text:
    The People ex rel. Winfield S. Spencer, App’lt, v. Village of New Rochelle et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Municipal corporations—Assessments—Certiorari.
    The right to a common law writ of certiorari, to review the final levy of . an assessment, is not affected hy chap. 269 of 1880.
    2. Same—Notice.
    A sale under an assessment, made in pursuance of a charter which makes-no provision for notice to, or opportunity for a hearing hy, the landowner, is void.
    Certiorari to review an assessment in the village of New Rochelle.

      C. H. & J. A. Young, for relator; M. J. Keogh, for resp’t.
   Cullen, J.

This is a certiorari to review the action of the trustees of the village of New Rochelle levying an assessment on lands of the relator for resetting curbs on the streets upon which such lands front The respondent first claims that the writ should be dismissed, because the petition does not comply with the requirement of chapter 269, Laws 1880; and the writ is made returnable at the general term, instead of at special term, as required by that act.- This claim is based upon an entire misconception of this proceeding. This writ has not issued under the statute named, but is an ordinary common-law writ of certiorari, by which the proceedings of any inferior tribunal can be reviewed by this court, in the absence of statutory provisions to the contrary, and except where there may be another method of review given. People ex rel. Mayor, etc. v. Nichols, 79 N. Y. 582. Proceedings by which a tax or local assessment is imposed are judicial in their nature, and have always been in this state the subject of review by certiorari. For this doctrine there is an unbroken line of authority, from Le Roy v. Mayor, etc., of New York, 20 Johns. 430, to People ex rel. Heiser v. Gilon, 121 N. Y. 551; 31 St. Rep. 890. The decision in People ex rel. Trustees of Jamaica v. Supervisors of Queens Co., 131 N. Y. 471; 43 St. Rep. 665, has therefore no application to the case at bar. The act of 1880, cited above, relates to a different subject. By it is given the power to review the valuation of property or the legality of placing the property on the roll for the purpose of taxation. “ Assessment,” in that- statute, is used in the sense of valuation, not in the sense of final imposition of a specific sum for taxes or a local improvement. Formerly, such review could not be had, for certiorari did not always lie to review any intermediate decision, but only the final determination, i. e. the levy of the tax.

We do not see how this assessment can stand. By the charter of a village (title 5, § 32, c. 357, Laws 1874), it is the duty of the owners of land fronting on streets to construct curbs and gutters in such manner and of such material as the trustees may direct. Upon a failure to comply with such direction, the trustees may do the work, and the expense is made a lien upon the land. The trustees are directed to issue a warrant for its collection out of the goods of the owner, and, on failure to collect the charge, the lands are to be sold. There is no provision in the charter for notice to or opportunity for hearing by the landowner, and, as a matter of fact, in this case no notice was given or hearing had. The owner, if heard, might have shown that the expense was less than the sum charged against him. For this reason the assessment was void. Stuart v. Palmer, 74 N. Y. 183; Remsen v. Wheeler, 105 N. Y. 573; 8 St. Rep. 202. The proceedings of the trustees levying the assessment should be reversed, with costs.

All concur.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    The People ex rel. Edwin W. Fiske, App'lt, v. William H. Devermann et al., Resp’ts. The People ex rel. Edson Lewis, App’lt, v. Same, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

      1. Appeal—Mandamus.
    An order, directing an alternative writ of mandamus to issue, cannot be reviewed on the merits.
    2. Election—Canvass.
    After the inspectors have made a canvass and certificate, they cannot be permitted or compelled to make a new canvass, or a second certificate of the canvass.
    Appeal from an order, denying an application for a writ of mandamus.

      Roger M. Sherman, for app’lts ; Joseph S. Wood, for resp’ts.
   Cullen, J.

The two appeals involve the same questions of fact. The relators, Fiske and Lewis, were candidates for the office of mayor of the city of Mt. Vernon at the election in May last. Devermann, Hoffman, and Jones were inspectors of election at the polls in the Second election district of the Fourth ward. At the polls were two ballot boxes,—one to receive ballots for city officers, the other for ballots on the question of certain city expenditures. At the close of the polls and the commencement of the canvass it was found that, while 309 votes had been cast for city officers, but 305 ballots were in the box. These were canvassed, and a statement of the result announced. On the opening of the other box there was found in it ballots for Fiske as mayor. As to whether there were 305 or 306 in the first box, and whether 3 or more in the second box, is disputed. It appears that the inspectors signed the statements of the canvass in blank some time before the canvass commenced, and each inspector retained a copy. Upon the discpvery of the ballots for city officers in the second box, dispute arose between the inspectors as to the course to be taken in regard to them. Devermann and Hoffman insisted upon counting them; Jones objected. What did then transpire is a matter of such dispute. It appears, however, to be conceded by Devermann and Hoffman in their affidavit that they agreed to the claim of Jones, and filled- out the certificate of the canvass according to the result as found from the count of the first box, and not counting the ballots found in the,second box. These inspectors assert that it was agreed by all that the four rejected ballots should be attached to the certificate held by Devermann, and his copy of the certificate filed with the city clerk. Jones denies this. Devermann failed to file his copy certificate with the city clerk, and then Jones filed his. Afterwards Devermann and Hoffman filed a new certificate, by which the relator Fiske was credited with the additional four ballots. The relator then applied for a mandamus to the city clerk, directing him to return the two certificates, and to the inspectors, directing them to forthwith make a legal statement of the canvass in the place of the two on file. On a hearing of this application the court directed an alternative writ to issue, and meanwhile stayed the canvass of the returns by the common council. The first appeal is from that order.

The grant of the alternative writ was so much a matter of discretion that it is not the subject of review on appeal. Code, § 2067, permits such writ to be granted without notice. By § 2075 an alternative writ cannot be quashed or set aside, upon motion for any matter involving the merits. The respondents must either make a return of the writ or demur. If the appellants deemed the facts stated in the writ insufficient to entitle the relator to relief, they should have demurred. If the facts were stated untruly, they should have made a return of the writ. In either case, a decision on the merits could have been long before even the argnment of this appeal. We are asked to reverse the order, directing the writ to issue, not on any question of irregularity, but solely on the merits. As the appellant, by the express terms of the Code, could not have moved to set aside the writ on such grounds, we think he is precluded from accomplishing that object by an appeal. If we reverse the- order appealed from, it would be, in effect, merely setting aside the writ. The appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should he dismissed. _ _ '

_ _ Assuming the power of the court, in proceedings of mandamus, to grant a.stay, we think that the stay in this particular case was improvidently granted. The signing of the statement in blank in advance of the canvass was, of course, wrong, and irregular. But by the consent and action of, the canvassers the statements were filled up with the result agreed upon by all of their number. From this time they became effective. On. this appeal all disputed questions of fact are to be assumed in favor- of the relator. But, giving the greatest force to the affidavits on his behalf, it is clear that the canvassers did canvass the vote,—erroneously, it may be, but nevertheless canvassed it,—and rejected the ballots found in the wrong box. The ballots rejected, if attached to the certificate, would not have controlled or varied it. People ex rel. Noyes v. Board of Canvassers of Chemung Co., 126 N. Y. 401; 37 St. Rep. 778. Devermann, however, did not attempt to comply with what he states to have been the agreement, but proceeded to make a new certificate and canvass, in which Hoffman joined. The inspectors, having made a canvass, could not be compelled or permitted to make anew one. By § 132, Election Law, even where the returns are sent back to inspectors for omissions or clerical errors, they are forbidden to change or alter any decision before made by them. Here, as already stated, the two other inspectors admit that they acceded to Jones’ claim, and decided not to count the ballots. The certificate filed by Jones was therefore valid, and a true statement of the action and canvass of the inspectors. So much of the ordér as grants a stay should be reversed.

The second appeal is from an order made at special term denying the relator’s motion to the common council of the city of Mt. Vernon commanding it to disregard upon any canvass the second certificate filed by Devermann and Hoffman, and to those inspectors to withdraw such return. On the facts stated we can see no appearance of authority for this second return. It was the action of only two of the inspectors. It was not made at the close of the canvass, but subsequently thereto, and after a valid certificate of canvass had been made. The writ should therefore have been granted, so far as the application related to the common council. As to the inspectors Devermann and Hoffman, no duty rested on them to withdraw the particular paper filed by them, nor was it in their power to do so. If the certificate was void, it should be disregarded.

The order made in the first proceeding should be reversed so far as it grants a stay of proceedings, and the appeal from' the remainder of the order should be dismissed.

The order made in the second proceeding should be reversed so far as it denies the application for a mandamus to the common council, and so far as it denies a mandamus against the inspectors should be affirmed. On these appeals neither party should recover costs as against the other.


text:
    Mary Ann Durland, App’lt, v. Jesse Durland, as Executor, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Trust—Creation.
    An instrument, reciting an assignment of certain bonds by a husband to his wife, to take' effect at his death in case he died before her, creates a valid frust in favor of the wife.
    Appeal from a judgment in favor of defendant.

