author: Finch, J.

text:
    Augusta G. Genet, App’lt., v. The President, Etc., of the Delaware & Hudson Canal Co., Resp't.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Mnmra lease—Constbuctioit of.
    By a “memorandum of agreement” the lessors “leased” “all the coal contained in, on or under” the parcel of land specifically described. Bat by other provisions this was limited to the “ merchantable” coal, equal in quality to the average yield of the adjacent mine ; such as would pass a screen with half inch meshes ; could be safely and economically mined ; so much as could be mined and cleaned without greater expense than in the adjoining mines, &c., &c. 'HeId, that this was not a deed of land but an executory contract, the interpretation of which is open to clear and reasonable implications.

      3. Same—Implied guabanty against negligence.
    The lessee company agreed to pay a royalty per ton upon the coal mined, a minimum amount of tons to be taken out each year. Instead of mining the upper veins first, they drove their shaft down through three veins and the complaint in this action charged that the lower vein was mined and supported with such negligence that the entire mass of superincumbent rock and earth crashed down into the chamber and thus prevented access to the mines, whereby the whole body of coal became lost to the plaintiff. Up to such ‘‘squeeze” in 1886 lessee had taken out 48,000 tons; since it, nothing, and defendant claims that the conti act is unbroken so long as it pays the minimum royalty. Held, that while there was no express stipulation by the lease that it would not wilfully or negligently incapacitate itself from taking out more than the minimum quantity of coal per year, one was to be implied from the terms of the contract, and the complaint stated a good cause of action.
    Appeal from judgment of the supreme court, general term, first department, reversing order overruling demurrer to complaint.

      Geo. G. Genet, for app’lt;

      Frank F. /Smith, for resp’t.

       Reversing 29 St. Rep., 954.

   Finch, J.

The questions in this case, which are both difficult and important, arise upon a demurrer which denies that the complaint of the plaintiff contains any cause of action. That complaint sets out literally the contract between the parties, which is in writing, and in the form of a lease. They differ widely as to its construction, the lessors describing it as an agreement merely, which, although relating to an interest in land, does not convey the land in fee, while the lessee construes it as a deed of the coal veins or strata underlying the surface, and as a severed parcel of the land itself. It is important to settle that question at the outset, for we shall find in the end that the application of very material rules of construction depends upon the legal character and effect of the paper which the parties executed.

That paper denominates itself a “memorandum of agreement,” and not an indenture or deed, and yet takes the form of a lease. It certifies that the parties of the first part have “ leased ” to the party of the second part “all the coal contained in, on or under” the parcel of land specifically described. This general provision, however, is narrowed, restricted and limited by other provisions of the lease which modify its effect and operation. It is stipulated “ that if the coal in any of the veins shall not prove to be of a merchantable quality, or if it become impractical to mine the same in consequence of extraordinary expenses in mining or cleaning said coal, or if the veins should prove to be of such quality or thickness that the coal cannot be mined and prepared for market without greater expense than is bestowed upon coal taken from the same veins in the mines of the party of the second part for the time then being, then the liability of the party of the second part to mine, take and pay for said coal shall cease. _ And it is further understood and agreed, that in case the quantity of coal mined and taken out in any one year shall fall below the quantity agreed to be taken out in such year, in consequence of the unmerchantable quality of the coal in any of the veins, or in consequence of increased expense and difficulty in mining and cleaning the said coal, as hereinbefore recited, or in case the said land shall become so far exhausted as to render it impracticable or unprofitable to mine the stipulated quantity in any one year, then, in either case, the party of the second part are to pay for only the quantity of the coal that can be safely and economically taken out.” Then follows a further limitation, that the lessee shall only pay royalty “for the coal mined and taken out” upon every ton “ of clear merchantable coal, exclusive of culm or mine waste, that will pass through a mesh of one-half inch square.” There is also a precise description of what is meant by the phrase “ merchantable coal,”, and what should be deemed such is, after inspection, to be left to' the final decision of the defendant’s superintendent, or some other selected inspector. Reading the contract as a whole, I think we are bound to say that there was no sale of the bulk or body of the coal in place, and as a severed portion of the land, and that there was no such intention, purpose or agreement on either side. It is quite true that in an action between the same parties the second division of this court has expressed the opinion, very briefly, and I think incidentally, that this contract operated as a deed to convey the fee of the coal to the defendant corporation. 122 N. Y., 527; 34 St. Rep., 246. If the decision to that effect had been material to a disposition of the case, necessary to its determination, and within the issues presented, I should hold it conclusive as settling the law between these parties, however I might regard it in the future as a precedent. But the question was not in the case, or at all necessary to its decision. That action was brought by the plaintiff to recover damages against the defendant for not mining the coal with reasonable diligence, and for a misuse of the mine in connection with other properties. The first cause of action failed because there was no proof except that offered by paroi of the assumption by defendant of any such obligation, and the second, because whatever was done was held to be within the explicit terms of the contract itself. Thus the right to use the shafts and machinery on plaintiff’s land in aid of mining operations on adjoining lands was held to be expressly given as a present right by the terms of the instrument; the right to pile culm and waste upon the surface was found in its express permission; and the right of drainage through the gangways opened to other shafts to the lower point of the Marvin shaft, to be thence pumped out to the river, was deduced from the terms and conditions of the contract. It was not vital or essential to any of these conclusions that the contract did or did not convey the coal in fee. That opinion, therefore, does not bind us; but respect for it requires a careful examination of the question.

The authorities cited were all cases determined in the supreme court of Pennsylvania. The decisions of that court are entitled to great weight in the present inquiry, not only because of its character and ability, but also because coal mining in that state is an enormous industry, over which its courts naturally watch with anxious care, and to the law controlling which they are required to give constant study. They have held, until the rule must be deemed firmly established in those tribunals, that a transfer of all the coal in, on or under a given described surface, even though taking the form of a lease and terminable in a fixed number of years, is a sale of the coal and a grant of it in fee as a severed parcel of the land. The doctrine is, perhaps, most fully developed in Sanderson v. Scranton, 105 Pa. St. 472. It was there said that a mineral lease was often in fact a sale; that it differs from an ordinary lease, in that the latter gives only the temporary use and for a fixed period, which is the term, and so implies and leaves in the lessor a reversion, while the former conveys the entire interest in the coal and leaves no reversion ; that in such a case there is a severance of the surface from the underlying strata, which creates a divided ownership in the land, the coal belonging in fee to one and the surface to another. The court said frankly that the case was not free from doubt, because the agreement was in form a lease for a fixed period, with a rent reserved and power of distress. Whatever we may think of the general doctrine, one thing about it is quite obvious. It applies to a case, and only to a case, in which, by the terms of the agreement and in contemplation of the parties, the whole body of the coal considered as of cubical dimensions and capable of descriptive separation from the earth above and around it, Massot v. Moses, 8 Mining Rep.,607, and as it lies in its place, is absolutely and presently conveyed. The thing sold must be such that it can be identified as land and severed as land from the estate of which it forms a part. Every case upholding- the doctrine, which I have been able to examine, has that marked characteristic. Caldwell v. Fulton, 31 Pa. St., 475; Caldwell v. Copeland, 37 id., 427; Armstrong v. Caldwell, 53 id., 284; Scranton v. Phillips, 13 Norris, 15; Sanderson v. Scranton, 105 Pa. St., 472, and 109 id., 588; Fairchild v. Fairchild, 7 Cent. Rep., 873; Montooth v. Gamble, 123 Pa. St., 240; Kingsley v. Coal & Iron Co., 144 id., 613; Lazarus' Estate, 145 id., 1.

1. That feature seems to me to be not merely accidental or incidental, but a vital and essential element of the doctrine as it is asserted and applied. But that feature does not eyist in the present case. The broad words of the primary grant are, indeed, sufficient, within the cases cited, to carry title to the coal as land, but they are cut down, narrowed and restrained by the specific provisions which follow. It is not the mine as such; it is not the veins or strata as such ; it is not the coal in place ; it is not even the whole of the coal which one party contracts to sell and the other party to buy, but only some unknown and indeterminate fraction or portion of the coal which no human power can locate or identify as land. It is mineral product, not land, which is the subject of the dealing. It is to be, first, such portion of the coal as shall prove to be “ merchantable,” and which equals in quality the average yield of the adjacent mines, the quality to be conclusively settled, by the defendant’s- superintendent or other inspectors after it is mined; it is, second, to be such and so much as does not pass a screen with half inch meshes ; it is to be, third, only so much as can be safely and economically mined; it is to be, fourth, so much merely as can be mined and cleaned without greater expense than the mining on adjoining properties requires; and it is to be, fifth, no more than it will be profitable to mine when the veins approach exhaustion. Further than that, if a “ fault ” .is disclosed in the mine, which occurs when by some convulsion of nature the vein has been broken off, and its continuity lifted or depressed so that earth and rock end the drift, and must be cut through and removed to recover the vein, it is provided that the lessee need not remove it if the cost of the process shall exceed $500, in which event the coal beyond the fault would not pass at all. The very terms of this description show that nothing was further from the purpose of the parties than a grant of coal as land, and that the defendant could not lay its hand upon any specified cubical mass of coal and say this is mine as land according to the description in the deed, for it could not know, and nobody could know, until a future determination, what part or portion of the vein would really pass.

