author: Bookstaver, J.

text:
    Henry Eisler, Resp’t, v. The Union Transfer & Storage Co., App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

      1. Replevin—Warehousemen—Evidence.
    In an action by a mortgagee of chattels to recover possession thereof from a warehouseman, with whom they had been stored by the mortgagor without plaintiff’s knowledge, the complaint averred that plaintiff was entitled to immediate possession, which the answer denied, and set up a lien for storage. Held, that under these pleadings plaintiff had a right to show that he was entitled to possession at the time of the commencement of the action, or at 1he trial, and also that defendant had neither a debt or lien, by showing that such claim for storage had been paid.
    8. Same.
    Defendant’s evidence tended to show that plaintiff was informed as to the storage, but it is to be inferred therefrom that the goods were already stored, or tne arrangement therefor completed when such notice was given. Plaintiff denied receiving Such notice, and it appeared that he employed a detective to hunt up the goods. Held, that the justice was authorized by the evidence in finding that plaintiff neither assented to or had knowledge of the storing, and that defendant had no lien at the commencement of this action.
    Appeal from a judgment rendered in the district court of the city of New York for the seventh judicial district.

      Joseph Martin, for resp’t; Henry C. Andrews, for app’lt
   Bookstaver, J.

This action was originally brought by the respondent to recover the possession of certain goods claimed by him as mortgagee. The defendants were the mortgagor and the Union Transfer & Storage Company, the latter of which was the only party served and appearing in the action. It was made a party defendant because it had the actual possession of the property at the time. The plaintiff’s affidavit and complaint stated that he was entitled to the immediate possession of the property, and the defendant denied these allegations in its answer.

The action has been three times tried in the court below, and twice reversed on appeal to this court. On the second trial it appeared without contradiction that the mortgagor had before that trial paid to the company the full amount of its claim for storage, and that it had received the sum so paid in full satisfaction of its claim, and had surrendered to the mortgagor the other property stored with the goods in controversy. Consequently at the time -of that trial there was no debt due for the storage of the goods, and it, therefore, had no right to hold the same, for there can be no lien where there is no debt; but appellant’s counsel now contends that we ought not to regard these facts on this appeal and claims that the former decision is res adjudicata as to those facts, for the reason that they were all before the general term of this court which heard the appeal from the judgment rendered on the second trial in November, 1889, and also because they were improperly admitted in evidence.

We have carefully examined the record upon the former appeal and the decision of the November general term, 1889, but cannot find that these facts were brought to the attention of the court on the argument of that appeal as required by Rule VII of this court, or that the general term in reversing the judgment passed upon this question "at all. It is probable from the presistency with which the counsel in this and other warehouse cases have insisted they had a claim which was a lien upon mortgaged property, that it assumed there was some debt due the warehouseman, and the decision proceeded on that theory. We, therefore, do not feel concluded as to the question now raised.

As to the contention that these facts were improperly admitted m evidence, we do not think it is well founded. The affidavit on the claim and delivery proceedings expressly averred that the plaintiff^ was entitled to the immediate possession of the property. This was denied by the answer, which also set up the lien as before stated. It was not necessary for the plaintiff to reply to the new matter setting up the lien. Under the Code, the allegations in that respect were to be taken as controverted.

It was, therefore, competent for the plaintiff to. prove anything to show that he was entitled to the possession of the property at the time of the commencement of the action or at the time of the trial, and it was also competent for him to prove that the defendant had neither a debt or a lien when the action was commenced or afterwards, and therefore no amendment of the pleadings was necessary to introduce this proof. Besides, the facts were brought out on the cross-examination of defendant’s witnesses, and it was a legitimate subject of cross-examination. The facts appearing-in the record, we have a right and it is our duty, to consider them upon this appeal, and if it were necessary we would even have the-power to do substantial justice and sustain a proper judgment.

It cannot be in the interest of justice, when these facts appear upon the defendant’s own testimony, that the complaint should be dismissed only in order to award the defendant costs when he has no right whatever to the property and -when the plaintiff might commence a new action at once. Nevertheless, it is true as contended by defendant’s counsel that in order to - sustain an action for the claim and delivery of personal property it is necessary for the plaintiff to show that he was entitled to the possession of the property at the time the action was commenced. Wood v. Orserr 25 N. Y., 348; Redman v. Hendricks, 1 Sand., 32; Hudson v. Swan, 83 N. Y., 552; Duncan v. Brennan, id., 487; Thompson v. St. Nicholas Bank, 113 N. Y., 325; 22 N. Y. State Rep., 929.

It therefore remains to inquire whether the plaintiff was entitled to such possession at the time of the commencement of the action, and this depends upon whether or not the defendant had a lien upon the property at that time.

At a recent general term of this court, Baumann v. Post, Daily Reg., Dec. 8, 1890; 34 N. Y. State Rep., 308 (since reportedin 15 Daly,-), it was decided that where a mortgagor, after default in the mortgage, stored the mortgaged property with a warehouseman without the knowledge or assent of the mortgagee, the warehouseman acquired no lien upon the goods for storage as against the latter. But defendant’s counsel contends that this case differs from that, in that here the mortgagee had knowledge of the storing and assented thereto.

This was denied by the plaintiff, and whether or not he had such knowledge or gave such assent was a question of fact to be determined by the justice who tried the case. One of defendant’s witnesses, the mortgagor, on the trial gave evidence tending to show that he had himself given notice to the plaintiff of his intention to store the goods, to which the plaintiff neither assented nor dissented, but, as the mortgagor testified, the plaintiff said in answer to such alleged information given to him, “ Why didn’t you store them with me and I would not have charged you anything,” to which the mortgagor replied: “If I had known that I would have done so, but I have made arrangements with these people for three dollars a month and told them where they were.”

From this testimony we gather that the property was either actually stored with the defendant at the time the notice was given, or that the arrangement had been completed between the mortgagor and the mortgagee for storing the goods; but this testimony, if it is to be believed, is denied by the plaintiff, and in it he is corroborated by the fact that he employed a detective to hunt up the property, and spent some time and money in doing so, which he would not have done had he known where the property was. The wife of the mortgagor in her testimony does not claim that she had any conversation with the plaintiff himself, but with a clerk or bookkeeper of his, and that the information of the intention to store was given to him, and the answer which the bookkeeper made to her, as she testified to it, is suspiciously like the answer made by the plaintiff to the mortgagee.

We think that on this question the foregoing and the other testimony in the case fully justified the justice in finding that the plaintiff had neither assented to the storing of the property _ nor had knowledge of the fact. This being so, it is unnecessary for us at this time to determine whether or not where mortgaged property is stored with the knowledge of the mortgagor the warehouseman acquires a lien upon such property as against him. The consideration of that question should be left until the fact is proved, and not found against the warehouseman, as it is in this case.

Nor is it necessary to consider whether the mortgage was properly re-filed with a proper statement of indebtedness, for the mortgagor does not appeal from the judgment rendered, and, even if he did, this question would be immaterial, as the mortgage would be good against him without any re-filing. Having arrived at this conclusion, it is unnecessary to consider the other questions raised on this appeal, as the appellant has no standing in court to present them.

Under the circumstances of this case, if we had the power, we would not award costs to the respondent, but § 3213 of the Code gives us discretion only where a judgment is modified, or a new trial ordered, and this court has held in Clark v. Carroll, 61 How, Pr., 47, that §§ 3060-3067, and § 3066, subd. 3, provide that where a judgment is affirmed, costs must be awarded to the plaintiff.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edwin P. Phillips, Resp’t, v. Charles T. Richardson, App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    ^Evidence—Assignment—Harmless error.
    In an action brought by the assignee of a claim, the plaintiff was allowed to file the written assignment after the close of the trial. Held, error; but that defendant was not prejudiced thereby, as plaintiff had testified to its contents without objection, and defendant had offered no testimony in contradiction thereof.
    Appeal from a j udgment rendered in the district court of the •city of New York for the first judicial district.

      Howard Ellis, for resp’t; Gilbert D. Lamb, for app’lt.
   Per Curiam.

The action was to recover the rent of certain premises in the state of New Jersey and for damages for injuries to the premises, etc. The plaintiff was the assignee of the claim, and upon the trial was allowed to file the written assignment. after its close, to "which the defendant objected and excepted.

The trial justice undoubtedly erred in giving this permission, as it deprived the defendant of any opportunity to inspect the assignment or give any evidence in contradiction thereof, and this error would necessarily require a reversal of the judgment but forth e fact that upon the trial the plaintiff was allowed to give parol testimony of the contents of the assignment without objection on the part of the defendant, and he offered no testimony in contradiction thereof. An inspection of the assignment shows that its contents were correctly stated in the parol evidence, and we therefore do not see how the defendant could have been in any way prejudiced by the error.

