author: VANN, J.:

text:
    FRANKLIN LE ROY HATHAWAY, as Executor, etc., of LUTHER HATHAWAY, Deceased, Respondent, v. MARY ANN HATHAWAY, DELIA M. HATHAWAY, ELIZABETH R. RIVENBURG and LORENZO H. RIVENBURG, Appellants, Impleaded, etc.
    Will— construction of — what words a/re sufficient to oreate a trust.

    The plaintiffs testator, after bequeathing all his personal estate remaining after the payment of his debts, to his wife and seven children, gave and bequeathed “ unto my wife Mary Ann Hathaway as her dower in full the use or proceeds, after paying the necessary expenses of keeping the same in repair, of all my real estate, situated in the town of Augusta, during her natural life, and upon the ■death of my wife said real estate shall be sold and the proceeds divided equally between the following of my children here named, * * * to be theirs, their heirs, assigns, executors, forever. I hereby .appoint my son Franklin Leroy Hathaway as sole trustee and executor, with fuli management of real estate to final sale, of this my last will and testament.”

      Held, that under the will the title to the real estate was vested in the trustee, and that the widow did not take a life estate in the land but simply a right to receive the net rents and profits therefor from the trustee.
    Appeal from a judgment, entered on the decision of the Oneida Special Term in an action brought for the construction of a will.
    On the 16th of December, 1882, Luther Hathaway died leaving a last will and testament dated September 19, 1882, which was •admitted to probate March 19, 1883. By the first clause of said will he bequeathed all of his personal estate, after the payment of his debts and funeral expenses, to his wife and seven children in equal shares. Apart from the attestation clause the rest of the will is in these words: ‘£ Second. I give and bequeath unto my wife Mary Ann Hathaway as her dower in full the use or proceeds, after paying the necessary expenses of keeping the same in repair, of all my real estate, situated in the town of Augusta, during her natural life, and upon the death of my wife said real estate shall be sold and the proceeds divided equally between the following of my •children here named: Henry H. Hathaway, William W. Hathaway, A. Jay Hathaway, E. Leroy Hathaway, Edwin E. Hathaway, Delia M. Hathaway, Ann Hathaway (now Mrs. Dixon), Elizabeth R. Hathaway (now Mrs. Rivenburg), to be theirs, their heirs, assigns, executors, forever. I hereby appoint my son Franklin Leroy Hathaway as sole trustee and executor, with full management of' real estate to final sale, of this my last will and testament, hereby revoking all former wills by me made.”
    Prior to the death of the testator, his farm, which consisted of 110 acres, worth about $9,000, had been leased to the defendant,. Lorenzo Rivenburg, for a term ending March 1, 1884. Upon the termination of this lease Mr. Rivenburg surrendered possession of the farm to the widow, who, after probate of the will, had duly elected to accept, as her dower in full, the testamentary provision made for her, and thereafter she continued in possession, claiming-the right thereto and to the use and occupation of said farm during-her -natural life. After the first of March, 1884, and before the commencement of this action, the plaintiff, as executor and trustee under his father’s will, demanded possession of the widow and said Rivenburg, who had become her tenant, which was refused. The plaintiff has never had the possession or management of the farm. The complaint asks for a construction of the will and for an accounting. The answer admits the material facts, but insists that the widow took a life estate under the will, and that she is entitled to-possession and control during her natural life.
    The Special Term held that certain express trusts were created by the will, formulated the same and sustained the general theory of the plaintiff that he, as trustee, was entitled to the exclusive possession, management and control of the farm. From the decree entered accordingly, Mary Ann Hathaway, Delia M. Hathaway,. Elizabeth R. Rivenburg and Lorenzo Rivenburg (no other defendant having answered), bring this appeal.

      C. D. Adams, for the appellants.

      A. N. Sheldon, for the respondent.'
   VANN, J.:

A gift in lieu of dower and acceptance of same is in effect a contract whereby the- widow becomes a purchaser of the property left to her by the will in consideration of relinquishing her dower.(Isenhart v. Brown, 1 Edw. Ch., 411.) She must, however, accept it in the form in which it was given, and subject to such burdens-as tbe will prescribes. Slie is a purchaser of the gift as described by the testator, which cannot be enlarged by construction. (Re Benson’s Accounting, 96 N. Y., 499; Chamberlain v. Chamberlain,. 43 id., 424, 442.) As said by the court in the case last cited: “ By-accepting this provision, she assents to all the terms and conditions annexed to it, and yields every right inconsistent with such terms- and conditions.” If, therefore, a trust covering the real estate was created by the will, the widow, although taking as a purchaser,, takes subject to the trust.

• No particular form of words is necessary to create a trust. Any language clearly showing the intention of the testator will have that effect. Whether the word trust ” is or is not used, while a circumstance to be attended to, is not controlling. (Hill on Trustees,. 101; Story’s Eq, §§ 972, 1068; Brewster v. Striker, 2 N. Y., 19.)

A direct gift or devise is not essential, as the declaration of an intent that a person, whether named as trustee or not, should have a management or control to which the legal estate is necessary, has-the same effect. (Fletcher on Trusts, 1-9; Trent v. Hanning, 7 East, 97, reversing 4 Bos. & Pul., 116; Doe v. Homfray, 6 Ad. & El., 206.) “ If a testator simply appoint a person his executor and trustee, it seems the latter word is not so exclusively applied to real estate as to carry by implication to the executor a devise of the testator’s real estate, but if the testator direct certain acts to be done by the trustee, which belong to the owner of the freehold, such a devise will be implied.” (Lewin on Trusts [5th ed.], 177.)

In Trent v. Hanning (7 East, 97) the entire will was as follows: “ I, John Trent, do hereby give unto my wife £200 per annum during her natural life in addition to her jointure, my just debts being-previously paid; and I do give unto my two younger children £6,000 each, to be paid when they severally come to the age of twenty-one; and I do appoint J. Hanning, W. Hanning and C. Phipps as trustees of inheritance for the execution hereof.” It was held that the trustees took the legal title to the testator’s lands.

Where there are direct words of devise, followed in a later clause by words explaining and modifying the same, they should be read together, and due effect given to the whole. (Tenny v. Moody, 3 Bing., 3.)

In Anthony v. Rees (2 Crompt. & Jer., 75) a testator devised a bouse and lot to Mary Kees, with remainder on her death without issue to her brother. By a later clause he gave to his wife an annuity to be paid out of his real estate, and finally he appointed two persons “ as trustees to look in that justice should be duly administered between the said parties.” It was held that the legal estate vested in the persons named as trustees.

It is conceded that the testator intended to give his wife a life estate, or to create a trust for her benefit during- life. The language used, while consistent with a trust, is inconsistent with a life estate. The material part is as follows : I give * * * unto my wife * * * the use or proceeds, after paying the necessary expenses of keeping the same in. repair, of all my real estate * * * and upon the death of my wife said real estate shall be sold and the proceeds divided equally between the following of my children. * * * I hereby appoint my son * * * sole trustee and executor, with full management of real estate to final sale.”

Thus by appropriate and even technical words a trustee is appointed. There cannot be a trustee without a trust. He is the executive officer of a trust. His office begins and ends with the trust, and cannot exist without it. The appointment of a trustee, therefore, shows that the testator intended to create a trust and that he did not intend to create a life estate. While this alone is not controlling, it is significant and points strongly toward a trust. But, in addition to the appointment of a trustee, and, in the same sentence, his duties are specified. He is given “ full management of the real estate to final sale,” which cannot take place until after the death of the widow.

Can one person, of adult age and sound mind, have a life estate and another have the full management of that estate during the entire term? Management implies control and full management implies full control. As said by the court in Watson v. Cleveland (21 Conn., 538, 542), “ by the management of the estate ” is meant the controlling of the property to the end that income and profit should be derived" from it, such as leasing it, investing, securing, collecting,” etc. Each of two persons cannot have control at the same time. If there is a life tenant she has control, absolutely, during her life; yet, the will gives full control or management to a trustee, eo nomme, during that period. There can be no life estate in one with full control of that estate in another.

It is further provided that upon the death of the widow the real estate is to be sold and the proceeds divided equally among the children. No title to the land is given to the children after their mother’s death, but only the right to the proceeds of the land when sold. In whom is the title to the land after the widow’s death and before it is sold ? In whom is the fee during the widow’s life subject to her rights ? By whom is the land to be sold and the proceeds divided? It is impossible to satisfactorily answer these questions upon the theory of a life estate, while the answer is easy and natural upon the theory of a trust. The trustee has the legal title until the death of the widow, when he is to sell the land and divide the proceeds. The rest of the will, so far as it is material upon this subject, is a gift to the wife during her life of the “ use or proceeds ” of the real estate after paying the necessary expenses of keeping it in repair. “ TJse ” is the only word in the entire will that gives color to the theory of a life estate, and standing alone with no words in the same sentence to modify its meaning, or in other parts of the will to reflect light upon it would doubtless have the effect claimed for it. (Monarque v. Monargue, 80 N. Y., 320.) “ Use and proceeds,” however, have a different meaning from “ use and occupation,” as the latter phrase necessarily implies possession while the former does not, hence “ use ” may or may not imply possession according to the connection, and is consistent either with a trust or with a life estate. “ Proceeds ” is used twice in the same sentence, and when used in connection with the sale of real estate, it evidently means the avails of the real estate when sold. If it is employed in the same sense in connection with the “use” of real estate, it means the avails, rents or profits thereof When the testator directed that the widow should have the use or proceeds after paying the necessary expenses of keeping in repair, is it not apparent that he meant she should have the net avails of the farm, or the rents and profits after paying for repairs ?