It will not meet the difficulty to say that these restrictive clauses bear only upon the amounts to be paid and the method of ascertaining those amounts. Nothing indicates that the defendant was to have any coal that it did not pay for, and so, by its conclusive inspection, could confiscate as below grade half the product of the mine; and the very terms used show that they describe not only what the company should pay for but also what it should “take.” Thus, three possibilities are specified; that some of the coal may not be merchantable; or may be such as to require extraordinary expenses to mine or clean; or demand a greater expenditure than the average of the adjacent mines; in either or all of which events the contract provides that “ the liability of the said party of the second part to mine, take and pay for said coal shall cease.” In other words, the contract does not cover or operate upon any such coal and the company is not liable to take it.

This clause suggests another difficulty in the way of treating the contract as a deed of land. It shows that the title to the coal was to pass in the future and conditionally upon the existence of facts later to be ascertained. Of course it was absurd to provide that the company should not be liable to take a part of the coal when by force of the deed it took the whole at once and in presentí and absolutely in fee. All the terms of the instrument are inconsistent vyith an immediate passing of the title. What was to pass and what price should become payable were both adjourned to be settled by the developments of the future. The ■contract was executory on both sides. What and how much coal was to pass from the lessors and to the lessee was made dependent upon the revelations of the actual mining process, and what and how much was to be paid depended also upon future conditions. The thing to be sold and the price to be paid were each alike dependent upon subsequent events, and the contract was, therefore, executory, and must be treated, not as a deed, into which no unexpressed covenants can be implied, but as an executory contract, the interpretation of which is open to clear and reasonable implications.

Having thus determined the nature of the contract, we are required to consider whether the allegations of the complaint show an actionable breach of its terms. The lessee company agreed to pay as royalty twelve and one-half cents per ton upon all the coal of the prescribed quality which should be taken out of the mine; and further covenanted for a minimum rent which alone should be obligatory, by agreeing to take out ten thousand tons for the first and second year, and not less than twenty thousand tons in each year thereafter, and leaving itself free to mine more than that or notas its business interests and convenience should require. That provision was in the form of a minimum royalty, and is not exactly synonymous with a dead or sleeping rent, which is not a royalty at all, but a fixed sum of money payable as rent, and prima fade payable even after the mine is exhausted, R. v. Bedworth, 8 East, 387, and even though the mine supposed to exist develops no mineral at all. Jefferys v. Fairs, L. R., 4 Ch. Div., 448. But since in the case at bar the minimum royalty was payable whether the mine was worked or not, the difference referred to is not important or practical for any present purpose. The minimum royalty has never been withheld, and the theory of the defendant is that its payment is the only contract obligation due to the plaintiff. What has happened according to the complaint is this: There were three veins of coal underlying the surface; the Diamond vein, about eight feet thick and about one hundred feet below the surface; the Fourteen-foot vein, lying one hundred and fifty feet deeper, and from ten to twenty feet thick; and the Clark vein, about eight feet thick, and lying at a depth of four hundred and fifty feet below the surface. The lessee pierced all three veins with the Marvin shaft, which it sunk near one end of the property leased. It struck the Fourteen-foot vein at its lowest point of depression, and where its thickness was greatest It inclined upwards on each side of the shaft, so that the removal of coal at that point involved an obvious tendency to a lateral as well as direct thrust upon the opening. The principal work of the lessee was done at this point and in this vein. The upper or Diamond vein should have been mined out first, but only 'a moderate quantity was taken out of that, and the Fourteen-foot vein was mined out under about seventy-five acres of the property leased.

" The complaint charges that this work was done with gross negligence and want of care; that the supporting pillars were robbed to the point of weakness, and insufficient masts or columns of wood supplied to support the roof, and as a consequence what is known as a “ squeeze ” occurred ; the whole mass of superincumbent rock and earth and coal crashed down into the chamber, ruined the shaft, broke up and distorted the veins, mixed thepoal in with the other material, utterly prevented access to the mines, whereby, as the complaint avers, the whole body of coal has become lost to the plaintiff. How true this is appears from other allegations. Before this destruction of the mine the defendant company had taken out since the completion of the Marvin shaft about seventy thousand tons of coal per year; in 1883 had taken out almost ninety thousand tons, and during the year 1886, up to September, when the “ squeeze ” occurred, had already taken out over forty-three thousand tons; since then, nothing, not even a pound. And now the defendant claims that the contract is unbroken so long as it pays the minimum royalty. It is abundantly disclosed that the plaintiff is not getting, can never get, what she would have received, what she’ expected to receive, what was the chief inducement to the contract,, what the lessee expected to pay, and what in the ordinary course of business it would have paid, solely because of the negligent destruction of the mine. The loss has come from a cause which both parties assumed would not occur, and against which, for that reason, the lessor took no express covenant, and it is because the lessee -did not expressly covenant that it would not willfully or negligently incapacitate itself from taking out more than the minimum quantity of coal per year that it grounds its contention.

There is no such express stipulation, but I think one is to be implied, and fairly and justly may be found interwoven with the terms expressed and growing out of their scope and meaning. In McIntyre v. Belcher, 14 C. B. (N. S.), 654, the plaintiff sold out his business as a surgeon, getting in return a cash payment for his drugs and instruments of about £17, but taking an agreement that the purchaser would account for and pay over to the plaintiff the one-fourth part of the receipts of the business for four years, if he should live so long, provided that their annual aggregate should reach £300. The defendant during the third year chose to abandon the business and the plaintiff sued. There was no express agreement that the purchaser would continue the business, or that if he did that its annual proceeds would reach £300.

The court held that a covenant was implied that the defendant would not willfully incapacitate himself from carrying on the business. Of course, that plaintiff took the risk, beyond the payment in cash, of the defendant’s business capacity, of his tact and skill, of his industry and ability to gather in more than the annual £300, but the risk he did not take was of the willful or negligent abandonment by the defendant of any effort to do business at all, so that the earning of profits was rendered utterly impossible. And so here the lessor, beyond her minimum royalty, took the risk of the defendant’s business capacity and necessities of its judgment of markets, of its ability to sell and find customers for the product, of the demands of its own interest and welfare; but the risk she did not take was that the lessee should make royalties beyond the minimum absolutely impossible by a total destruction of the mine, out of which the royalties were to come, and that through the agency of its own willful or negligent act. The plaintiff took a chance undoubtedly; but she was entitled to have it, and to have it as she took it; bad enough at the best, but such as it was, her’s, and which the defendant was not at liberty, willfully or negligently, to destroy.

I known very well that implied promises are to be cautiously, and hastily raised. What they are was very well stated in Scranton v. Booth, 29 Barb., 174; in Allamon v. Mayor of Albany, 43 id., 36, and in Booth v. Cleveland Rolling Mills Co., 6 Hun, 597. They always exist where equity and justice require the party to do, or to refrain from doing the thing in question, where the covenant on one side involves some corresponding obligation on the other; where by the relations of the parties and the subject-matter of the contract a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of it. In this court we have thrown some safeguards about the doctrine, to secure its prudent application, and have said that a promise can be implied only where we may rightfully assume that it would have been made if attention had been drawn to it, Dermott v. The State, 99 N. Y., 101, and that it is to be raised only to enforce a manifest equity, or to reach a result which the unequivocal acts of the parties indicate that they intended to effect. King v. Leighton, 100 N. Y., 386.

