author: DaNIELS, J.: BRADY, P. J.:

text:
    FRANKLIN EDSON and STARKS EDSON, Appellants, v. THOMAS GIRVAN, Respondent, Impleaded with Others.

      Demurrer — will be sustained if the plaintiff under the facts stated is not entitled to the specific relief demanded, although such facts would home entitled him, to other relief.

    A demurrer interposed to a complaint upon tlie ground that it does not state facts sufficient to constitute a cause of action should be sustained, if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, even though they would have entitled him to some other or different relief had he demanded it.
    Where, in an action against several defendants upon a promissory note, the relief demanded is a judgment for the amount due thereon against the defendants and each of them, and the facts alleged show that the plaintiff is not entitled to such judgment, a demurrer to the complaint should not be overruled even though the facts stated show that he is entitled to a judgment for an accounting.
    Appeal from a judgment, entered upon an order sustaining a demurrer to the complaint.

      WilUam A. Beach, for the appellants.

      John H. V. Arnold, for the respondent.
   DaNIELS, J.:

Tbe complaint sets forth tbe making and indorsement by tbe defendants Alfred C. Smith and Thomas Girvan of a promissory note for tbe sum of $2,870.53. This note was delivered to and owned by tbe plaintiffs. It was then averred in'the first subdivision or cause of action that the makers of tbe note delivered to the defendant, The National Bank of the State of New York, certain'property, the proceeds of which it agreed to apply in payment of this and other notes of the same makers; that the property had been converted into money, but the bank had refused to pay the note although requested to do so. By the second subdivision of the complaint, which included the same note, it was stated that the bank had received moneys, merchandise and other valuable things of the makers of the notes, in consideration of which it agreed to pay the note at its maturity to whoever should be entitled to the money due thereon; and that after demand the bank had refused to pay the same. The third count or cause of action was alleged by setting forth the same note, together with a statement that an agreement had been made between the makers of the note and the bank that they should deposit with the bank the title to all property they should purchase in the course of their business and deposit the property itself in whole or in part in warehouses owned or controlled by the bank or some of its officers; and should also deposit with the bank the moneys, notes, evidences of debt and other property received by them in the course of their business, and that the bank would pay at maturity all their notes and negotiable obligations then outstanding. That they fully performed the agreement, but that the bank had refused to pay this note although payment had been demanded at its maturity. Each of these three statements in plain terms set forth a joint contract by Smith and Girvan, created by the making and delivery of their promissory note, and a several contract on the part of the bank for its payment. These were each perfectly good causes of action in and of themselves. (Lawrence v. Fox, 20 N. Y., 268; Hutchings v. Miner, 46 id., 456; Berley v. Taylor, 5 Hill, 577.) And they were followed by a demand for judgment in these words:

Wherefore the plaintiffs demand judgment against the defendants, and each of them, for the sum of $2,870.53, with interest thereon from the 5th day of April, 1876, together with the costs and disbursements of this action.”

The defendant Girvan demurred to this complaint upon the ground that it did not contain facts sufficient to constitute a cause of action against himself. And that was held to be its effect on the trial of the issue by the Special Term.

It is quite evident-from the demand of judgment, which is a material portion of the complaint when no answer has been served, that the object of the action was to recover against each of the defendants upon the contracts or obligations specially set out in the complaint. For the. demand of judgment was for the precise amount appearing to be due and unpaid both upon the note and the promise of the bank. No other or different relief than that was in any form asked for by thi's concluding portion of the complaint. And by the provisions of the Code the relief could not be more favorable than this to the plaintiffs unless, an answer in the case should be served. (Code of Civil Procedure, § 1207.) And as this defendant did not answer but served a demurrer, this section of the Code is directly applicable to the disposition of the appeal.