This direction, when construed wifh the express appointment of a trustee “with full management of real estate to final sale,” and with the instruction to sell and divide upon the death of the widow, leaves no reasonable doubt as to the meaning of the testator. He means that the trustee should take the legal title in trust to manage the farm and pay over the “ proceeds,” after deducting the necessary expenses, to his wife during her life, and upon her death to sell the fee and divide the “ proceeds ” among the children. When thus construed, every part of the will speaks and is in harmony with every other part. The widow has the net proceeds without the care or trouble of possession or management, as is desirable for a lady of mature years, while her son, the trustee, has the possession and control without which he could not manage the real estate as directed by his father. On the other hand, hy holding that there is a life estate, those provisions are silent and inconsistent with such construction. It is unnecessary to consider the rule that the last provision in a will is presumed to express the mature intent of the testator, and is to control on a question of construction, or that subsequent clauses are not incompatible with or repugnant to prior clauses where they take effect as qualifications of the latter. These rules should not be applied except in a case of necessity, where there is an actual conflict between the earlier and later portions of the instrument.

As the legal title was in the trustee, the right to possession followed that title, and, upon the expiration of the lease given by the testator, the plaintiff had the right to possession and management to the exclusion of the equitable tenant for life. (Hill on Trustees, 673, 1429; Lewin on Trusts, 236; Brewster v. Striker, 2 N. Y., 19, 31.)

As no other question is presented by the appellants for our determination, the judgment of the Special Term should be affirmed, with costs.

HabdiN, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: VaNN, J.:

license: Public Domain

text:
    EDMUND D. CROSLEY, Respondent, v. CALVIN F. COBB, Appellant.

      Practice — taxation a/nd retaxation of costs — admissibility of evidence upon the hea/r-ing — mode of reviewing the taxation at Special Term.

    Upon an application to a clerk ior the taxation of costs the proofs presented hy the applicant, although complying in form with the requirements of the Code of Civil Procedure, are not conclusive hut may he opposed hy proof on the part of the adverse party or person interested in reducing the amount of the costs.
    Although the statute may not require the affidavit of the applicant to he served upon the adverse party with the notice of taxation, yet it is the general, if not the universal, practice to so serve it. t
    Upon the taxation the clerk should decide the questions of fact raised hy conflicting affidavits, and disallow all charges for witnesses who were unnecessarily subpoenaed or unnecessarily requested to attend, or whose attendance was procured with the view of increasing the costs.
    Upon a motion to review such taxation the Special Term should, when a question of law is presented, allow or disallow the item presented instead of ordering a new taxation before the clerk.
    Where the objection presents a question of fact the Special Term may determine it and allow or disallow the item, or it may direct a new taxation before the clerk, specifying the grounds or the proofs upon which the item may be allowed or disallowed.
    Upon a new taxation before the clerk both parties may present their evidence without being confined to the evidence first presented and thus retry the question of fact.
    Appeal from an order made by tbe Onondaga Special Term in December, 1884, directing that tbe fees of certain witnesses be allowed by tbe clerk of Cortland county upon a retaxation of costs.
    This cause was on tbe calendar of tbe Cortland Circuit in November, 1884, when, upon motion of tbe defendant, an order was made that the case go over the term; that a commission issue and that the defendant pay the costs of the term, “ to be regularly taxed.” Upon the taxation of such costs a contest arose before the clerk as to the materiality and necessity of certain witnesses who, as the plaintiff claimed, had actually and in good faith attended said circuit in his behalf pursuant to subpoena or at his special request. The defendant insisted that one of such witnesses was a juror; that another was a party to an action ready for trial at said term; that several others were attorneys attending court upon business of tbeir own, and that tbe attendance of all these persons was unnecessary for the purposes of this action and was procured with the intention of increasing the costs. Affidavits were presented tending to support the claims of the respective parties. The whole amount claimed by the plaintiff for witnesses’ fees was twenty-four dollars and sixty-four cents, of which the clerk allowed but eight dollars and twenty-eight cents. The plaintiff moved at Special Term, upon the papers read before the clerk, for an order directing the costs to be retaxed and the rejected items allowed. The motion was granted and the defendant brought this appeal.

      FrwnMm JPierce, for the appellant.

      A. P. Smith, for the respondent.
   VaNN, J.:

The taxation of costs allowed upon a motion to postpone the trial of a cause is governed by the same rules that apply to the adjustment of costs upon the entry of judgment. By section 3255 of the Code of Civil Procedure express authority is conferred upon the court, when application is made to adjourn a trial, to require as a condition of granting the adjournment, the payment to the adverse party of a sum not exceeding ten dollars, “ besides the fees of his witnesses and other taxable disbursements already made or incurred,, which are rendered ineffectual by the adjournment.” By section 3262 it is provided that costs must be taxed by the clerk upon application of the party entitled thereto; except that the court may direct that interlocutory costs or costs in a special proceeding be taxed by a judge. By the order of the circuit the costs in question were to be “ regularly taxed,” which, in the absence of a direction that they should be taxed by some other officer, implies taxation by the clerk.

Subsequent sections provide that the taxing officer must, whether the taxation is opposed or not, examine the bills presented for taxation and satisfy himself that all the items allowed by him are correct and legal; that a charge for the attendance of a witness is not to be allowed without an affidavit stating the number of days of his actual attendance, and if travel fees are charged, the distance for which they are allowed, and that no item of disbursements can be allowed in any case unless it is verified by affidavit, and appears to have been necessarily incurred and reasonable in amount.” (Secs. 3266 and 3267.) It is evident from an examination of these and the three preceding sections, that the proof presented to the clerk by the party entitled to costs, even if such proof in form complies with the statute, is not conclusive, but that it may be opposed by proof on the part of the adverse party or person interested in reducing the amount of the costs.

From the fact that the taxation or retaxation is to be upon notice to the adverse party (secs. 3263 and 3264), it is reasonable to infer that such party is not confined to mere objections, but that he may controvert by affidavit the proof of the moving party. Even if the statute does not impliedly require service of the affidavit as to disbursements and witnesses with the notice of taxation, the proceeding is not ex parte and these papers can be inspected on the appearance before the clerk, when they must be produced and then contradicted or explained. The general, if not the universal practice, however, is to serve the affidavit with the notice. The clerk must satisfy himself that all the items allowed by him are correct and legal.” (See. 3266.) He is to satisfy himself by considering the proofs of both sides, not of one side only. Upon a motion for a new taxation the Special Term may allow or disallow any item objected to before the taxing officer, or it may direct a new taxation before the clerk, “ specifying the grounds or the proof upon which the items may be allowed or disallowed by him.” (Sec. 3265.) In the former case the court itself passes upon the disputed items and allows or disallows them, while in the latter it lays down the rule relating to the grounds or the proof ” that is to govern the clerk upon the retaxation. It is not claimed that upon a retaxation thus ordered by the court, the adverse party cannot contradict the new proofs of the moving party, yet the statute gives him no greater rights in such a case than upon the first taxation.

The sections cited from the Code of Civil Procedure, except those relating to retaxation and the review of taxation, are taken from the Code of Procedure and the Revised Statutes (Code Pro., §§311 and 314; 2 R. S., 653, §§ 5 and 7), under which the. prevailing practice was in accordance with these views. (Agricultural Ins. Co. v. Bean, 45 How., 444; Pike v. Nash, 16 id., 53; Dowling v. Bush, 6 id., 410; Dean v. Williams, 6 Hill, 376.)

Upon the taxation of costs the clerk should decide the questions of fact raised bj conflicting affidavits and disallow all charges for witnesses who were unnecessarily subpoenaed, or unnecessarily requested to attend, or whose attendance was procured with the view of increasing the costs. Upon a motion to review such taxation the Special Term may allow or disallow any item which was objected to before the clerk, in which case the decision is a new taxation, or it may direct a new taxation before the clerk, specifying the grounds or the proof upon which the item may be allowed or disallowed. (Code Civil Fro., § 3265.) When the objection presents a question of law the Special Term should allow or disallow the item instead of ordering a new taxation before the clerk. When the objection presents a question of fact the Special Term may determine it and allow or disallow the item, or it may direct a new taxation before the clerk, specifying the grounds or the proof upon which the item may be allowed or disallowed. Upon a new taxation before the clerk both parties present their evidence (not being confined to the evidence first presented) and. thus retry the question of fact. Whether the questioned items in this case should have been allowed or disallowed was a question of fact. The order appealed from determines the question of fact, and also directs a new taxation before the clerk, in which respect it is irregular, but as neither party complains of the irregularity it must be regarded as waived.

The learned counsel for the appellant insisted upon the argument that the Special Term, without examining the facts, held that the affidavit of the plaintiff was conclusive upon the clerk, but there is nothing in the appeal book to sustain this position. From the form of the order appealed from the Special Term is presumed to have decided as a fact that all of the witnesses were material and necessary, and that their attendance was procured in good faith. This decision cannot be said to be against the evidence within the rule upon which this court reverses upon the facts.

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

HardiN, P. J., and Follett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: YaNN, J.:

text:
    MILTON DELANO, Respondent, v. SIMON S. HARP and Others, Appellants.