It seems to me that within the rule of these cases the plaintiff has a right of action upon the implied promise of the defendant not willfully or negligently to incapacitate itself from taking out more than the minimum quantity of coal. The acceptance of a minimum royalty for the safety and benefit of the lessee equally with that of the lessor, when a larger one was contemplated on both sides, involves an obligation of the lessee not willfully or negligently to prevent the expected accruing of the greater royalty. For, examine the situation at the making of the contract. The plaintiff owned a tract of coal land, the vein under which held about four millions of tons, which at twenty thousand tons a year it would take two hundred years to exhaust, and worth at the small price of this contract, above the mining and marketing and the operator’s profits, half a million of dollars. She desired to utilize so valuable a property. Unable or unwilling to plant a colliery upon the land, she turns to the defendant. That is a rich' and powerful corporation engaged both in mining and transportation. It had mines adjacent, adequate and sufficient plants, large capital, numerous customers, complete control of transportation. The parties sat down to agree. The rate per ton as royalty and the quality and inspection of the coal were settled. Then came the vital inquiry of how much the company would bind itself to mine. It said twenty thousand tons per year. Of course it proposed and expected to mine much more than that, and its own business interest would impel it to mine more, but it would not be bound for more than twenty thousand tons. Imagine Mrs. Grenet reflecting on the proposition. As an offer to mine twenty thous- and tons per year and no more, she would instantly have refused it. A contract to run for two hundred years was not to be endured, but as an offer to mine at least twenty thousand tons per year, and as much more as the company, with due regard to its business interests and convenience, would take out, the offer was better and not to be curtly rejected. It would be taking a chance, yes ; but business largely consists in taking chances, more or less hopeful or perilous. Mrs. Grenet studies this chance. It involves within its possibilities thechief and principal and only tolerable consideration of her bargain.. She measures that chance narrowly. She reasons ; there is the coal, I know it; I am sure of its quality . these men will want it; to get out the twenty thousand tons they will need to sink a shaft, to put up pumps, to establish a plant; having done so much, their own interest will impel them not to-stop at the minimum ; they never will stop there, and I will take the chance. Suppose somebody had said to her, they may willfully or negligently destroy your mine, and with her attention drawn to that suggestion she had asked the company to agree that it would not do that, is there any doubt that it would have so promised, or that if it deliberately refused that Mrs. Genet would have declined a contract with such a destructive possibility within its admitted scope? But neither party thought of it; both would have deemed it an absurd suggestion. There is not the least doubt of the manner in which Mrs. Genet viewed the chance offered to her, of the measure which she took of it, of its boundaries in her mind, nor that the company which held it out to her knew how she regarded it, and understood it in the same way on its. part. The equity of an implied promise is strong and clear. Good faith, honest dealing, business candor and fairness require that this contract should be enforced in the sense and with the meaning which was in the mind of both parties at the time of its execution. The mine which was to be exhausted, and paid for as exhausted, is to-day as much exhausted as if every ton of coal had been taken out and sold. To the plaintiff there is no difference. In either event the coal is gone ; and to say that she shall be paid for it at the annual rate of twenty-five hundred dollars a year for two hundred years is to put upon her a contract which she never made and never dreamed of making, and which never entered the mind of the defendant itself until the squeeze ” in the mine suggested an equally destructive pressure of literal construction.

The view which I have taken of this case was foreshadowed in the opinion of Barrett, J., when this contract was before him. in another action. He declared that the conduct of the defendant has been entirely subversive of the spirit of the contract and of the object and purpose for which it was entered into: ” that “ the execution of the contract in good faith was fully contemplated : ” that “ defendants have acted as if a minimum rent was in the nature of an annual bonus paid to the plaintiff merely to keep the property out of the market, or to prevent it falling into the hands of a rival: ” that they certainly have no right to make-any such use of the contract, and that would be to ignore its essence and destroy its life.” The learned judge in those remarks touched the vital point of this controversy and disclosed his appreciation of the equity inhering in plaintiff’s claim.

The question here is not one of waste or of injury to real property, or even of a tort or a wrong. It is whether, under this contract, fairly and justly construed between the parties, there was an understood consideration for it, beyond the minimum royalty secured, in the business option and choice of the lessee to mine a much larger amount if, under the existing circumstances, it should think proper to do so. I think there was. I can readily see that it served as the determining motive on the part of the plaintiff to the making of the contract. Corporations follow their interests, as they should. What the defendant’s interest would be Mrs. Genet knew ,; and when she took the risk of what it would do, of its reserved option, she was entitled to have it, and not bound to submit to its utter destruction. To-day, if by a miracle the mine could be restored, she would still be obliged to submit to the option, and we should tell her that she must do so; but the profit in the coal, with all the machinery at hand, the plant existing, the miners near by, the trains waiting for their loads, would make almost certain its exercise, so as to produce the expected royalties far beyond the minimum. The chance of that option, exercised as both parties understood it should be, fairly and honestly and in good faith, was of great value to Mrs. Genet, but the lessee has destroyed it utterly by its own negligent act. In so doing, we think it broke the contract, and, therefore, that the complaint stated a good cause of action.

The order and judgment of the general term should be reversed, and that of the special term, overruling the demurrer, affirmed, with costs, but with leave to the defendant to answer within twenty days from notice of the entry of judgment, and upon payment of all costs which have accrued since the interposition of the demurrer.

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


source: Caselaw Access Project

author: Fihch, J.

license: Public Domain

text:
    The People, Respt’s, v. James Hughes, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Extortion.
    Extortion is a felony, as it is a crime punishable by an imprisonment of one year or more.
    2. Same—Jury—Peremptory challenge.
    The counsel for the prisoner conceded that a juror might be challenged peremptorily after he had been sworn, in the discretion of the court, but objected to the court giving permission upon the bare statement of the prosecuting attorney that matters had come to his knowledge since the juror was sworn leading him to believe that the juror was not satisfactory. Held, that, assuming the truth of the concession that the court had such discretion, it was no abuse thereof to give permission upon the assurance of the prosecuting officer.
    3. Same—“Boycott.”
    One may refuse to deal with a firm because of a conviction that it does not give honest compensation for labor, and ask his friends or the public to do the same thing, and the conduct may produce injury to the business criticized, without thereby becoming illegal; but where one influences his friends and the public to withdraw custom from a firm without just or excusable reason, and by fraudulently concealing the fact that it does not, and pretending that it does, exist, and using official power and influence to force and compel unwilling dealers to desist from their purchases, and that for the sole purpose of extorting money, the resultant injury will be unlawful. The question as to which of these was the character of the prisoner’s action is one of fact for the jury.
    4. Trial—Charge—“ Reasonable doubt.”
    The court charged, substantially, that reasonable doubt could not be said to exist where the jury are so firmly convinced of the facts necessary to establish the prisoner’s guilt that if it was a very grave and serious matter affecting their own affairs they would not hesitate to act upon such conviction. Held, no error.

      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of conviction at oyer and terminer, entered upon verdict.

      John Van Voorhis, for app’lt;

      William F. Cogswell, for resp’ts.

         Affirming 46 St. Rep., 413.

   Fihch, J.

The prisoner was convicted of extortion. The verdict of the jury establishes that, availing himself of his position as the head of a labor organization, with branches in almost all sections °of the country, he first threatened and then put into operation a scheme for lessening and damaging, and to some extent destroying the business of a firm of clothing manufacturers because they did not at once obey his commands in respect to the number of apprentices they should employ; and, when they submitted to his dictation and apologized for seeking to do their own business in their own way instead of his, extorted money from the firm as the price of forgiveness. Setting in motion the enormous power which the organization, evidently misjudging the man, had suffered to fall into his hands, he extorted from the firm something over a thousand dollars as the price of ending the mischief. He called this process “soaking” the manufacturers. The jury pronounced it extortion and he was convicted of that crime and now appeals from the judgment. Before us, several alleged errors in the trial are asserted as grounds of reversal, some quite technical, but others material to the result and deserving serious consideration.

1. It is objected that the record does not show that any judgment of conviction was entered in the oyer and terminer. The point is suicidal. If correctly taken we ought to dismiss the prisoner’s appeal. His counsel put themselves in the attitude of going to the general term and then coming here on appeal to reverse a judgment which they at the same time assert never had a legal existence. The minutes of the oyer and terminer show the verdict and the rendition of a judgment upon it. We may very well assume the fact of its formal entry from the statement contained in the affidavit of the district attorney on the motion to remit the record to the court below and from the recitals in the notices of appeal served by the prisoner’s counsel, which describe a judgment of conviction in the oyer and terminer. The appellant can hardly complain if we do not turn him out of court on his own objection that his appeal is premature.

2. It is asserted that the judgment of the general term was never remitted to the oyer and terminer after affirmance. The record shows that it was. Hpon the formal motion of the district attorney, founded upon an affidavit which recited the prior proceedings, the general term ordered that the judgment of conviction appealed from should be affirmed, “ and all proceedings herein be, and the same hereby are, remitted to the court of oyer and terminer.” The order operated to restore the authority of the latter court, which thereafter directed the sentence to be carried out.

