in monthly payments, but after his employment had terminated claimed the balance of the $3,000 salary. Held, that the claim was without merit, that the amount of relator’s salary was within the control of the board of supervisors, and that by the voluntary acceptance and retention by the relator of his appointment at the reduced salary fixed by the district-attorney, the board of supervisors was led to omit accepting a formal resolution conforming to his action.

      Appeal from judgment of general term, supreme court, second department, affirming' judgment of special term dismissing writ of mandamus.

      James Troy, for app’lt; Wm. S. Cooke, for resp’t.

       Affirming 38 Hun, 373.

   Rapallo, J.

The findings of fact made by the trial judge establish that the relator was appointed by Isaac S. Gatlin, district attorney of Kings county, whose term of office began on the 1st of January, 1878, chief clerk in the office of such district attorney from the 1st of January, 1878, at a salary of- $1,500 per annum; that the relator served under such appointment from January 1, 1878, until August 1, 1881, during the whole of which period he received from the treasurer of the county salary at the rate aforesaid, in equal monthly payments. On the 17th of January, 1884, the relator presented to the board of supervisors a claim for upwards of $14,000 being the difference between the sum which he had received for salary and a salary at the rate of $5,000 per annum, to which he claimed to be entitled by law for the period during which he had served. This claim was rejected by the board of supervisors, and thereupon the relator sued out an alternative writ of mandamus requiring the supervisors to audit and pay him the sum claimed, with interest, or show cause, etc. The supervisors having made return to the writ, the issue thus joined was tried at special term of the court, a jury having been waived, and the court rendered judgment dismissing the writ, on the ground that the relator had never presented his bill or claim to the auditor of the county of Kings, and that such auditor had never passed upon the same. On appeal by the relator to the general term, the judgment rendered at special term was affirmed; the court holding that upon the merits the relator’s claim was unfounded. The particular point on which the judgment of the special term was placed, was not passed upon in the opinion at general term, and, without intimating any question of its correctness, we refrain from discussing it, or other points of form which might be raised, as we fully concur in the conclusion of the general term, which finally disposes of the litigation.

The ground of the relator’s claim is that his salary as chief clerk in the district attorney’s office was fixed by law, and that consequently the district attorney who appointed him had no power to stipulate for a reduced compensation. He concedes that the claim made in the alternative writ, that his legal salary was $5,000 per annum, is erroneous, but contends that it was $3,000 per annum, and that he is entitled to the difference between that sum and the $1,500 per annum at which rate he was appointed, and which he received.

It is not claimed that the relator’s salary was fixed by any statute. It is conceded that the power to fix the compensation of the district attorney, and his assistants, clerks, and officers, was vested by statute in the board of supervisors. The claim of the relator is that his salary was fixed by a resolution of the board of supervisors of the county of Kings, adopted on the 7th day of August, 1877, (before the election of Mr. Catlin as district attorney.) That resolution fixed the salary of the district attorney to be elected, and of the first and second assistants, and the salary or pay of the chief and assistant clerks, and of the several officers attached to or attendant upon the office of the district attorney; the salary or pay of the chief clerk being fixed in this resolution at $3,000 per annum. But on the 8th of November, 1877, the board of supervisors by resolution determined to raise by taxation, and included in the budget for the .then current fiscal year, for salaries of the district attorney and his assistants, clerks and officers, only the sum of $22,000, which was considerable less than the aggregate of the salaries or pay of those officers as fixed by the resolution of August 7, 1877. Although the last mentioned resolution was not, in terms, repealed or amended, we think that the action of the board on the eighth of November plainly indicated an intention on its part to reduce the salaries to be "paid in the district attorney’s office to an aggregate amount which would be within the sum provided for in the tax budget, and that it was within their power to do so, as they had full authority to regulate the salaries of the persons thereafter to be em-_ ployed in that office, and that authority was thus impliedly * given to the incoming district attorney to make such arrangements with the subordinates to be appointed by him, in the way of scaling down their salaries, as would bring the aggregate within the sum to be raised by taxation. The district attorney appears to have acted on this understanding. He was not compelled by law to appoint a chief clerk, but he offered the position to the relator at a salary of $1,500, which was accepted; and on entering upon his office of district attorney he sent to the county treasurer a list of all the assistants, clerks and officers appointed by him, with the salaries to be paid to each, which salaries were in the aggregate equal to the unexpended balance of the amount provided for in the tax budget of the board of supervisors. The relator accepted from the county treasurer and gave receipts for his salary at the rate of $1,500 per annum, in monthly .payments, during the whole time of his service, and it was not until long after his employment had terminated, viz.: January 17, 1884, that he made his claim for additional compensation. We think the claim is without merit, and that it does not fall within the principle of the cases in which a salary fixed by statute, and attached to a public office or employment, is sought to be reduced, either by the officer making the appointment, or by the officer charged with the duty of paying the prescribed salary. Here the amount of the relator’s salary was within the control of the board of supervisors; and it is fairly presumable that by the voluntary acceptance and retention by the relator of his appointment at the reduced salary fixed by the district attorney the board of supervisors was led to omit accepting a formal resolution conforming to his action. He should not now be permitted to retract his agreement. In this respect the case of Hobbs v. City of Yonkers (102 N. Y., 13), is in point.