      Practice — when a case must be made, in order to enable the General Term, to review a judgment— Code of Gwil Procedure, sec. 997.
    'To enable tbe General Term to review upon appeal a judgment, entered upon tbe verdict of a jury directed by the court, a case must be prepared and settled as required by section 997 of the Code of Civil Procedure. If this be not done the appeal brings nothing before the appellate court which it can review.
    Appeal from a judgment, entered upon a verdict directed by tbe •court at tbe Madison Circuit in February, 1879.'
    The appeal' book contained no case or exceptions, but simply tbe judgment-roll, consisting of tbe summons and complaint, with proof of service, tbe answers, judgment, notice of appeal and certificate of tbe clerk. Tbe judgment was in these words, following the title •of tbe cause, viz.:
    “ This action having been tried by Mr. Justice Marten and a jury .at a circuit court held at tbe Court-house in Morrisville, in and for ■said county, on the 19th day of February, 1879, before tbe Hon. Celora E. Marten, and tbe court having directed tbe jury to find ••a verdict for said plaintiff for the sum of $468.39, and said verdict having been entered in tbe minutes of tbe said court, now, on motion of G\ A.'Forbes, plaintiff’s attorney, it is hereby adjudged •by tbe court that tbe plaintiff recover of the defendants tbe sum of $468.39 damages, together with the costs of this action, taxed at .$159.63, in all amounting to the sum of $628.02.
    “JOHN N. WOODBURY, Clerk.”

    Tbe certificate of tbe clerk mentioned simply tbe judgment-roll .and notice of appeal.

      E. J. Brown, for tbe appellants.

      G. A. Forbes, for tbe respondent.
   YaNN, J.:

Tbe appeal from a final judgment, authorized by section 1346 of tbe Code of Civil Procedure, is required to be beard upon a certi-fled copy of tbe notice of appeal, judgment-roll and case or notice of exceptions, if any. (Sec. 1353.)

J3y section 997 a party intending to appeal from a judgment rendered after tlie trial of an issue of fact is, “ except as otherwise prescribed by law,” required to make a case and procure the same-to be settled and signed. The next section provides that it is not necessary to make a case where a party intends to appeal from a judgment entered upon a referee’s report, or a decision of the court, upon a trial without a jury, and to rely only upon exceptions taken after the close of the trial by the court or referee. (Secs. 994 and 998.) There is no provision dispensing with a case, when the-appellant intends to review a final judgment only, entered upon the verdict of a jury. This appeal, therefore, brings nothing before-us that we can review. (Code Civil Pro., §§ 994, 997, 998 and 1346; Smith v. Starr, 70 N. Y., 155; 4 Wait’s Pr., 303.)

There is nothing in the judgment-roll to raise any of the questions of law that have been argued by the learned counsel for the-appellants with so much zeal. There is no objection or exception to direct the attention of the court to any subject whatever. Even if the complaint sets forth an illegal contract, there is nothing to-show that the illegality was not waived or cured by an amendment upon the trial. Not one of the defenses urged upon this appeal is pleaded in either answer and all of the defendants allege that another bond “ of like form, import, force and effect,” to that in question,. “ and with like conditions and wording, * * * since its delivery has been, and now is in the hands of the plaintiff herein, a valid- and subsisting security.”

The appellants cannot make this appeal, supported only by the judgment-roll, perform the office of a demurrer to the complaint, because any defect in the pleadings may have been remedied at the trial. So far as appears the defendants may have made default at the circuit, and the jury may have been directed to render a verdict as upon an assessment of damages, or the direction to the jury may have been given with their consent or even at their express request.

No error, calling for a reversal of the judgment, can be made to appear when the trial was before a jury, and the appeal is heard upon the judgment-roll only. Even where the trial is before a. referee, or before the court without a jury, unless exceptions are ■filed before the entry of judgment and they are inserted in tbe judgment-roll in accordance with section 994, an appeal, heard only upon the judgment-roll, would present no question for decision. If the decision of a question of fact can be reviewed, when the evidence is spread before the court, without any exception, no question •of law can be raised for determination without an exception in some form.

The judgment should be affirmed, with costs.

HaediN, P. J., and Follett, J., concurred.

Judgment affirmed, with costs:


author: Follett, J. :

text:
    OLIVER T. BURT, Respondent, v. MARIA J. MYERS, as Executrix, etc., of AUSTIN MYERS, Deceased, Appellant.

      Statute of limitation — an action for conversión is barred in six years'— ignorance by the plaintiff of Ms cause of action does not prevent the running of the statute.

    A. corporation having become insolvent, certain real estate owned by it was sold by a receiver thereof to three persons (one of whom was the defendant’s testator) who claimed to own all the outstanding bonds secured by certain mortgages upon such real estate. These bonds were delivered to and received by the receiver in payment for the real estate. The sale was made on October 81, .1867. The defendant’s testator claimed to own seven-sixteenths of the bonds, so delivered to the receiver, and under the deed received a like interest in the real estate, which he subsequently sold to one of his co-grantees for $55,000. This action was commenced May 29, 1877, by the plaintiff, who claimed to be the owner of a portion of the bonds so delivered by the defendant’s testator, to the receiver in payment for the land. The referee found that the bonds belonged to the plaintiff and were left in a bank for safe keeping; that the bank became insolvent, and that the bonds were received from its receiver by the defendant’s testator on October 8, 1867, without the plaintiff’s knowledge, consent or authority, and were by him used in the purchase of the said real estate.

      Held, that the facts established a wrongful conversion of the bonds by the defendant’s testator on October 8, 1867, and that the plaintiff’s right of action therefor was barred by the six years’ statute of limitation.
    That the fact that the plaintiff did not learn that he had a cause of action until in April, 1870, did not prevent the running of the statute.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      April 1, 1856, a manufacturing corporation of the State of New Jersey mortgaged its real estate to secure an issue of fifty bonds for $1,000 each. Forty-eight of these bonds were issued. October 5,. 1864, another manufacturing corporation of that State having succeeded to the property of the first corporation, mortgaged it to secure 100 bonds for $1,000 each and fifty bonds for $500 each, December 29, 1865, the corporation last mentioned became insolv ent, and a receiver was appointed. At this time there were outstanding:
    48 of the first mortgage bonds.. $48,000-
    61 of the second mortgage bonds for $1,000 each. 61 >000
    25 of the second mortgage bonds for $500 each. 12>500'
    Total bonds outstanding. $121 >500'
    October 31, 1867, the receiver of the insolvent corporation, pursuant to an order of the chancellor, sold and conveyed the mortgaged property to Juan O. De Muir, Austin Myers (defendant’s testator) and Joseph O. Potts for $101,000 — receiving in payment the bonds above mentioned. The forty-eight first mortgage bonds were paid in full. The second mortgage bonds were paidpra rata* The purchasers presented the bonds to the receiver, and claimed to own them in the following proportions :
    Juan C. DeMuir, seven-sixteenths. $53 >156 25
    Austin Myers, seven sixteenths. ■... 53,156 25
    Joseph C. Potts, two-sixteenths. 15 >187 50'
    $121,500 00
    It was recited in the deed that De Muir and Myers each acquired seven-sixteenths and Potts two-sixteenths of the property. In December, 1869, Myers sold his seven-sixteenths to De Muir for $55,000. November 9, 1870, Austin Myers died, and letters testar mentary were issued to the defendant. The defendant and defendant’s testator received the $55,000 from De Muir.
    This action was begun May 29, 1877, by the service of a summons. June 24, 1877, a complaint was filed, alleging that the plaintiff was the owner of $30,000 of the bonds turned over by Myers to the receiver in payment for the seven-sixteenths interest which he acquired; that My.ers wrongfully converted the bonds to his own use, and a judgment was demanded for the damages sustained. September 21, 1877, an amended complaint was filed, in which it is alleged that defendant’s testator took the bonds by virtue of a written agreement entered into March 29, 1867, between plaintiff, defendant’s testator, Charles B. Sedgwick and others; which agreement Myers failed to perform, but, instead, applied the' bonds in payment of the purchase-price of the mortgaged property, taking title to seven-sixteenths in his own name; and a judgment is •demanded that the use of said bonds be held to constitute a conversion, that defendant be adjudged a trustee of the avails, that an accounting be had and the defendant be adjudged to pay the amount found due.
    The defendant interposes, among other defenses, the statute of limitations as a bar. The referee finds that the plaintiff was the owner of.$30,000 of the bonds used by Myers, and that they were left in the Central City Bank for safe keeping, which bank failed, and Charles B. Sedgwick was appointed as its receiver. The referee further finds that October 8, 1867, the defendant’s testator received these bonds from Sedgwick “ without the knowledge, consent or authority of the said plaintiff,” and that, on the thirty-first of the same month, he applied them in part payment for the seven-sixteenths interest as above stated. The referee further finds that $31,040.40 is the proportionate amount due the plaintiff from defendant on account of the $55,000, received by defendant and defendant’s testator from Be Muir on account of the sale of the seven-sixteenths interest, and adds interest thereon from the date of the conveyance of Myers’ seven-sixteenth to De Muir to the date of his report, $23,435.50, and orders judgment for $54,475.90, from which the defendant appeals.

      William 6r. Tracy, for the appellant.

      Riscock, Gifford & JJoheny, for the respondent.
   Follett, J. :

The referee does not find that defendant’s testator took or applied the bonds pursuant to the contract of March 29, 1867, or pursuant to any agreement or understanding with the plaintiff. On the contrary, it is found that October 8,1867, defendant’s testator received tbe bonds from Sedgwick “ without the knowledge, consent or authority of the said plaintiff,” and that, on the thirty-first of the same month they were applied in part payment of the purchase-price of seven-sixteenths of the mortgaged property, and “that said plaintiff in no way co-operated with said Austin Myers in his taking and using said plaintiff’s bonds ” as aforesaid. The referee repudiates the theory that Myers took the bonds as a trustee under an express or implied trust, and the case is barren of evidence to sustain such a theory.