3. The third objection is, that the verdict convicts the defendant of the felony charged in the indictment, and that no felony was charged in the indictment because extortion is not a felony. That is a mistake. Whatever may have been the rule at common law, extortion is a felony under the definition of the Penal Code. That definition describes it as a crime “ punishable ” by death or imprisonment in the state prison. By § 702, where the penalty is imprisonment for less than one year, the prisoner goes to the county jail'. By § 703, when the term is one year, he may be confined in the county jail, penitentiary or state prison. By § 704, where the term exceeds one year, he must go to the state prison. Now, by § 554, the crime of extortion is punishable by imprisonment for a term not exceeding five years. Obviously the offense is “punishable that is, may be punished by an imprisonment of one year or more, which may be, or must be, in the state prison. It is not the actual sentence, but the possible one, which determines the grade of the offense. People v. Borges, 6 Abb. Pr., 132.

4. The next objection is much more serious, and relates to the ultimate constitution of the jury. William Rosenbauer, summoned as a juryman, was challenged for actual and implied bias and examined by both parties. Nothing appeared to justify his rejection, and the challenge was overruled, the juror sworn and took his seat in the jury-box, being the eleventh juror selected. Pour others were then examined and rejected, and the challenge of the fifth was overruled by the court, whereupon the defendant challenged him peremptorily, and in so doing exhausted the last of his five peremptory challenges. .At this stage of the proceedings counsel for the People stated that he desired to interpose a peremptory challenge to one of the jurors who had been sworn and passed into the box, stating as a reason that matters had come to his knowledge since the juror was sworn leading him to believe that the juror is not satisfactory. Counsel for the defendant objected upon the ground that after a juror had been sworn he cannot be challenged peremptorily except by permission of the court and in the discretion of the court, and that that discretion ought not to be exercised, and cannot be exercised unless some case is made other than the oral statement of counsel: it cannot be exercised upon the bare statement that counsel has learned something without stating what he has learned. Counsel also objected that the request was not made until after the defendant had exhausted his peremptory challenges. The court granted the request of the prosecuting attorney, who thereupon challenged Rosenbauer peremptorily, and the juror left the box. The defendant’s counsel excepted to the ruling. The record makes it very plain what the objection and what the ruling were, and so what the exception relied on is. The counsel for the prisoner did not object that the juror could not be challenged peremptorily after having been sworn, but conceded the exact contrary, and admitted that he might be so challenged in the discretion of the court, and, admitting and conceding that, aimed his objection at the manner of exercising that discretion, and his sole and distinct point was that the conceded discretion could not be exercised upon the bare statement of the prosecuting attorney and after the defendant had exhausted his peremptory challenges. It was upon that objection that the- court ruled, and upon that only, and the ruling was that the discretion of the court being conceded, it was a proper exercise of that discretion to act upon the assurance of the public officer, empowered by the law, to represent the People in the prosecution of criminals. There was no error in the ruling. Assuming the truth of the concession, that the court had discretion to permit a peremptory challenge of a juror after he had been sworn, it was no abuse of that discretion to give the permission upon the assurance of the prosecuting officer. Just that appears to have been done in Tweed's case, before the Code of Criminal Procedure came into operation, 13 Abb. Pr., N. S., 371, note, and it is not very wonderful that the prisoner’s counsel should have thought the rule unchanged and so conceded its existence. They made a mistake. They had a good objection, but did not know it, and with the later information acquired are seeking so to transform their actual objection as to throw the mistake which they made upon the court, which did not make it. The basis of the effort is that their objection was founded upon and covered by § 371 of the Code of Criminal Procedure. That section reads: “ A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any rime before evidence is given in the action.” What constitutes the “good cause” referred to is dictated by succeeding sections. Sections 375, 376, 377. The obvious meaning of § 371 is that a challenge for “ good cause,” which is required to be taken before the juror is sworn, may, nevertheless, be taken thereafter, and before evidence is given, in the discretion of the court. If it does not mean that it must necessarily mean that the court may, for any good reason, even though undisclosed, set aside the sworn j uror in its discretion. I do not think that is its meaning or purpose. If it is, there was no sound objection possible for the prisoner’s counsel to take. I prefer the other construction, which they evidently adopt. How it is quite certain that neither party had any reference to a challenge “ for good cause ” under § 371. The prosecutor did not ask that. The specific request was to interpose a peremptory challenge. That is defined in § 372 as “ an objection to a juror for which no reason need be given, but upon which the court must exclude him.” There is no question of good •cause about that, and cannot be. It was that request, permission to exclude a juror peremptorily and without assigning any reason, as if he had not yet been sworn, which was made; it was that permission which the prisoner’s counsel explicitly conceded lay in the discretion of the court, but which they objected should not be exercised upon the bare statement of the prosecutor that he had learned disqualifying facts without stating what they were. It was not even said that they should be publicly stated, but the contention was that an admitted discretion to permit a peremptory challenge ought not to be exercised upon the bare assurance of the district attorney that he had undisclosed disqualifying facts, and after the prisoner had exhausted his peremptory challenges. Of course, since there was no abuse of the discretion conceded, the exception to its exercise is unavailable on this appeal. The objection itself respected merely the order of the proceeding. The prosecution had not exhausted their peremptory challenges. They might have excluded the juror before he was sworn ; they were permitted to exclude him after he was sworn. The order of the challenge was probably material to the rights of the prisoner, but no objection' or exception was taken on that ground. To hold otherwise would be to stray from the uniform rule that an objection must be sufficient to fairly call the attention of the court to the precise point to be decided, must be specific, and must not be ambiguous or misleading. It must not appear to be one thing, when, in truth, it is another. It must not hide, under a deceptive mask, concealed and unknown features. Fairness towards the prisoner does not require unfairness to the trial court, and we cannot here, to reverse a judgment, put upon that court a ruling which it was not asked to make and did not make.

5. The next ground of the appellant’s argument is that there was no evidence to sustain the indictment, and the prisoner should have been acquitted by direction of the court. The argument is directed to the point that what the prisoner threatened and did was not an unlawful act, and so no threat of an “unlawful injury to property” was proven, which is a necessary element in the crime charged. More in detail the contention is that Hughes might lawfully refuse to buy goods of Adler & Bros., and might lawfully persuade his friends to do the same thing, and that no more than that is proved against him. That is the innocent form of what in the conversation between Hughes and the manufacturers was denominated a “ boycott.” We must not misunderstand the real question to be determined. It is not the conduct or motives or purposes of the labor organization itself. That is not on trial The counsel for the prisoner mistakes the issue, when he says it is the Order which is indicted. Hughes is not the Knights of Labor, and does not represent them in his present attitude. That organization may be perfectly lawful in its purposes and methods and wield its power and influence usefully and justly, so far as any evidence before us is concerned. It is not here for either praise or blame. The question for the jury was what Hughes threatened, and what his description of the power that he wielded was, and it does not follow that he described the natural and normal methods of the order instead of a complete perversion of such methods as they would have existed under a more honest and intelligent leadership. What then Hughes threatened was the first question for the jury. He described what he was doing, what he could do, and what he intended to do, and it was by force of that description that the money was extorted which was paid. It is of little consequence that the notices which he scattered over the country were not produced, and no direct proof was given of what he did, and thence to argue that it must be assumed to have been all innocent persuasion. If it was that and nothing more, then he added falsehood to his other misconduct, for there is nothing doubtful or ambiguous in his description of the punishment which awaited the disobedient. In his letters he tells of notices sent to a multitude of business points, and adds that the firm will feel their effects, and be willing to surrender inside of three months ; that “ we have spent the money of our organization for results and will get themthat quite a large expenditure had been made “ in carrying on the work;” that Adler & Co. did not know “ how effectively this work has been done ” or the “ amount of work ” put in their case; that the work was a “ work of destruction ” and the struggle “ a war of destruction,” which the sending of a check and a promise to obey would turn into a work of construction.” In his conversation with Adler he spoke of what had been done as a “boycott,” and described it further by sketching what had been accomplished against the house of Benjamin & Co.; told how he had followed their salesmen along the Pacific coast, procuring the countermand of orders; and boasted that they never had been beaten in any such controversy, and did not intend to be, no matter what it cost, nor how long it took.” He said, also, that they had $200,000, which they could expend, and would spend, to accomplish any such purpose ” which they set out to do.” While the negotiation was going on over the amount to be paid, Hughes explained, saying: “ That it was a matter of justice to the retail dealers in these cities themselves that the various organizations of the Knights of Labor in these cities should be notified, because these retail merchants, being placed under the ban as handlers of the product of L. Adler & Bros, they would continue under that ban, and the stain of handling goods that were boycotted would remain with them, to the prejudice of these retail merchants.”