It is, therefore, to be regarded as what is legally denominated an action on contract for the recovery of a specific sum of money against each one of the defendants, and for no other or different relief whatsoever. And as these contracts were by their terms several, the one created by the note being obligatory upon its makers, and the other entered into by the bank obligatory solely and only upon the bank, they could not legally be included in the same complaint, for they could not be made the ground pf a joint judgment against all the defendants. (Buffalo and Niagara Falls R. R. Co., 29 Barb., 391, 394.) And for that reason either of the defendants was at liberty on his own behalf to have demurred to' the complaint for that reason. (Id., 394.)

In- addition to the facts already mentioned it was stated in each subdivision of the complaint that an action had previously been brought upon the note against the makers, in which judgment had been recovered and execution issued and returned unsatisfied. From this statement it is clear that the plaintiffs already had a judgment against the makers of the note of the precise description of that which was again demanded by them by the complaint in this action. And as tbat judgment in no manner appears to have been set aside, reversed or vacated, it was under the general principles of tbe law a merger of their liability upon the note and a legal bar to this action to again recover the amount of the debt.

This consequence results from the fact that the action has again been brought against the makers upon the note as .a legal obligation, and that is all that is to be regarded on account of "the restrictive demand of judgment that has been now included in the case.

It is not sufficient to relieve the plaintiffs from the operation and effect of this principle that they might, upon the facts set forth in the complaint, have demanded a different description of relief, for the provision of the Code upon this subject has been so framed where no anwer has been served as to require that to be included in .the prayer for judgment, as well as the right to it to be shown by the facts set forth in the complaint. (Simonson v. Blake, 20 How., 484.) Upon the facts themselves judgment for an accounting against the bank would not be improper, and to such an action the makers' of the note who placed the property in its possession would be proper parties. (Hall v. Omaha National Bank, 49 N. Y., 626; Adams v. Fox, 40 N. Y., 577; Monroe v. Galveston, etc., R. R. Co., 19 Abb., 90; Vanderpoel v. Van Valkenburgh, 2 Seld., 190; Haines v. Hollister, 64 N. Y., 1.)

Bufe where such is intended to be the object or scope of the action, it should be included within the demand for judgment to entitle the plaintiffs to that relief where no answer to the complaint shall be served. The right to such relief was by no possible construction within the demand of judgment which concluded the plaintiffs’ complaint. And as the defendant did not answer but demurred, the plaintiffs are not entitled to such equitable relief. No cause of action of that nature under this limited demand for judgment is set forth against the defendant in whose behalf the demurrer was served. If this had been the demand for. judgment it would have excluded the right to a personal judgment against the individual defendants, and they might very well, under it, have omitted to give any further attention to the case. For without interposing any objection or defense on that theory of the case, no personal recovery could be had against them. But as the case was made by the complaint, it became necessary that they should resist the plaintiffs’ right to another judgment against them for the amount of the demand already definitely recovered by that which has been entered.

The case was properly disposed of by the Special Term, and the judgment should be affirmed with costs, but with liberty to the plaintiffs to amend on the terms usually imposed.

BRADY, P. J.:

Section 120Y seems to control this case. If the defendant had not interposed a demurrer, the judgment might, I think, be less than asked for, namely, a judgment against ’ the bank and not the other defendants. The relief asked having included them for another judgment, I think that brother Daniels is right in his conclusions.

Present — Brady, P. J., and Daniels, J.

Judgment afihmed, with leave to plaintiffs to amend on the usual terms.


source: Caselaw Access Project

author: Daíuels, J.:

license: Public Domain

text:
    ALICE M. MORRIS and HENRY N. VEDDER, Respondents, v. JAMES C. TALCOTT, Appellant.

      Fraudulent representation cmd concealment — when am, order of arrest may be granted for.