From the evidence we think that the plaintiff was entitled to judgment, and that the amount thereof was fair and just. It should, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Andrew E. Lines, Resp’t, v. Charles D. Shepard, App’lt.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    Stocks—Change ok proprietorship—Notice to customer.
    Defendant kept a saloon and a stock brokerage in connection therewith, and plaintiff had been accustomed to deal with him through one K., who was defendant’s clerk. In an action in relation to the stock transactions, defendant and K. testified that it was arranged between them that K. should carry on the stock business on his own account; that a sign in the room was changed, and the bought and sold memoranda signed only by K. Plaintiff testified that he not connect the change in the sign with any change in the business, and did not observe the other changes mentioned. Held, that whether such changes were made as to put the customer on inquiry was a mixed question of law and fact to be determined by the justice, and under the evidence it could not be said that he did not properly determine it in plaintiff’s favor.
    Appeal from a judgment rendered in favor of the plaintiff in the district court of the city of New York for the tenth judicial district

      Walter K. Griffin, for app’lt; John M. Tierney, for resp’t.
   Bookstaver, J.

The complaint was for money received, and the answer was a general denial. The claim arose out of certain stock transactions which took place on the defendant’s premises known as the White Elephant,” and the question to be determined was whether these transactions were with one William K. Klausman as principal, or with him as the agent of the defendant, and was one of fact to be determined by the evidence. Without stating this evidence in detail, we deem it sufficient to say that an examination of the testimony, aided by the painstaking and careful brief of defendant’s counsel, fails to convince us that there is any such preponderance of evidence, in defendant’s favor as would warrant us in reversing tlie judgment on that account, while the evidence on plaintiff’s behalf if believed by the justice is quite sufficient to sustain the judgment, and we see no such inherent weakness or improbability in it as would lead us to discard it as untruthful or disingenuous.

From the testimony it appears that the defendant is sole proprietor of the “ White Elephant,” situated on Broadway between Thirtieth and Thirty-first streets, which appears to be a drinking saloon and a place of amusement, having connected with it a shooting gallery, bowling alley, billiards, restaurant, bar room, etc. There was also a stock brokerage business carried on in a small way, and apparently entirely subsidiary to the drinking saloon, etc. The defendant’s testimony tends to show that .in the beginning of that business there was associated with him one Dederich, who had some interest in the business, but as it had been small and but little profits had accrued therefrom, Dederich practically abandoned the business before the plaintiff had any dealings in connection therewith. William E. Klausman seems to have been, in one person, the superintendent of the business, its bookkeeper, clerk, telegraph operator and office boy, all on a salary of fifty dollars per month.

Confessedly the first transaction on plaintiff’s part was with Klausman, as agent, shortly before the 1st of May, 1890, but defendant’s testimony tends to show that some arrangement was made between the defendant and Klausman, by which the latter should carry on the business after that time on his own account. The business was carried on in a small enclosure back of the bar room, and in order to get to it it was necessary to pass through that room. On a glass partition near the street and from sixteen to twenty feet away from this enclosure previous to the 1st of May there had been a sigh “ C. D. Shepard & Co., Commission Brokers, Private Wires to Wall Street, Stocks, Bonds & Petroleum.” About the 1st of May the name “ O. D. Shepard & Co.” was removed and that of “ Wm. D. Klausman” substituted.

Klausman testified that he told the plaintiff of the new arrangement, and that he was thereafter to carry on that business, but this is denied by the plaintiff, who also testifies that while he noticed a change in the sign he did not connect it with any change in the business and knew of no such change. To meet this the defendant introduced certain alleged copies of bought and sold memoranda signed by Klausman, without any other signature. This change plaintiff also alleges he did not observe, and there is •considerable doubt whether the papers produced upon the trial were exact copies of the memoranda originally given.

While it is true, as claimed by the learned counsel for the defendant, that it is not necessary, in order to charge a customer with notice of the retirement of a former proprietor with whom he has been accustomed to deal, that a notice of a change of proprietorship should be positive and explicit, and that it is enough if such change is made as to put such customer upon inquiry, Holt v. Allenbrand, 52 Hun, 217; 22 N. Y. State Rep., 925; Lovejoy v. Spafford, 93 U. S., 430; Claflin v. Lenheim, 66 N. Y., 306, yet whether such changes have been made as to properly put the customer upon inquiry is always a mixed question of fact and law to be determined by. the justice, and in this case we cannot say from the evidence that he did not properly determine it. From the evidence we think he might well have found that the various changes made were but a cover and not made in good faith, for Klausman was a man of little or no responsibility; he paid nothing for the business and no arrangement was made with the defendant about the rent: he used defendant’s tickers and the blackboard on which the quotations of certain stocks were made just as they had been before, and neither paid nor agreed to pay the defendant anything for them. We, therefore, think the judgment was proper and should be affirmed, with costs.

Bischoff, J., concurs.


author: Daly, Ch. J.

text:
    Hugh J. Barron, Resp’t, v. Fernando Yost et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Business names—Fictitious name.
    It is not every case of transacting business under a fictitious name that is within the statute, but to make the act illegal it must appear that credit was given to and reliance placed upon the false designation, and that credit was given to the person or persons using the false designation.
    2. Same.
    In an action for work done and materials furnished, the defendant asked leave to amend the answer by alleging that plaintiff did business under the name of H. J. Barrow & Co., which name was fictitious, in that he had no partner represented by the designation “&Co.,” and that the contract sued on was made in such fictitious name. Feld, that leave was properly refused, as these facts alone, if proved, would constitute no defense.
    Appeal by defendant Yost from an order of the special term of this court refusing leave to serve an amended answer setting up that the contract for doing the work and furnishing the materials alleged in the complaint was made by the plaintiff under the name of “H. J. Barrow & Co.,” which name was fictitious, in that there was no actual partner or partners represented by the designation “ & Co.,” and that plaintiff was carrying on business under said fictitious name in violation of the Penal Code, § 363.

      Eugene K. Sackett, for app’lts; Frank M. Avery and Edgar J. Phillips, for resp’t
   Daly, Ch. J.

■— In the case of Lane v. Arnold, 11 Daly, 293, following the current of decision in the courts of original jurisdiction in this state, it was held that a person violating the statute of 1833 by doing business in the name of a party not a member of the firm lost the right to recover for goods sold by him in that name, for although there was only a technical violation of the statute, a wrongful intent must be inferred from the intentional doing of the wrongful act; but in view of the observation, in Wood v. Erie R. R. Co., 72 N. Y., 198, that the object of the act of 1833 was “ to prevent persons from obtaining credit on the strength of a name that has been withdrawn or which they have no authority to use,” we allowed an appeal to the court of appeals (the case having come to us from the marine court, now the city court), in order that the court of last resort “ might apply the law in a more liberal spirit,” we not feeling at liberty to place a construction upon the statute which would save persons violating the law, even innocently, from the consequences of their lapse from strict conformity to its provisions.

In a case decided shortly after, Gay v. Seibold, 97 N. Y., 472, in the court of last resort, it was held that the statute was highly penal, should be strictly construed, and that a case is outside the statute, though within the letter, not within the intention of the statute; that the purpose of the statute was to protect persons giving credit to the fictitious firm on the faith of the fictitious designation, and was not needed for the protection of those who obtained credit from such a firm; and although in that particular case it was found that the defendant knew who actually constituted the firm and consciously transacted the business with them in their true names, and it might well be said that the statute was not even in form violated, yet the court placed its decision’on the ground that “ no credit was given to, and no reliance placed upon, the false designation, and, in fact, no credit whatever was given to the plaintiff.” It was also added that all the parties to the transaction knew who the real parties were and no person was deceived, and there was no possibility that any of the parties would be imposed upon or harmed by the false designation.

This decision establishes the rule that it is not every case of transacting business under a fictitious name that is within the statute, but that to make the act illegal it must appear that credit was given to, and reliance placed upon, the false designation, and that credit was given to the person, or persons, using the false designation. In the case before us the proposed defense merely alleges the use of the fictitious name by the plaintiff in doing the work for the defendant and furnishing the materials and in making the contract therefor, and the carrying on of the business by plaintiff under the fictitious name, and that, therefore, the contract entered into by defendant with him was illegal and void. These facts alone, if proved, would constitute no defense under the case quoted, and the motion to amend the answer by setting them up was properly denied.

The order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    Robert Biggart, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    Railroads—Elevated—Damages—Findings.
    In a proceeding to restrain the operation of an elevated railroad, and for damages, the referees refused a request to find that plaintiff is not entitled to recover damages for deterioration of the neighborhood caused by the construction and operation of the road. Held, no error.
    Appeal from judgment in favor of plaintiff.

      Julian T. Davies and Brainerd Tolles, for app’lts; Henry A. Foster, for resp’t.
   Pryor, J.

Appeal from a judgment of injunction and for damages. Action to restrain the maaintenance and operation of defendant’s railway, and to recover for past injuries to plaintiff’s property from the presence and operation of said railway.

The single error urged in impeachment of the judgment is the refusal of the referees, by whom the case was tried, to find, as a conclusion of law, that “ plaintiff is entitled to recover damages for 'deterioration of the neighborhood caused by the construction and operation of defendants’ road.” So far as this refusal may be supposed to affect the amount to be paid by defendants in avoidance of the injunction, if error at all, it is not an error available for reversal of the judgment. Lawrence v. The Metropolitan Elevated Railroad Company et al., now decided, 35 N. Y. State Rep., 39.