      Joseph W. Gott and William Vanamee, for app’lt; John J. Beattie (Lewis E. Carr, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the defendant, entered upon the report of a referee. The plaintiff’s claim is to recover the amount of a promissory note executed by the testator of the defendant. The defense is that the note was without consideration. We are not prepared to hold with the learned referee that, apart from an assignment hereafter to be discussed, it was established that this note, given by the husband to the wife, was without consideration. The proof shows that the wife possessed property which eventually passed to the husband, and also a series of transactions between the parties out of which a debt from the husband to the wife might well have accrued. The proof does not clearly show that any possible liability on such matters was discharged. The substantial evidence to prove this note lacked consideration is the testimony of Judge Beattie, the counsel of the deceased, as to declarations made by the deceased in plaintiff’s presence, and to admissions on her part that an assignment of certain bonds, out of which the note in suit directly sprung, was a gift by the husband, and without consideration. Granting the greatest reliability to be given to the testimony of this witness, as it was undoubtedly entitled to, these admissions should not, considering the business transactions between the parties, outweigh the presumption of consideration which the note imports. But whatever may have been the state of the accounts between the parties, and assuming that the assignment of the bonds was without consideration, still _ we think it was effective. In December, 1869, the deceased deposited five bonds in the Chester National Bank, and took this receipt therefor:

“December 8th, 1869, Thomas E. Durland has left in the Chester National Bank, for safe keeping, the following described bonds of the township of Pekin, Tazewell county, Illinois, coupons payable on the 1st day of July, each year, at the American Exchange National Bank, New York : [Here follows the description of five bonds, for $1,000 each.] ”

This receipt, though unsigned, is in the handwriting of the officer of the bank, and was given on the deposit of the bonds. In December, 1871, the deceased executed, at the foot of the receipt, the following assignment, and delivered the paper to the plaintiff:

“For value received, I hereby assign, transfer and set over to my wife, Mary Ann Durland, the above-described bonds, and hereby request the Chester National Bank to deliver the same to my said wife, and her alone, in the event that she survives ■ me and becomes my widow, but not until then. It is, however, my intention that this assignment is not to take effect unless my death should occur prior to that of my wife; and in that event my wife is to receive said bonds as and for her own, in addition to the amount I have heretofore bequeathed her in my will.
“ In witness whereof, I have hereunto set my hand and seal this 22d day of December, 1871.
“Thomas E. Durland. [l. s.]
“ In the presence of—
“John Burt.’’

About the time of the maturity of the bonds, the deceased took them from the bank, and collected and appropriated the amount due on them. If this instrument operated to vest any title in the plaintiff to the bonds deposited, there can be no question that there was consideration for the note, which is as follows:

January ls¿, 1884.
“ On demand, I promise to pay to Mary Ann Durland the sum, of four thousand dollars (the amount differing on account of depreciation) for investments used, as set forth in a paper held by her, bearing date of December 8th, 1869, and date of December 22d, 1871.
“Thomas E. Durland.”

. Assuming that there was no consideration for this assignment, the question then presented to us is, whether it was effective and valid. That, by its terms, the bonds were to be delivered to the wife only after the husband’s decease, does not render the instrument a testamentary disposition, nor is it sought to uphold it as such. Carnwright v. Gray, 127 N Y. 93 ; 38 St. Rep. 56; Hegeman v. Moon, 131 N. Y. 462; 43 St. Rep. 662; Van Cott v. Prentice, 104 N. Y. 45; 5 St. Rep. 654. The instrument must be sustained, if at all, upon the ground that it constituted a,valid gift to or trust for the wife. That a remainder of the character given the wife by this assignment can be created in personal property we assume to be clear. The difficulty in this case is not as to the "nature of the interest created, but as to the rule of law on the subject of gifts, where the donor reserves an interest in the property given. This subject is so elaborately discussed in Young v. Young, 80 N. Y. 423, that, for the priciples applicable to the matter in hand, it is unnecessary to go outside of that case. There Judge Rapallo writes:

“ The first question which arises is, whether it is practicable to make a valid gift in presentí of an instrument securing the payment of money, reserving to the donor-the accruing interest, and, if so, by what means this can be done. The purpose of such a gift may undoubtedly be accomplished by a proper transfer to a trustee, and perhaps by a written transfer delivered to the donee."

If the suggestion of that learned judge be good law, there was certainly a valid deed of gift to the plaintiff". And we think it can equally be upheld as creating a valid trust under the rule which is stated by the judge as unquestionable. The bonds in this case were not in the possession of the donor, but deposited in the bank. The assignment not only transferred the property in the bonds to the wife in case she survived the husband, but also expressly directed the bank, on such contingency, to deliver them to the wife. The assignment reserved to the husband no right to the possession of the bonds or to their disposition, though the proper construction of the instrument would probably reserve to him the interest accruing during his life. Any delivery of the bonds to the husband by the bank would be unauthorized, for it would put it out of the power of the bank to comply with the -direction to deliver the bonds to the plaintiff on her husband’s death. We think that there are here all the elements of a valid trust, for the creation of which, as is often said, no partiular form of words is necessary.

The judgment appealed from should be reversed and a new trial had, costs to abide event.

All concur.


text:
    Samuel W. Hastings, as Constable, etc., App’lt, v. Jacob Nagel et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Replevin—Sheribt—Afeidvit of claim.
    A person, who claims property taken by the sheriff under a writ of replevin, cannot maintain an action against him for the conversion thereof, unless he delivers to him an affidavit specifying his claim.
    Appeal from a judgment in favor of defendants.

      Herman Vogel, for app’lt.
   Cullen, J.

is an appeal from a judgment of the county court of Kings county in favor of the defendant, entered upon the verdict of a jury directed by the court. The main facts are not disputed. On a justice’s judgment against one Viemeister an execution was issued to the plaintiff as constable. He levied on forty-four clocks in Viemeister’s store. He did not take the clocks away, but left them with one Herring, a clerk of Viemeister’s,. taking the following receipt:

“ Brooklyn, December 23, 1891.
“ Eeceived from S. W. Hastings, constable, forty-four assorted clocks, now in store of premises No. 1131 Broadway, Brooklyn,, to be held as safe-keeping in storage, to be called for by me.
“ Ludwig Herring.”

Subsequently the F. Kroeber Clock Company brought an action in the supreme court against Viemeister and Herring to recover possession of property, including the clocks in suit. Under a writ of replevin in that action the sheriff took the clocks. The plaintiff then brought this action against the sheriff for conversion of the clocks levied on, and the present defendants were substituted instead of the sheriff. We think that the verdict was properly directed for the defendants. The liability of the defendants in this action is but the same as that of the sheriff had they not been substituted in his place. We concede that the plaintiff made a valid levy on the clocks, and acquired a property therein sufficient to maintain an action against any wrongdoer who interfered with them. We may also concede that the title of the plaintiff would prevail against that of the Kroeber Clock Company, the plaintiff in the replevin'suit, though the nature of the clock company’s claim of title does not appear in this record. But such facts do not determine the question of the plaintiff’s right to maintain this action. In the replevin suit the sheriff was directed to take the goods described from the possession of Viemeister and Herring. The warrant did not authorize the sheriff to take the property from any other person than the defendants, but it did protect him in taking it from the defendants, no matter to whom the property belonged; and no action against him could be maintained except after affidavit of claim. King v. Orser, 4 Duer, 431; Bullis v. Montgomery, 50 N. Y. 353. There can be no question that the property was in the possession of Herring. Herring was not the servant of the plaintiff, having mere custody of the property, as distinguished from possession. He was a bailee of the property. The receipt given to the plaintiff establishes that fact. Hence the case of McDougall v. Travis, 24 Hun, 590, is not in point. The plaintiff had a plain remedy. Under section 790 of the Code he could deliver to the sheriff an affidavit specifying his claim. If the chattels were not delivered up to him, he could then, under section 1710, maintain his action against the sheriff for the seizure. But that section expressly provides that no action shall be maintained against the sheriff except as therein prescribed.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.

All concur.


text:
    Michael Kline, Resp’t, v. Charles Green, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Livery stable keepers—Lieu.
    A livery stable keeper cannot, without first serving the notice required by chap. 91 of 1893, recover from the owner a horse, on which he has a lien for its keeping, though the latter has wrongfully obtained its possession.
    Appeal from a judgment of the county court affirming a judgment in favor of plaintiff rendered in the justice’s court.

      Alonzo Wheeler, for app’lt; George A. Wyre, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court affirming a j udgment in favor of the plaintiff recovered in the court of a justice of the peace. The action is replevin to recover a horse. The plaintiff, a livery stable keeper, kept and boarded the horse, and for such keep the defendant was indebted to him in the sum of about $100. The horse was taken away by the defendant from the plaintiff’s stable. There was evidence tending to show that the defendant obtained possession of the horse by fraud. The plaintiff, three days after the horse was taken away, demanded from defendant the payment of his claim, or the return of the horse. On the failure of the defendant to comply with the demand, this action was brought. That the fraud of defendant could not destroy the lien of the plaintiff is clear. But the plaintiff failed to give the owner any written notice of the amount of his charges, and his intention to detain the horse. By chapter 91, Laws 1892, a livery stable keeper is given a lien on animals boarded, provided that such notice in writing be giving to the owner. It has been held that under this statute the staple keeper has a reasonable time after demand made upon him for the animal by the owner "to make out and deliver the written notice, and that for that purpose he may detain the animal during such period. When the notice is so given, it relates back to the time of the demand made by the owner. Eckhard v. Donohue, 9 Daly, 216; Ogle v. King, 2 City Ct. R. 85. In these cases it is said that the lien is inchoate from the entry of the horse in the stable, and ripens into a lien the moment the statutory notice is given. These decisions, and the reasoning upon which they proceed, are doubtless correct. But the difficulty in this case is that the plaintiff has done nothing to consummate his lien. Though the horse had been taken from his possession,—wrongfully, it may be assumed,—there was no obstacle in the way of his serving the statutory notice upon the owner. Possession of the horse was not necessary for this purpose. The plaintiff did not have a complete lien atthe time the horse was taken from him. He had but the option of a lien,—an option to be determined by his subsequent act in giving the statutory notice within a reasonable time, or by his failure so to do. At the time this action was brought, though three days had elapsed, he had not exercised this option so as to «reate a lien. As it was necessary for the stable keeper to obtain the right to detain an animal, that he should give the owner written notice of his claim, we think it was equally necessary to give ■such notice before he could seek to rotate the animal.