    In April, 1882, the defendant in order to induce the plaintiffs to take his note without any indorser, upon the settlement of an account they had against him, represented himself to he good and solvent. The plaintiffs relying upon this representation took the note. In September following they again commenced to sell him goods, and continued so to do until December 9, 1883, when they became satisfied that the statement 'made by him the preceding April was not true, and declined to give him further credit. Soon after he made a general assignment for the benefit of his creditors. At the time in April when the defendant made the statement he was indebted to his father in the sum of about $13,000; and in September he was indebted, according to his books, over and above his assets, in the sum of $2,200 beyond the amount owing to his father.
    In an action by the plaintiffs to recover the price of the goods so sold and delivered:

      Held, that the defendant was properly arrested on the ground that he had procured the goods upon false, and fraudulent representations, and by a fraudulent concealment of his insolvent condition.

      Appeal from an order made at a Special Term denying a motion to vacate an order of arrest.
    The action was brought to recover the price of goods which the . plaintiffs had been induced to sell and deliver to the defendant by means of his false and fraudulent representations.

      Bemgamin W. Downing, for the appellant.

      Charles W. Daytpn, for the respondents.
   Daíuels, J.:

The motion was made upon the affidavits on which the order had been issued. These affidavits established the facts that in April, 1882, the defendant represented himself to be good and solvent. This representation was made to induce the plaintiffs to take his note upon the settlement of an account they had against him, without an indorser, and it had that effect. In the early part of the following September he again commenced dealing with the firm, which then sold him goods from time to time until the 9th of December, 1882, when they became satisfied that the preceding statement of his financial condition was not true and declined to give him further credit and he soon afterwards made an assignment for the benefit of his creditors. At the time when the representation was made he was indebted to his father in the sum of about $13,000; and in September, according to his books, he was indebted, over and above his assets, in the sum of $2,200 beyond- the amount owing to his father.

He does not appear to have been subjected to any losses affecting his ability to go on with his business; but the plain inference from the facts is, that it was caused by his insolvency, existing from the time when the representation was made down to the time of his assignment. It is only reasonable to presume, as he must have known what his indebtedness was, and could not possibly have overlooked his large liability to his father, that he knew when he represented that he was perfectly good and solvent that such was not the truth. This representation was fraudulent, and it was because of the conviction produced by it that he was able to, and did in fact, obtain the goods, for the recovery of the price of which the action has been brought.

, At the time' when he obtained these goods he does not appear to have had the least reason for supposing that he would be able to continue his business and pay the debt incurred in their purchase. It must have been, on the contrary, evident to himself, from the fact that his books in September showed that he owed about $2,200 over his assets, and the further sum of $13,000 to his father, that he could not continue his business. And the presumption therefore is, from these facts and the assignment afterwards made by him, that he obtained the goods without intending or expecting that they would be paid for, and that, in judgment of law, itself was a fraud upon these creditors. So, too, it was also fraudulent for him to conceal his insolvent condition, intending, as he evidently did by that circumstance and the favorable impression produced by his preceding .representation, to obtain without paying for it the plaintiffs property. (Pike v. Wieting, 49 Barb., 314; Byrd v. Hall, 2 Keyes, 646; Devoe v. Brandt, 53 N. Y., 462; Wright v. Brown, 67 N. Y., 1.)

Reliance has been placed upon what was said in one of the opinions in the last case to support the appeal, but the views so relied upon were not adopted by the court. The court affirmed the existence of the fraud upon evidence no more favorable to the plaintiff than that which has been produced to sustain the present order of arrest. The unreported case of Talcott v. Harris, decided by this General Term, also sustains the liability of the defendant to arrest.

The order was correctly made, and it should be affirmed, witli the usual costs and disbursements.

Davis, P. J., and Bbady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    In the Matter of the Application of one-half of the Trustees of the PYROLUSITE MANGANESE COMPANY for its Voluntary Dissolution.

      Corporation — a petition for its volunta/ry dissolution must state facts showing that such dissolution will be beneficial to its stockholdw's — the order requiring persons interested to show ccmse must comply strictly with the statute — objection how taken — report of the referee.