Assuming, as found, that the plaintiff owned the bonds when taken and applied by Myers, the facts found make a simple case of wrongful conversion without a shadow of right or authority, for which the plaintiff then (October, 1867) had a right of action without demanding their return. The fact that the cause of action remained undiscovered by the plaintiff until April, 1870, did not prevent the statute from running in the meantime. (Leonard v. Pitney, 5 Wend., 30; Allen v. Mille, 17 id., 202; Humbert v. Trinity Church, 24 id., 587; Hunter v. Gibbons, 1 H. & N., 459; Darb. & B. Lim., 24; Ang. Lim., § 185.) November 9, 1870, Austin Myers died, and thereafter (the date not appearing) letters testamentary were issued to the defendant. This action was begun May 29, 1877, and deducting eighteen months, as provided by 2 Revised Statutes (448, § 8, and Code Civ. Pro., § 443), the action was barred for nearly two years before it was commenced.

When property has been converted, the taker may, by an equitable action, be charged as a constructive trustee, and the proceeds recovered, so long as they can be traced and identified, or the damages may be recovered in a legal action. The only remedy to which the plaintiff was entitled (aside from a recovery of the specific bonds) was the recovery of a sum of money, at law or in equity, sufficient to compensate him for the loss of his bonds, which is the only remedy sought in this action, and is the precise and only relief granted by the judgment under consideration. Such a judgment might have been recovered at law and satisfied by an execution, as it appears that defendant’s testator and his estate were at all times abundantly able to satisfy the damages claimed.

When there is a complete and concurrent remedy at law, the lapse of time which bars the legal remedy also bars the equitable ■one. (Humbert v. Trinity Church, 7 Paige, 195; affirmed, 24 Wend., 587; Borst v. Corey, 15 N. Y., 505; Rundle v. Allison, 34 id., 180; Ang. Lim., § 69.)

In a case like the one under consideration the wrong-doer does not become a trustee within the meaning of the statute of limitations. (Decouche v. Savetier, 3 Johns. Ch., 190; Kane v. Bloodgood, 7 Johns. Ch., 90, affirmed, 8 Cow., 360; Wood, Lim., 413, § 200; Darb. & B. Lim., 183.) We cannot do better than quote the rule as laid down in the authority last cited, which is amply ■supported by the cases cited.

“ In applying, however, the general principle that time does not run between trustee and cestui que trust, it must always be borne in mind that a trust, to oust the operation of the statute of limitations, must be a direct trust constituted by the act of the parties, .and not a constructive trust arising by implication of law. The person affected by the trust must be one in whom a confidence has ■been reposed, and who has thereby come into the enjoyment of property, not merely a wrong-doer in possession without title, whom a court of .equity would make accountable to those entitled to the beneficial enjoyment; and, therefore, although it is a rule of equity that one who enters on an infant’s estate is to be considered during the infant’s minority as holding as his guardian or bailiff, yet if the infant delays six years after coming of age to file a bill for an •account, the statute of limitations is a bar to such a suit as it would be to an action of account at common law.” The statute of limitations is a bar to this action.

The judgment must be reversed, and it appearing that a new trial cannot avail the plaintiff, a final judgment is ordered in favor •of the defendant, dismissing the complaint, with costs.

HaediN, P. J., and YaNN, J., concurred.

Judgment reversed, with costs, and judgment ordered for defendant, with costs.


author: HaRdiN, P. J.:

text:
    FINETTE DE LONG, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Evidence — testimony as to the acts and complaints of one suffering from, physical injuries — when it is admissible if the pa/rty himself cannot appear to testify.

    This action was brought by the plaintiff to recover damages for personal injuries sustained from the falling of a berth which she was occupying in one of the defendant’s sleeping cars. It was shown that the plaintiff was, at the time of the trial, from her enfeebled mental and physical condition, unable to then, give any testimony. A person, to whose house she was taken after leaving the car, was allowed, against the defendant’s objection and exception, to testify in regard to the appearance of the plaintiff on the morning after the accident, and as to what the witness observed as to her manner and condition, and as 1» the plaintiff’s actions and complaints of pain and suffering.

      Held, that the evidence was properly admitted.
    Appeal from a judgment in. favor of the plaintiff, entered in Chenango county, upon the report of five referees, for $7,000.
    The plaintiff took passage on the evening train in the defendant’s' sleeping car on the 28th of October, 1883, in the village of Norwich, for Hoboken, having purchased a ticket from the defendant for her passage and for a berth in a sleeping car, and having paid1 the proper charges therefor. The complaint, among other things, alleges, viz., that during the night, while she was asleep in her berth, some portion of the said berth or car gave away, becoming dislodged or broken, and fell upon her head, breaking her skull and seriously injuring and bruising her head; that the said injuries resulted from the gross carelessness and negligence of the defendants, their agents and servants in the construction and in the-management of the said car and its equipments; that this plaintiff has ever since the said injury suffered and is suffering great pain; that her mind has been affected and is affected thereby, and that she has lost all power of walking and labor. That she was - a merchant, doing business at Norwich, Chenango county, as a milliner. That in consequence of her said injury she has become and wholly remains unable to take charge of her said business and that, she has lost her customers and her business.
    The referees found as follows, viz.: “ The plaintiff was free from negligence, but. that the defendant by its negligence through its-servants and agents was the cause of the said injuries to the plaintiff, and that this plaintiff has sustained injuries from the defendant’s-negligence and has suffered damages by reason thereof in the sum of $7,000.”
    The referees ordered judgment for $7,000.

      Ed/uoard, B. Thomas, for the appellant.

      I. 8. db H. O. Newton, for the respondent.
   HaRdiN, P. J.:

Appellant makes a single point upon the appeal before us, which is to the effect that error was committed in receiving evidence of the plaintiff’s, declarations in respect to her condition during the twelve days intervening between the time of her injuries and the time she took to her bed.”

It appeared in the progress of the trial that the plaintiff was wholly unable to give her testimony by reason of her enfeebled mental and physical condition at the time of the trial. Mary Haskell, a witness for the plaintiff, at whose house the plaintiff was while in New York, after describing the plaintiff and stating her acquaintance with her, was asked to describe the plaintiff’s appearance and to state whether the witness observed anything in her manner. An objection was taken and an exception to the ruling allowing the evidence, and a motion was made by the defendant to strike out what the witness said, describing the manner of the plaintiff and facts indicating her condition of mind. Plaintiff offered the evidence for the purpose of showing the then present condition of the plaintiff” and to show the actions of the plaintiff and “not the plaintiff’s details of past transactions.” The court ruled that the evidence was competent and the defendant took an exception. The witness then added: “ The plaintiff spoke about being hurt, and kept both hands continually on her head; she said the pain was intense and she kept her hands each side and pressed on her head, telling how terrible the pain was, and upon her back (indicating). * * * I might have seen her four or five times, probably every evening during her stay there; she walked very unsteady and as she passed into my room I told her she could go that way j. when she got in a little ways she tamed around and held on the side of the wall, and she asked if I said she could go in that way; she took hold along by the door and she went in the room ; I have known of her coming back in the morning after going out. * * * She did not go on the cars and I can’t tell how she came back; she came back again in the morning; I heard her say why she came back so quick.” This was objected to and an exception taken and the witness added : “ She said she got so dizzy in the cars she had to get out on the sidewalk; then she was bewildered and did not know where she was; she took the cars and came back and had forgotten all the streets in the meantime and was carried past the house ; she came back because of her sickness.”

The plaintiff’s counsel then stated as a question, viz.: “ I don’t care for the details; state what complaints she made \ ” Thereupon the witness answered : “ She said her head felt dizzy and her back as it seemed to affect her, so she came back; she walked unsteady at all times while at my house; she remained there until Monday night following the Sunday morning — a week.”

This evidence was followed by a very full statement of the plaintiff’s return to her home and taking her bed twelve days after the accident; the details of her suffering from abscesses formed inside of her skull and outside of the surface of the brain, and their discharge through the drum of the ear, and some permanent injuries received by the plaintiff, and the opinion of physicians that in all probabilities she would die from the injuries received.

In the progress of the evidence we see no attempt on the part of the plaintiff to establish what took place at the time the injuries were received. The circumstances of the injuries were shown by a class of evidence found in the testimony of her brother who was accompanying her on the journey, and one of the attendants in the car who assisted in applying cold water to the plaintiff’s head.

"We think that the evidence, which is found in the case for the purpose of characterizing the condition of the plaintiff subsequently to her injury, was competent and that no error was committed in receiving the same. The physical and mental condition of the plaintiff after receiving the injuries was a proper subject of inquiry. The extent of the pain and suffering of the plaintiff after receiving the injuries was properly inquired into.

In. the early ease of Goodwin v. Harrison (1 Root, 80), cited in Judge AlleN’s opinion in Reed v. The New York Central Railroad Company (45 N. Y., 579), it was held that in an action by a young lady for bodily injuries that it was allowable to prove the complaint made to her mother the morning after the injuries. That ruling was upheld on the ground of necessity, inasmuch as there was no other method of proving the fact. That ruling was approved in Caldwell v. Murphy (1 Kernan, 416) and in Werely v. Persons (28 N. Y., 344). As the plaintiff could not be a witness in this case the necessity for that class of evidence existed. (Reed v. The N. Y. Central R. R. Co., 45 N. Y., 579.)

In Caldwell v. Murphy (11 N. Y., 419) a witness testified that the plaintiff, since the accident, has invariably complained,” and the court refused to strike out the evidence. In considering that ruling Judge DeNio remarked, viz.: “ I am of the opinion that the evidence objected to did not fall within the rule which excludes the ¿eclarations of a party in his own favor. It is one of the natural concomitants of illness and of physical injuries for the sick or injured person to complain of pain and distress. A complaint, it is true, may be simulated, but it is generally real. I think such evidence is admissible from the necessity of the case, and that it may safely be left to the jury in connection with the other evidence touching the alleged sick or injured person’s condition.” The doctrine of the case from which we have just quoted was cited and approved in Werely v. Persons (28 N. Y., 344).