The judgment should be affirmed, with cpsts.

All concur.


author: Per Curiam.

text:
    FIRST DEPARTMENT, GENERAL TERM.
    Filed March 2, 1887
    GEORGE WORTHINGTON, Resp’t, v. DANIEL H. DORSETT, App’lt.
    Attachment—Vacated because warrant is not signed by judge.
    Appeal from, order denying motion to vacate attachment.

      W- H. Kelly, for app’lt; Morgan & Worthington, for resp’t.
   Per Curiam.

As far as is shown by tlie record submitted upon this appeal, it does not appear that any warrant herein was ever subscribed by a judge. But upon the contrary, it appears inferentially from the sheriff’s certificate attached to the copy served that the original attachment was not signed by a judge

The order should be reversed and the paper purporting to be an attachment vacated, with ten dollars costs and disbursements


author: Per Curiam,—We

text:
    HARRISON R. JOHNSTON. Resp’t, v. THOMAS F. DONVAN and another, App’lt.
    Mortgage foreclosure—Parties.
    Appeal from orders denying motions made by Silas J, Donvan and another to be made parties,defendant,

      Payson Merrill, for app’lt; U, Wallis, for resp’t
   Per Curiam,—We

see no reason for believing that the appellants could he benefited in any manner whatever by being made parties defendant to this action By their petition they disclose no ground upon which the foreclosure of the mortgage can be resisted or defended.

The order denying their motion was right and should be affirmed with ten dollars costs and disbursements.


text:
    RUDOLPH DEIMEL, App’lt, v. MARSHALL FIELD, Resp’t.
    Default—Power of special term to entertain motion to open
    Appeal from order denying plaintiff’s motion to open default,

      A. J Dittenhoefer, for applt; Om'ge W Oarr, for resp’t.
   Per Curiam.

The majority of the court is of the opinion that the special term had the power to entertain the motion to open the default, and the order appealed from is reversed with ten dollars costs and disbursements, and the motion remitted to special term to be heard on the merits.


text:
    CYRENIUS G FITZGERALD, Appl’t, v. GEORGE TWINBULL and another, Resp’t.
    Injunction—When vacated—Regularity of proceedings.
    Appeal from orders of the special term vacating injunction.

      W. M. Safford, for app’lt; 8. M. Stilwell, for resp’t.
   Per Curiam.

The plaintiff on the papers which were presented to the justice in the court below, was not properly in court. The preliminary objections as to the form of the undertaking ana of the justification, and as to the omission to recite in the injunction the grounds upon which it was granlcd, were well taken. His course was to move to amend, or to renew the application upon additional papers .

The order should be affirmed, with ten dollars costs and disbursements


text:
    THE HONG KONG, etc., BANKING CORPORATION, App’lt, v WILLIAM B COOPER, Resp't
    Appeal—Stay of proceedings pending—Security necessary

      John M. Bowers, for pl’ff and app’lt; A A Redfield. for deft and resp’t.
   Per Curiam

We are of the opinion that for the reason stated in Mr, Justice Potter’s opinion, that the stay granted was a proper exercise of the power of the court. The defendant, however, was entitled to be held harmless for any damages resulting by the delay in receiving money which had been deposited.