The judgment of the county court and justice should be reversed, with costs.

All concur.


author: Cullen,

text:
    The People, Resp’t, v. Frederick Maxwell, App’lt, (Three cases).

      Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Constitutional law—Ex post pacto—Excise.
    Section 45 of chap. 401 of 1893 is not ex post facto.

    3. Evidence—Buiiden—Excise—License.
    The prosecution is not obliged to show, upon a trial for selling liquor without a license, that the defendant had no license.
    Appeal from judgments of conviction for violating the excise law.

      Wm. C. Cox, for app’lt; W. H. Jaycox, for people.
   Cullen,

are appeals from judgments of the court of sessions of Suffolk county upon convictions of the defendant on three separate indictments for violating the excise laws. The offenses are alleged to have been committed in the year 1890, and the indictments were found in 1891. The trials were had in 1894. The principal point urged by the defendant on this appeal is that the repeal of the statute of 1857 by the enactment of the excise law of 1892 (chapter 401) rendered the further prosecution of the indictments against him impossible, the saving clause of that act as to past offenses to the contrary notwithstanding. We have no doubt as to the constitutionality and efficacy of the saving clause-It is in no sense an ex post facto law. The defendant is not punished under the saving clause of the act of 1892, but under the law as it existed at the time he committed the offense, the only effect of the saving clause being to limit the scope and operation of the repealing provisions of the statute. The principle that the repeal of a statute creating a crime or prescribing its punishment prevents prosecution for offenses committed while the law was in force is merely a rule of statutory construction. There is no question of natural right or principle of personal liberty involved. The legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on the subject, nor give immunity to past offenders. Mongeon v. People, 55 Ñ". Y. 613. The result sought to be obtained being entirely within the power of the legislature, we cannot see why the legislature is not equally the master of the means to be employed, and why it may not do the thing by a saving clause as well as by a statute applicable to future offenses. On the trial of the indictment for selling liquor without a license, objection was made that the prosecution had given no proof that the defendant had not a license. The objection is untenable, as such proof was not required to be given to make out the people’s case. If the defendant had a license it was incumbent upon him to show it. Schwab v. People, 4 Hun, 520; 1 Greenl. Ev. § 79. The judgments appealed from should be affirmed.

All concur.


author: Mayham, J.

text:
    Margaret B. Coie, Resp’t, v. John E. Carl, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 4, 1894.)

    1. Taxes—Levy—Question of fact.
    Under the circumstances of this case, it was held to be a question of fact whether the person, against whom the tax was assessed, was the owner or in possession of the goods levied upon under the tax warrant.
    2. Replevin—Demand.
    A demand in such case, is not a prerequisite to maintaining replevin by the owner, where the person, against whom the tax was assessed, was not in possession.
    Appeal from a judgment entered on a verdict, directed by the court in favor of plaintiff.

      H. M. Eldredge, for app’lt; C. E. Phillips, for resp’t.
   Mayham, J.

The plaintiff sued the defendant for the alleged conversion of a cow and wagon, of which she claimed to be the owner, and replevies the property, and, the same not being reclaimed by the defendant, the sheriff delivered the possession to the plaintiff. The defendant, in his answer, sought to justify the taking of the property under a warrant for. the collection of taxes, issued to him as collector of taxes for the village of Port Plain. The tax roll and warrant were put in evidence, and directed the defendant, as collector, to collect from the persons therein named the several sums set opposite their respective names on the last

coltimn on such roll. On such roll was a tax assessed against Fidelia Waddell, as executrix of -the last will of Hannah- ¥ Kellogg, deceased, for real and personal estate, which tax amounted to the sum of $82.97, to collect which, as the evidence tended to show, the defendant levied upon.the property in dispute in this-action. The defendant never reduced the property to his actual possession, but, while the same was constructively -under such levy, the plaintiff replevied the same. The evidence shows that-the defendant had,' at a previous year in which he acted as collector, levied upon the same property on a tax against the saíne party, and sold the same in satisfaction for such tax, and -that the property was bid off on such sale by one George Hawn at the request of Mrs. Waddell, and was, with other property, by him sold to the plaintiff under a written bill of sale, which was put in evidence on this trial. The evidence also tended to show that, the real estate Of which Mrs. Waddell’s testator died seised—the land for which this tax was in part assessed and levied—was in the joint possession of the executrix and a tenant of such executrix, who was working the same under contract with her own shares, and that such executrix resided upon a portion of such premises, and that the property in dispute in this action was, at the time of the levy by the defendant on such premises, in the possession of such tenant or such executrix, or both. This evidence, or some of it, was disputed by the evidence on the part -of -the plaintiff; but it seems conceded that the executrix was the owner of this land, either in her own right or as executrix, so that the occupancy and possession by the tenant working such farm on shares, was the occupancy and possession of the executrix for the purpose of the collection of taxes assessed against the executrix upon such lands. Taylor v. Bradley, 39 N. Y. 129. The possession of the farm under such an agreement is so far joint that one cannot maintain trespass against the other. Decker v. Decker, 17 Hun, 13. It would seem, therefore, that under the circumstances of this case it was a question of fact whether or not the person against whom this tax was assessed was the owner or in possession of these goods. The evidence shows that the goods were purchased on the previous tax sale for her or by her direction; and while the bill of sale would seem to transfer the legal title of these chattels to the plaintiff, yet if they were in fact in the possession of Mrs. Waddell, they would be liable to distress and sale for a tax assessed against her. The Revised Statutes (1 Rev. St. p. 397, § 2) provide for the collection of tax “ by distress and sale of any goods and chattels of -the person who ought to pay the same, or of any goods or chattels in his possession; ” and in Hersee v. Porter, 100 N. Y. 403, it was held that actual possession by consent of the owner, although unaccompanied by any ownership in the possession, is within the meaning of the statute. There is in this case some evidence tending to show .that these goods were left on these premises bv the consent of the plaintiff. It vtas therefore, we think, a question of fact for the jury to determine, under the evidence, who had the possession of the farm on which these goods were found by the sheriff, and, if in the possession of Waddell and Hawn, then as to the title of this property, and as to whether or not the plaintifHeft it in possession of the executrix with his consent.

We cannot agree with the contention of the appellant that a demand by the plaintiff of this property was a prerequisite to maintaining an action for these goods. If they were liable for this tax, no demand would relieve them from that liability. If they were not, then the defendant was liable for the original wrongful taking, and replevin in eepit would lie. Nor can we agree that the sale of these chattels for a former tax by this defendant is an estoppel as against him. That sale was not directly from the defendant to this plaintiff, but to George Hawn, a son of one of the occupants of Waddell’s premises. It does not appear that the defendant had any knowledge of a sale by Hawn to the plaintiff. We think the learned judge erred in taking the case from the jury, and that he should, as requested by the defendant, have submitted the question of the ownership by, and of possession in, Mrs. Waddell, under proper instructions, to the jury.

Judgment reversed, and a new trial granted; costs to abide the event.

All concur.


text:
    Thomas Palmer, Resp’t, v. James Gordon Bennett, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Libel—When lies.
    A party may sue for a libel, if the publication describes him, even though it names another person.
    2. Limitation—Absence from state.
    A return, to set the statute of limitations running, must be public or notorious, so that the creditor either knew of the return, or, with due diligence, could have ascertained it.
    3. Same.
    In such case, the burden is on the debtor to show a return of this character.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    Grout, De Fere & Mayer, for pl’ff; John Townshend, for def’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered on the verdict of a jury at circuit. The action was for libel. In the defendant’s newspaper there was published an article thus headed: “ President and Pauper. Speculator Dissipates a Railroad Magnate’s Fortune. In a Police Court at Last. A Policeman Recognizes in His Prisoner a Former Wealthy Employer.” Then follows a detailed account of the arrest of an intoxicated tramp, who gave the name of Edward E. Palmer, his arraignment at the police station and at the police court, and the recognition of him by the police officer as the former president of the Dekalb Avenue railroad. The article concludes as follows : “ Edward E. Palmer was for several years the president of the Dekalb Avenue Railroad Company in Brooklyn, and was at one time president of a bank in that city. He had a charming family,o an elegant residence on. Dekalb avenue, and was of considerable wealth. He speclated in cotton and lost everything, and then took to drink. He has for some years been lost to his old friends. He lives, with his family, a short distance out of the city. He is not doing anything, and has no means, and when arrested was trying to raise a drink to brace up his shattered system.”

The plaintiff is named Thomas. He had been president of the Dekalb avenue railroad for eight years, and the only president of that name; and had resided on Dekalb avenue for twenty-three years. The defendant answered, denying that the article was published of the plaintiff, and set up the statute of limitations.