There was more talk of the same general character without modifying its substance, and the attention of the jury was thus drawn to the character and meaning of the language used. Conduct takes its legal color and quality more or less from the circumstances surrounding it and the intent or purpose which controls it, and the same act may be lawful or unlawful as thus colored and qualified. One may refuse to deal with a firm because of a conviction that it does not give honest compensation for labor and may ask his friends or the public to do the same thing, and the conduct may produce injury to the business criticised without thereby becoming illegal. The jury were so told in substance and permitted to judge whether that was the true quality and character of the prisoner’s action. On the other hand, one may influence his friends and the public to inflict the same injury of withdrawal of custom without just or excusable reason and by fraudulently concealing the fact that it does not and pretending that it does exist, and using official power and influence to make effective the deception and to force and compel unwilling dealers to desist from their purchases and that for the sole purpose of extorting money, in which case the resultant injury will be unlawful. What Hughes threatened was found by the jury to be such an unlawful injury. They saw that he conveyed the idea strongly and clearly that unless his demand of money was complied with he could and would by threatening the hostility of the order compel the retail dealers to withdraw their custom, and could and would utilize the power he had although the original occasion for its exercise was gone. Such a threat, within the doctrine of the Barondess case, and within that also of the dissenting opinion in this court, amounts to a threat to do an unlawful injury to property. People v. Barondess, 133 N. Y., 649; 45 St. Rep., 248; 61 Hun, 581; 41 St. Rep., 659. There was, therefore, a question for the jury, and the court could not properly have directed an acquittal.

6. There are a multitude of exceptions to the charge of the trial judge and to his refusals to charge, the most of which are sufficiently answered by what has already been said, but one of which is, perhaps, entitled to a brief consideration. Complaint is made of the charge as it respects the question of what constitutes a reasonable doubt. Substantially, the court charged that it could not be said to exist where the jury are so firmly convinced of the facts necessary to establish the prisoner’s guilt that if it was a very grave and serious matter affecting their own affairs they would not hesitate to act upon such conviction. A very similar charge was approved in People v. Wayman, 128 N. Y., 585; 38 St. Rep., 747, and Miles v. U. S., 103 U. S., 309, to which the respondents call our attention. The appellant criticizes the opinion expressed by the trial judge as to the unfortunate phrasing and character of the doctrine. That did not prevent him from giving the prisoner its full and entire benefit, and there is no rigid rule as to the manner of doing it. Brotherton v People, 75 N. Y., 163. The appellant again takes out from its context the expression, “ the truth of any one of the facts, or the truth of all the facts which it is necessary for the People to establish,” and represents the judge as charging that a firm conviction of any one of the facts would satisfy the rule, even though there was no such conviction as to the rest. It is only necessary to read the charge to see that such an aosurd construction does not belong to it, and no member of the jury could have so understood it.

7. There are also a great number of exceptions to the rulings on questions of evidence. Many of them seem to us unimportant, but some which may be grouped together should, perhaps, not be silently disregarded, because they are selected out by the appellant for special notice. They consist largely of complaints that the court excluded evidence showing what the original difficulty xvas, and the details of the quarrel. All that was material about it is in the case. The letters of Hughes and the answers of Adler show that it was over the number of apprentices to be employed by the manufacturers. It was not at all a question of wages, and there was no claim that anybody was not fully and fairly paid. Young men wlio desired to learn the trade were to some extent to be shut out for the benefit of those who had learned it. The court might very well reject all the details of the difficulty. It was totally immaterial, except by way of explanation, and quite enough was proved for that purpose. The extortion began after the original cause of the trouble liad disappeared, as Hughes’ letters show, and when it was no longer the motive for a continued assault on Adler’s business. Punishment for a past sin and not obedience in the future was the motive, or one of the motives, governing the prisoner’s conduct

The other exceptions relied on have been examined, but are not such as should prolong the discussion.

The judgment should be affirmed.

All concur. __


author: Gray, J.

text:
    Minerva J. Beaver, Ex’rx, Resp’t, v. Charles C. Beaver et al., Adm’rs, App’lts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Gd?t.
    B. in. 1866 deposited money belonging to him in the savings bank, where it was credited to his son A., then seventeen years of age, but B. retained exclusive possession of the pass-hook until 1888, when he died. A. having married in 1870, opened an account of his own, but drew out the entire balance of his own account a few months before his death in 1886. During B’s life he said in reference to his son A.: “I started him in life and gave him $1,000, put it in the bank for him, and told him that I wanted he should let it be there, and if he got short of money at any time to come to me." Ten years after the making of the deposit by the father his son gave him a receipt in full, and the plaintiff did nothing toward recovering the money for two years after her husband’s death, or until after the father died. Held, that there was not an executed gift, but only the intention to make a gift was proven.
    2. Same—Evidence—Code § 829.
    Testimony was admitted relating to the retention of the pass-book by B. during his lifetime, of A.’s financial circumstances, and to his borrowing money of his father. Held, that plaintiff could not be prejudiced by admission of evidence on the part of the defense, which was unnecessary for the defense.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendants.

      A. T. Clearwater, for app’lts;

      F, L. Westbrook, for resp’t.

       Reversing 41 St. Rep., 607.

   Gray, J.

When this case was here before, it received a very careful consideration and the opinion, which was delivered by Judge Andrews, very fully reviewed the question of the respective rights of the parties to the savings bank deposits, with the light thrown upon it by the record. See case reported in 117 N. Y., 421; 27 St. Rep., 405.

It is not necessary that there should be any full statement here of the facts; which by reference to our former decision will fully appear. The defendant’s intestate, John O. Beaver, deposited certain moneys belonging to him in a savings bank, which were credited upon its books to his son, Aziel Beaver. This was in 1866, when the son was seventeen years of age. His father retained possession of the pass-book at all times until his death in 1888, twenty-two years after the deposit. The son was, at the time of the deposit, living with his father and he, in 1870, opened an account of his own in the same bank; having meanwhile married and settled upon his own farm in the neighborhood of his father’s. He predeceased his father by two years; leaving him surviving a widow, but no child. The deposit of $170, with which he had opened his own account in the savings bank in 1870, had grown to be $1,818.56 when, a few months before his death, in 1886, he drew it all out. By his will he left everything to his wife; but she does not appear to have done anything about obtaining the deposit in question, which John 0. Beaver had made, until after his death; which occurred two years after her husband’s, when she made a demand upon the bank. We previously held, reversing a judgment which she had recovered, that there was not only a failure to prove an intent on the part of the father to make a gift; but that the case was defective as to there being any delivery, actual or constructive, two essential things to be established to constitute a perfect gift. As the case then stood, the only evidence relied upon to establish an intent to make a gift was the transaction at the bank, on the day of making the deposit, in connection with the relationship of the parties. This was deemed insufficient evidence for the purpose, and subsequent acts of the father negatived the inference of any such intent.

Upon this last trial certain new evidence was adduced, in the testimony of the plaintiff’s father as to a conversation between him and John 0. Beaver upon the day of the death of-his son, Aziel, to the effect of his preference for Aziel and of his having helped him, and of having loaned him moneys. He is said to have remarked upon that occasion to the witness, in reference to his son : “I started him in life and gave him $1,000, put it in the bank for him, and told him that I wanted he should let it be there, and if he got short of money at any time to come to me.” The -other new evidence is unimportant and need not be commented upon. The evidence apparently satisfied the trial judge, and he inferred and found the intent of Aziel’s father to deposit the moneys “ with the purpose and with the intent that such moneys shoulcl thereafter be and remain the property of Aziel Beaver.” Whatever our own idea about the new evidence, as we cannot say that this finding was without any evidence to support it, we must accept it, as also the other finding, that the delivery of the moneys to the bank were “with intent to pass the title thereto to Aziel." The trial judge, however, refused to find, as matter of law, that there was an executed and completed gift, and, therefore, dismissed the complaint. Two of the justices of the general term have concurred in reversing the trial court, considering, under all the circumstances, in the relationship of the parties, in the minority of the son, and in the intent with which the deposit was made, that the transaction was practically the same as though the moneys had been deposited in the name of the donor in trust for the donee; in which case notice or delivery would be unnecessary to validate the transaction as a gift to the cestui que trust. Tire opinion of the general term did not appreciate the force of the opinion of this court upon the former appeal, when the theory of a possible trust was considered and denied, because there was neither an explicit declaration of trust-, nor the presence of circumstances to show, beyond a reasonable doubt, that a trust was intended to be created. The new evidence, and the findings based upon it, do not alter the legal situation, nor warrant the inference of a trust. The finding of an intent to give is inconsistent with the theory of a trust. The new evidence proved only that the father had taken an ostensible step toward making a gift of moneys to his son; but, though an essential step, the transaction not only remained incomplete, but all that subsequently occurred negatived the theory of any consummation of the gift and precludes our supposing that the father, in subsequent years, considered the moneys on deposit to be his son’s.