    A petition for the voluntary dissolution of a corporation must state facts showing that the dissolution of the corporation will be beneficial to the interest of the stockholders, it is not enough to allege that the parties differ as to the management of the affairs of the company, and that the petitioners, who own one-half of the shares of the corporate stock, are convinced that if the methods and plans of the other parties in relation to the management of the corporation be carried into effect the result will be the financial ruin of the corporation.
    Section 3433 of the Code of Civil Procedure provides that the court shall, in such cases, make an order requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place ‘therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved. A copy of the order is to be published, as directed in section 3434, and served upon each of the creditors and stockholders specified in the schedule which is required to be annexed to the petition.
    Held, that the order to show cause was in the nature of process provided for bringing the persons interested in contesting and resisting the application before the court, and that the requirements of the statute, as to its form and contents, must be strictly complied with.
    That an order requiring all persons interested, to show cause “why the prayer of the petitioners should not be granted ” did not' comply with the requirements of the statute, and tfiat all proceedings founded thereon were void for lack of jurisdiction.
    That the objection might be taken by any of the parties to the proceedings, and at any stage thereof.
    Section 3436 requires the report of the referee to contain “ a statement of the effects, credits and other property, and of the debts and other engagements of the corporation, and of all other matters pertaining to its affairs.”

      Held, that a statement that the schedules annexed to the petition were correct was not a compliance with this section.
    Appeal from an order made at a Special Term dissolving a corporation, tbe Pyrolusite Manganese Company, and appointing a receiver of its property.

      Edwmxl O. James and James B. Bill, for the appellants, The Pyrolusite Manganese Company and Edward IT. "Woodward and others, stockholders.

      John E. Wa/rd, for Charles C. Dodge and Anson P. Pond, petitioning trustees, respondents.
   Daniels, J.:

The proceedings were taken under the authority of title 2, chapter 17 of the Code of Civil Procedure. By the petition it was stated, and the proof taken establishes the fact, that one-half the shares of the corporate stock was owned by the petitioners, who were two of the trustees of the company proceeded against, and the other one-half was owned by the individual appellants. And it was for the reason, as it was stated, that these parties differed concerning the management of the affairs of the company, that the, proceedings for its dissolution were instituted. But why the corporation should be dissolved because of that difference was not clearly seated in the petition. The statement upon that subject was, that the petitioners were convinced that if the “ methods and plans advocated and pursued by the said Edward H. Woodward and Arthur T. Woodward, in relation to the management of said corporation, be carried out, the result would be the financial ruin of the said corporation.” What these plans and methods were was in no manner stated in the petition, neither was it shown on account of this disagreement, or for any other reason, that it would be deemed beneficial to the interests of the stockholders that the corporation should be dissolved. And at least as much as that has been required by section 2419 of the Code of Civil Procedure to justify and support this proceeding. In this respect the petition was quite defective, and it was objected to as such by the appellants in the answers which they filed before the referee.

An equally serious, if not a more fatal defect, was contained in the order required to be and which was actually published and served upon the creditors and stockholders of the corporation. This older was in the nature of process provided for bringing the persons interested in contesting and resisting the application before the court. And its form and contents were specially prescribed by the provision directing it to be made and served. By the terms of this provision, where the court entertains the application, or the case is one of those mentioned in section 2419, it has been directed that it “ must make an order requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved.” (Code of Civil Pro., § 2423.) And this order has been required not only to be published once in each week of the three weeks immediately preceding the time fixed therein for showing cause, but it also has been directed that a copy of it must be served upon each of the persons specified in the schedule annexed to the petition, as a creditor or stockholder of the corporation. (Id., § 2425.)

The order which was in fact made, published and served was neither in form nor effect what section 2423 directed it should be, for.it did not require the persons interested in the. corporation to show cause why it should not be dissolved, but the requirement contained in it was that they should show cause “ why the prayer of the petitioners should not be granted,” which was neither in substance nor effect what the law had prescribed the order should be. No service of the petition itself was directed to be made by the statute or by the order, and it was not in fact served on either of the persons to whom the order was sent. Por that reason neither of the persons proceeded against as interested in the corporation could understand, from anything contained in the order, that the proceeding was one to dissolve the' corporation. No intimation whatever that this was intended to be its character was in any form contained in the order. This was a radical as well as material defect, for it wholly omitted to give tfie notice which the law had prescribed the creditors and stockholders should have as the foundation of the proceeding.