The same doctrine was followed in Nichols v. Brooklyn Railroad Company, where the declarations of the plaintiff to third persons, after the injury, was allowed. (30 Hun, 437.) Waldele v. The New York Central and Hudson River Railroad Company (95 N. Y., 274) contains nothing inconsistent with the doctrine we have referred to. That case held that declarations which are more in the* nature of a past transaction are not admissible as a part of the “res gestee” and the learned judge, near the close of his opinion, remarks, viz.: “ So here the evidence was given for the sole purpose of showing what took place at the time the intestate was injured, and not for the purpose of characterizing his condition at the time he spoke.”

We think the ruling complained of was kept within the doctrine of the authorities applicable. (See, also, Murphy v. The N. Y. Central R. R. Co., 66 Barb., 125.) We think the learned referees, upon the facts found by them, properly came to the conclusion that the defendant was liable to the plaintiff for the injuries sustained by her, by reason of the falling of a portion of a berth, or the head piece thereof, upon her while occupying the sleeping car. (Penn. Co. v. Roy, 102 U. S. R.., 451; Thorpe v. N. Y. Central and H. R. R. R. Co., 76 N. Y., 407.)

Second. The learned counsel for the appellant, in closing the points before us, remarks, viz.: “ There were at least two other fatal errors committed upon the trial of the case, but as the point considered demands a new trial, the time of the court will not be occupied by them.”

It may be observed that the only point discussed by the learned counsel for the appellant is the one we have considered, and as we are of the opinion that that is not well taken, we have contented ourselves with the presumption that the trial in other respects was proper, and that the judgment based upon the findings of the referees was right.

Judgment affirmed, with costs.

Boardhan and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: HáRdiN, P. J.:

text:
    BURT OLNEY, Respondent, v. JOHN HATCLIFF and JOHN HATCLIFF, Jr., Appellants.

      Practice — a pa/rty may be compelled to a/ppear and be examined as to a fact denied in Ms pleadings — when the description of boolcs and pap&i's to be produced for examination is too rogue and uncertain.

    In an action in which the plaintiff seeks to hold the defendants liable as partners for goods sold to them by him, the fact that the defendants deny in their answer the alleged partnership furnishes no ground for denying an application by the plaintiff to have them compelled to appear and be examined before trial.
    An order requiring defendants to produce books and papers, if any there are . touching the business relations of defendants, as between themselves and third parties, which refer to or would cover or include the purchase of the goods alleged to have been sold, is too vague and uncertain

      Appeal from an order of tbe special county judge, refusing to vacate an order for tbe examination of defendants before trial and tbe production of boobs and papers, also from an order requiring sucb an examination and tbe production of boobs and papers. Tbe action was brought to recover for ice which the plaintiff alleges bad been sold to. the defendants and for which they were liable to pay, as partners. The defendants denied the purchase and liability and the alleged partnership.

      JS. 0. Worden, for the appellants.

      James P. Olney, for the respondent.
   HáRdiN, P. J.:

We thinb the affidavit sufficiently states the nature of the action and the issue joined, and the necessity and materiality of the testimony of defendants. (Code of Civil Pro., § 872.)

That the defendants have denied the partnership alleged, or the liability alleged, furnishes no reason why they should not be examined at the instance of the plaintiff in respect to the same. (Sweeney v. Sturgis, 24 Hun, 162.) In delivering the opinion in the case just cited, Judge Gilbeet says “a denial in a pleading affords no exemption to the party who made the denial from being examined as a witness to prove the fact denied, for it is the denial only which renders such proof necessary.”

Second. The affidavit is vague and indefinite as it seebs for an examination of any “ boobs and papers,” * * * if any such there are, touching the business relations of defendants as between themselves and third parties, which refer to, or would cover or include the purchase of said ice.” * * *

The order is not clear and definite as to what boobs or papers should be produced, for it refers to “ the boobs and papers” (if any such there are) mentioned in said affidavit, if same are in your possession or under your control. It is too vague and uncertain. (N. E. Iron Co. v. N. Y. L. and Imp. Co., 55 How., 351; Rule 14; Cassard v. Hinman, 6 Duer, 695; Morrison v. Sturges, 26 How., 177; Thompson v. Erie R. R. Co., 9 Abb. [N. S.], 212; Walker v. The Granite Bank, 19 Abb., 111.)

We thinb so much of the order appealed from as directs the discovery of books and papers,- and the order so far as it refuses to-vacate that part of the original order, should be reversed, and the other part of the order appealed from should be affirmed.

So much of the orders as requires the production of books and papers reversed, and in other respects the orders are affirmed, without costs of this appeal to either party.

Boaedman and Follett, JJ., concurred.

So much of the orders as required production of books and papers reversed, and in other respects the orders are affirmed, without costs of the appeal to either party.


author:
Follett, J.: HaRdiN, P. J.:
      YanN, J. :

text:
    ANNA M. MOOT, by her Guardian GEORGE M. DART, Respondent, v. JAY B. MOOT, Appellant.

      Marriage — when declared void because the consent of the woman was 'procured by false and fraudulent representations ■— Code of Civil Procedure, sec. 1743, sub. 4 — what is the age of legal consent within subdivision 1 of said section — Penal Code, sec. 282.
    The plaintiff, a school girl fifteen years old, while absent from home on a visit to relatives, was induced by the defendant, who was twenty-four years old, and had been employed for about four months upon the farm of the plaintiff’s father, to enter the house of a clergyman and have a marriage ceremony performed. The plaintiff having at first refused to be married without th» consent of her parents, and because of her youth, the defendant falsely stated to her that her parents knew of the object of his visit and that they would not care or object, and assured her that she need not live with him for a good while, for three or four' years, and that the ceremony should be kept secret and that she could continue to reside with her parents and attend school. The marriage was never consummated.

      Held, that as these representations related to the very essence of the contract, and were false and made with intent to induce the plaintiff to consent, they furnished sufficient grounds to uphold a judgment declaring the marriage contract void, under subdivision 4 of section 1743 of the Code of Civil Procedure, as having been obtained by fraud.
    Upon the trial the plaintiff was allowed to show that her parents had not consented to the marriage, against the objection of the defendant that as she had passed the age of consent the consent of her parents was unnecessary.

      Held, that the evidence was properly admitted to establish the falsity of the representad:ns made by the defendant.

      Qwmre, as to whether section 282 oí the Penal Code fixes the age of sixteen as “the age of legal consent” for females within the meaning of that term as> used in subdivision 1 of section 1743 of the Code of Civil Procedure. (Per Follett, J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to procure a judgment declaring a marriage contract entered into between the plaintiff and defendant void, and annulling the marriage on the ground that the plaintiff had been induced to enter into it by false and fraudulent representations made by the defendant.
    The referee found that the representations were to the knowledge of the defendant false and untrue, and were made with the express intention of deceiving and defrauling the plaintiff and of inducing her to marry the defendant, and that the plaintiff was induced to believe from such false statements as aforesaid that by consenting to have such marriage ceremony performed no obligation or duties would be imposed upon her thereby, and she need not live with defendant but could live with her parents and continue going to school as she was then doing.

      Edwin D. Wagner, for the appellant.

      1. H. Maynard, for the respondent.
   Follett, J.:

Marriage, under the laws of this State, is a status which arises from or is initiated by a civil contract. The parties to this action entered into a formal marriage contract, which was repudiated by the plaintiff within two days, was not followed by intercourse of any kind, and the status which they formally agreed to enter into has not been, in fact, fully established. The plaintiff seeks to annul the formal contract, upon the ground that she was induced to enter into it by the fraudulent representations of the defendant, and upon the ground that she did not consent, or intend to then enter into the marital relation, the agreement being that the relation should not actually exist until after the lapse of three or four years, and that in the meantime she should reside with her parents. At the date of the contract, the plaintiff had just passed her fifteenth birthday, was a school girl, residing with her parents, who were farmers. The defendant at the date of the marriage was twenty-four years of age, and was an employee of the plaintiff’s father, and had been for about four months, during which time he had lived in the family. During this period the defendant had shown the plaintiff some slight attentions, and upon two occasions had urged her to marry him, but she refused. The attentions and solicitations were unknown to the plaintiff’s parents. The day before the ceremony the plaintiff was earned to the village of Box-bury, ten miles distant from her home, and there left by her father to visit her relatives. The defendant, knowing whei’e the plaintiff had gone, left her father’s house upon the pretense that he was going to another village on business, and the next morning at an early hour he appeared at the house where the plaintiff was staying. Between eight and nine in the morning the plaintiff was sent by her aunt to do an errand at another house in the village. The defendant followed, and while in the street induced her to enter the house of a clergyman, where, at about nine o’clock in the morning, the ceremony was performed. When first solicited, on this occasion, the plaintiff refused to be married without the consent of her parents, and because of her youth. To overcome the first objection, the defendant told her that her parents knew of his coming to Boxbury and he guessed they knew well enough the object of his visit, and stated that her father had promised him one of his farms and one of his daughters if he would work for him. for four years : that her mother had told him he could marry one of her daughters, and he knew that her parents would not care or object. To overcome the second objection, defendant assured her that she need not live with him for a good while, for three or four years, that the ceremony should be kept secret, and that she could continue to reside with her parents and attend the school. The defendant did not deny on the trial that he made the foregoing representations, which the plaintiff swears she relied upon, and all of which were false. That the plaintiff by reason of her immaturity, or mental weakness, did not understand the nature and obligations of the contract, appears from the evidence and is undisputed. She understood that she was not then to become a wife in fact, but at some future date, three or four years later, which understanding -of tbe contract was induced by the false representations of the •defendant in respect to its nature and obligations. These representations related to the very essence of the contract, and being false, ■and made with intent to induce the plaintiff to consent, and having induced her to consent, it is sufficient, with the other facts in the case, to uphold the judgment declaring the marriage contract void under the fourth subdivision of section 1743 of the Code of Civil Procedure. (Bish. on M. and D. [5th ed.], §§ 199, 200.) In Robertson v. Cowdry (2 Western L. J., 191), the vice-chancellor of ■this State declared an unconsuinmated marriage contract between a girl of sixteen and a young man of twenty-three, invalid, on the ground that it was entered into upon the agreement that they would not regard each other as husband and wife for two years, and not until their parents’ consent had been obtained, and a new ceremony performed. (Bish. on M. and D. [5th ed.], § 245.) The fraud in this case was much greater, and more nearly relates to the foundation of the contract than the fraud alleged in Hull v. Hull (15 Jurist, 710; S. C., 5 Eng. L. and Eq. R., 589), where the court refused to dismiss the bill. This case, in some of its features, is like Lyndon v. Lyndon (69 Ill., 43), where an un consummated marriage contract between an adult servant and a girl of fifteen was annulled, because, among other things, the man procured the marriage license by perjury. In both cases the contract was brought about by means of a felony. (See, also, Robertson v. Cole, 12 Texas, 356.)