But the refusal of the finding is no error, even in respect of the recovery for past damages. It is a preposterous assumption that the learned referees allowed anything to plaintiff as a substantive ground of recovery for the deterioration of the neighborhood, i. e., for injury to other people’s property, and a court cannot with propriety be called upon to negative an obviously and indisputably absurd proposition. Besides, the conclusion of law propounded by defendants was utterly irrelevant to any claim of plaintiff apparent in the complaint or presented on the trial, and for that reason alone was properly rejected by the referees. But that the fact of the deterioration of the neighborhood caused by defendants’ railroad was competent and relevant evidence on the issue as to the deterioration of plaintiff’s property is expressly affirmed in Ducker’s case, 106 N. Y., 157; 8 N. Y. State Rep,. 599, where the court says: “ To measure and appreciate the individual • loss to plaintiff, the nature and extent of the general injury was properly and necessarily considered.”

We see no error in the record, and the judgment must be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


author: Bradley, J.

text:
    George Pooley, Resp’t, v. The City of Buffalo, App’lt.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Municipal corporations—Assessments—Recovery oe moneys paid UNDER MISTAKE—FINDINGS.
    In an action to recover moneys paid upon an alleged illegal assessment in tlie city of Buffalo the court found that certain persons whose lands were assessed in the assessment filed with the city clerk objections to the roll; that the .clerk reported to the common council that objections had been filed but did not lay such roll or objections before that body, nor did it at any time hear or consider such objections. Held, that this finding was not sufficient to support a conclusion of law in plaintiff’s favor; that the burden of proof was upon plaintiff to prove that he was in some manner prejudiced by the failure of the common council to consider the objections made, and that in the absence of evidence, tending to prove that plaintiff joined in such objections or as to their nature it could not be presumed that their nature was such that the consideration of them could in any view have resulted beneficially to the plaintiff.

      Motion by plaintiff for reargument

      Tracy C. Becker, for motion; George M. Browne, opposed.
   Bradley, J.

The able argument presented by counsel' in support of the motion requires the statement of some reasons for its disposition. The general principles applicable to cases in which is involved thé question of equitable relief of the character of that sought in this action are quite well settled. The controversy in this action has relation to an assessment upon the lands of plaintiff and others to pay the expenses of a local improvement in the city of Buffalo. Upon that subject it may be said that when the alleged illegality upon which relief against an assessment is founded is patent upon the record upon which the person claiming under it must rely to support his claim, the owner of the land is not entitled to affirmative relief to remove it, because it condemns itself, and in the legal sense is not a cloud upon the title, nor prejudicial to him; and although the infirmity may not appear on the record, if the person claiming any right under the assessment cannot" effectually do so for the reason that in his evidence to establish it he must develop the defect which will defeat his claim, then the owner of the land cannot have affirmative relief for the same reason; and the same principles are applicable to an action having in view the recovery of money paid by him upon an assessment unless it was made by those having no jurisdiction to make it or unless the payment was caused by coercion in fact. The plaintiff’s counsel contends that this case falls within neither of those classes, but in that which permits a recovery and relief when the claimant’s right presumptively arises upon the production of the instrument, which he has received as the evidence of it, and the defeat of that which it purports to give is matter of defense, and such defense is dependent upon extrinsic facts. As urged, the presumption given by the Buffalo city charter that every assessment made under it is valid and regular, and that all-the proceedings requisite were taken and had, until the contrary appears, entitles a person whose land is assessed to relief against it when the illegality of the assessment rests in something de hors the record. And in respect to such presumption the present case is distinguishable from that of Phelps v. The Mayor, 112 N. Y., 216; 20 N. Y. State Rep., 238. In the charter of the city of Hew York, upon which the latter case arose, the presumption of regularity does not arise until the lease is made pursuant to a sale of land on non-payment of an assessment. But in no case can the purchaser be in any situation to assert any claim to the property founded upon his purchase until it is perfected by lease or conveyance as provided by the statute pursuant to which the assessment and sale are made. And the maintenance of an action by the owner of the property for relief against an assessment before the demise or conveyance is perfected must be dependent upon the legal presumption given by law to the assessment or to the instrument subsequently made evidencing or perfecting the sale, and in the latter case upon well founded apprehension that the steps productive of such presumption would be taken and that it would arise. And then such existing or apprehended presumption would not support the action unless the facts which constituted the illegality of the assessment were extrinsic the record. There is a further distinguishing feature between the statutes upon which the Phelps case and the present one arose as to the extent of the presumption.

In the former, the provision is that the lease “ shall be presumptive evidence that the sale and all proceedings prior thereto from and including the assessment * * * were regular and according to the provisions of the statute; ” and in the other the provisions are that it shall be presumed that every assessment made is “ valid and regular and that all the steps and proceedings required by law were taken and had until the contrary shall be made to appear; ” and that the declaration of sale, which is effectual as a lease, “ shall be presumptive evidence that the assessments ■* * * were legally imposed, that due proceedings to authorize the sale were had, and that the sale was regular.” It is suggested that the Phelps case is distinguishable from and .not applicable, to this case, because while the statutory presumption applicable to the latter embraces not only the assessment, but all the proceedings upon which it was founded, the presumption in the New York city charter only reaches back to and includes the assessment, and therefore the purchaser to support the claim would be required to prove the validity of the resolution of the common council pursuant to which the assessment was made. That may be so, but the decision of the Phelps case wás not placed on that ground. It was there distinctly held that the plaintiff was chargeable with notice of the defective resolution, and for that reason could not recover back the payment made on the assessment. That was the sole ground upon which the determination was made. And Judge Gray in speaking for a unanimous court said: “ For the purposes of this case the sole question which we shall consider is, whether this ordinance on its face carried with it notice of the illegality of the corporate act, not whether matters de hors the record otherwise established the invalidity of the assessment. If the ordinance was on its face void, then the plaintiff cannot plead ignorance of the law in justification of the payment. The principle is elementary that ‘ a party cannot recover back money paid upon the ground that he supposed he was bound in law to pay it,’ ” and added that “ when the ordinance or the resolution directing a local improvement is essentially illegal as violating in its provisions the statutory power conferred upon the common council, the payment of an assessment imposed for the expense incurred under its authority is a mistake of law, and in such case relief cannot be granted.” The doctrine of that case is therefore applicable to the resolution of the common council directing the work of improvement. But it is unnecessary for the purposes of this case to seek to apply the rule announced in the Phelps case to the vote as recorded, adopting the resolution.

The burden was with the plaintiff to prove a substantial illegality in the proceedings invalidating the assessment to support his action. Remsen v. Wheeler, 121 N. Y., 685; 31 N. Y. State Rep., 385. As the record of the common council appears here, the resolution was adopted by a two-thirds vote as well as by the vote in the affirmative of two-thirds of the whole number of the members of that body. Such record alone, viewed without or with reference to the city charter, shows an adoption of the resolution by the requisite vote, and if it was in fact otherwise its impeachment was for the plaintiff to prove.

But the main objection has relation to the disposition made, so far as represented by such a record, of the objections made to the assessment roll prior to its confirmation. Although it does not appear in the evidence by whom the objections were made or that they were made by any person interested in it, no question in that respect arises because no exception was taken to the finding of the trial court on that subject. We did not nor did we intend on the review of the judgment to express any opinion upon the question whether it appeared by the record that there was any substantial irregularity or illegality in the proceedings of the common council in that respect affecting the validity of the assessment, but treated what did appear there as not de hors the record of the assessment. If this view in its application to this case may be regarded as to any extent in advance of the rule upon the subject, there is a further reason why a new trial was properly granted. The trial court found that the work was not ordered by a two-third vote of all the members of the common council. In the view already expressed upon that question, there was no evidence to support such finding, • and the exception to it was well taken. And although that finding if sustained would support the conclusion of law, it does not appear whether or not the latter was placed upon that ground, and if there was any other finding which would necessarily support such conclusion, the error arising upon that exception might be disregarded. The question, therefore, arises upon the finding that certain persons whose lands were assessed in the assessment filed with the city clerk objections to the roll, and that the city clerk reported to the common council that objections had been -filed to the roll, but did not lay such roll or such objections before that body, nor did it at anytime hear or consider such objections. It cannot be assumed that those or any of such objections were made by the plaintiff or any of his assignors, or that the objections or any of them went to the validity of the assessment

In view of the fact that the burden is upon the plaintiff to prove the facts entitling him to relief, it must be made to appear that he was or may have been in some manner prejudiced by the failure of the common council to consider the objections which were made. That may have been dependent upon their nature or pertinency. If they were founded solely upon the supposed prejudice to those making them, and the objections not against the legality of the assessment, it would not necessarily concern the plaintiff. It cannot, without some evidence tending to prove what the objections were, be presumed that their nature was such that the consideration of them may have in any view resulted beneficially to the plaintiff. And this is so because it may be seen that objections of such nature may have been made that the consideration of them could not have enured to the advantage of any person assessed other than those making them, and consequently such other persons could not be prejudiced by the omission to-consider them. The character of the objections not appearing, their pertinency cannot be the subject of consideration. It seems to follow that the conclusion of law found by the court was not. supported by the finding as made on the subject of the objections filed with the city clerk to the roll. The defendant excepted to-the finding that the roll or objections were not laid before, nor the-objections heard or considered by the common council. The only evidence bearing upon that fact appears in the record of the proceedings of that body. And whether that was such or sufficient, to establish the facts so found, it is, in the view here taken, unnec-' essary to determine. The negative of the fact is not there stated, and whether it is necessarily excluded by what does there appear may be questionable. Ami inasmuch as the clerk of the common council called its attention to the objections, and assuming-they were such that the duty to consider them was essential to the validity of the assessment, the question may arise whether or not the presumption may not be. permitted that it was done. Whatever they were, it appears by the act of confirmation of the roll that the objections were overruled.