The facts which Judge Andrews refers to upon the question of delivery, such as the retention of the possession of the pass book, the effect of the bank’s rules in vesting the father with the exclusive dominion over the account, and with the exclusive right to draw upon it as long as he retained the pass book, and the lack of the son’s signature, in connection with the bank’s rules governing its relations with the depositor, made the situation such as never to have placed Aziel in a situation to control the account, and always to leave his father with full authority over it, which be seems to have exercised in several ways. The father not only never did an act equivalent to a delivery, but the circumstances evidence no subsequent intention on his part to perfect his gift. It is very significant that the son lived to be thirty-seven years of age, and died without ever receiving the moneys, or ever having had the bank book ; that, in the meantime, he opened an account of his own in the same bank, which he, from time to time, swelled by deposits, and which he closed up shortly before his death; that some ten years after the making by his father of the deposit in question, the son gave to his father a writing, signed bv himself, and acknowledging that he had “ received of John 0. Beaver (his father) $200, being in'full of all dues, debts and demands to date; ” that the son’s widow should have done nothing towards recovering the money for two years after her husband’s death, nor until the father had died. I may add, that I do not think the evidence at all sufficient to show that the son ever knew of the deposit in his name. The inference is irresistible that neither she nor he ever knew of this deposit. It is inconceivable that the father, assuming the fact found as to his original intention, continued in the same mind. In The Matter of Crawford, 113 N.Y., 560; 23 St. Rep., 722, the pass book was delivered to Mrs. Orawford, the donee, and the moneys deposited to her credit came fully and legally into her possession and control. But as the bonds, which she also claimed to have been given to her, were always retained by the intending donor, though they had been purchased with the undoubted intention of giving them to Mrs. Crawford, and had been actually registered in her name, we held that there had never been a completion of the gift as to them. In the Crawford case, Martin v. Funk, 75 N. Y., 134, was considered in its bearing upon the question ; but we held that the principle of the decision of that and kindred cases did not apply, inasmuch as there was neither any declaration of a trust, nor anything to characterize the transaction as a trust

As the present case stood, upon the findings and the evidence, only the intention to make a gift was proved. That was an element in the transaction which, however satisfactorily established, was rendered of no effect by a failure of any proof of delivery to, or of acceptance by the intended donee. There was not a fact to support a conclusion of the creation of a trust, nor a fact to show the existence of a mutual disposition of the minds of the parties at any time in relation to the matter, from which the idea of a gift perfected by some act of delivery or of acceptance could be formed.

The trial judge, in refusing to decide that there had been an executed gift, reached the only conclusion warranted by a rational view of the evidence, and the general, term has erred in holding that the evidence justified a different conclusion. Unless, thereiore, there was some error committed upon the trial, by which the plaintiff was prejudiced, the order of the general term, reversing the judgment for the defendant, and ordering a new trial, must be reversed. The only error assigned which I think requires any consideration, related to the admission of the testimony of Sarah Beaver, the widow of John, the defendant’s intestate, and of Alice Beaver, his daughter.

The testimony related to the retention by John 0. Beaver of the pass book during his lifetime, and to Aziel’s financial circumstances, and to Ms borrowing money of Ms father. The objection was that the testimony was inadmissible under § 829 of the Code of Civil Procedure.

It is a sufficient answer to the question of error, however, that the plaintiff could not be prejudiced by the admission of evidence on the part of the defense, which was unnecessary for the defense. The burden of proof was upon the plaintiff to show the presence in the transaction of every element to constitute the perfect gift, and having, at most, proved the intention to give, her case was ’ready defective for the failure to prove completion by delivery, -.i' its equivalent.

I think the order of the general term should be reversed, and that the judgment recovered at the circuit should be affirmed, with costs to the appellants.

All concur.


author: Peckham, J.

text:
    Charles M. Preston, Assignee, App'lt, v. Reed Fitch, Sole Surviving Ex’r, et al., Resp’ts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Partnership—Dissolution—Contribution for subsequent disbursements.
    Pending action to foreclose a mortgage owned "by a firm, the members of said firm entered into an agreement by which they discontinued their partnership, and-agreed to continue to hold, as tenants in common, the claim represented by said action. All the assets were tiansferred to plaintiff’s assignor, who agreed to pay all liabilities. Upon the death of the other partner the action of foreclosure was continued, in the name of plaintiff’s assignor as survivor, and he recovered judgment, and on the sale purchased the premises. Held, that while the holding was described as a tenancy in common, the agreement was not intended to^ change the possession from that of partnership, as far as it, related to this debt, to a strict tenancy in common, and the estate of'the deceased partner was liable for the expenses of the foreclosure after the dissolution.

      3. Same—Limitation.
    The action was commenced December 33, 1887, but as the true condition of the affairs between the parties could not be arrived at until the termination of the litigation over the mortgages and of the sale of the real estate, this action to recover payments made by the assignor of plaintiff, for interest on the prior mortgage and the expenses of such foreclosure, could be commenced within six years from that event.
    3. Same—Propits on resale op property purchased by partners.
    The real estate when purchased by the surviving partner represented the debt, which was partnership property, and it is his duty to so treat it, and the representatives of the deceased partner are entitled to the benefit of any profit accruing on a sale thereof by him.
    Appeal from, judgment of the supreme court, general term, third department, affirming judgment dismissing the complaint.
    The plaintiff is the general assignee for the benefit of creditors of one William B. Fitch, and the defendant is the surviving executor of Simeon Fitch, deceased. The assignor of the plaintiff, together with the said Simeon Fitch, were at one time partners under the firm name of S. & B. Fitch, as wholesale dealers in blue stone, in the cities of Kingston and Mew York. They had from time to time loaned to Mrs. Margaret Fitch partnership moneys which in August, 1877, amounted to the sum of about $25,000. This indebtedness of Mrs. Fitch was a partnership asset. Mrs. Fitch was the owner of a farm at Coxsackie in Greene county, upon which there was a first mortgage of $10,000, executed by her and her husband, Ezra Fitch, to the Mutual Life Insurance Go., of Mew York, in May, 1859. Subsequent to the execution of that mortgage and some time in 1874, Mrs. Fitch conveyed the farm in question to one Best, subject to the mortgage, which Best assumed and agreed to pay. He also executed and delivered to Mrs. Fitch, as part security for the payment of the purchase money of the farm, two other mortgages upon the same farm, one for $15,000 and the other for $40,000.
    In August, 1874, Mrs. Fitch, in order to partly pay her indebtedness to the Fitch firm, assigned to the members thereof as co-partners the mortgage of $15,000, and she also at the same time assigned the $40,000 mortgage as a security for the remainder of her indebtedness over the amount of $15,000, which balance at that time amounted to nearly $7,000. Thereafter Best became insolvent and failed to pay the interest on the various mortgages, and in April, 1877, the members of "the Fitch firm commenced an action to foreclose the mortgages executed by Best to Mrs. Fitch and assigned by her to them. This action was pending on the 25th day of August, 1877, when Simeon and William B. Fitch entered into an agreement in writing, which, after reciting the existence of a partnership between them up to that time, and that as such partners they owned and possessed various chattels and had claims, demands, debts and judgments belonging to them in that way, continued in these words:
    “ Mow this agreement witnesseth, that the said parties hereto of the first and second parts hereby mutually agree to discontinue said copartnership existing between them as aforesaid from the time of the execution of these presents; and the said parties hereto of the first and second parts hereby mutually agree to continue to hold as tenants in common the debt, claim or demand, amounting to about the sum of twenty-five thousand dollars, known as the Ezra Fitch debt, secured by mortgages and liens on lands known as the Ezra Fitch property at Coxsackie, Greene county, New York, each of the parties hereto to have and own an undivided one-half interest therein; and the said parties hereto of the first and second parts further mutually agree that all other bonds, mortgages, judgments, debts, outstanding accounts, stock in trade, vessels, teams, tools and chattels, partnership property, shall be the several property of William B. Fitch, the party hereto of the second part; and the said parties hereto of the first and second parts further mutually agree that all liabilities, indebtedness and obligations under which said copartnership rest or owing by them shall be assumed by and fully paid, liquidated and discharged by William B. Fitch, the party hereto of the second part; and the said Simeon Fitch, party hereto of the first part, hereby assigns, transfers, and sets over unto said William B. Fitch, party hereto of the second part, all interest of him, said party of the first part, of, in and to all bonds, mortgages, debts, outstanding accounts, stock in trade, vessels, teams and chattels which ma)r be or are partnership property (excepting the Ezra Fitch debt) ; ” the agreement concluding with a covenant on the part of William B. to pay and discharge “ all liabilities, indebtedness or obligations of the aforesaid copartnership and will hold the said party of the first part harmless and free from any liability on account thereof as one of the members of the copartnership of S. & W. B. Fitch.”
    Soon after the execution of this agreement, and on the 3d day of September, 1877, Simeon Fitch died, and at his death the action of Simeon and William Fitch against the above-mentioned Best for the foreclosure of the two mortgages was still pending. This action was continued in the name of William B. Fitch as survivor of the partnership, and neither the widow, children, heirs at law, devisees or executors of Simeon Fitch, deceased, were brought into the action to foreclose the mortgages, or made parties thereto, and were not represented therein, except by William B. Fitch as such surviving partner. Whatever moneys were paid out in the course of this foreclosure action by William B. were so paid without any request on the part of any representatives of the deceased partner. The foreclosure action was defended, but unsuccessfully, and finally the mortgaged premises were sold under the decree in foreclosure on the 7th day of February, 1884, and purchased by William B., who took the title in his own name and without any request or authorization from the representatives or heirs of the deceased partner. William continued to hold the premises thus bid in until the 15th of November, 1884, when he executed the general assignment already mentioned, to the plaintiff, and part of the property thus assigned was this real estate bid in by William at the foreclosure sale.
    Subsequently the Mutual Life Insurance Company commenced an action to foreclose its mortgage on the premises, and under a decree of foreclosure therein obtained the premises were sold in February, 1886, and purchased by the plaintiff,. as the assignee for the benefit of the creditors of William B. Fitch, for the sum of $12,500, and subsequently, but before the commencement of this action, he sold the same for $15,000, and turned over the difference to the creditors of William B., but no portion was turned over to the defendants, nor was any credit given them for that difference. The mortgagor, Best, appealed from the judgment of foreclosure against him, but the judgment was affirmed by the general term and by this court. In taking the appeals, Best gave the requisite undertakings, and this plaintiff recovered from the sureties therein the sum of $7,000, less counsel fees, and plaintiff has received some other moneys as issues and profits of the real property bid in by him as stated. The defendants here made no claim against plaintiff for, or on account of, any moneys received by him, and they have received no benefit for, or on account of, any of the matters involved in this action, and plaintiff, prior to this action, never made any demand upon these defendants for the payment of the moneys involved herein.
    During the time subsequent to the death of Simeon, various moneys were disbursed by William B. in the course of the prosecution of the foreclosure proceedings and moneys were received by him or his assignee, and the plaintiff as such assignee commenced this action against the defendant as sole surviving executor of the will of Simeon Fitch, deceased, and the widow'and heirs at law of said Simeon, for an accounting and for a decree for con-j tribution by defendants for one-half the disbursements made by plaintiff’s assignor or himself in regard to the Best mortgages and the foreclosure thereof. The defendants duly answered and upon the trial the foregoing facts were found by the trial judge, who thereupon dismissed the complaint upon the merits, and fronr the judgment of dismissal, affirmed at general term, the plaintiff has appealed to this court.