On the trial the plaintiff was allowed to show that her parents had not consented to the marriage, over the defendant’s objection and exception; that she having passed the age of consent, the consent of her parents was unnecessary: for which reason it was, and it is, urged the evidence was incompetent and immaterial.

By the common law males may marry at the age of fourteen and females at the age of twelve. (2 Kent’s Com., 78; 2 Steph. Com. [8th ed.], 243.) Section 2 of chapter 8, title 1 of part 2 of the Bevised Statutes (2 B. S., 138), fixed the age of consent at seventeen for males, and at fourteen for females, but the section was repealed by chapter 320, Laws 1830. Section 26 of chapter 1, title 3 of part 4 of the Bevised Statutes (2 B. S. 664), made the taking of a female under the age of fourteen years from her father, mother or guardian, without tbeir consent foi’ tbe purpose of marriage, a felony. By chapter 257,. Laws 1841, the courts were authorized to annul a marriage contract, entered into in violation of the section of the Revised Statutes last-cited ; but this act was repealed by chapter 245, Laws 1880, it having been been superseded by the Code of Civil Procedure. Sections 1743 of the Code provides that a marriage contract may be annulled because one or both of the parties had not attained the age of legal consent.” The age of legal consent is not fixed by the statutes of this State (Bennett v. Smith, 21 Barb., 439), unless, as to. females, it is fixed by implication by section 282 of the Penal Code. This section, as it stood at the date of this marriage (prior to the-amendment of March 21, 1884), provided : “ A person who takes a female under the age of sixteen years, without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage, * * * is guilty of abduction, and punishable by imprisonment for not more than five years,, or by a fine of not more than one thousand dollars, or by both.”

Without determining whether the Penal Code fixes the legal age-of consent of females at sixteen, and so brings the case within the first subdivision of section 1743 of the Code of Civil Procedure above quoted, it was not error to admit the evidence. It cannot be successfully contended that the felony consists only in taking “ for the purpose of marriage,” and if the purpose is accomplished, that, a felony is not committed. A contract, the making of which is a felony, is void. Such is the general rule, but whether a marriage contract so made may be declared void under our statute is not determined. Defendant’s statement that he had talked with the-plaintiffs parents, and inducing her to believe that they had tacitly consented to the marriage, was one of the means by which lie-induced her to consent to the ceremony, it was a part of his fraudulent scheme and it was not error to permit the falsity of the-representations to be shown.

The judgment is affirmed, with costs.

HaRdiN, P. J.:

Section 1743 of the Code of Civil Procedure provides that an action may be maintained “ to procure a judgment declaring a marriage contract void, and annulling the marriage ” when “ the consent, of one of tbe parties was obtained by force, duress or fraud.” "When a proper case is made it is tbe duty of tbe court to annul a marriage. (Ferlat v. Gojon, Hopk. R., 478.) As tbe plaintiff was under sixteen years of age tbe defendant bad no right to take •ber away from ber people for tbe purpose of inducing ber to marry bim. Such taking was abduction. (Penal Code, § 282.) Defendant’s representations to ber that her parents knew of tbe intention •of tbe parties to marry, knew of bis intention to visit ber for such purpose, and that they, respectively, bad consented to a marriage between the parties, were false and fraudulent and made with tbe intent of deceiving the plaintiff, and she was deceived thereby and •so led to submit to tbe request of tbe defendant and acquiesce in tbe performance of a marriage ceremony away from tbe residence ■of her parents, and without their knowledge that tbe parties bad ■ever contemplated marriage with each other. Nor did any of plaintiff’s relatives know of it or consent thereto.

We cannot regard tbe acts, sayings and doings of the defendant do induce tbe plaintiff to consent to tbe performance of tbe marriage ceremony, as having any origin in.fairness and good faith. 'They.were fraudulent and deceiving. They carried away the young mind of tbe plaintiff and amounted to moral duress. She did not •act upon ber own will and principal purpose, but was led therefrom by tbe acts, sayings and solicitations of the defendant. (Ferlat v. Gojon, supra.) Plaintiff repudiated tbe marriage promptly and repented early before any cohabitation, and apparently as soon as •she learned of tbe deception practiced upon ber by tbe defendant. We find Lyndon v. Lyndon (69 Ill., 43) very much in point in its facts, and we are inclined to agree with the opinion of Chief Justice Bbeese and to save tbe plaintiff from ber childish folly and delusion and tbe consequences which might flow therefrom if tbe marriage, fraudulently obtained, were enforced. We think tbe conclusion of tbe referee should be sustained. There was proof to justify bis conclusions upon tbe facts. Defendant bad repeatedly admitted the allegations of tbe complaint to be true. There being no appeal from tbe order sustaining tbe judgment, as our jurisdiction is simply appellate, we cannot review tbe order. We think it and tbe judgment which it ratifies should stand.

Judgment affirmed, with costs.

YanN, J. :

The defendant in order to induce the plaintiff, a female under the-age of sixteen years, to marry him, represented to her, in effect that both of her parents had consented to such marriage.

The plaintiff relied upon such representation, among others, and was induced thereby to marry the defendant. The representation was false and was made by the defendant with intent to deceive the-plaintiff. The marriage was never consummated and the plaintiff promptly repudiated it upon learning of the deception practiced upon her. The said representation was material, because if it was-true, the defendant had a lawful right to marry the plaintiff, whereas-if it was false he not only had no right to marry her, but was even guilty of a felony in so doing. (Penal Code, § 282.) These facts present every element of fraud, which, when applied to an ordinary civil contract, render it void. They should have the same effect when applied to a marriage contract not followed by cohabitation, in an action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by fraud.- (Code of Civil Pro.,. §§ 1743, 1750.) When cohabitation has followed the marriage, the interests of society become involved and may prevent courts from interfering, except in an extreme case, as private rights must sometimes yield to public policy. It is unnecessary, however, to now consider that subject.

It was competent to show that the parents of the plaintiff had not consented to her marriage, not because their consent was essential to its validity, but to prove that the representation of the defendant was false.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    ALVIN S. NORTHRUP, Respondent, v. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.

      Negligence •— when the plaintiff’s negligence is a question for the jury — testimony of a witness as to the speed of a train — no exception lies to the order in which the judge submits matters to the consideration of the jury.

    The plaintiff, a man of oyer sixty-seven years of age, was injured while crossing the tracks of the defendant’s road in returning from the village of Sidney Plains to thfe farm upon which he lived. The tracks crossed the highway on a curve, the main track being on the north and being the first track crossed by one leaving the village; the curve turned from the highway towards the south, so that a person standing on the main track could, when there were cars on the next track, see the main track only for a short distance. As the plaintiff approached the crossing an empty coal train was standing on the second track from the north, and obstructed the passage along the highway and the view of the main track. An employee of the defendant told the plaintiff that the train was going to move off immediately, and presently it started, moving to the west and making some noise. At the same lime a gravel train, consisting of twelve loaded cars pushed by an engine, backed down on the main track and crossed the highway. A brakeman sitting on the gravel on a car, two or three cars back from the end of the train, called to the plaintiff to get out of the way, but before he could recross the main track he was struck by the train and injured. Evidence was given tending to show that the gravel train was running very fast as it approached the crossing, and that the bell was not rang nor was the whistle sounded.

      Held, that the question as to the plaintiff’s contributory negligence was properly submitted to the jury, and that a verdict ia his favor would not be disturbed.
    A witness testified that he had often ridden upon railroad trains, had observed their speed and timed them by his watch and estimated their speed; that he did not know as he could accurately judge as to the speed of a train, but thought he could come pretty close to it. He was then allowed to state, against the objection and exception of the defendant, that the train was running from eight to twelve miles per hour.

      Held, no error.
    In the course of the charge the justice commented upon the question of the defendant’s negligence, and referred to it as the first question to be considered, and thereafter followed it with instructions as to the question of whether or not the plaintifí was guilty of contributory negligence. In the course of the charge he said: “But in case you find the defendant’s agents guilty of negligence which caused the injuries, the next question is whether or not the plaintiff is free from negligence which contributed to the injuries.” The defendant took an exception to the words, commencing with “the next question.”