It was clearly intended by this portion of the Code that every person receiving a copy of the order should be' informed by its contents that the proceeding was taken to dissolve the corporation itself. But this order contained no such information, and in that respect it entirely failed to comply with what the statute had required, and for that reason the proceeding was not legally commenced. The rule in all statutory proceedings is that they must conform to .the requirements made by the statute providing for them, and if they fail to do that then the court does not acquire jurisdiction over the proceeding, and it will have no authority to make any adjudication affecting the rights of the parties designed to be controlled by it. (Sharp v. Speir, 4 Hill, 76; Matter of Haff, 72 N. Y., 184.)

The fact that the parties appealing did not themselves take this objection to the proceeding, either in their motion to vacate the order or by their answer, does not remove the difficulty in the case, for they are not the only persons upon whom the order was required to be served, or who had the right to contest the proceeding itself. By section 2421 of the Code a schedule was required to be annexed to the' petition containing a full and true account of the creditors of the corporation and of all its unsatisfied engagements; and each of these persons are required to be served with the order before the hearing provided for could take place or the corporation could be dissolved.. Neither of these creditors, and the schedule to the petition named a considerable number of them, appeared in the proceeding, and they therefore in no manner waived their right to be served with precisely such an order as was prescribed by the statute. By the service of the order upon them, which was in fact made, no jurisdiction was acquired over them; and as this was an indispensable step in the progress of the proceeding, the omission to take it could be'insisted upon at any time by either of the other parties. For while they might waive the direction to make and serve such an order upon themselves, they could not do that for either of these creditors, whom they do not appear to have had any authority whatever to represent; and they did not in fact attempt to appear for them. This omission in the order was a substantial jurisdictional defect in the proceeding, which prevented the court from obtaining complete jurisdiction over it, or over these creditors who were required to be made parties to it. The provisions of the statute are peremptory that the order shall be in the • prescribed form, and that a copy of it must be served upon each of the persons specified in the schedule as a creditor or stockholder of the corporation. And as it was not in this form, and could not be so served, .’every party to the proceeding was at liberty to resist it because of these omissions.

The law has also declared that the report of the referee must contain a “ statement of the effects, credits and other property, and of the debts and other engagements of the corporation, and of all other matters pertaining to its affairs.” That which was made by the referee contained no statement of the debts of the corporation, but it stated generally that the schedules annexed to the petition were correct.

This was not a compliance with what this section of the Code demanded, and so far as the amounts owing to the creditors were involved, no obstacles stood in the way of a literal compliance with this provision, even if the effects, credits and property' of the corporation could not be set forth, because of the abstraction of the books and papers by the contestants.

Other objections have been taken to the regularity of the proceedings, which, even though well founded, are by no means of so serious a character as those which have already been considered. For the disposition of the appeal it is not requisite that they should receive specific attention. The objections made to the substance of the petition and to the form of the- order are fundamental, and as they have neither been removed or obviated by anything afterwards transpiring in the proceeding, it cannot be sustained. These failures to comply with what the law has explicitly required, to institute and maintain such a proceeding, are so important as to render it incapable of being supported. The order from which the appeal has been taken should be reversed, with costs, and the proceeding itself should be dismissed, but without prejudice to the commencement of another proceeding for the dissolution of the corporation in the form prescribed by the Code of Civil Procedure.

Davis, P. J., and Beady, J., concurred.

Order reversed, with costs.


author: Daniels, J.: Bradt, J.:

text:
    JACOB K. LOCKMAN, as Executor, etc., of RICHARD C. SAGE, Deceased, Respondent, v. THOMAS J. REILLEY, Appellant.