      Howard Okipp, Jr., for app’lt;

      A. T. Clearwater, for resp’ts.

       Reversing 46 St. Rep., 588.

   Peckham, J.

The first question in this case arises out of the written agreement set forth in the foregoing statement What is the proper meaning of the clause therein contained, providing that the parties to it thereby “ mutually agree to continue to hold as tenants in common the debt, claim or demand, amounting to about the sum of twenty-five thousand dollars, known as the Ezra Fitch debt, secured by mortgages and liens on lands known as the Ezra Fitch property at Coxsacltie, Greene county, Hew York, each of the parties hereto to have and own an undivided one-half interest therein ?”

The defendants contend that a strict and literal meaning shall be given to the expression “ tenants in common,” so that the holding of the debt due from Mrs. Fitch shall cease as a partnership holding and remain from that time strictly in the character of a holding as tenants in common, wholly disconnected from any partnership attributes. In the event that the latter is the correct view, the defendants then claim that, as they never had any notice or knowledge of the payments spoken of, and as they were made entirely on the volition of the plaintiff's assignor, they were not of such a character that the defendants would be liable to contribution in the character of tenants in common with William B. Fitch. I think, however, the parties remained substantially partners as to this Ezra Fitch debt. These individuals had been partners, and a dissolution was, by the agreement, provided for as to all matters of a partnership nature, excepting the debt in question. As to that debt, I think the plain meaning is that they were to continue to hold the property as they had been holding it They described such holding as a tenancy in common, when, in law, it was a holding as partners. They would not be apt to use the words “continue to hold” if they had intended to change the character of such holding. In that event they would have said “ mutually agree to hereafter hold,” or “mutually agree to hold,” as tenants in common. By leaving out the words “ to continue,” they would more nearly have expressed a meaning to change the character of their holding, while, by placing those words in their agreement, they designate, as it seems to me, the character of the holding which they suppose they have had in that debt, and they provide that it shall continue. They describe it as a tenancy in common, when, in legal strictness, they have been holding as partners, but tbe distinction is not very important, when, describing the holding of property by partners as between themselves, for equity so regards the holding, while, at the same time, admitting the right of survivorship to be in the surviving partner. Knox v. Gye, L. R., 5 E. & I. App., 656, 678, 679. This equitable doctrine is stated in the opinion of the Lord Chancellor in the above case, although, upon other matters, it is a dissenting opinion. Looking upon this whole instrument, we feel clear it was not intended to change the possession from that of partnership to a strict tenancy in common. The parties were intent upon retaining their partnership rights in this debt.

In the same instrument the parties speak of “ other ” bonds, mortgages and partnership property after referring to the debt, claims or demand in question, and thus indirectly designate as partnership property the debt in question. It was indisputably partnership property, and there was seemingly no occasion to alter the nature of the title by which both held it, the very purpose of excepting the debt from the effect of the dissolution as to all other property being to maintain and “continue” the debt as a partnership holding, and each was to have and own an undivided half interest therein. And Simeon, after so excepting this debt, transfers and assigns to William B. all bonds, mortgages, debts, etc., “ which may be or are partnership property, excepting the Ezra Fitch debt” The parties, by their agreement, make it plainly appear, as it seems to us, that the partnership is dissolved and the partnership property is transferred to William, except this debt from Mrs. Fitch, and as to that debt the parties remain as they were, partners, each with a half interest therein, and thus they are to “ continue ” to hold the property.

A mistaken designation of the strictly legal character of the holding, a continuance of which is provided for, is immaterial. It is a correct statement of the way in which equity regards the holding. The continuation of the holding was the important matter, while the possible slight error in the legal characterization of what it had been is unimportant. Being of the opinion that Simeon and William B. remained partners in substance as to the Ezra Pitch debt, it would follow that, upon the death of Simeon, William B. was clothed with all the rights of a surviving partner. As such surviving partner he would have the same right to collect this one remaining partnership claim that any surviving partner has to collect the ordinary claims of a partnership with a view to the due and orderly winding up of the affairs of the partnership.

This would include the right to incur such proper, necessary and reasonable expenses connected with the administration of the partnership estate as might be called for in the course of the winding up thereof.

The defendants meet this view of the case by again appealing to the agreement already cited, and to that provision thereof in which the parties “ mutually agree that all liabilities, indebtedness and obligations under which said copartnership rest or owing by them shall be assumed by and fully paid, liquidated and discharged by Williamand William agrees to hold Simeon “ harmless and free from any liability on account ” of the partnership.

I think the language here used does not include disbursements or expenses made or incurred by the surviving partner in the course of a proper effort to enforce the collection and payment of the Ezra Fitch debt. They would not be regarded as liabilities of the firm which rested upon or were owing by it within the natural meaning of this provision, but rather as claims made by a surviving partner upon the estate of the other to contribute its proportion toward the necessary expense of collecting a debt as to which the individuals continued partners up to the death of Simeon. William was to take all other property of the partnership and to pay all the debts and liabilities thereof, but as to that property which was to remain partnership property notwithstanding the dissolution of the partnership, it would seem natural that the expense of collecting it or reducing it to possession should be borne by the two owners of it in the proportion of their interest in the property.

These outlays are in the nature of expenses incurred by a surviving partner as incident to the saving and caring for the partnership property, and they cannot be correctly described as partnership liabilities. And then, too, they were incurred by the surviving partner subsequent to the execution of the agreement, and were never firm liabilities or obligations. They would be very badly described as an obligation or liability of the partnership, and would not be included therein by any language contained in the agreement in question. •

The defendants also set up as a defense to a portion of the plaintiff’s claim the six years statute of limitations. This action was commenced on the 22d of December, 1887, and all payments made by the assignor of the plaintiff prior to the item of May 13, 1882, are, as defendants urge, within the bar of the statute.

We are not of that opinion. In an action at law to recover from a co-surety the amount due from him as a contribution to the sum originally paid by the plaintiff in full discharge of the debt of their common principal, it may well be that a cause of action arises to recover from the co-surety whenever the surety has paid a sum which is more than his proportion of the common liability. Such was the case of Davies v. Humphreys, 6 M. & W., 152, 167.