      Held, that the exception presented no error.
    That there was no statute or rule of law which prescribed the order to be pursued by a judge in presenting questions of the character involved in this case to the jury.
    Appeal from a judgment, entered in Delaware county, upon a verdict taken at the circuit in favor of the plaintiff for $1,200,. and also from an order denying a motion made upon the minutes for a new trial.
    The action was brought to recover damages sustained by the plaintiff, by reason of the defendant’s cars colliding with him while he was attempting to cross a highway at Sidney Plains.
    On July 31,1882, plaintiff, aged some sixty-seven years, had been to the village of Sidney Plains, and about eleven o’clock in the forenoon was returning to his home, which was about one mile east of the village; he had passed the tracks of the Delaware and Hudson Canal Company, and going towards the south approached the defendant’s tracks where he held a conversation with one Musson, an employee of the defendant. There was a train of empty coal cars standing across the highway, on the second line of tracks of the defendant’s road, which prevented persons from passing along the highway. Musson climbed upon the obstructing cars and discovered that they were about to be pushed out of the way, and told the plaintiff to wait, as a gravel train was coming from the west, backing up the main track, which was the one nearest to the plaintiff. There was evidence tending to show that the plaintiff was then standing on a switch, south of the main line, at a point where if he had remained he would probably been safe. Musson told the plaintiff that the train of coal cars was going to move right off and presently it started, making some noise, and at the same time the gravel train was backing south on the main line across the highway. There was evidence tending to show that a brakeman on the gravel train called to the plaintiff to get out of the way, and the plaintiff upon seeing the gravel train approaching recrossed the main track, running in a north-easterly direction, and was hit by the train and thrown down and his arm broken in two places and a rib broken and a gash cut in his heel and was otherwise injured. The gravel train that run into the plaintiff was composed of twelve loaded c^rs, a tender and engine. The engine was in the rear backing six cars ahead ■of it. The train was moving, according to the evidence, very fast as it approached the highway, and there was evidence tending to show that the bell was not rung or the whistle sounded.
    There was evidence to the effect that the tracks crossed the highway on a curve, so that when the main track is free from cars and -the next track on each side is full of cars, a person standing on the main track in the highway can see only six or eight rods towards the west. It appeared that as the train approached the highway there was a brakeman sitting down on the gravel or dirt, on a car two to four cars from the end of the train, and that there were cars ¡standing south of the main track and west of the highway, which may have obstructed the plaintiff’s view. The plaintiff testified that when he first saw the train it was close to him and “ he had all he could do to get out of its way, without taking any particular notice of it.”

      Isaac S. Newton, for the appellant..

      William Thorp, for the respondent.
   Hardin, P. J.:

"Whether or not the plaintiff was guilty of contributory negligence at the time he received the injuries from the defendant’s train of cars, was made a prominent question on the trial.

A careful consideration of all the facts and circumstances disclosed by the evidence in regard to the situation of the plaintiff and the circumstances surrounding him at the time and instant of the ■collision, has lead us to the conclusion that the trial judge committed no error in submitting that question to the jury and in refusing the motion for a new trial. It was for the jury to say what inferences ¡should be drawn from all the evidence bearing upon that question. We think the observations of Judge Woodruff, in Ernst v. The Hudson River Railroad Company (36 How., 91) are applicable to -this case. He says: “ "Whatever I might conclude to be the preponderance of evidence, the case seems to me one in which, upon this ■question, honest, intelligent and impartial men might rationally differ, and if the doubts be such, that such men, acting under a sense of great responsibility, with a single purpose to arrive at the truth, may reasonably come to opposite conclusions, then it is proper to submit the question to the jury and a nonsuit should not be ordered by the court.” (See, also, Hackford v. The N. Y. Cent. and H. R. R. R. Co., 53 N. Y., 654; Cordell v. The Same, 70 id., 119 , Massoth v. Del. and Hud. C. Co., 64 id., 524.)

It is difficult to understand from the evidence preceding, w*iat impressions were formed from the surrounding circumstances and the information given to the plaintiff upon his mind at the instant when he was called upon to exert himself for his safety. We think the trial court properly refused to rule as a matter of law that he was negligent. In Wasmer v. The Delaware, Lackawana and Western Railroad Company (80 N. Y.. 218), Judge Eael says, viz.: It is easy enough now to see that his effort was a hazardous and unsafe one; but can we say as matter of law that lie, situated just as-he was, with no time for cool reflection, failed in that care which men of ordinary prudence would exercise under the same circumstances ? We think not.” It was said in Hart v. The Hudson River Bridge Company, “ the proofs may be indirect and the evidence-had by showing circumstances from which the inference may reasonably be drawn, that these principal and essential facts existed (that the plaintiff was free from negligence). When, from the circumstances shown, inferences are to be drawn, which are not certain and uncontrovertible, and- may be differently made by different minds, it is for the jury to make them.” (80 N. Y., 622; see, also, Jones v. N. Y. C. and H. R. R. R. Co., 28 Hun, 366.)

We agree with the learned counsel for the appellant “that the plaintiff, because of his great deafness, his great age and his sickness,, owed to himself extraordinary care. We cannot say, that upon the-circumstances before us, as a matter of law, the plaintiff in the exercise of such care did not do just what was, at that instant, understood by him to be prudent and cautious, and ir was for the-jury to say whether or not he neglected any part of that duty which the law imposes upon such a person similarly situated. The law does not require a delay in the efforts to escape unless the exact measure of the danger is ascertained, where the sudden danger results from the negligence of another.” (Coulter v. The American Merchants’ Union Express Company (56 N. Y., 585.) We think there was no error in submitting to the jury whether or not the bell was rung or tbe whistle sounded at tbe time tbe accident occurred. Tbe plaintiff testified, viz.: Tbe engine was behind the gravel train, I think; I could not see it; I did not bear it ring a bell or sound tbe whistle; I am very certain it did not, or I should have noticed it; the train was coming very fast and as I saw the train I wheeled and swung off from where I was standing.”

Peck testified, viz.: “ I stepped down on the track to see if any were coming and I saw the gravel train; then I stepped back off all the tracks and stood there and they came very swift, and came full speed; they didn’t ring any bell at all; I listened for the bell ^ I always do ; and my hearing was as good as it ever was ; the train was going fast; * * * a man stood right in the middle of the platform ; I did not see him make any motion -to any man to get off the track; nor hear any bell; and I noticed the man that stood there ; and he never started for the back until some one said “ an old man was hurt.”

It is true that considerable evidence was given tending to show that the bell was rung, but we think the evidence which we have quoted was such as to require a submission of that question to the jury. They have found that no bell was rung, and, therefore, we must assume that the plaintiff’s attention was not called or arrested by any such signal, and we are, therefore, of the opinion that no error was committed in submitting the question of whether or not the plaintiff was guilty of contributory negligence to the jury. We may further refer to Kellogg v. New York Central and H. R. R. R. Co. (79 N. Y., 72), and the language used therein, as follows, viz.: Under all the circumstances surrounding the accident we think it was for the jury to determine whether he exercised that care which the law required of him.”

Second. We think there was no error in receiving the testimony of Parsons upon the subject of the speed of the train, he said, viz. "r “ I have often rode upon railroad trains ; have observed their speed and timed them by my watch and estimated their speed; I don’t know as I could accurately judge as to the speed of a train; I think I could come pretty close to it, but I would not be certain.”

He was then allowed to state, against the defendant’s objection, “that the train was running from eight to twelve miles per hour.” We think there was no error in this ruling. (Salter v. Utica and Black River R. R. Co., 59 N. Y., 631.) In the course of the judge’s charge to the jury he commented upon the question of the defendant’s negligence and referred to it as the first question to be considered, and thereafter followed it with instructions to the question of whether or not the plaintiff was guilty of contributory negligence.

The judge in his charge used the following language, viz.: “ But in case you find the defendant’s agents guilty of negligence whicli caused the injuries, the next question is whether or not the plaintiff is free from negligence which contributed to the injuries.” The defendant took an exception to the words, viz.: “ The next question is whether or not the plaintiff is free from negligence which contributed to the injuries.” We think that exception presents no error. We know of no statute or rule of law which lays down the order to be pursued by a judge in presenting questions of the character involved in this case to the jury. The order in which questions of law should be discussed by a judge, or questions of fact commented upon before a jury, must be controlled by the discretion of the trial judge.

In Ernst v. The Central Railroad (36 How., 85), the trial judge adopted the same order that was pursued in this case, and wé find in the opinion of Judge Clebxe the following, viz.: “ The judge added that if they should come to the conclusion that the defendant was guilty of negligence, then the question would be, was the deceased free from negligence which contributed to the accident.” Other cases might be referred to where the same order was adopted in respect to the questions to.be considered by the jury, as was used in the case before us. We see no ground upon which the verdict can be disturbed by reason of that order which was adopted by the trial judge. The learned 'counsel for the appellant has cited 'no authorities bearing upon the question, and we have found none and recall no precedent which gives sanction to the exception. Several other exceptions are presented in the case before us which have had our attention, and we are of the opinion that they present no error calling for a disturbance of the verdict.

The judgment and order should be affirmed, with costs.

Present — HaediN, P. J., and BoaedMAN, J.; Follett, J., not sitting.

Judgment and order affirmed, with costs.


author: Haedin, P. J.:

text:
    UTICA CLOTHES DRYER MANUFACTURING COMPANY, Appellant, v. WALDEMIR OTIS, Respondent, Impleaded with ARTHUR S. HERENDEN and GEORGE B. HERENDEN.

      Two actions against the same defendants upon the same cause of action — when the pendency of one such action in the United States cov/rt does not prevent the commencement of the other in the State court.

    The summons in an action, commenced in the Supreme Court of New York against two defendants to enforce a joint liability, having been served on one defendant only, the action was, upon his application, removed into a United States District Court. While that action was there pending, no judgment having been entered and no attachment having been levied, this action was commenced in the Supreme Court of New York against the same defendants upon the same cause of action by the service of the summons upon the defendant not served in the first action.