This could only be done by the appellant giving a bond or undertaking sufficient to cover the interest which might accrue upon the moneys pending the appeal, he having only given an undertaking for costs, the order appealed from should be modified so as to require the plaintiff to give security for damages sufficient to cover the interest which will accrue upon the fund pending this appeal. An undertaking in $3,000 additional would seem to be sufficient, with leave, however, to apply for an increase of the undertaking in case it should be made to appear that by delays in the disposition of the appeal a greater amount of interest would be-liable to accrue than that designated above

The order of Mr Justice Potter, as thus modified, should be affirmed, without costs to either party_,__


text:
    EDMUND F. HOLBROOK, Resp't, v. CORNELIA ANTONY and others, App’lt
    Appeal from judgment of the special term

      W. G. Anthony, for app’lt; Hand, Bonney, Pell & Jones, for resp’t
   Per Curiam.

The judgment appealed from is affirmed upon the opinion of Mr. Justice Van Vorst, delivered in the court below, except that this court is not of the opinion that there is any doubt about the construction of the clause in question

The judgment must be affirmed, with costs °


text:
    JAMES L. BENNETT, App’lt, v ADDISON GOBLE, Resp’t.
    Costs—Security for, by assignee—When not required to give.
    Appeal from order directing plaintiff to file security for costs

      A, J. Perry, for app’lt; Jacob Fromme, for resp’t.
   Per Curiam

—Unless in every case in which an assignee is plaintiff, it is proper to require security, there do not seem to be sufficient facts in the case at bar to justify the order requiring the plaintiff to give security in the sum 01 $1,000 Security in cases of this kind is a matter of discretion, and such discretion should not be exercised against an assignee unless there are reasonable grounds therefor

The order must be reversed, with ten dollars costs and disbursements to the appellant to abide the event -_


text:
    MATTHIAS ASLHOLM v. THE PEOPLE.
    Appeal—When party relieved from printing papers
    Motion to be relieved from printing papers on appeal.
    <?. W Carr, for motion; Luke F. Cozans, opposed.
   Per Curiam.

The moving papers should show that there is some reasonable

ground upon which the appeal is based, so that the court may see that the appeal is not taken without foundation.

The papers upon which it is proposed to argue the appeal should be exhibited to the court, so that the court may know the character and condition of the papers to be submitted.

Motion denied, with leave to rénew upon compliance with the foregoing suggestions.


text:
    WALLACE P. BIRDSALL et al. v. WELLINGTON B. SEARLS and ANOTHER.
    Stay of proceedings—Necessary security to entitle party to—Code Civ. Pro., § 1331.
    Appeal from order denying motion for stay.

      W. T. Birdsall, for app'lt; Sidney Ward, for resp’t.
   Per Curiam.

We think the security required to be given to entitle the appellants to a stay in this case is that provided for in section 1331 of the Code. An undertaking in the sum of §1,500 will suffice to secure all that the defendants are entitled to during the pendency of the appeal.

The order should be modified accordingly, with costs to abide event.


text:
    MOSHER A. SUTHERLAND, Resp’t, v. GEORGE W. MEAD, App’lt.
    Supplementary proceedings—Contempt—Decision of motion, bar to ALL OTHER PROCEEDINGS.
    Appeal from order denying motion to vacate order in supplementary proceedings.

      Sewell Sergeant, for app’lt; John G. Denison, for resp’t.
   Per Curiam.

The motion to punish the defendant for contempt having been made on the 6th of July, 1886, before Mr. Justice Cullen, and upon that motion the regularity of the proceedings necessarily being under consideration, the decision of that motion is a bar to all other proceedings until that order is reversed.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    JAMES M. SMITH, App’lt, v. ELIZABETH VAN ANTWERP, Resp’t.
    Complaint—Dismissal of.
    Appeal from judgment dismissing complaint.

      Albert Day and IF. II. Newman, for app’lt; W. G. Beecher, for resp’t.
   Per Curiam.

The evidence which in general language was given on the trial, supported the judgment from which the appeal has been taken. If the plaintiff desired more specific or further information as to the incumbrances and loans upon the property, it was his duty to prosecute the inquiry. Having failed to do so, he cannot, because of that failure, object to the propriety of the judgment.