The motion for re-argument should be denied.

All concur, except Haight, J., not voting.

       See 34 N. Y. State Rep., 641.


author: Earl, J. O’Brien, J. (dissenting.)

text:
    George McArthur, as Committee, Resp’t, v. Henry Gordon et al., App’lts.

      (Court of Appeals,

      Filed January 27, 1891.)

    Will—Trust—Declaration of trust.
    Where a farm is conveyed to a grantee, -who binds himself to support, the grantor or some other person then living upon the farm out of the income of the farm, and such support is made a lien upon the farm, the support must be furnished and taken upon the farm, and if the grantee offers and is ready and willing to support the beneficiary upon the farm in a proper and suitable manner, an action cannot be maintained against such grantee for the support of such beneficiary elsewhere.
    (Ruqer, Oh. J., O’Brien and Finch, JJ., dissenting.)
    Appeal from judgment of the supreme court, general term, third department, modifying and affirming judgment in favor of plaintiff.

      A. D. Wait, for app’lts; Matthew Male, for resp’t.

       Reversing 21 N. Y. State Rep., 659.

   Earl, J.

I have no doubt that a valid trust was created by the defendant Gordon by the instrument of April 19,1876. The trust was declared by deed in writing, as required by the Revised Statutes, 2 R. S., 134, §§ 6 and 7. It was not necessary that the deed should be based upon any consideration, or that it should be delivered. Fisher v. Fields, 10 Johns., 495; Wright v. Douglass, 7 N. Y., 564; Cook v. Barr, 44 id., 156; Van Cott v. Prentice, 104 id., 45; 5 N. Y. State Rep., 654; Montague v. Hayes, 10 Gray, 609; Urann v. Coates, 109 Mass., 581; Adams v. Adams, 21 Wall, 185; 1 Perry on Trusts, § 82.

This trust must be treated as originating with Gordon. It was declared by him, and there is no evidence of any trust declared or created by Miss McDonal. The deed from her, however, may be considered for the purpose of showing the inducement of the declaration of trust by Gordon, and as one of the circumstances bearing upon the construction of that declaration.

The trust was not only properly created, but it is an express, active trust authorized by and specified in § 55, 1 R. S., 728.

On the part of the plaintiff it is contended that Larmouth was not bound to take his support upon the farm which, by the declaration of trust, is charged with such support, and so the courts below held, and in this, I think, they erred.

We are dealing with a situation contemplated and provided for in the trust deed. Gordon has sold the farm, and hence the proper maintenance of Larmouth in board and clothing is charged thereon and made the first lien during his life, and so long as the defendants were willing to support Larmouth in a comfortable and suitable manner upon the farm, he had no right to demand it elsewhere. There is no fixed rule for the construction of such a trust as this. The intention of the creator of the trust, as it can be gathered from the instrument declaring it, and the surrounding circumstances, must control. This trust was voluntarily created by Gordon, and the sole question for our determination is, what did he mean when he voluntarily bound himself to appropriate the net rents of the farm for the comfortable support of Larmouth, or if he sold the farm that Larmouth’s proper maintenance in board and clothing should be the first lien upon the same? Larmouth had always lived upon this farm, and it was his home at the time the trust was declared. It is not reasonable to suppose that Gordon meant to assume the obligation to take the net proceeds of this farm and apply them for the support of Larmouth wherever he might choose to take such support. He was an incompetent person, incapable ■of taking care of himself, and it must have been the intention of Gordon that he should remain upon the farm where he could look after and watch over and provide for him in the manner in which he had been provided for before, and such probably was the expectation of Larmouth’s mother when she executed the deed to Gordon. It is quite true that covenants for the support generally of a person of full age, and competent to take care of himself, require such support to be furnished where the person to be supported wishes to take it, and that the party bound to furnish the support cannot insist that the person to be supported shall live in his family or at any particular place. That is the rule in reference to capable adults, not members of the obligor’s family; but in cases of minors and persons incompetent to take care of themselves the courts have given a different construction to such ^covenants.

In McKillip v. McKillip, 8 Barb., 552, the facts are very similar to those we have here. There Archibald McKillip conveyed to his son John McKillip real estate, and in consideration thereof John executed- to his father a bond, the condition of which was. that if he, his heirs, executors or administrators, “ shall and do at all times hereafter maintain, support and clothe the said Archibald McKillip and his son James, who is now ill and deprived of his reason, during their natural lives, and during the natural life of the longest liver of them, and furnish good and sufficient nursing and medical attendance, washing and lodging, both in sickness and health, for each of them during the term aforesaid, then this obligation to be void and of no effect, otherwise to remain in full force and virtue.” The defendants in the action were the widow and heirs at law of John McKillip, the obligor. The plaintiff was the administrator of Archibald, one of the obligees, and also the committee of the lunatic James. It appeared in the evidence that. John McKillip, the obligor, had from the time of the execution of the bond, and up to his death, maintained his father and brother at the homestead upon the premises conveyed as the consideration of the bond, and that after his death the defendants, as his widow and heirs at law, offered to continue such maintenance according to the condition of the bond at their residence; but Archibald declined the offer, and went to live with the plaintiff, and was supported by him. This was done without the consent or approval of the defendants. The action was brought by the plaintiff to recover for the maintenance and support furnished by him to Archibald and James, and he prayed judgment that payment might be decreed to be made for the amount which the plaintiff was justly entitled to demand and receive on account of the indebtness set forth in the complaint, and, in default of payment, that the real estate referred to in the bond might be sold, and an equitable lien thereon be decreed for the support and maintenance of Archibald and James. The court held that the obligor by his bond was bound only to maintain and support the obligee and his son at his own dwelling-house, provided it could be done there in a suitable manner, and that after the decease of the obligor, the family residence, so long as it was maintained, was the place of support. Hubbard, J., writing the opinion, said: “Looking at the situation of the parties and the-relations existing, it is manifest that the intent of the bond was that Archibald and James should become and remain inmates of the family of John, the obligor, and that he was to support and provide" for them at his own house. After his decease, the family residence, so long as it was maintained, was obviously intended as the place of future support The plaintiff has plainly misconceived the real object and intent of this family arrangement, and has erroneously regarded this as a money bond, and that the residence of Archibald and James was a matter discretionary with them, or subject to the interference of any third person.” The opinion of Judge Hubbard was concurred in by Judges Gridley and Allen, and the case has been frequently cited and, so far as I can discover, never questioned.

In Pool v. Pool, 1 Hill., 580, the plaintiff, a man of advanced age, transferred a house and some other property to the defendant and another, his two sons, they covenanting to pay his debts and to support him during life'j also to keep and maintain his two younger children, one of them then eleven years old, until they should arrive at the age of twenty-one, “in a manner suitable for the said Pool to provide for them in case he should live and had not conveyed away his property.” The youngest child having remained with the defendant six years under this arrangement, left him and did not return; and it was held that the plaintiff could not recover for his board or clothing after he had thus left, the covenant, in effect, only binding the defendant and his brother to provide for him as a member of the family. Bronson, J., writing the opinion of this court, said : “ If we look at the contract in connection with the facts as they existed at the time, there can be no great difficulty in understanding what the parties meant by this family arrangement. The plaintiff, being then about sixty-eight years old, transferred his little property to his two sons, Abraham and John, on their undertaking to pay his debts and provide for him for life, and on their further agreeing to provide for the plaintiff’s two younger children, Jeremiah and Dorothy, until they should respectively attain the age of twenty-one years. The two sons were of course to have possession of the house and other property and I think it quite evident that the plaintiff was to live with them. Such also must, I think, have been the intention in relation to the two younger children. Abraham and John were to “ keep and maintain,” or as it is afterwards expressed “ keep and provide for them; " and it was to be done “in a manner suitable for the said John Pool (the father) to proyide for them in case he should live and have not conveyed away his property.” In short the intention seems to have been that Abraham and John should become the head of the family and should stand in loco parentis to the two younger children. The property which the two sons received aid not exceed $450 in value after the payment of debts and it is impossible to suppose that they were to provide for the two children in any other way than as members of their family.”