The first point urged against this recovery is that the libel did not refer to the plaintiff, but to Edward E. Palmer, the person arrested, and that the court erred in submitting that question to the jury, instead of dismissing the complaint. We do not understand the defendant to contend that it was necessary that the plaintiff should, have been named, or that it was not sufficient that the description or references in the libel should identify him. That such is not the law is well settled. Townsh. Sland. & L. § 131, note; Id. § 343 ; Sumner v. Buel, 12 Johns. 475. But his claim is that the article was published of the prisoner, Edward E. Palmer, and that of him the libelous portion of the article was true. In a sense, this is correct. The article was published of that Palmer, the prisoner, but it does not follow that it might not reflect upon others. If false, it contained a libel on Edward E. Palmer, because of the charge of his vagrancy and arrest. But when the article charged the identity of the plaintiff and Edward E. Palmer, there was then a libel on the former. If it is affirmed that A. & B. are the same same person, and that B. has committed an offense, it-is thereby necessarily affirmed that A. has committed the offense. If A. and B. are in fact different persons, and the charge made is false as to both, then there is a libel on each; if false as to either, then there is a libel on the one who is innocent. The evidence fully justified the submission to the jury of the question whether the article referred' to the plaintiff as well as to the man arrested, and the motion to dismiss the complaint was properly denied.

The defense of the statute of limitations was not so clearly established as to take the question from the jury. Indeed, we doubt whether it was made out at all. The defendant was absent from the state when the libel was published and the cause of action accrued. The answer averred this fact. Hence the time limited began to run only from the defendant’s return to the state. Code Civ. Proc. § 401. This provision of the Code is in the same lan-. guage as that of the Revised Statutes on the subject. The authorities are clear that a return, to set the statute running, must be public or notorious, so that the plaintiff either knew of the return, or, with due diligence, could have ascertained it, and served process on the defendant. Cole v. Jessup, 10 N. Y. 96; Fowler v. Hunt, 10 Johns. 464; Ford v. Babcock, 2 Sandf. 518. The burden of proof was on the defendant to show a return of this character. The trial court assumed that the returns in June and October, 1888, set the statute in motion. In the view most favorable to the defendant, this was a question of fact for the jury. The defense of the statute was therefore submitted to the jury more favorably to the defendant than he was entitled to, and he has no valid complaint in this respect.

The judgment and order denying motion for new trial, appealed from, should be affirmed, with costs.


text:
    The People ex rel. Roswell W. Keene, Resp’t, v. The Board of Supervisors of Queens County, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Costs—Mandamus,
    The relator, in a mandamus proceeding, is not entitled to costs as a matter1 of course.
    2. Same.
    The right to costs falls, where the court of appeals reverses a judgment of the general term, affirming a special term judgment, with costs.
    3. Same.
    In such case, the general term costs can be granted only by the general term.
    Appeal from an order, allowing relator to tax costs of trial at special term, and costs and disbursements of appeal to the general term, and from a judgment sustaining a demurrer to a petition.

      F. H. Van Vechten, for app’lt; Roswell W. Keene, in pro. per.
   Cullen, J.

These are three separate appeals from as many orders of the special term. It is unnecessary to state their character further than to say, they go to a single point,—the right of the relator to the costs of this court at special and general terms. An alternative writ of mandamus was issued to the appellants to which' they demurred. The demurrer was sustained at special term and at general term, with costs to the defendants in each instance. The court of appeals reversed the judgments of the general and special terms, “with leave to the defendants to answer on pay ment of costs. The relator then applied to the special term for an order granting him the costs of the general term and the special term, which was granted. We think that, under section 2086 of the Code, as to mandamus, and from the fact that mandamus, though strictly a remedy at law, and not in equity, does not fall within the terms of section 3228, the relator was not entitled to these costs as a matter of right. If so, unquestionably, the costs were in the discretion of this court. It is true that such costs had been awarded by this court to the present appellants. But such awards fell with reversal by the court of appeals of the judgments of which those costs were the incident. Thereupon the subject-matter of costs was before this court undetermined, and subject to the exercise of its discretion. The case of Barnard v. Hall, 143 N. Y. 339; 62 St. Rep. 305, is an authority exactly in point. The special term properly exercised its discretion in favor of the relator. Had this court given a right judgment, instead of a wrong one, he would have been granted costs in the first instance. The general term costs, we- think, could only be granted by this branch of the court. But a motion has been made to this general term for that purpose, and that application should be granted.

The order appealed from should be affirmed, with $10 costs and disbursements, except so far as they grant the relator the eosts of these proceedings at general term, and the motion- of relator • at general term for the allowance of such costs should be granted.

All concur.


text:
    Milton T. Wooley, Resp’t, v. Charles Loewenstein et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Broker—Commissions. »
    To entitle a broker to his compensation, he must produce a customer not-only willing,, but able, to purchase his principal’s property.
    3. Evidence—Brokers.
    In an action by the broker for his commissions, the statement by the proposed purchaser, at the time of accepting the offer, is admissible to prove his ability to perform, and the broker is not concluded by the purchaser’s testimony given on the trial.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Daniel Seymour (F. E. Dana, of counsel), for app’lts; M. F. McGoldrick and George H. Barman, for resp’t.
   Cullen, J.

This is an appeal from a judgment entered upon a verdict at circuit, and an order denying defendant’s motion for a new trial. The action is brought by the plaintiff to recover for services rendered as a real estate broker. His testimony was to the effect that he was employed by the defendants to effect an exchange of certain vacant lots in New York city; that in pursuance of such employment he entered into negotiations with one Wronkow for an exchange of the lots for a building on State street; that the defendants made an offer of the terms on which they would trade with Wronkow; that finally he induced Wronkow to accept such terms, and notified the defendants of the acceptance of their offer, and that thereupon the defendants retracted their offer, and refused to execute a contract, or proceed further in the exchange. These facts, if proved,—and the jury have so found by their verdict,—would entitle the plaintiff to recover; provided Wronkow was at the time able and willing to make the exchange. The statement of Wronkow, accepting the proposed terms of exchange,. was properly admitted in evidence; and we do not think that plaintiff was limited to proving such willingness solely by the testimony of Wronkow, or that he was concluded by Wronkow’s testimony on that point given on the trial. But, to entitle the broker to his compensation, he must produce a customer not only willing, but able, to purchase his principal’s property. Condict v. Cowdrey, 139 N. Y. 273; 54 St. Rep. 648; Gerding v. Haskins, 141 N. Y. 514; 57 St. Rep. 716. The point was distinctly raised by the defendants, on a motion to dismiss the complaint, that there was no evidence to show that Wronkow was the owner of the State street building, or able to convey it. It was necessary for the plaintiff to prove this fact, to entitle himself to a recovery. We have looked through the evidence, and find the case barren of proof on this point. We therefore feel •constrained to reverse the judgment.

The judgment and order denying new trial should be reversed And a new trial ordered, costs to abide event.

All concur.


author: Merwin, J. Hardin, P. J.

text:
    In the Matter of the Estate of Azariah B. Shipman, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Executors—Accounting—Consolidation.
    Where a petition for an accounting by the executor of a deceased executor is filed, and such executor files a petition that the accounts of his testator as executor be judicially settled, and a citation is issued and served upon all parties interested, the action of the surrogate in consolidating the two proceedings will not be disturbed, where it does not appear that atíy one was harmed by the order, and the decree made was entitled in both matters.
    2. Same.
    Where, by the aid of the inventory as filed, and the other evidence in the case, the true amount of the estate as then existing can be ascertained with reasonable certainty, and the executor acted in good faith, it will not be presumed that all the property of such executor belongs to his testator’s estate, under the doctrine of confusion of goods,
    -3. Same—Inventory.
    The inventory is prima facie proof of the amount of the estate.
    4. Same—Surcharging account.
    The executor is not chargeable with money deposited to the credit of the estate after the filing of the inventory, unless it is shown that it was not received for property included in the inventory.
    5. Same—Gold.
    If the executor'collects money in gold when the latter is at a premium, he is not chargeable with the premium.
    6. Same—Bonds.
    Bonds, owned by the decedent, should be inventoried at their market, and not their face, value.
    7. Same—Tomb.
    Allowance of $2,000 for a tomb will not be made, where the estate is valued at $17,000.
    8. Same—Taxes.
    In case of a bequest of the income of a fund, the taxes on the fund and the expenses of the trust must be paid out of the income.
    Appeal from an order consolidating the two proceedings for an accounting.

      Matthew Hale and Jerome Egelston, for app’lt Shipman; C. W. Andrews, for res’pt Nottingham and for app’lts Andrews and another.
   Merwin, J.

On September 15,1868, Azariah B. Shipman died at Paris, France. He left a last will and testament, which bears clate March 12, 1868. This was, on the 19th November, 1868, admitted to probate in Onondaga county, where the testator resided, and letters testamentary at that date were issued to Emily C. Shipman, the widow of the deceased, and one of the executors-named in the will. Afterwards, and on the 6th February, 1869, an inventory of the personal estate was filed in the surrogate’s-office. This purports to have been made by two appraisers on the 11th January, 1869, and was verified by Mrs. Shipman before the surrogate of the county on the day it was filed. The amount of property, as there stated, was $13,669. By the will, after providing for “ debts and funeral expenses,” the testator gave legacies to the amount of $300, payable as soon as practicable after his decease; and by the fifth and sixth clauses he gave legacies-to the amount of $1,500, payable at the death of his wife, without interest. He then disposed of his medical'library and surgical instruments and apparatus. Then came the following provisions :

“Eighth, I give, devise, and bequeath to my wife, Emily C. Shipman, the one undivided one-half paid of all the rest and- residue of my real and personal estate of which I may die seised or possessed, to have and to hold the same to her and her heirs forever.
“ Ninth. I give, devise, and bequeath to my said wife the remaining undivided one-half part of all the rest and residue of my personal estate of which I may die seised or possessed, to have and to hold the same, and to receive the income therefrom, for and during the term of her natural life; and upon her death I give, devise, and bequeath said undivided one-half part as follows.”