      Specific performance — a purchaser will not he compelled to accept a doubtful title— Will — when grandchildren hare a rested remainder during the life of their parrents. •,
    One Raynor died leaving a will by which, after making certain specific gifts and bequests, he gave, devised and bequeathed ail the rest, residue and remainder of his éstate,, real and' personal, to his executrix and executors, the survivors and survivor of them, in trust, with power to receive the rents and profits of the same, and to sell, dispose of and convey the same at such time or times and in such manner as to them should seem proper and best for the interest of the . estate, and to invest and keep invested such rents and profits and the proceeds, of the sale or sales. The income of two-sixths of such residue and . remainder was to be applied semi-annually to the use of his wife during the term of her natural life, and after her decease these two-sixths were devised and bequeathed to his children living at her decease, and the lawful issue of any deceased child or children. The income of each of the other four of the six parts, into which the residue was to be divided, was to be applied to the use of each of the four children respectively of the testator during its life, and at its death its share was devised and bequeathed to its children then living, and .the lawful issue of any deceased child or children. In case any of his children ■ died without leaving lawful issue surviving them, the portion of the one so dying was to be distributed between his surviving children, and the lawful issue of any deceased child or children. The child or children of any deceased child of the testator to share in his estate, per stirpes.

    After Raynor’s death his widow, as executrix under his will, foreclosed a mortgage held by him at the time of his death and purchased the mortgaged property at . the sale, taking a conveyance thereof to herself as executrix and trustee under, the will of her husband. In an action to foreclose a prior mortgage upon the same premises, the widow and the other persons named in the will as executors and trustees, but who had refused to qualify, and the four children of Raynor, were made parties defendant. Two of these had children, but the latter were not made parties.

      Held, that Raynor’s grandchildren had estates in remainder in the trust property and should have been made parties defendant to the action..
    That as they had not been made parties the title acquired by the purchaser at the sale, had under the judgment entered therein, was not such as that one proposing to purchase from him should be compelled to accept it.
    Appeal from a judgment, entered upon tbe trial of this action at the Special Term.

      Edmund Coffin, Jr., for the appellant.

      Charles Jones, for the respondent.
   Daniels, J.:

By the judgment which was recovered, a contract entered into between the plaintiff and the defendant for the sale and conveyance of land situated on One Hundred and Fifty-first street in the city of New York, was directed and required to be specifically performed. The defendant resisted the action, and has taken this appeal from the judgment, under the apprehension that he could not acquire a legal title to the property by taking the deed proposed to be given to him by the plaintiff. And if he is right in that position, then it ia entirely clear that he should not be required to take the title pro posed to be conveyed, or to pay the purchase-price of the property. (Brooklyn Park Com. v. Armstrong, 45 N. Y., 235, 248.) For the court will not impose a questionable or disputable title upon the defendant by means of such an .action.

The title to the property, which was vested in the plaintiff as executor, was obtained by means of the foreclosure of a mortgage executed by J. Mansfield Davies, then the conceded owner of the property, to Edward De Witt and Richard Carman Combes, as executors, etc. This mortgage became the property of the plaintiff, and it was by a foreclosure and sale of the premises under it that he derived his title to the land. Previous to the commencement of that action the land had been conveyed by Davies to William H. Raynor, who himself also conveyed it to David M. Clarkson, subject to the mortgage given by Davies. When Raynor conveyed the property to Clarkson he also took a mortgage upon it from him to secure a portion of the purchase-price. After Raynor’s decease his widow, as executrix under his will, foreclosed this second mortgage by an action, making Clarkson the defendant in the action. Under the judgment she purchased the property, and it was conveyed to her in terms as executrix and trustee under the will of her deceased husband, and she held the title under that conveyance at the time when the action was brought to foreclose the mortgage previously given by Davies.