In Loomis v. Loomis, 35 Barb., 624, the facts were as follows: Hezekiah Loomis by an ante-nuptial agreement executed by him and his intended wife bound himself, his administrators and executors, to give her “ a good and sufficient maintenance during her natural life; ” and it was held that after the death of the husband his widow had a right to choose her place of residence and that her husband’s executor had no right to control her choice or to refuse to provide for her support unless she would reside at his own house and with his own family or at another house specified by him. In that case, prior to the commencement of the action, the plaintiff applied to the defendant as executor and demanded of him that he should provide and pay for her support and maintenance under and in pursuance of the ante-nuptial agreement. The defendant offered to support the plaintiff at his own house with his own family, but refused to provide or pay for her support or maintenance at any other place. She refused to live with him and so notified him and claimed the right to elect ,where she should reside; and the court looking at the ante-nuptial agreement and the surrounding circumstances held that they did not indicate that the plaintiff was to be maintained at any particular place after the death of her husband. Balcom, P. J., writing the opinion, referred to the case of McKillip v. McKillip, and in distinguishing it from the case he was then deciding laid stress upon the fact that the person to be supported was deprived of his reason and was not competent to select where or how he would be supported or kept.

Not only do the surrounding circumstances here indicate an intention that Larmouth should have his maintenance upon the farm, but the same inference follows from the language of the deed of trust. His support is made a lien upon the farm, and it must be the general rule that where a farm is conveyed to a grantee who binds himself to support the grantor, or some other person, then living upon the farm out of the income of the farm, and such support is made a lien upon the farm, the support must be furnished and taken upon the farm. Such I think would be the common understanding of such language so used, and such should be the construction thereof unless the circumstances of the case require or justify a different construction. ■

My conclusion therefore is that if the defendants offered, and were ready and willing to support Larmouth upon the farm in a proper and suitable manner, the action cannot be maintained against them. The action was not commenced or tried on behalf of the plaintiff, or decided, upon the theory that Larmouth had been refused proper support upon the farm, and there was no "proof justifying any judgment against them upon that theory.

I have not been careful to .distinguish between the two defendants and have deemed it sufficiently accurate for the purposes now in hand to spealc of them jointly or generally. Their obligations to each other, or their separate obligations to Larmouth are not, in the view I take, of any present consequence.

The judgment of the general and of the special terms should be reversed and a new trial granted, costs to abide event.

O’Brien, J. (dissenting.)

The facts found by the trial court in this case are not without evidence to sustain them. It is true that some of them are not established by the testimony of witnesses, but they could have been and were legitimately inferred from the conduct of the parties, their relations to each other, the contents of the various papers introduced and the circumstances surrounding the transaction. We must deal with the case upon the facts as they come to us from the special and general terms. The plaintiff is the committee of the person and estate of one Ebenezer Larmouth, a person of unsound mind, and as such he brings this action for the purpose of enforcing a trust and procuring an accounting from the trustee. Larmouth’s mother was for many years before her death the owner of a. farm of about forty-five acres of land in Washington county, and he was her only child and heir. On the 21st day of May, 1873, she executed a will containing these provisions:

Second. Desiring to give my son Ebenezer Larmouth a good and sufficient support for and during his natural life, I do hereby give, bequeath and devise to my executor hereinafter named, and his successors, all my property which I shall own at the time of my decease, both real and personal, of every name and nature, in trust nevertheless, to receive the rents and profits thereof and apply them to the use of my said son Ebenezer Larmouth, during his natural life. Third. And further, I bequeath and devise to my pastor, Rev. Henry Gordon, all my property, both in personal and real estate, after the death of my said son Ebenezer Larmouth. Said property being the same as above bequeathed to my executor hereinafter named.”

She died on the 3rd of March, 1876, and the will was admitted to probate on the 11th of that month. While this instrument tends to show the intentions of the testator in regard to her son, it is of very little importance in this controversy in other respects, as the mother, before it became operative by her death, had recourse to another method of executing her purpose. This small farm seems to have constituted substantially her entire property, and on the 16th of October, 1874, about a year and a half before her death, she conveyed it to Gordon by warranty deed. It is stated in this conveyance that it was made “ in consideration of one dollar and other valuable considerations, to her duly paid,” but her purpose in making it is not otherwise expressed upon the face of the instrument. On the 19th of April, 1876, shortly after the death of Larmouth’s mother, the grantor in the conveyance, Gordon, the grantee, executed under seal, acknowledged and procured to be recorded in the clerk’s office of the county the following instrument :

“ Know all men by these presents: That because of certain real estate conveyed to me by Ellis McDonal, late of"the town of Jackson, Washington county, Hew York, I, Henry Gordon, of Coila, Washington county, Hew York, do of my own free will and accord hereby consider myself, heirs, executors or administrators, holden and firmly bound to appropriate or cause to be appropriated for the comfortable support of Ebenezer Larmouth, during his life, all the rents, after deducting necessary expenses, of said, real estate, or if said real estate should be sold the proper maintenance m board and clothing should be first lien upon said real estate during the life of said Ebenezer Larmouth, the subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase money, should said real estate be sold.”

The proper construction and legal effect of this instrument upon Gordon’s title to the land conveyed to him are the principal questions involved in this appeal. It furnished, as we think, the evidence of a trust in the land for the use of Larmouth during his life, and while the title was vested in Gordon, the trustee, the beneficiary of the trust could enforce its performance in equity, 1 R. S., 729, § 60, and that is the purpose of the present action. The statute provides that “no trust shall be hereafter created, granted or declared unless by act or operation of the law, or by deed or conveyance in writing subscribed by the party creating or declaring the same.” 2 R. S., 134, § 6. But the next succeeding section, as amended by chap. 322 of the Laws of 1860, provides that § 6 shall not be construed to prevent “ any declaration of trust from being proved by any writing subscribed by the party declaring the same.” The conclusion of the courts below that there was a trust created by this instrument for the benefit of Larmouth, during his life, and that the trustee was bound during that period to appropriate the net rents or income of the land to the support of the beneficiary, was justified by the language of the paper and the provisions of the statute, as well as the authority of the adjudged cases. Wright v. Douglass, 7 N. Y., 564; Cook v. Barr, 44 id., 156; Van Cott v. Prentice, 104 id., 45; 5 N. Y. State Rep., 654.

The legal title, as already observed, was in the trustee, and he had power to convey the same, but as the declaration of trust was recorded his grantee was chargeable with notice of the trust, as the recording a¿ts embrace every instrument in writing by which the title to real estate may be affected in law or equity. 1 R. S., 762, § 88. On the 22d of January, 1877, Gordon and wife conveyed the farm to the defendant Davis. The consideration expressed in the deed is $500, and “ the covenants and conditions hereinafter contained.” It was stipulated in this conveyance that it was made subject to the conditions that Davis, the grantee, should provide and furnish Larmouth suitable clothing, food and necessary lodging, medical attendance and medicine, during his natural life, which conditions the grantee covenanted with the grantor to discharge and perform, and both parties to the conveyance mutually covenanted for themselves, their heirs, executors and administrators, that the support and maintenance of Larmouth should constitute and remain an “ indefeasible lien ” upon the land thus conveyed during his natural life. Thus the defendant Davis had actual as well as constructive notice that the land was bound by the trust to support Larmouth while he lived. It was claimed by Davis on the trial that his deed did not express the actual conditions upon which he took the conveyance. That the agreement between himself and Gordon when the deed was made was that he should support Larmouth on the premises and not elsewhere, and he asked in his answer that the deed in that respect be made to conform to the actual agreement of the parties to the same. This relief was refused by the trial court. Without examining the evidence for the purpose of ascertaining whether this claim was conclusively established as matter of fact, it is sufficient to observe that the trust upon which Gordon took the farm was not limited to the support of Larmouth on the premises, or at any other particular place, but to appropriate or cause to he appropriated, the net rents or income of the farm, or the interest on the purchase money in case of a sale, for his support generally.

The obligations of the trustee were discharged only when the net rent or income of the land or the interest on the purchase money was actually paid to the beneficiary, or for his benefit, and he could not make this obligation conditional upon the residence of Larmoutk upon the farm. He had no power to control his movements or dictate the place of his abode. The nature of the trust and the extent of the trustee’s powers were matters of which it must be assumed Davis had notice, and he could not discharge the burden and lien with which the land was charged by requiring the beneficiary of the trust to live with his tenants or in some other place that might be convenient or advantageous to him, but not agreeable or beneficial to the person in whose interests the trust was created. The trustee and his grantee could not by agreement between themselves, and without the consent of the beneficiary, fix the place of his abode, and relieve themselves and the land from the burden of his support unless he accepted it at such place, in such manner and upon such terms as they thought proper to prescribe. The defendants did not present any account of the actual receipts or income from the use of the farm, and it seems that they .left none. Under these circumstances the claim in favor of the beneficiary could not be determined in any other way. except by proof of the value of the net rents or income of the land. Much testimony bearing upon this question was given at the trial. As usual in such cases it is quite conflicting. The trial court found that the net receipts or income from the use of the farm was $175 per year. This would seem to be quite a large rental for so small a farm, but that was a question of fact for the trial court to determine upon all the proofs before it, and we are bound by the finding. The total net income at this rate per year, with interest thereon, was computed from March 3, 1876, when Larmouth’s mother died, to the date of the decision by the special term, and the whole sum, with interest, adjudged to be a lien upon the land, for the payment and satisfaction of which a sale thereof was directed, subject to the future application of the net annual income for Larmouth’s benefit during his life. In case the whole amount of the judgment was not realized from a sale of the land upon these conditions, the defendants, Gordon and Davis, were adjudged to pay the deficiency.