—the manner of such disposition being stated, which is not important here, except it was to brothers and sisters of their descendants. Tw'o executors were named, and they were directed and empowered to sell and convey any real estate that he owned at his decease, and “ meanwhile to pay all taxes and charges thereon.” In the last clause there is this statement:

“ It is my intention that my wife shall receive all the income1 from my estate during her life, arising as well from the rest and residue bequeathed as from any sums set apart to pay the legacies provided for the fifth and sixth items of my will.”

Mrs. Shipman died on July 26, 1892, never having had a judicial settlement of her accounts. The other executor named in the will did not qualify. Mrs. Shipman had a separate estate, which at her death inventoried $100,000 and upwards. She left a will, which was afterwards duly proved, and letters testamentary issued to Jacob A. Nottingham on 24th September, 1892.. At the same-date, Madison D. Shipman was duly appointed administrator with the will annexed of the estate of Azariah B. Shipman. On 30th March. 1893, he presented a petition to the surrogate’s court of Onondaga county, praying that Nottingham, as executor, etc., be required to render an account of the proceedings of Emily 0. Shipman as executrix, etc., of Azariah B. Shipman, deceased, and to deliver and pay over whatever was found to belong to said administrator. A citation was duly issued, and, upon its return, Nottingham, as executor, presented his petition for a final judicial settlement of the accounts of Emily C. Shipman as executrix. Upon this a citation was issued to the proper parties, returnable on 20th June, 1893. On the 30th June, 1893, to which time both matters had been duly adjourned, an order was made that “ said matters of accounting be, and the same are hereby, consolidated.” Afterwards Nottingham, as executor, filed an account of the proceedings of Mrs. Shipman as executrix. Objections were filed by the administrator with the will annexed, and after a trial the decree was made that is appealed from.

The appellant the administrator, etc., claims that the order of consolidation was improperly made. The administrator was proceeding under § 2606 of the Code of Civil Procedure. The same section, as amended in 1891, authorized the proceeding of the executor of Mrs. Shipman. There seems to be no special power given to consolidate the two, but they are both proceedings for the same purpose. It is difficult to see how the administrator was harmed by the order. In re Hodgman’s Estate, 31 St. Rep. 479. He had full opportunity to have determined what moneys or property should be turned over to him. He suggests that the whole estate should have been turned over to him, but he hardly claims that the deceased executrix should not be credited with the half of the estate that was absolutely given to her. She is charged in the decree with all the costs, and disallowed commissions. The decree is in fact entitled in both matters. We find no good ground for interfering with the order.

The main question in the case relates to the basis on which the accounting should be had. The decree is made on the basis of the inventory, adding thereto such items as upon the facts were considered proper. The claim of the administrator with the will annexed is that the inventory is not prima facie evidence of the amount of the estate, because : First, it is not shown that the

proper notice was given of the time and place of the appraisal; and, second, items are shown to have been omitted,—intentionally, as the appellant claims,—to such an extent as to máte the inventory unreliable, and in effect fraudulent, and that, as the executrix kept no accounts, and mingled the estate of her testator with her own, it should be assumed that all the property which she left belonged to the estate of her own testator, except such as her representatives may be able to show belonged to her individually. In this way it is claimed that the doctrine of confusion of goods (1 Story, Eq. Jur. § 468; 1 Perry, Trusts, § 447) should be applied. The inventory was made January 11,1869, and verified before the surrogate and filed in the surrogate’s office February 6, 1869. No question is made about the proper appointment and qualification of the appraisers! No proof was given that notice of the appraisal was served and posted as required by the statute. The inventory was offered in evidence by the executor of Mrs. Shipman, and was received in evidence without objection. No question was raised as to its invalidity until requests were made upon the settlement of the case on the appeal. If it had been raised in time, and the defect not then supplied, it might with considerable reason be said that after this lapse of time it would be presumed that the proper notice was given. See Lawson, Pres. Ev. 60. The circumstance that for 20 years and upwards, and until after the death of Mrs. Shipman, no question was raised about the inventory, deserves some consideration. Thomson v. Thomson, 1 Bradf. (Sur.) 24. The surrogate, by his decree, charges the estate of the executrix with several additional items of assets, but finds that she committed no willful breach of trust,, and did no fraudulent or dishonest act, and refuses to find that she intentionally withheld and omitted from the inventory any of the additional items. There are in the case circumstances which tend to support this conclusion of the surrogate, and we are not prepared to say that his conclusion is wrong. Besides, there is evidence in the case that is quite persuasive to the .conclusion that the inventory is substantially correct. I refer to the statement oor inventory made by the testator in his diary on December 9,1867. This was evidently a statement of his securities and real estate, and include an item for notes and bank accounts. The testator and his wife went to Europe in March, 1868, and upon the letter of credit of the testator there was drawn about $2,500 up to the time of his death. Having this in view, it would seem that the inventory filed did not depart greatly from the situation of fact when it was made. If by aid of the inventory as filed, and the other evidence in the case, the true amount of the estate as then existing can be ascertained with reasonable certainty, and the testatrix acted in good faith, the severe remedy upon confusion of goods should not- be applied. We are of the opinion that the surrogate did not err in taking the inventory as a basis. That was prima facie the amount of the estate. Marre v. Ginochio, 2 Bradf. (Sur.) 165; In re Ryalls, 74 Hun, 207; 56 St. Rep. 291, and cases cited. Code Civ. Proc. § 1832.

The administrator claims that there are other items that the surrogate should have charged to the executrix.. It appears, that on February 1, 1869, Mrs. Shipman deposited in the Syracuse Savings Bank, in an account kept by her husband in his lifetime, and continued by her after his death, the sum of $2,000, which on the 3d of March following she drew out, signing the receipt as. executrix. Presumptively this was property of the estate. There was no item of this particular amount and character in the inventory, and therefore it is claimed it should be added to it. The argument seems to be that the verification of the inventory by' Mrs. Shipman on February 6, 1869, was a statement by her that the estate was then situated as stated in the inventory,- and that, as it did not include the item of $2,000, it should be added to it. The surrogate disallowed the item on the ground that, the inventory being prima facie proof of the assets, it could not be found from the evidence that this'item was not some portion of the property mentioned in the inventory, or the proceeds thereof. It is to be observed that the inventory was made January 11, 1869, and must .speak, of the character of the property as it was then. So we think the surrogate did not err in disallowing the item. The same may be said as to divers items deposited by Mrs. Shipman to her credit as executrix in the Onondaga County Savings Bank from October 1, 1869, to June 30, 1874.

It was found by the surrogate that Mrs. Shipman, on or about September 15, 1868, received from her husband, at Paris, France, £360 sterling, of the value of $1,746, which belonged to her husband, and was received by her either as his agent, before his death, or as part of his estate after his death, and should be charged to her; and he did so charge it' in his decree. The administrator claims that the charge was too small, in that it did not, as he claims, include the premium then on gold. The appellants’ legatees under the will of Mrs. Shipman claim that the evidence does not warrant the finding that the money was the testator’s, or that it was received by Mrs. Shipman as agent for her husband, or as part of his estate. The testator, on going to Europe, in March, 1868, took with him a letter of credit from a banking house in New York having as correspondents John Munroe & Co. in Paris, France, and J. S. Morgan & Co. in London, England. He died in Paris, France, about twilight on September 15, 1868. On the 15th of September, 1868, Mrs. Shipman received by credit with John Munroe & Co. at Paris £360. This credit was by draft on London. On 16th September, 1868, the account of the testator with J. S. Morgan & Co. in London was charged with draft for £360, and the letter of credit was surrendered. There is evidence from which it may be inferred that the credit to Mrs. Shipman at Paris was by means of the letter of credit. The money was largely used for funeral expenses and expenses of return home. The circumstances warrant the conclusion that the money was received, not as a gift or in the payment of a debt, but to be accounted for. The conclusion on this subject of the surrogate should not be disturbed. The estate of Mrs. Shipman is allowed credit for the funeral expenses. It is not found or shown, except perhaps by inference, that Mrs. Ship-man received the amount in gold. Assuming that she did, the case of Kellogg v. Sweeney, 46 N. Y. 291, seems to be against the right to add the premium to the recovery. All that was received was money, and the judgment can only be for so much money. See, also, Phillips v. Speyers, 49 N. Y. 653; Swanson v. Cooke, 45 Barb. 574. The same rule would apply to the claim as to an item of $225 received in gold, and which was charged to the estate of the executrix at the par value. In the inventory were several bonds, being “ five-twenties,” so called, of date November 16,1861, to the amount of $1,500, and of date July 1, 1865, to the amount of $4,000. These are appraised in the inventory at par value, and so charged in the decree. It was admitted at the trial that these bonds, at the time of filing the inventory, were at a premium. We see no good reason why they should not have been appraised at their actual value at the time. There were then, according to the evidence, at a premium of 7 per cent. This would add to the inventory the sum of $885.