      Held, that the pendency of the former action was not a bar to the commencement and prosecution of this one.
    Appeal from an order, made at Special Term, vacating and setting aside the service of the summons herein npoa the defendant Otis and dismissing the action.
    On the 1st day of May, 1883, a partnership, composed of the above named defendants, existed, doing business under the firm name and style of George B. Herenden & Co., in the State of Ohio, and, as the plaintiff claims, they became and were jointly indebted to him as such partners. The defendants were each residents of the State of Ohio. On the first day of May aforesaid, an action was commenced in the Supreme Court of the State of New York to recover the demands. All the members of the firm were made defendants. The summons, however, was served only on the defendant Arthur S. Herenden. Afterwards, upon the application of the defendant so served, the action, was, by an order of the State court removed Into the United States Court for the Northern District of New York, in pursuance, of the statute in such case provided. The order for removal was made on the 12th day of July, 1883. After removal and issue joined, the case was referred to a referee to hear and determine, but the same has not been brought-to trial before him. While the action was pending in the United. States Court and in the condition above stated, and ■on the 2d day of December, 1884, this action, was commenced in the Supreme Court of this State, by the service of a summons on the defendant Waldemir Otis alone. It was commenced for the same cause of action as the original action, and for the purpose as stated of establishing the liability of the defendant Otis upon said cause of action, and to charge his individual property. Upon these facts the defendant Otis moved to vacate and set aside the service of the summons on him, on the ground that an action for the same cause of action is pending in the United States Court against the same defendants.

      Nicholas JS. Neman, for the appellant.

      James S. Sherman, for the respondent.
   Haedin, P. J.:

Pendency of another action in the District Court of the United States for the same cause of action, resting upon a service of summons upon Herenden, one of the defendants (no judgment having been entered in that action, and no attachment having been levied upon property), is not a bar to this action. In that action the defendants not personally served could not be, upon such service as was made on one defendant, personally charged.

This action, for aught that appeared in the papers used at Special Term, may be maintained. (Bowne v. Joy, 9 Johns., 221; Walsh v. Durkin, 12 id., 101; Burrows v. Miller, 5 How., 51; Cook v. Litchfield, 5 Sandf. Sup. Ct., 342.) This is not an action to enforce a judgment already recovered. The plaintiff does not rest upon or seek to recover upon a judgment already had. (Morey v. Tracey, 92 N. Y., 583.) Statutes which give a remedy to enforce a judgment, obtained by service upon one of the joint debtors, are cumulative, and do not by implication take away a party’s common-law right to enforce his debt. (Lane v. Salter, 51 N. Y., 1.)

In the case just cited Lott, Ch. C., says, of a judgment entered on service upon only one joint debtor, that it is no evidence of any personal liability, and does not constitute a debt against the party not served.” The same doctrine was asserted by Paeeee, J., for the "General Term of tbe sixth district in Dean v. Eldridge (29 How., 218; Code Civ. Pro., §§ 1932, 1933).

~We are of the opinion the Special Term onght not to have vacated the service of summons and onght not to have dismissed, the action.

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

Follbtt and YaNN, JJ., concurred.

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


author: HabdiN, P. J.:

text:
    JAMES G. JOHNSON, Surviving Partner of JOHNSON BROTHERS & CO., Appellant, v. LUCY HAYNES, Administratrix of NICHOLAS H. HAYNES, Deceased, JAMES M. SMITH and MYRON J. MELVIN, Respondents.

      ■Constable's bond — when he is not liable for money not actually received — when entitled fc> use money collected under an execution, to defray expenses of counsel retained by him to protect his levy.

    'Certain property was seized by one Haynes, a constable, under an execution for $176.87, issued upon a judgment recovered, by tbe plaintiff in tbe present action, inja Justice’s Court against oneMicbaelson. December 13, 1879, Fowler and Lyons commenced an action in tbis court to replevy tbe property so seized. In that action Haynes recovered a judgment for tbe full value of tbe property, $625, besides costs. Fowler and Lyons appealed therefrom to the Court of Appeals, where the amount of tbe recovery was reduced to tbe amount of tbe ■execution. Upon tbe appeal Haynes, and after bis death bis administratrix, • appeared upon tbe appeal by an attorney, to whom tbe amount of the judgment, as so reduced, with costs, was subsequently paid. Tbis amount tbe attorney refused to pay to tbe administratrix of Haynes, claiming to be entitled to retain it for services rendered upon tbe appeal. Tbe plaintiff bad notice of the appeal and tbe services therein rendered by tbe attorney.
    In an action against tbe administratrix and tbe sureties upon tbe constable’s official bond to recover tbe amount of tbe execution:

      Held, that tbe complaint was properly dismissed as no breach of tbe bond was shown.
    Appeal from a judgment, entered in Cortland county upon a decision after a trial at the circuit, before the court without a jury, dismissing plaintiffs complaint.

      On the 11th of December, 1S79, plaintiff recovered a judgment in a Justice’s Court for $176.87 against Lucy A. Michaelson, on which, execution was issued and delivered to Nicholas H. Haynes, a constable, who leyied upon a stock of millinery goods the property of the judgment debtor, and who took the property into custody the same day. On the 13th of December, 1879, Fowler and Lyons commenced an action in this court and replevied the property from Haynes in the action, and a trial was had and Haynes was awarded the value of the property, to wit, $625, besides costs, and a judgment therefor was entered, from which Fowler and Lyons-appealed. ■ Pending the appeal, on the 26th day of November,. 1881, Haynes died. Lucy Haynes, his widow, was appointed administratrix of his estate on the 26th of December, 1881, and she was thereafter substituted as defendant in the action, and appeared therein by A. P. Smith, her attorney. That action was taken to the Court of Appeals and the judgment of the court below was modified, limiting the recovery of the defendant to the value of his special interest as constable. It was admitted upon the trial that after the goods were replevined by said Nicholas H. Haynes, as constable, said Haynes never received any of the goods, and never received any money upon the judgment in said action, and that no moneys came into his hands during said litigation, and that no fees as constable were received upon the execution.
    It appeared that A. P. Smith acted as attorney for Nicholas H. Haynes, in the action brought by Fowler and Lyons, up to the time of his death, and for Mrs. Haynes, the administratrix, after her substitution in the place of her husband, and that Smith received $176.87 and the interest upon it, and the fees and poundage due to Haynes as constable, and executed a satisfaction of all the judgments that had been recovered against Fowler and Lyons, and that Smith declined to pay over the moneys to Mrs. Haynes, claiming he had a lien upon it for services and disbursements in said action. It appeared that plaintiff’s firm had knowledge of the litigation of Fowler and Lyons, and of the services performed in that action by Smith.
    In February, 1879, Nicholas H. Haynes, as principal with J. M. Smith, and M. J. Melvin, executed and filed in the town clerk’s office their bond conditioned to pay “ to each and every person who may be entitled thereto, all such sums of money as the said Nicholas H. Haynes as constable may become liable to pay on account of any execution which may be delivered to him for collection; and we farther, jointly and severally agree to become liable and pay each and every person for any damages which they may sustain from, or. by any act done by the said Nicholas H. Haynes, or by virtue of the office of such constable.” Hpon that bond this action is founded and the same is set out in the complaint, and the complaint alleges, viz.: “That on or about the 12th day of March, 1883, the defendant Lucy Haynes, deceased, collected and received upon said execution so issued and delivered to said Nicholas H. Haynes as aforesaid, to the use of this plaintiff the sum of $176.87, and the interest thereon from the 11th day of December, 1879, besides lawful fees and poundage of the said Nicholas IT. Haynes, constable as aforesaid.” It also appeared that before the commencement of this action and upon the 9th day of March, 1883, the plaintiff demanded the payment of the sum of $176 with interest, of the administratrix and the sureties upon the bond.

      Irving H. Palmer, for the appellant.

      A. P. Srmth, for the respondents.
   HabdiN, P. J.:

¥e think the complaint in this action stated a cause of action for breach of the bond executed by the constable and his sureties; it was therefore incumbent upon the plaintiff to establish a breach of the bond and damages in consequence thereof, before a recovery could be had in this action under the complaint.

Apparently upon the evidence before us no breach of duty or of the bond was shown to have been committed by Haynes the constable in his lifetime ; nor was any breach of the bond shown to have been committed by the administratrix of his estate: no moneys were shown to have been received by him or by his administratrix, belonging to the plaintiff. It was proper for Haynes to employ an attorney to defend the action brought by Fowler and Lyons. It was also proper for the administratrix of Haynes, when she was substituted in his place, to employ an attorney to care for her rights and to defend the appeal which was taken in this action. We think the attorney was entitled to a lien upon tlie fruits of the action to secure bis services rendered therein. His. appearance and defense of that action were known to the present plaintiffs, and it 'is not a mistake to suppose that they acquiesced in his so conducting the .action which was defended by Haynes in an effort to protect the rights of the plaintiffs h erein. Unless the lien of the attorney was satisfied, the administratrix was not entitled to the fruits of the litigation. (Code of Civil Pro., § 66.) We think, under the circumstances of this case, that it was just and equitable that the lien of the attorney upon the moneys received in the Fowler and Lyons suit, should be satisfied from and out of the proceeds of that action before the same were paid to the plaintiff. We think the plaintiff failed upon the trial to show that after satisfying the lien of the attorney, any moneys were in the hands of the attorney or of the administratrix which belonged to the plaintiff. We are therefore of the opinion that the result reached by the Circuit Court was just and equitable, and that no breach of the bond was shown entitling the plaintiff to recover of the administratrix or of the other defendants, who were sureties in the bond given by the deceased constable. These views lead to an affirmance.

Judgment affirmed, with costs.

Follett and YaNN, JJ., concurred.

So ordered.