One of the defenses interposed by the defendants was that the action was- barred by the statute of limitations, and that point is still urged upon this appeal. The statute is not available to the defendants, as it does not begin to run in favor of a trustee against a beneficiary of the trust until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed or repudiated the trust. Lammer v. Stoddard, 103 N. Y., 672; 1 N. Y. State Rep., 225; 1 Perry on Trustees, § 863; Kane v. Bloodgood, 7 Johns. Ch., 90; Angell on Limitations, § 166.

The only right that the beneficiary had was to enforce the per-' formance of the trust in equity, and an action for that purpose could be commenced under the provisions of § 388 of the Code of Civil Procedure at any time within ten years from default on' thes part of the trustee, and that period had not expired at the time this action was commenced. That portion of the judgment which subjects the net income of the farm in the future, during the life of Larmouth, to his support follows necessarily from the nature and character of the trust impressed upon it by the owner. The charge upon the land is not necessarily measured by the sum which upon the proofs in this case was found to be the annual" value of the net income! It may be more or less, and can be determined only by an accurate account kept of the rental or receipts of the farm, less the necessary expenses incurred. When Gordon conveyed the land to Davis he took from the grantee a bond and mortgage for $400. Both of these instruments contain substantially a recital that they were given as security for the support and maintenance by Davis, his heirs, executors and administrators, of Larmouth during his life, according to the conditions and covenants contained in the deed from Gordon. The interest on this mortgage, amounting to twenty-four dollars, was paid annually by Davis to Gordon, and this seems to be all the income that came to the hands of the trustee. By his act, however, other parties were put in possession of the land, who were permitted by him to appropriate the income to their own use without any attempt on his part, so far as appears, to collect or appropriate it to the purpose contemplated by the trust, and in his answer he denies and repudiates the trust entirely. Having accepted the trust, he could not divest himself of its duties and obligations without the permission of the court Brennan v. Willson, 71 N. Y., 502.

The paper which Gordon executed and recorded was not only a sufficient declaration of the trust within the statute, and an election on his part to assume its duties and obligations, but the deposit of it in the clerk’s office was a sufficient delivery to entitle the plaintiff, as the committee of Barmouth’s person and estate, to claim the benefits of its provisions in his behalf. Davis, upon the execution of the deed by Gordon to him, took possession of the farm, rented the house and a part of the land upon an agreement with the tenant that he should support Larmouth on the premises in conformity, as is alleged, with the agreement between the parties to the deed, but which was not expressed therein. This provision for a person in his condition of mind was not such as was contemplated by the trust for his benefit. Being a person of unsound mind, he conceived himself to be the owner of the farm, and refused to live upon it with Davis, or his tenant, and wandering away was supported mainly by the charity of friends and kindred. This conduct on the part of the beneficiary did not discharge the land from the trust or the trustee from his duties and obligations.

It is now claimed by the defendants that in any event they were ■ not chargeable with the income of the farm during the year following the death of Barmouth’s mother, as he had the benefit of the farm that year. It is a sufficient answer to that point to say that there is no finding in the record upon which to base this con-, tention, nor did the defendants, or either of them, request the trial court to make any finding in regard to the use of the farm during that year. It was not suggested at the trial by any request or exception that the liability of the defendants for the use of the farm during that year stood upon any different ground than their liability for all the years following it. Under these circumstances this court has no right to resort to an examination of the evidence to discover a ground to exempt the defendants from liability for a particular year; and, even if it had, the evidence on that point is conflicting, as Larmouth swore that he had received little or no assistance from the defendants or any one else during that year, and it is conceded that the farm was occupied and worked by others who had the benefit of what it produced. I cannot assent to the construction sought to be put upon the declaration of trust that it binds the trustee and his assigns to support the beneficiary on the farm, and not elsewhere. It plainly provides that the trustee will appropriate, or cause to be appropriated for the benefit of the beneficiary the net rents of the farm during his life and in case of a sale then the interest of the purchase money. This obligation remained always the same whether Larmouth was in the poor house, in an asylum or in charge of his friends and kindred. The refusal of Larmouth to live on the farm with the tenant of Davis furnishes no excuse to the defendants for failing to appropriate the rents for his benefit nor is it any obstacle to the right to maintain this action. The trial court has found upon evidence without conflict that on April 1, 1877, Davis with his tenant Plunkett took possession of the farm, removed Larmouth’s goods and furniture from the house, but the said Davis, through his tenant Plunkett, offered said Ebenezer board and lodging in the family and at the table of said Plunkett on said farm.” To say that the failure of Larmouth to accept this offer discharged the obligations of the defendants to appropriate the rents of the farm for his support and the lien upon the land would be, in my opinion, to place a most unwarrantable construction upon the instrument creating the trust. Moreover, it must be remembered that Larmouth was then a person of unsound mind. On the 28th of February, 1877, and before this offer was made to him by Plunkett, a jury duly summoned to inquire into his condition found that “the said Ebenezer Larmouth is of unsound mind and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to manage his affairs and has been in that state for at least seven years.” On the 20th of March, 1877, this finding was confirmed by the county court. It thus appears that at the very time that Plunkett offered to board him he was prima facie incapable of binding himself by any contract or other act. To hold that the conduct of this beneficiary at the time this offer was made, or at any time within seven years before, is any embarrassment to the right to maintain this action, is to sanction a rule unnecessarily harsh and unjust to an unfortunate person who is entitled to the special protection of the court.

For these reasons I am constrained to dissent from the prevailing opinion and am in favor of affirming the judgment, with costs.

Judgment of general and special terms reversed and new trial granted, costs to abide event.

Andrews, Peckham and Gray, JJ., concur; O’Brien, J., reads for affirmance, with whom Euger, Gh. J., and Finch, J., concur.


author: Earl, J.

text:
    Susan K. Griswold v. Allen C. Sawyer et al., Adm’rs, Resp’ts, and Henry C. Griswold et al., App’lts.

      (Court of Appeals,

      Filed January 27, 1891.)

    1. Insurance (Lire)—Payment—“Legal representatives.”
    While the strict technical meaning of the words “legal representatives” is administrators and executors, they may also be held to mean heirs or next of kin when the circumstances of the case make it apparent that such a construction would effectuate the object had in view.
    2. Same.
    A paid up policy was issued to one G., payable to his legal representatives. G. had a wife and seven children, and was insolvent. Held, that in view of the general purpose of life insurance to make provision .for families, the fact that when policies are.to be paid to executors or administrators, that fact is plainly stated in the policy, and the circumstances surrounding the obtaining of this policy, it was most probable that it was the intention to make the policy payable to the family of the insured.
    (Andrews and Gray, JJ., dissent.)
    Appeal from order of the supreme court, general term, third department, reversing judgment entered on report of a referee.

      Chas. G. Davis, for app’lts; Otis A. Dennis, for resp’ts.

       Reversing 29 N. Y. State Rep., 464.

   Earl, J.

On the 25th day of July, 1879, ,the Connecticut Mutual Life Insurance Company, in consideration of the surrender of a prior policy, issued a paid-up policy to Alfred H. Griswold, insuring his life for the sum of $2,453, payable “to his legal representatives, ninety days after due notice and satisfactory evidence ” of his death. He died December 26, 1888, and the insurance company has paid the amount insured into court. The widow and children claim it as legal representatives, and the administrators of the insured claim it. The cause was referred to a referee, who decided that the sum was payable to the widow and children, and judgment was entered to that effect. From that judgment the administrators appealed to the general term, and there it was held that the sum was payable to them, and the judgment was reversed and a new trial granted, and then this appeal was brought to this court.