The judgment should be affirmed, with costs.


text:
    MARK R. WENDELL, App’lt, v. AUBON REVES, Resp’t
    Attachment—Regularity of proceedings.
    Appeal from order vacating warrant of attachment.

      W. B. Fullis, for app’lt; 6. W. Galinger, for resp’t.
   Per Curiam.

The administration of the oath by the notary public was a ministerial act. He was not a party to the assignment, and for that reason could administer the oath. The objection predicated of that event therefore is of no value, and the order must be affirmed with ten dollars costs and disbursements.


text:
    PEOPLE OF THE STATE Of NEW YORK ex rel. JOHN NUGENT, Resp’ts, v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, App’lts.
    Public officer—Right to recover his salary for time during which he is involuntarily disabled from rendering service.
    Appeal from judgment directed at circuit in a mandamus proceeding.

      David J. Dean, for app’lts; Howe c6 Hummel, for resp’ts.
   Per Curiam.

The questions presented by this record are the same as those which were passed upon by this court on a former appeal (The People ex reL. Nugent v. Police Commissioners, 27 Hun, 261); and the judgment should be affirmed with costs for the reasons then given in the opinion of Mr. Justice Brady.


text:
    WILLIAM W. THOMAS and another, Resp’ts, v. MUTUAL RESERVE FUND LIFE INSURANCE CO., App’lt.
    Venue—When will not be changed—Convenience op witnesses.
    Appeal from order denying motion to change the place of trial.

      Alfred Taylor, for app'lt; John Nolman, for resp’ts.
   Per Curiam.

The convenience of the witnesses residing in Wyoming county will be fully secured by taking their evidence before a referee to be appointed for that purpose in the vicinity where they reside, and reading the evidence so taken upon the trial of the action. To attain that result the order will be reversed with costs to abide the event, and an order made changing the place of trial to the county of Wyoming unless twenty days after service of notice of the order to be entered herein, the plaintiffs stipulate that the evidence of such witnesses as the defendant may desire to take in the county of Wyoming shall be so taken before a referee selected by the parties, or, if they cannot agree, to be appointed by the court; such evidence to be read upon the trial with the same effect as though the witnesses were personally present, and in case such stipulation be given, then the order will be affirmed with costs to abide the event.


text:
    THE CENTRAL TRUST COMPANY, App’lt, v. THE NEW YORK CITY AND NORTHERN RAILWAY COMPANY, Resp’ts.
    Reference—When and in what respects order of modified.
    Appeal from interlocutory order of reference.

      William Allen Butler and Julien T. Davies, for app’lt; James C. Carter, for resp’t.
   Per Curiam.

The court, although it is of the opinion that the appellants have been unnecessarily alarmed as to the construction which might be placed by the referee upon the order of reference herein, in order to remove any ambiguity in respect to the order, has determined that the order after the words: The court of its own motion,” may be modified so as to read as follows:

“ Ordered, that it be and it is hereby referred ’• to William N. Armstrong, Esq., counsellor-at-law, to take such proof as may be offered by either of the parties to this action, or by the holders of any of the bonds mentioned in the complaint, and to report the same, with his opinion, to the court upon the following questions of fact:

“ Who are the holders of the bonds secured by the mortgage to George Slesman Scott and Oliver Hazard Palmer, mentioned in the complaint, and what amounts of said bonds are held by each of such holders, and what are the numbers of the bonds held by them respectively.

“ Who are the holders of the bonds secured by the consolidated mortgage mentioned in the complaint, and what amounts of said bonds are held by each of such holders, and what are the numbers of the bonds held by them respectively.

‘ ‘ From whom did the present holders of each of said bonds acquire the same, and under what circumstances as to good faith, notice of invalidity and payment of value.

“ A¥hat transfers of all of said bonds have been made, and to whom and when, and under what circumstances upon each transfer as to good faith, notice of invalidity and payment of value from the time of the original issue of said bonds until the same were acquired by the present holders hereof. As to every such transfer what coupons were attached to the "said bonds respectively, at the time of such transfer, and in case any unpaid, overdue coupons were attached to any of said bonds at the time of any such transfer, what knowledge, information or notice did each transferee have of the causes of default in the payment of interest.