The surrogate allowed, as part of the funeral expenses, the sum of $2,000 for the construction of a vault and tomb,” and.the sum of $580 for a cemetery lot. A reasonable charge for a suitable headstone is proper to be allowed as part of the funeral expenses. Code Civ. Proc. § 2749; Owens v. Bloomer, 14 Hun, 296. The monument, if it be called that, which is allowed for here, was not of the ordinary character. The amount of the real and personal estate altogether was about $17,000. We find no sufficient reason in the facts or in law for the allowance of so large a sum for the purposes stated without express authority in the will. The item of $2,000 should be reduced to the sum of $1,000.

The testator, at the time- of his death, was the owner of a house and lot in Syracuse.' This was sold in 1881 by the executrix, under the power given her by the will. In the meantime she paid for taxes on the premises the sum of $821.44. This the surrogate refused to allow to the estate of the executrix, on the ground “ that the ordinary rule should apply that taxes assessed during the existence of a life tenancy must be paid by the life tenant; and, although the will directs the executors to pay the taxes, the fair construction of the will in that regard is that they should pay them out of the income. ” The appellants the legatees, etc., claim that this ruling was erroneous. The general rule is admitted to be as stated by the surrogate, but it is argued that this case is an exception, by reason of the clause of the will that directs the executors “ meanwhile to pay all taxes and charges thereon.” In re Albertson, 113 N. Y. 434; 22 St. Rep. 728, it was held that, to sustain, a construction of a will whereby the capital of a trust fund may be impaired by using it in payment of taxes and of interest on mortgages and in maintaining the realty used by the life tenant, it must contain words of the most unmistakable import pointing unequivocally in that direction. In that case the words to “pay out of my estate ” were held not to he sufficient to relieve the income from the charge. The force of this decision, as applicable here in favor of the ruling of the surrogate, is sought to be met by the provision of the eleventh or last clause of the will, where it is stated to be the intention of the testator that his wife “ shall receive all the income from my estate during her life, arising as well from the rest and residue bequeathed as from any sums set apart to pay the legacies provided for in the fifth and sixth items of my will.” The claim is that the expression “all the income” shows an intention to cast the burden of the taxes in question on the capital of the estate. Very clearly- the object of the eleventh clause was to make clear the proposition that the testator’s wife should have the income on the fund, to be set apart for the payment of legacies that were not to be paid until her death. It' can hardly be construed to mean that the testator by it indicated an intention that his wife should have the gross income of the estate. The general rule is that, in case of a bequest of the income of a fund, the taxes on the fund and the expenses of the trust must be paid out of the income. Whitson v. Whitson, 53 N. Y. 481. The ruling of the surrogate should not, we think, be disturbed.

There are no other questions that need be here discussed. It follows that the inventory account should be increased in the sum of $385 and interest from July 26, 1892, the date of Mrs. Ship-man’s death, and the amount allowed for funeral expenses should be decreased to the sum of $1,000, and the decree .should be modifled accordingly. In other respects the decree should be affirmed.

Martin, J., concurs.

Hardin, P. J.

Upon the force of Owens v. Bloomer, 14 Hun, 296, I assent to the modification as to the “ vault and tomb.” As to the other portion of the opinion I give my assent.

Decree modified as stated in the opinion, and as modified, affirmed, without costs of the appeal to either party.


author: Dykman, J.

text:
    Richard A. Roberts et al., App’lts, v. New York and New England Railroad Company et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Corporations—Action by stockholder.
    A court of equity will not interfere, in the suit of a stockholder, with the management of the internal affairs of a corporation, to coerce the performance or command the non-performance of acts by directors or trustees, where the action or inaction is not tainted with fraud and it is not beyond the powers of a majority of the stockholders or directors.
    Appeal from a judgment, sustaining a demurrer to the amended complaint.

      Morrison & Kennedy (L. J. Morrison and E. L. Andrews, of counsel), for app’lt; Tracy, Boardman & Platt and Granville P. Hawes (James R. Soley, of counsel), for resp’ts.
   Dykman, J.

— This is an appeal by the plaintiff from a judgment sustaining a demurrer to the amended complaint in this action. The action is brought by four plaintiffs, who own 15,300 shares of the capital stock of the defendant the Boston, Hartford & Erie Eailroad Company, and they state in their points submitted upon the argument of this appeal that they bring this action to redeem the Hew York property of the Boston, Hartford & Erie Eailroad' Company from mortgagees in possession. It appears from the amended complaint that the Boston, Hartford & Erie Eailroad Company, on the 19th day of March, 1886, executed a mortgage to three persons as trustees, by which it conveyed all its property to secure the payment of 20,000 bonds of $1,000 each. The company made default in the payment of the interest due July 15, 1870. All the provisions of the mortgage applicable to such a contingency were complied with, and by the lapse of time and the continuance of the default the title to the property became vested absolutely in the trustees. Thereupon the trustees, in obedience to the requirements of the mortgage, organized a new corporation, known as the Hew York & Hew England Eailroad Company, and conveyed the property which had come to them to the new corporation, which began to operate the railroad in April, 1873. It is the claim and insistence of the plaintiffs that such conveyance by the trustees was unauthorized and illegal, and that the new company obtained no title to the property by virtue thereof; and further, that the old company, or its shareholders, have an equity of redemption in the property, because the legal title thereto is in that company. An admission of the validity of' such a contention would admit the invalidity of that portion of the mortgage which provides expressly that after the continuance of the default in the payment of interest for the period of eighteen months the whole of the mortgaged premises and franchises shall vest absolutely and in fee in the trustees, without further assurance or process of law, and all right or equity of redemption of the railroad company therein shall be forever barred and foreclosed. The complaint alleges no facts which tend to invalidate the mortgage bonds, the organization of the new company, or the acquisition of the property of the old company. The vague avermentthat some persons have been actuated by designs more or less fraudulent, without any specification of facts, are quite immaterial. The statement of the belief of the plaintiffs that the old corporation at the time of the default in the payment of interest was in. possession of funds sufficient to pay the interest and the operating expenses .of the road, and that the default was brought about by the officers in pursuance of a fraudulent design to disrupt the company, is quite too indefinite to constitute a charge of fraud. The complaint is destitute of any charge of fraud sufficient to constitute the basis of any j udicial action. It fails to allege any concealment in relation to any of the events or transactions to which reference is made therein. Although the transactions were consummated more than twenty years ago, no reason is assigned for the inaction of the plaintiffs for so long a period of time, and. permitting, in their silence, the purchase of the bonds of the new company by innocent buyers.

The examination of the complaint in this action must start with the assumption that it contains no averment of illegal or unconscientious execution of the powers of trustees or directors, or any acts which were fraudulent or collusive or injurious to any rights, of the stockholders. It becomes, therefore, only necessary to inquire how far a court of equity will interfere in the suit of a stockholder with the management of the internal affairs of a corporation to coerce the performance or command the nonperformance of acts by directors or trustees where the action or inaction is not, tainted with fraud, and it is not beyond the powers of a majority of the stockholders or directors. Such inquiry seems to be fully answered by the opinion of the court of appeals in the case of Leslie v. Lorillard, 110 N. Y. 532; 18 St. Rep. 520, where it was said:

“ In actions by stockholders which assail .the acts of their directors or trustees, courts will not interfere unless the powers have been illegally or unconscientiously executed, or unless it be made to appear that the acts were fraudulent or collusive and destructive of the lights of the stockholders. Mere errors of judgment are not sufficient as grounds for equity interference, for the powers of those intrusted with corporate management are largely discretionary. ”

In this connection the remarks of Judge Comstock in the opinion of the court of appeals in the case of Hoyt v. Thompson, 19 N. Y. 216, are quite appropriate. He there said as follows:

“ The board of directors of a corporation do not stand in the same relation to the corporate body which a private agent holds-towards his principal. In the strict, relation of principal and agent, all the authority of the latter is derived by delegation from the former. * * * But in corporate bodies the powers of the board of directors are in a very important sense original and undelegated. The stockholders do not confer, nor can they revoke,, those powers. They are derivative only in the sense of being re- " ceived from the state in the act of incorporation. The «directors, convened as a board, are the primary possessors of all the powers which the charter confers.”

Their position is similar to that of town officers, who, though elected by the people, do not derive their authority from those who placed them in office, and are not subject to their direction or control; neither are they the agents of the people nor of the towns. Persons who become stockholders in corporations do so with the understanding, express or implied, that the action of a majority will control the policy of the body. Within the scope of the law, and in the absence of fraud, the will of a majority of the stockholders is absolutely controlling, and the minority in interest must submit If stockholders in all cases could successfully' invoke the interference of the courts, then the management of the affairs of corporations could be transferred to the courts at the instance of any one who became dissatisfied with the conduct of the officers. But the rule is plainly otherwise. Ho action of directors can be coerced, even by a majority of ,the stockholders. The remedy for mismanagement lies in a change of directors or trustees at the election of the governing body. Here, again, the analogy to town, officers prevails. Such officers may be injudicious or unfaithful, but the remedy lies in their retirement by the electors at the expiration of their official term. Such is also the remedy of stockholders in corporations against officers who fail to discharge their duties judiciously. In this case the plaintiffs complain of the-failure of the directors to take measures for the redemption of the-mortgage, and whether such action should be taken rested in the-sound discretion of the board of directors. If the action of that body was not in accordance with the will of the stockholders, they had the power to change the board, and elect officers who would carry out their wishes. A failure of the majority to take action-looking to such change implies acquiescence in the policy of the-directors by the majority, and the minority was without remedy,, because, as we have already seen, they had agreed to be governed by the majority. The internal affairs of corporations could be successfully administered upon no other theory. Every stockholder in such bodies knows, when he becomes such, that he is to be bound by the action of the majority. This very case illustrates the wisdom of the rule so plainly and generally enunciated-by elementary writers and adjudicated decisions. As we have-said, whether the property should be redeemed from the mortgage-was a question of discretion and judgment to be exercised by the board of directors. There might well have been differences o£ opinion upon the subject, but its decision rested with the board, and they reached a conclusion which received the acquiescence of all parties for a long number of years. As we have seen, the remedy was by a change in'the board of directors by the action of a majority of the stockholders, and that was not pursued. Even now but four stockholders complain, and they only claim to represent a small minority of the stock. They do not claim that'the long acquiescence of the stockholders in the action of the governing body-and in the transactions which resulted in the organization of the corporation has been induced by any motives except such as usually actuate men who are mindful of their own interests.