The sole matter for our determination is the meaning of the words legal representatives,” as used in the policy. It is undoubedtly true that the strict, technicalprima facie meaning of these words is administrators or executors, and that they must always have that meaning unless it can be seen that they were used in a different sense. That these words have sometimes been used in statutes and decisions in a different sense, cannot be doubted. 2 R. S., 96, § 75; Lee v. Dill, 39 Barb., 516, 521; Drake v. Pell, 3 Edw. Ch., 266; Greenwood v. Holbrook, 111 N. Y., 465; 19 N. Y. State Rep., 367; Matter of Hall, 2 Dem., 112; Coster v. Butler, 63 How. Pr., 311; 2 Redfield on Wills, 78; Woerner on Administration, 906; Cox v. Curwen, 118 Mass., 198; Farnam v. Farnam, 53 Conn., 262; Davies v. Davies, 55 id., 319; Halsey v. Paterson, 37 17. J. Eq., 445; Warnecke v. Lembca, 71 Ill., 191; Loos v. Hancock Life In. Co., 41 Mo., 538. In Warnecke v. Lembca it was held that the phrase “legal representatives,” in the commonly accepted sense, means the administrators or executors, butthatthis is not the only definition; that it may mean heirs, next of kin or descendants, and sometimes assignee or grantee; that„the sense in which the term is to be understood depends somewhat upon the intention of the parties using it, and it is to be gathered, not always from the instrument itself, but as well from the surrounding circumstances. In Loos v. Hancock Life Lns. Co., the court was dealing with the word “ representatives ” used in a life policy, and it said: 41 Legal representatives, and personal representatives, in the general 'or professional sense, mean simply executors or administrators. Although this is the primary, legal meaning, they are often construed differently, if it is clear that the intention was to vest the estate in a different class of persons. That they mean executors and administrators will ordinarily be taken as true, where nothing. is shown to raise a counter presumption. But the meaning is not so inflexibly attached as to prevail in all cases where it is manifest that another disposition was intended. The intention must control, and that intention is to be gathered by a view of the context, subject matter, and the purpose to be attained.

“ The wórds have, therefore, been held to mean next of kin when the circumstances of the case made it apparent that such a construction would effectuate the object had in view. The language used by the assured would seem to indicate that it was his intention in case of his untimely decease to make some provision for the surviving members of his family, and not that the money arising from the policy should go to his executors or administrators to be administered on as ordinary assets. Policies for a term of life insurance of this description are of frequent occurrence and where it is meant that the money resulting from the policy shall descend and be used as common assets the invariable language is, 4 to pay to the said assured, his executors, administrators or assigns.’ The changing of the language and using terms of different expression clearly import that the money was intended for the benefit of his heirs or next of kin and that it was not to be administered on as assets by the executor or administrator.”

Thus as these words are not always used in the same sense, it is the province of construction in any case to ascertain the sense in which they were used and for this purpose the subject matter, the surrounding circumstances, as well as the language used, may be considered. Such is the general rule for the construction of doubtful phraseology in all written instruments.

The general purpose of life insurance is to make provision for the family or other relatives or dependents of the insured, and in the vast majority of cases it is resorted to for that pnrpose, and it is most probable here that the insured was actuated by that purpose. He left a widow and some children who at the date of the policy were dependent upon him for support. He had then recently become insolvent and had been reduced from large wealth to poverty and he was unable to pay his debts. It cannot be supposed that he effected this insurance for the purpose of devoting the comparatively small sum to the payment of his large indebtedness to his numerous creditors, leaving his family poor and dependent. It is more natural to suppose that he was then in his old age more solicitous to make some small provision for his family. While there is 'no proof for whose benefit the surrendered policy had been issued, as his creditors did not in his life time take or claim that or this policy, it is a reasonable inference that the prior policy was for the benefit of his family and that the new paid up policy was intended to take its place.

Mr. Griswold was not a lawyer, and hence cannot be supposed to have used these words in their strict, technical, legal sense, but it is more reasonable to suppose that he used them in the general sense in which they are frequently used and generally understood by laymen. If he had formed a scheme in his mind to give this sum to his creditors, or to his executors or administrators, it is reasonable to suppose that he would have used other, and what to him would seem plainer and more appropriate and direct words to express his meaning. '' It is not so important to inquire what the insurance company meant by these words, as it was wholly indifferent to it whether the sum insured was made payable to the executors, administrators or assigns of the insured, or to his family. The beneficiaries were such as the insured intended and mentioned to the company, and it is a just inference that he furnished or selected the language used to designate them. But it is quite significant, as indicating the intent of the company, that the words ordinarily found in policies where the sum insured is intended to be made payable to the executors or administrators of the insured for general administration are not found in this policy, and the changed phraseology may be taken to indicate a different understanding on the part of the company. The word “ assigns,” which is usually found in policies which are assignable by the insured, is also omitted from this policy, indicating that the parties did not understand that they were dealing with an assignable policy.

It is elementary law that where a policy is for the benefit of persons named therein, to whom the sum insured is payable, it cannot be assigned without the consent of the persons named, and all of them. The insured may destroy the policy by omitting to pay the premiums, and thus failing to keep it in life, but he cannot impair the interests of the persons named as beneficiaries by a surrender or assignment thereof. It is, therefore, begging the question to say that the insured could undoubtedly in his lifetime have assigned this policy and thus deprived his family of the benefit thereof. If we are right in the meaning we attribute to these words he could not have done so.

It may be asked, if he meant the insurance as a provision for his family, why did he not have their names inserted as beneficiaries? There was a wife and seven children, and he found the words “ legal representatives ” in the printed form of the policy, preceded by a blank, and he probably took these words as expressive of his meaning rather than have the numerous names written in the policy.

If this insurance was for the benefit of the general estate of the insured and payable after his death to his administrators for general administration by them, then the insured could have assigned it in his lifetime, and as a chose in-action it would have been liable to be taken by his creditors. Can it be supposed that this old man, with a family somewhat dependent upon him, intended to take a paid up policy which his creditors could at once seize and take away from him under their judgments ? If he had not intended to benefit his family, and had desired some present benefit for himself, he could probably have obtained from the company the present value of the policy in cash, and thus have appropriated it to his use.

So in whatever light we .consider this matter, it is most probable that it was the intention to make the sum insured payable to the family of the insured. We cannot be absolutely certain that such was the intention, but we must adopt that construction which has m its favor the balance of probabilities. .

It is said that this is not a safe construction of these words, and that insurance companies in accepting surrenders of policies and persons who take assignments of them may be deceived, and accept surrenders and assignments which are inoperative against the real beneficiaries. But the answer to this suggestion is that persons who deal with policies payable like this to “ legal representatives,” words known to be of doubtful meaning, must be sure of the intention of the parties to the policy, and if they are not, they must not deal in them, and where they do deal with them they act at their peril, as-all persons do who deal with written instruments of doubtful phraseology. It would be a poor administration of justice in this case, where no fraud has been committed, to defeat the intention of the parties for fear that in some other case some incautious person may be deceived by these words of uncertain import.

It was competent to prove the circumstances surrounding the insured at the time he took the policy as bearing upon the construction thereof. There was no dispute about them, and it was not needful that the referee should expressly find them. He could consider them in construing the policy and so can we.

It is not needful now to determine whether these words include the widow as well as the children, as the administrators have no interest in that question, and the children seem willing that she should share with them in the fund.

Our conclusion, therefore, is that the order of the general term should be reversed and the judgment entered upon the report of the referee affirmed, with costs.

All concur, Peckham, J., in result, except Andrews and Gray, JJ. dissenting.


author: Finch, J.

text:
    Oliver T. Hopper, Resp’t, v. Mary C. Hopper, Ex’rx, App’lt.

      (Court of Appeals,

      Filed January 27, 1891.)

    Executors and administrators — Ancillary — Actions by creditors; against.
    A foreign executor who takes out ancillary letters in this state becomes a domestic executor, and may he sued as such by a foreign creditor on a claim arising in this state. A recovery in such action cannot be defeated on the ground that it would be ineffective because as against him the executor would he required to transmit all collected assets to the original probate jurisdiction.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment for defendant ordered by the trial court.

      Robert T. B. Easton, for app’lt; Horace Secor, Jr., and O. A, Page, for resp’t.

       Affirming 25 2ST. T. State Rep., 132.

   Finch, J.

The last will of Inslee A. Hopper, a resident of Hew Jersey, was admitted to probate in that state, and letters testamentary issued thereon to Mary 0. Hopper. The testator had been engaged in business as a broker in connection with other parties in the city of Hew York, and the executrix, presumably because there were assets in this state, took out ancillary letters testamentary within our jurisdiction. The plaintiff was and is a resident of the state of Georgia. He had dealt with the firm in the city of Hew York of which the testator was a member, and claimed as a result of that dealing that it became indebted to him in a large amount. Coming into this state and finding the executrix here, clothed with testamentary authority under our law, and seeking to recover a debt which originated here, he brought this action against her in her representative capacity, alleging the insolvency of the surviving members of the firm, and asking judgment for the amount which he claimed to be due. He was defeated at the special term but on appeal that judgment was reversed, and from that reversal the executrix appeals- to this court.

Her counsel advocate here the doctrine which prevailed in the trial court; that the ancillary executor, by reason of the temporary purpose of his appointment and the restricted limitation of his duties, does not become a domestic executor liable to be sued here, and that the defendant who was a foreign executor by the issue of her original letters remained such notwithstanding her ancillary appointment in this state.

By the phrase “ foreign executor ” the courts never mean the mere non-residence of the individual holding the office, but the foreign origin of the representative character. That is the sole ■product of the foreign law, and depending upon it for existence cannot pass beyond the jurisdiction of its origin. The individual may come here and acquire rights or incur liabilities which our tribunals will defend or enforce, but he can have no representative rights or liabilities since we recognize in him no representative character. The foreign executor may make a contract here which our courts will compel him to perform because it is his contract, but where it is the testator’s only he cannot sue or be sued upon it, since the right or the liability is purely representative and exists only by force of the official character and so cannot pass, beyond the jurisdiction which gave it Johnson v. Wallis, 112 N. Y., 230; 20 N. Y. State Rep., 567.