In that action she was made a defendant and so were the other persons named in the will of Raynor as executors and trustees, but who failed to qualify and enter upon the discharge of their duties as such. At his decease Raynor left him surviving, in addition, to his widow, four children, who were also made defendants in the action: prosecuted by the plaintiff for the foreclosure of the Davies mortgage. Two of these children themselves having intermarried, had children at the time when that action was commenced, and who are still living, but they were not made parties to it. And it is practically for their omission as parties that the defendant declined to receive and accept the conveyance of the property proposed to be given to him by the plaintiff. If these grandchildren were interested in the-property, as it is alleged they were, then the title is defective on account of the omission to make them parties to the action for the foreclosure of the mortgage under which the plaintiff obtained his title. And 'for the purpose of determining whether they were so interested or not it will become necessary to consider the terms of the will left by Raynor at the time of his decease.

By this will, after making certain specific gifts and dispositions of personal propei’ty, he gave, devised and bequeathed all the rest, residue and remainder of his estate, real and .personal, to his executrix and executors, the survivors and survivor of them, in trust, with power to ■ receive the rents and profits of- the same, and to sell, dispose of and convey the same at such time or times, and in such manner as to them should -seem proper and best for the interests -of the estate, and to invest and keep invested such rents and profits and the proceeds of the sale or sales. And he then directed them to apply the income of two-sixths parts of such residue and remainder semi-annually to the use of his wife during the term of her natural life, and after her decease these two-sixths were devised and bequeathed to his children living at her decease, and the lawful issue -of any deceased child or children. The income of another one-sixth was directed to be in like manner applied to the use of the testator’s son, "William IT. Raynor, during his life; and after his death it was devised and bequeathed to his children living at the time of his decease, and the lawful issue of any of his deceased child or children. A similar disposition was made of the income of another -sixth of the estate. It was devised and bequeathed in favor of his daughter,' Elizabeth M. Scott, during her natural life, and after that to her children and the issue of any deceased child or children. Another sixth was devoted in like manner to the use of his daughter, Adelaide Tilt, during her life, and the remainder, after her decease, directed to be divided equally between her children and the issue of any deceased child or children she might leave surviving her. The remaining sixth was in like manner devoted to the use of his daughter Minnie for life, and at her decease directed to be divided equally between her children and the child or children of any of her deceased children.

The will finally directed that in case any of the testator’s children should die without leaving lawful issue surviving them, the portion of the child or children so dying should be distributed between his surviving children and the lawful issue of any deceased child or children. The child or children of any deceased child of the testator to share in the estate per stirpes and tvoí per capita.

The effect of these directions contained' in the will of the testator was to create a trust estate in the executrix during the respective lives of the widow and children who were to be benefited by its income. Except the two-sixths, the income of which was payable to the widow during her life, and was distributable among the testator’s children after her decease, and their contingent rights by survivorship to the shares of either of the other children dying without issue, they took no direct interest in the estate.

That was first vested in the trustee for the purpose of sustaining and providing for the proper administration of the trust as long as it should be continued. What the children of the testator were entitled to in the other four-sixths of the estate, was their respective shares of its income and profits. As to these sixths the executrix and trustees held and owned in trust one-fourth of each during the life and for the benefit of each of the testator’s children, to whom the like proportion of the income and profits was payable. For neither of them took any interest in either of these shares except by contingent survivorship.

The absolute title to them, beyond the right of his own children by survivorship, by reason of the decease of either child without issue, was given to their children after the periods when the testator’s own children should respectively become deceased. It was in these children, therefore, so far as they might survive the testator’s own children, that the legal title to the four-sixths would become vested' in possession after the expiration of the trust estate. And as their title included four-sixths of the real and personal estate devised and bequeathed in the first instance to the trustees, the children of the testator’s children became the owners of a vested remainder in this portion of the testator’s estate. Whenever the trust 'estate in either of these four-sixths should terminate by the decease of the beneficiary, his or her children, or in default of issue, the survivors of the testator’s children would at once become entitled to the possession of that portion of the residue of the estate. And under the case of Moore v. Littel (41 N. Y., 66) this created a vested remainder in such sixth part of the estate in those children or in their lawful issue, or, if there should be none, then a contingent interest in the testator’s,other surviving children.