Our conclusion is that no case is made by the complaint which will justify th'e interference of the court for the administration of the relief demanded in the complaint, and the judgment should be affirmed, with costs.


author: Follett, J.

text:
    William T. Standen, App’lt, v. William L. Brown, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Sale—Pno of.
    The evidence, in this case, was held sufficient: to establish - that the transfer of notes and mortgages, in the form of collateral security, was a sale.
    Appeal from a judgment dismissing the complaint.
    July 28, 1892, the plaintiff was the owner of the following bonds and mortgages:

    July 28, 1892, the plaintiff assigned to the defendant the aforesaid fifteen bonds and mortgages, by a written instrument, “as-collateral security ” for the payment of the plaintiff’s bond, executed on that date, by which he undertook to pay to the defendant $10,000 one year from date, with interest at six per cent., payable semi-annually. On the same date the defendant, in consideration of said bond, assignment, and of the delivery of said bonds and mortgages to him, gave to the plaintiff his check for $9,800, which -was paid. On the 8th of September, 1892, the plaintiff was the owner of the following bonds and mortgages :

    September 8, 1892, the plaintiff asigned to the defendant said nine bonds and mortgages, by a written instrument, “ as collateral security” for the payment of the plaintiff's bond, executed on that date, by which be undertook to pay to the defendant $3,376.67 one year from date, with interest at six per cent, payable semiannually. On the same date the defendant, in consideration of said bond, assignment, and the delivery of the bonds and mortgages to him, gave to the plaintiff his check for $3,300, which was paid. On the 18th of October, 1892, the plaintiff was the owner of three shares of the stock of the Pelhamville Land and Homestead Association, of the par value of $600 each. October 18, 1892, the plaintiff assigned to the defendant said three shares of stock, by a written instrument, “ as collateral security ” for the payment of the plaintiff’s bond, executed on that date, by which he undertook to pay to the defendant $1,623.33 one year from date, with interest at six per cent., payable semi-annually. On the same date the defendant, in consideration of said bond, assignment, and the delivery of said shares, gave his check to the plaintiff for $1,590, which was paid. On November 8, 1893, this action was begun to have the three bonds and the three assignments, executed by the plaintiff to the defendant, canceled as usurious and void. The plaintiff alleges in his complaint that the ■complaint that the difference ($200) between the plaintiff’s bond .and defendant’s check of July, 28, 1892, the difference ($76.67) between the plaintiff’s bonds and defendant’s check of September 8, 1892, and the difference ($33.33) between the plaintiff’s bond and the defendant’s check of October 18, 1892, were retained by the defendant, pursuant to a usurious agreement between the litigants that the plaintiff should pay, and defendant receive, these ■sums in excess of the legal rate of interest on the sums which the plaintiff obligated himself to pay by those bonds. The defendant, in his answer, denies that any usurious agreement was made between the parties.
    Argued before Van Brunt, P. J., and Follett and Parker, JJ.

      Grove M. Harwood, for pl’ff; Eugene S. Ives, for resp’t.
   Follett, J.

The special term found as a fact that the transactions were not loans by the defendant to the plaintiff, but were sales by the plaintiff to the defendant, and that the securities mentioned in the assignments and the three bonds given by plaintiff to defendant were for the purpose of guaranteeing the payment of the bonds and mortgages sold to defendant. The plaintiff filed exceptions to the facts found by the special term and to its conclusion of law. The only question involved on this appeal is whether the findings are contrary to the weight of evidence. The fact that it was recited in all of the assignments that the bonds and mortgages were assigned by the plaintiff to the defendant “ as collateral security” for the payment of the bond of even date is strong evidence that the three transactions were loans instead of purchases. Again, the fifteen bonds and mortgages assigned July 28,1892, amount, without interest from their dates to July 28,1892, to $10,216.67, while the bond given by plaintiff to defendant was for $10,000, and the check given by him to plaintiff was for $9,800, making a discount of $416.67, besides accrued interest on the securities. The nine bonds and mortgages assigned by the plaintiff to the defendant September 8,1892, amount, without interest from their dates to September 8, 1892, to $3,376.67.. The bond given by the plaintiff to the defendant on this transaction was for the same amount, and the plaintiff’s check was for $3,300, making a discount of $76.67, aside from accrued interest on the securities. The par value of the three shares of stock assigned by the plaintiff to the defendant October 18,1892r was $1,800. The plaintiff received from the defendant $1,590, and gave his bond for $1,623.33, making a discount of $33.33. It will be observed that the first bond is less, by $216.67 and the accrued interest, than the amount secured by the first fifteen bonds and mortgages. If the transaction were a sale and guaranty of payment of the securities sold, it is difficult to see why the purchaser did not execute a guaranty of the payment of the bonds and mortgages, principal and interest. • The second transaction is not open to this criticism, though the bond taken is not equal to the principal and interest of the nine mortgages assigned. In respect to-the third transaction, it does not appear that the value of the three shares of stock was agreed upon or even discussed between the parties, .which is usual when a sale is made. The plaintiff swore positively that the three transactions were loans, and that the three assignments were, as recited in them, intended as collateral security for the payment of the sums loaned. In this he was corroborated by Charles M. Marvin, who was present at the first and second transactions. This witness testified that the agreement was that the plaintiff should pay the defendant a bonus of two per cent, in addition to the legal rate of interest, and that the two transactions were loans. In opposition to this, the defendant testified that the-transactions were not loans, but were purchases of the securities assigned, and that the bonds were taken as guaranties of the payment of the securities assigned. Exactly how the payment of the three shares of stock was or could be guarantied is not explained-In a letter written by the plaintiff, September 12, 1893, to the defendant’s attorneys, reference is made to a letter written by them to him September 11, 1893. Unfortunately, the letter of the 11th was not put in evidence. In the plaintiff’s letter he says:

“ When these transactions were made, it was certainly understood that this was only an indirect way to the purchase by Col. Brown of the numerous little mortgage which I held, and it was; done in this way in order that the colonel might not be bothered with the collection of small amounts of interest, but might look to me for such payments in one sum.”

This statement is a strong corroboration of the testimony of the ■defendant, and we regard it as of sufficient probative force to sustain the finding of the learned trial judge, who had the witnesses before him, and had an opportunity to observe their manner. The judgment should be affirmed, with costs.

All concur.


author: Van Brunt, P.

text:
    Augustus D. Shepard, Resp’t, v. Metropolitan Elevated Railway Company et al., Def'ts. Western Union Telegraph Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Parties—Elevated railway.
    A grantor is not entitled to be made a party in an action by the grantee against an elevated railway company to recover the damages to the prem- * ises conveyed, caused by the operation of its road, though he reserved such damages.
    Appeal from an order, denying on its merits the petition of the Western Union Telegraph Company to be made a party to the action.

      Rush Taggart, for app’lt; W. G. Peckham, for resp’t.
   Van Brunt, P.

This action was brought to obtain an injunction restraining the defendants from the further maintenance and operation of the defendants’ elevated railway in front of premises on Trinity Place, together with damages for the maintenance and operation of said railroad in the past. The plaintiff acquired his title to the premises on or about the 29th of March, 1889, a deed which contains these words :

“Damages to said premises arising by reason of the elevated railroad as now constructed and operated in front of said premises have been reserved to the Western Union Telegraph Company, a former owner.”

The reservation referred to was in the following language:

“ The party of the first part hereto [the petitioner] reserves all ■claim or right of action against the Metropolitan and Manhattan Elevated Eailroad Companies, or either of them, for any and all injury or damage done to the aforesaid property, or to the value or uses thereof, in the past, present, or future, by reason of the construction and operation of the elevated railroad in front of said premises as they are now constructed and operated.”

The appellant presented its application to the court to be made a party to the action, and in its petition alleged facts which it is claimed would entitle the petitioner, if it were necessary, to a reformation of these deeds by the insertion of further language reserving to the petitioner any sum of money that might be appraised or agreed upon, under the power of eminent domain, as compensation for the extinguishment of the claims and rights of action above mentioned. The petition further represented that, by reason of the fact that the easements taken by the defendants were inseparable from the land to which they were appurtenant, the legal title thereto had passed to the plaintiff, subject, nevertheless, to the said reservation, and were held by him in trust for the petitioner, to the extent necessary to carry into effect the intent of said reservation; that plaintiff repudiated the said trust, and refused to recognize the interest of the petitioner in the subject of the action, and was acting in hostility thereto ; that petitioner was thereby exposed to irreparable injury, from which no adequate relief could be obtained by a separate action. The prayer of the petition was that the petitioner be made a party, plaintiff in the action, and control the prosecution thereof, and receive the fruits thereof, or, in the alternative, that petitioner be made a party defendant, and have leave to interpose an answer, and to seek such relief against -the other parties to the action, in respect to the subject-matter thereof, as in law and equity it might be entitled to receive. The motion was denied upon the merits, and from the order thereupon entered this appeal is taken.