And when the surety pays the whole of the principal’s debt the right to exact contribution from his co-surety at once attaches. As was said in above case, it would tend to great inconvenience if each surety might sue all the others for a ratable proportion of what he had paid the instant he had paid any part of the debt. But, says Parke, B., “ whenever it appears that one has paid more than his proportion of what the sureties can ever be called upon to pay, then, and not till then, it is also clear that such part ought to be repaid by the others, and the action will lie for it.”

The cases cited by counsel for defendants are all of the nature of an action to enforce contribution by a co-surety for sums actually paid by a surety to a greater amount than his proportion called for. This is not such a case.

The surviving partner had in his hands certain securities for the payment of the debt due the partnership. They were mortgages upon certain real estate. There was a prior mortgage upon the same real estate, the interest on which must be paid or it would be foreclosed, the real estate sold and the security for the payment of the partnership debt would thereby be lost. In order, as it is claimed, to save the real estate upon which the Best mortgages were the second liens, the items of interest on the prior mortgage were paid by the surviving partner, not in the character of a surety for a principal debtor, but rather in that of a part owner of property who incurs expenses which were necessary and reasonable in order to preserve such property.

As to the expenses of foreclosing the mortgages it is plain that they partake of the same character, as they were incurred in the effort to preserve, or, in other words, to obtain payment of the partnership debt or some portion thereof. Whether any contribution directly from defendants would ever be necessary could not be told at least until the termination of the foreclosure by the sale thereunder. In making those proper disbursements in the course of a foreclosure suit that are called for by the exigencies of the litigation, a cause of action for contribution does not at once arise against the estate of the deceased partner for the immediate repayment of a proportionate amount of each disbursement thus made. Nor does such cause of action arise at the moment of each payment of interest on the prior mortgage. Both the interest on the prior mortgage and the costs and expenses of the foreclosure of the Best mortgages were - nothing but the general cost incurred by the surviving partner in the course of his attempt to collect the Ezra Fitch debt due the partnership estate and were necessary, as it is claimed, to protect the real estate from being sold under the prior mortgage. At the termination of the litigation over these mortgages and of the sale of the real estate, the true condition of the affairs between the parties could be arrived at, and for the first time it could be determined whether the moneys realized from the mortgages and other sources would be sufficient to reimburse the plaintiff for the advances made in the effort to recover payment of the debt due the partnership. Within six years of that time this action was commenced. Precisely what items of the demands proved in the action as made by plaintiff or his assignor, whether all, or if not, what part of them should be allowed, we do not now intend to decide. The single fact that disbursements were made in the course of an attempt to collect a partnership debt by a surviving partner would not be conclusive upon the question of the liability of the estate of a deceased partner to contribute. And yet the estate of a deceased partner is liable to contribution in some cases. Allen v. Blanchard, 9 Cow., 631, 632. The disbursement must be a reasonable one in amount, made in good faith and for a purpose which can be seen to have been fairly appropriate in carrying out the end sought, which is the recovery of the debt.

A continued payment, for example, of interest on a prior mortgage, after it was apparent that the land was not worth more than the prior mortgage, could not be allowed.

It is difficult to formulate any general rules on the subject further than we have already intimated, and we must leave the decision as to each item, after all the evidence is in regarding it, to the trial court in the first instance.

The question of interest, as raised by the plaintiff under the case cited by him, Johnson v. Hartshorne, 52 N. Y., 173, we do not now discuss, as the case may, upon the new accounting, be presented in an entirely different light.

The defendants also claim that they should be credited in the account between the parties with the difference between the sum bid by the plaintiff when he bid off this real estate for $12,500, upon the sale under the foreclosure of the Mutual Life Ins. Co. mortgage, and the price ($15,000) received for the same real estate when sold by plaintiff. On the contrary, the plaintiff says this difference belongs to the creditors of the surviving partner, and should be so disposed of. The real estate covered by the Best mortgages was bid in and purchased by William B. Fitch, the surviving partner, in February, 1884, at the sale under the proceedings for the foreclosure of those mortgages which had been continued in his name as such survivor, and he took title in his own name. This real estate, as thus purchased, represented part of the Ezra Fitch debt, which was partnership property, and to which William succeeded as survivor of that firm. It has been settled for many years, that, upon the death of one partner, the survivor becomes the legal owner of the assets, and has the ex-elusive right to sell and dispose of them for the purpose of winding up the partnership affairs, and the survivor does not take such assets in the character of a trustee, but as a survivor holding the legal title. This was decided lately in the case of Williams v. Whedon, 109 N. Y., 333; 15 St. Rep., 265, and it has been the acknowledged law for a long number of years. But although the surviving partner thus takes the legal title to the partnership assets, it is yet plain that they come to him impressed with a certain kind of a trust founded upon his duty to dispose of or realize upon such assets, and therefrom to pay the debts of the late firm, and to pay over the share of any balance that may then remain and which may belong to the estate of such deceased partner. In occupying this position, it has been said by some judges that the surviving partner is not a trustee for the representatives of the estate of the deceased partner, and does not bear any fiduciary relations to them. This, however, is more a question of exact accuracy of expression, than of difference of opinion as to the real duties which a surviving partner owes to the representatives of the estate of the deceased partner.

It is admitted by all that certain rights are conferred upon the representatives of the estate of a deceased partner as against the survivor, and among them is a right to call him to account with reference to his conduct or administration of the assets of the late firm; also a right to compel their application to the payment of the debts of the firm, and to summon him to an accounting and to the payment to them of any balance that may be due the estate.

Lord Westbury in Knox v. Gye, supra, while saying that the surviving partner was not a trustee within the strict acceptation of that term, yet admitted that he might be called a trustee so far as his obligations extended to the representatives of the estate of his deceased partner, but that when these obligations had been fulfilled, or discharged, or terminated by law, the supposed trust was at an end. These obligations consist in part, at least, in the gathering together of the.assets of the late firm, realizing upon them, paying the debts of the firm, and, if there be a balance remaining, paying the share due the estate of the deceased partner to the representatives thereof. These are duties, all of which the representatives of the estate of the deceased partner have a plain interest in seeing performed, and while Lord Westbury, in above-cited case from the House of Lords, said the relations were not fiduciary, and Lord Chanceller Hatherly (page 678), thought they were, there was no difference in the opinion that the survivor owed these duties above spoken of. When, therefore, William B. Fitch, the surviving partner, bid in the real estate under the foreclosure of the Best mortgages, which he owned as survivor, he thereafter held such real estate as representing the Ezra Fitch debt, as to which he was a surviving partner, and it became his duty to so treat it. He could not, thereafter, have sold it without accounting for every penny of it. When he assigned the real estate to his assignee for the benefit of his creditors, the assignee stood in his shoes, with no higher right to deal with it than, he had. And it seems to me that when the prior mortgage on this real estate was foreclosed, and when, upon the sale thereof under the judgment in foreclosure, the assignee bid it in, he took it with this burden or obligation of the" survivor still impressed upon it, and when he thereafter sold it at an advance, the proportionate share of that advance belonged to the representatives of the estate of the deceased partner, and they should be credited therewith in the account between them and the assignee of the survivor.

Plaintiff claims that when he bought in the property under the prior mortgage, he did so as assignee and took title thereto under neither Simeon nor William B. Fitch, but under the prior mortgage, and free from any equities existing in regard to the real estate as between William B. and the representatives of the estate of Simeon.

The extent of the legal title which the assignee took to the premises sold under the foreclosure sale of the prior mortgage was measured by the title possessed by the mortgagors and mortgaged by them. ■ This, however, has nothing to do with the character in which the assignee purchased at that sale as between himself and third parties. When the assignee bid in the land at the sale under the prior mortgage, it must be remembered that it had already been conveyed to him, subject to the mortgage, by the survivor, Fitch, in whose hands it was, in equity, partnership property, though the full legal title was in him alone, and it' formed while Fitch held it a trust fund for the realization, so far as possible, of the Ezra Fitch debt. As thus conveyed to him, the assignee took no greater rights in the land than his assignor had. The assignor certainly could not have purchased it under the prior mortgage and then claim to hold it free'from any obligation whatever to account to the representatives of the estate of the deceased partner. And, as he could not, it, in our opinion, follows that his voluntary assignee could not.

The objections now raised by defendants, as to improper joinder of parties defendant, and also as to a defect in the complaint, are not of a character to necessitate the affirmance of the judgment. If there be any force in them, they can be remedied upon application to the court for leave to amend or for a discontinuance.

The judgment must be reversed and a new trial granted, costs to abide the event.

All concur.