“ In making the above inquiries, said referee may receive such evidence as may be offered by any of the parties to this action, or by the holders of any of the bonds mentioned in the complaint, tracing each of such bonds by its number, and ascertaining also as to all six per cent bonds,” and then following the language of the order appealed from to the end thereof.

The order as above modified is affirmed, without costs.


text:
    ISABELLA B. CLUTE, App’lt, v. JACOB KNIES, impl’d, Resp’t.
    Judgment—Ejectment—When judgment opened, modified or vacated.
    Appeal from order granting motion to open and vacate judgment.

      Thomas J. Olute, for app’lt; Albert Matthews, for resp’t.
   Per Curiam.

The plaintiff in this action could not equitably be allowed to hold her judgment for mesne profits after the judgment in the action of ejectment has been vacated; neither would it be equitable to allow the plaintiff tp be deprived of the equitable relief which she has succeeded in obtaining by a reformation of the undertaking.

The judgment should be allowed to remain so far as the equitable relief is concerned, and also to the extent of the taxable costs, but should be set aside ■so far as it is a judgment for mesne profits in the ejectment suit upon the defendant’s stipulating in case a new action is brought upon the undertaking to recover the mesne profits, that the judgment heretofore obtained will not be pleaded in bar or offered in evidence as a defense to such action.

As thus modified, order appealed from affirmed without costs.

If such stipulation is not given, order appealed from reversed with costs.


text:
    ISABELLA B. CLUTE, App’lt, v. ADAM EMMERICH, Resp’t.
    Ejectment—Vacation of judgment—Upon receipt for cost and production of a release—Plaintiff cannot keep consideration and AT SAME TIME CLAIM TO RESCIND.
    Appeal from an order denying motion to vacate an order vacating a judgment in an action of ejectment.

      Thomas J Olute, for app’lt; Albert Matthews, for resp’t.
   Per Curiam.

—The order vacating the judgment in the action of ejectment was made upon the production of a receipt for the costs therein and a release therefrom duly acknowledged by the plaintiff.

It is not pretended by the plaintiff’s attorney that this receipt was obtained without his knowledge and consent, but that it was obtained from him by fraud.

At the time the receipt and release was given the attorney received $200 in money, and a note of Mr William G. McCrea for $347.47, the balance of the ■costs.

It is not pretended that there has been any offer to refund the money received, or to return the note given upon the procurement of the release.

_ The plaintiff cannot keep the consideration for the release, and at the same time claim to_rescind, which seems to be that which is sought upon this motion.

The disposition of the motion was therefore correct, and the order appealed from must be affirmed, with costs.


author: Brady, J.

text:
    THE PEOPLE en rel. ELIZABETH S. FRANCIS, Resp’t, v. GEORGE W. VAN SICLEN and another, App’lts.
    Mandamus—When granted.
    Appeal from order granting a peremptory mandamus.

      B. (?. Beardslee, for app’lt; AT. J. Waterbury, for resp’t.
   Brady, J.

The views expressed in the matter of Kate Stanley herewith decided govern this appeal, and the same result must follow.

The order appealed from must therefore be affirmed with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.


author: Dykman, J.

text:
    SECOND DEPARTMENT, GENERAL TERM
    Filed February 15, 1887.
    JOHN H. SMITH, Resp’t, v. JOHN SATTERLEE et al., App’lts.
    Counter-claim—Money received for another’s use.
    Appeal from a judgment entered upon the report of a referee in favor plaintiff.

      A. & A. X. Fallon, for app’lts; A. A. Demurest, for resp’t.
   Dykman, J.

This action is founded upon an indebtedness of the defendant to U. S. Lutz, which came to the plaintiff by assignment.

The defense was a counter-claim, and the specific allegation and claim of the defendants was that Lutz had received from them $80.84 to be paid to one Munsell, which he had failed to pay over.

The proof introduced to show the money in the hands or possession of Lutz was very unsatisfactory, and Lutz denied its receipt, and denied that he ever admitted its reception.

The referee found for the plaintiff upon such dispute as there was and his decision is held sustained by the testimony.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.