It is conceded by the counsel for the appellant that the petitioner has no cause of action by itself against the defendants for the damages sustained by the erection and. operation of their elevated railroad, by reason of the reservation contained in the deed above referred to ; but it is urged that the plaintiff in this action, having taken title with notice of such reservation, took the same subject to a trust to enforce the petitioner’s claim for damages, which was reserved. It seems to us that there are several difficulties in the way of the establishment of the petitioner’s claim upon any ground whatever. It has been distinctly held that these easements cannot be severed from the principal estate so as to form the basis for the establishment-of any right. It has been further held, as is conceded by the appellant, that such a reservation as was contained in the appellant’s deed left no right of action in favor of the grantor in the deeds containing such reservation. It is a well established rule in our jurisprudence that an action must be brought in the name of the real party in interest, and the fiction of one party bringing an action in his own name to the use of another is no longer permitted. Yet the necessary result of the appellant’s contention is that the plaintiff is to maintain this action to his use, as the real party in interest.- If the appellant’s contention is correct, it is the proper plaintiff, and the present plaintiff is not. Now, it admits that it has no cause of action, as against the defendants, because of its conveyance .of the premises to which the easements forming the subject matter of this action are appurtenant; and this position is emphasized by the admission of the appellant that-adequate equitable relief by the recovery of permanent damages cannot be had except by tendering to the railway companies a clear legal title to the easements taken. Now, where in the contract of any of the predecessors in title of the plaintiff is there any obligation upon their part to convey anything to anybody at the request and dictation Of the appellant? There is no such agreement The appellant relied upon its reservation, and such reservation imposed no-duty upon its grantee. Its grantee got that which was granted, which seems to have been the substance, and the appellant has reserved that which has proven to be the shadow; and now it seeks to clothe this shadow with a material body by compelling its grantee to do something which he has nowhere covenanted or agreed to do. Our attention is called to the case of McGean v. Met. El. Railway Co., 133 N. Y. 9 ; 44 St. Rep. 75. But that seems to have no bearing upon the case at bar, because the sole ground upon which the plaintiff in that case had any standing in court or any claim for damages was because he owned the title to the center of the street, and expressly excepted from the grant the lands contained in the street. The court expressly stated that the grantee of the plaintiff took his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property; and that presumably, to the extent of the rights thus reserved, the cost of the property to him had been proportionately diminished; and that he was estopped by the reservation in his deed, which is to be given the same effect as a direct grant, from asserting any title to any part of the cause of action or to the rights, which the defendants will acquire under the judgment, which puts them in privity of title with the plaintiff. There the fee of the land was reserved upon which the easement existed. In the case of Kernochan v. N. Y. El. Railway Co., 128 N. Y. 559; 41 St. Rep. 110, it was expressly held that it is not possible to except easements from the operation of the conveyance, so as to preserve the title thereto unimpaired in the original owner; that they are incapable of a distinct and separate ownership, and the owner of a lot cannot reserve them upon a sale, but they must, of necessity, pass to the purchaser as appurtenant to the premises, and with them passes to the purchaser also the right to any remedy for their invasion. In the case at bar there is no claim that any part of the street was reserved out of this grant by the plaintiff, as was the fact in the case of McGean. It is a conveyance absolute, passing all the estate, together with its appurtenances, and then containing this reservation, which the courts have held cannot be enforced as to future damage, because it is an attempt to reserve a right of action for damage to a thing the title of which has been parted with. We are of opinion, therefore, that no trust relation was established between the plaintiff and its grantees, and that under no principle of law can this appellant compel this plaintiff to sue in his name for its benefit.

The order should be affirmed, with costs.

All concur.


author: YanBrunt, P.J.

text:
    Mary Mercadante, Resp’t, v. Manhattan Railway Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Evidence—Declarations.
    The owner of premises is not bound by the declarations of his predecessor in title in respect to their value.

      Appeal from a judgment, awarding plaintiff past and fee •damages.

      R. L. Maynard, for app'lt; C. L. Pashley, for resp’t.
   YanBrunt, P.J.

only points which are urged as ground of error in the trial below are questions relating to the admission and exclusion of evidence, and to the failure to compel the plaintiff to elect the theory upon which the action was to be tried. It was sought to prove, upon the question of value, that the former owner of the property had placed the same in the hands of a broker for sale, and had fixed a price which he was willing to take. This evidence was objected to and excluded, and an exception taken. There was clearly no error in this ruling, because the plaintiff was not bound by the declaration of her predecessor in title in respect to the value of the premises of which she was the owner. It is also urged that the court erred in the admission of certain evidence presented by the plaintiff. This was a judgment roll, in an action in which these defendants were not parties, showing the sale of premises on First street in the vicinity of the property in suit. In consequence of the meagerness of the record, it is impossible for us to say whether it was or was not error to admit this testimony. It does not appear under what circumstances this sale took place; whether it was at public auction or by private contract, or whether under the decree of the court or not. It is impossible, therefore, for us to say whether or not it was error to admit this record for the purpose of establishing what was paid for the property then in question.

The judgment should be affirmed, with costs.

All concur.


author: Yan Brunt, P. J.

text:
    Fifth National Bank, Resp’t, v. Central National Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Bills and notes—Payee—Presumption.
    In the absence of contrary proof, the name of the payee in a check will be presumed to have been written in when the check was signed.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Gibson Putzel, for the motion; W. H. Arnoux, opposed.
   Yan Brunt, P. J.

— This action was brought to recover the amount of a check which was drawn upon the plaintiff by one of its customers and paid by it to the defendant, the indorsement thereon being claimed to be forged. The check, as presented upon the trial, was made payable to the order of B. A. & Gr. N. Williams, Jr., and purported to be by them indorsed. There was no dispute in the evidence that such indorsement had never been made by them, or by their authority; and the sole question which was litigated upon the trial was whether the check had been drawn in blank, or to a fictitious payee, so that it might be considered as a check payable to bearer. The drawer of the cheek was illiterate, and could not read or write, except for the purpose of signing his own name, and all his checks were filled out by a bookkeeper in whom he had confidence, and who prepresented them to him for signature. The drawer had no recollection in respect to the signing of the check in question. He testified that he did not knowingly sign it in blank. He further testified as follows : “ It is not possible that I would sign it in blank and leave it with my bookkeeper.” In another place: “Did Watson always state to you the names of the payees in the •checks presented to you for signature ? A. Not always. Q. Did you on or about March 26, 1892, request Watson to fill out a check for Mr. Williams? A. I did not, that I know of. I don’t remember of asking him to fill out a check for Williams on that date. Q. You don’t know? You don’t remember? A. No, I don’t remember.” And, then in another place, he says: “I don’t remember anything about it.”

It is clear, therefore, that the case is utterly devoid of any proof as to the circumstances of the signing of this check. In the absence of proof, the presumption is that the check, when signed, was filled in, as it is at the present time. The proof also shows that the maker of this check did not intend to make the same payable to bearer or a fictitious payee. And in this respect the case differs radically from those which are cited upon the part of the defendant, of which Phillips v. Mer. Nat. Bank, 140 N. Y. 556; 56 St. Rep. 499, is the latest illustration. In that case the cashier of the defendant bank had authority, not only to fill out checks, but to sign them; and he made the checks in question in that case payable to persons who were dealers with the bank, but without their knowledge, and then indorsed them in the names of the payees, for the purpose of converting the funds of the bank to his own use. Under such circumstances, the court held that,so far as the defendant was concerned, the intent of the cashier was the intent of his bank, that the payees were to be considered as fictitious persons, and that the bank was so far concluded by the acts of its cashier as to be estopped from denying the validity of the check. In other words, that where the maker of a check uses as payee the name of an existing party, but does not intend that such party shall indorse the check, but indorses it himself, it is the same as though the name of a fictitious payee had been used, the intent being not to issue the check to the payee. In the case at bar there is no such proof. There was no intent upon the part of the maker to sign the check to a fictitious payee. The only construction that can be placed upon the testimony of the drawer of the check is that he has no recollection of signing the check in blank, and that he did not intend to make it payable to any fictitious payee. In this respect the case at bar is similar to the case of Shipman v. Bank of New York, 126 N. Y. 318; 37 St. Rep. 376, and differs from the case of Phillips v. Bank, supra. In the Case of Shipman, although fictitious names were used by the clerk, the checks were signed by the firm in the belief that the names of the payees represented real persons entitled to receive the amount of the check, and with the intention that they should be delivered to real payees, and should not go into circulation otherwise than through a delivery to and an indorsement by the payees named. In the case at bar, as already stated, there is no evidence but that the drawer of the check intended that it should be delivered to the payees, and there was no intention .upon his part to made the same payable to a fictitious payee. Attention might be called to other cases similar to that of Phillips v. Bank; but the case cited sufficiently illustrates the rule, and points the distinction between it and the case at bar.

The exception should be overruled, and the plaintiff have judgment upon the verdict, with costs.

All concur.