And thus it is not the residence of the executor out of the state which makes him a foreign executor, but the creation of his. official character under and by force of a law foreign to our own. He may, nevertheless, become an executor and clothe himself with a representative character under our law and by force of an authority conferred within our jurisdiction. The provisions of the Code of Civil Procedure indicate when and in what manner. By the terms of § 2695 the surrogate having jurisdiction may, upon production of an exemplified copy of the foreign will and the foreign letters and probate, issue to the executor ancillary letters testamentary. He thereby necessarily acquires an official and representative character under our law and becomes an executor here. In Cummings v. Banks, 2 Barb., 602, he is correctly described as “ an officer of our state acting under our laws.” As a consequence he gains a standing in our courts which, in the character of foreign executor merely, was denied to him. Having thus become the lawful representative of the testator in our jurisdiction, he may sue in our tribunals as such representative. It seems to follow that in that character he may also be sued. The courts are thrown open to him when he sues as an executor here representing the estate by our authority. He has become a, domestic executor. Is he any the less so when some creditor of the estate sues him ? Before the Code and before the Revised Statutes the foreign executor who came into our jurisdiction and intermeddled with assets here could be sued as executor de son tort. The law regarded him not as foreign executor but as. executor here, having made himself such by his own wrongful conduct. Campbell v. Tousey, 7 Cow., 65. How that such remedy is abolished, and a way opened for a rightful possession of assets founded on an official character granted by our law to-the ancillary executor, the right to sue him in that representative character would seem to be still more certain and plain. I do not understand that to be denied where the plaintiff is a citizen of our own state, but only where he is a non-resident What has been said allows of no such discrimination.

The ground of the citizen’s action is that the defendant is not a foreign executor whom he cannot sue, but an executor here whom he can sue. How is the defendant any the less an executor here because the creditor is a non-resident? Let us suppose that the transaction in Hew York, upon which this suit was brought, had been with the testator alone instead of with a firm of which he was a member, that the citizen of Georgia came here to settle up the account, and that the ancillary executor, claiming he was-a debtor in the dealing, had sued him in our courts. Hobody doubts or disputes the right to do so. But can it then be true that the balance being the other way, the non-resident cannot sue the ancillary executor to establish his claim? A non-resident may sue a domestic executor in this state beyond any question. Does it alter the rule that the domestic executor has become such by receiving ancillary instead of original letters ? The Code provides (§ 2702) that all the provisions of its eighteenth chapter, relating generally to surrogate’s courts and proceedings therein, and to the rights, powers, duties and liabilities of an executor or administrator shall, with some minor exceptions, apply to a person to whom ancillary letters are granted, and thus puts him upon a level, so far as his official character is concerned, with the ordinary executors appointed by our courts.

Two things are said, however, as peculiar to the case of a nonresident plaintiff. One is that he must show some statutory authority for the right to sue, and without it can have none. I do not think the right was ever denied where the cause of action accrued within our boundaries. Indeed, it has been said that one non-resident may sue another in our courts for a tort committed abroad, so far as the question of actual jurisdiction is concerned, and that we simply decline the jurisdiction from motives of policy and convenience; not that we do not have it. Gardner v. Thomas, 14 Johns., 134. The provisions of the Code do not originate but simply restrain the original jurisdiction. Thus it is provided by § 1780 that an action may be maintained against a foreign corporation by another foreign corporation, or by a non-resident, “ in one of the following cases only.” The word “ only ” is inserted as a word of restriction, and implies a general jurisdiction purposely narrowed and restrained. Robinson v. Oceanic Nav. Co., 112 N. Y., 315; 20 N. Y. State Rep., 741. One of the cases is where the action is for breach of a contract made within the state. And in the case last cited it was declared that permitting the suit irrespective of residence where the cause of action arose here, is a rule of comity, of natural justice and of convenience. Why, when there "is an executor here where the transaction arose and the witnesses are at hand, should we send the non-resident to Hew Jersey to sue the same person in the same representative character there ?

The answer made to that inquiry is the second position taken by the appellant and grows out of the restricted duty enjoined upon ancillary executor. He must remit all collected assets to the original probate jurisdiction unless there are creditors who are citizens of our own state, in which event a distribution may be ordered here. Code, §§ 2700, 2701. And it has been doubted whether a creditor not a citizen of this state can prevent such transmission or obtain any relief against the assets here. Moyer v. Weil, 1 Demarest, 71. While I feel the force of that doubt, I am unwilling to yield to it as in all cases conclusive. But assuming that to be the truth, the argument is that a judgment against the ancillary executrix would have no possible force or effect and ■our courts do not sit to decide a mere abstract question or perform an idle ceremony. If the judgment is utterly ineffective, at least the defendant may view its recovery with equanimity! But it is not ineffective, as the general term points out. While we are not required for present purposes to decide upon its legitimate force and effect and that question should be left until it arises, it is enough to say that the judgment may avail the plaintiff in two directions even if it were certain that be could not reach assets here. If he should be driven to the forum of original probate jurisdiction the case of Hill v. Tucker, 13 Howard, U. S., 458, indicates that the judgment would be at least prima facie evidence of the indebtedness and while not conclusive would at least bar the statute of limitations which otherwise might apply. In that case the testator, a resident of Virginia, died in that state, leaving a will by which he appointed two residents of Virginia and two of Louisiana executors. The will was proved in both states, the Virginia executors taking out letters there and one of the Louisiana executors qualifying in that jurisdiction.

In a suit against the latter by a creditor who had obtained judgment in Virginia against the executors there, the federal court held the judgment admissible and an answer to the statute of limitations. Much more would it seem to be true where the executors in the two jurisdictions were not different persons, but the same individual, who himself in his representative character had appeared and defended in the one jurisdiction, that in the other the judgment would at least prima facie establish the claim and answer the plea of the statute of limitations. And so, while we do not feel bound to determine, at present, the precise force and effect of the judgment, we are-satisfied that its recovery ought not to be defeated on the ground that it is ineffective for any purpose.

The judgment of the general term should be affirmed and judgment absolute on her stipulation be awarded against the defendant, with costs.

All concur.


author: Gray, J.

text:
    In the Matter of the Estate of Benjamin W. Sherwell, Deceased.

      (Court of Appeals,

      Filed January 27, 1891.)

    Collateral inheritance tax—Exemption—Laws 1887, chap. 713.
    Inheritance or testamentary gifts exceeding $500 are not exempt from taxation, under chap. 713, Laws 1887, to the extent of $500. If the inheritance or gift amounts to $500 or more, the act operates to create a liability in favor of the state to the extent mentioned; but if it is less, the act is wholly inoperative.
    Appeal from order of the supreme court, general term, second department, reversing order of surrogate which declared that certain legacies, amounting in the aggregate to $4,896.25, were exempt to the extent of $1,500.

      Chas. H. Otis, for app’It; P. E. Callahan, for resp’t

       Affirming 84 N. Y. State Rep., 315.

   Gray, J.

The question we are asked to review is, what construction shall be given to so much of § 1 of chapter 713 of the Laws of 1887, as reads: “All property which shall pass by will * * * from any person who may die seized or possessed of the same, * * * to any person or persons, * * * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, and at and after the same rate for any less amount, * * * for the use of the state, * * * provided that an estate which may he valued, at a less sum than Jive hundred dollars shall not he subject to such duty or tax.”

The surrogate held that it was the intention of the legislature that all taxable estates should be exempt from taxation to the extent of $500, and he, therefore, allowed a deduction from each of the legacies in question of that amount; leaving the balance for assessment for purposes of taxation under the act. The general term reversed this decision, holding, that the legislative intent was to limit the estates upon which the tax should be imposed.

"We think their decision was clearly right.

The legislature is not controlled as to the extent of taxation of property within the state, and in imposing a special tax upon all persons within a certain class there is no violation of fundamental principles. The tax is one which applies to all cases which are described in the act. Whether the object of the taxation be regarded as the property which passes, or the person who takes, is a wholly immaterial question. The legislature is not restricted in the selection of its subjects for the raising of revenue for state uses. In such respects it is sovereign, and is without other control than the restrictions found in the fundamental law of the state. What it has done in this act of legislation is to impose a •certain tax in every case where there is a succession to or devolution of property of the value.of $500 and upwards. As the tax is made to apply to every estate which is bequeathed or devised to, or inherited by, the persons specified in the act, it is equal, and therefore free from objection on legal grounds. It is not correct to say that this act is one which grants exemption from taxation in certain cases. It defines the cases in which the taxing power is applied as new objects for taxation. If the inheritance or the testamentary gift amounts to $500 or more, then the act operates to create a liability in favor of the state to the extent mentioned; but if it is less, the act is wholly inoperative.

The order of the general term should be affirmed, with costs.

All concur.