The mortgage held by the testator Raynor was a portion of his estate included in these directions contained in his will, and the grandchildren under the provisions of the will were interested in it in remainder the same as they were in the other portions of the testator’s estate. For as to future interests in personal property the same rules apply as have been prescribed by the statute concerning future estates in lands. (2 Rev. Stat. [6th ed.], 1167, § 2.) Whether after the foreclosure and sale under the mortgage, given to the testator, and the conveyance of the property to the executrix, it should be held to be personal or real property, it is not important to consider. For in either view the result would be the same, the children of the testator’s children would be entitled to a vested remainder in it. That remainder included the entire legal title subject to so much of it only as was necessarily vested in the trustee for the execution of the trust, which would terminate whenever the trust itself might cease, and also to a contingent suvivorship for want of issue secured to the testator’s surviving children. The children of the testator’s daughters Elizabeth and Adelaide were parties in interest in the estate, therefore, when the plaintiff’s foreclosure of the Davies’ mortgage was instituted. And by the settled rules of law governing the foreclosure of mortgages, parties directly interested in the estate will not be affected by the proceeding unless they are included as such in the action. (Peabody v. Roberts, 47 Barb., 92; Brainard v. Cooper, 10 N. Y., 356.)

It is true that this rule does not include the owners of remote and contingent interest. (Mead v. Mitchell, 17 N. Y., 210; Williamson v. Field, 2 Sandf. Ch., 533.)

But these were not interests of that nature. They were direct and vested so far as there were living children of either of the testator’s children, and for that reason would take effect in possession the moment the intervening trust estate should cease in either of the two-sixths of the testator’s property, the income of which was appropriated to the support of the testator’s two daughters, Elizabeth and Adelaide, during their lives.

The present case is not controlled by that of Valentine v. Belden (20 Hun, 537), for there were no such vested interests in the property then in controversy. It had been sold under a foreclosure and purchased by and conveyed to the administrator, and under the title acquired in that manner it was held that he could convey a good title to a purchaser from himself, and for that purpose the land was still considered in judgment of law to be a part of the personal estate as the mortgage itself previously had been. But in the present case the conveyance to the testator’s widow was in terms to her as the executrix and trustee under his will; and the property became at once subject to all its provisions and' directions, which vested portions of this interest directly in the children of the testator’s children. Whether property so acquired may not under certain circumstances be still held to be a part of the personal estate, it is therefore not necessary to consider in the disposition of this appeal.

Eor this is in no manner a controversy between the heirs and next of kin. The testator by his will vested these four-sixths in remainder directly in his grandchildren in case such issue should be born to and survive his own children.

By the mortgage under which the plaintiff derived title the property was mortgaged as real estate. It was proceeded against in the foreclosure suit as property of that description, and it was so sold under the judgment and conveyed to the plaintiff. In every step taken throughout those proceedings it was proceeded against as land and not as pei’sonal property, and he cannot now be permitted to assert that such was not its legal character.

To perfect a title to it as that description of property it was requisite that all persons having any direct interest in it should be made parties to the action, and that • rule included these grandchildren of the testator Raynor as well as his own children, who were beneficiaries in four-sixths of the trust estate and entitled in remainder to the two-sixths devised and bequeathed in trust for the benefit of the widow during her life, and contingently in the share of any one of the testator’s children who should die without-leaving lawful issue.

Certainly the title proposed to be conveyed by the plaintiff to the defendant, in performance of the contract entered into, was not so free from doubt and dispute as to justify the court in requiring the defendant to accept and receive it and pay the remaining portion of the purchase money. It was, by reason of this defect, within the authority already referred to, as well as that of Argall v. Raynor (20 Hun, 267), where an uncertain or disputable title was held to be one which a purchaser at a public sale was not obliged to accept. Whether, under the power of sale contained in the will, an equitable .conversion of the real estate of the testator was made it has not been deemed necessary to consider; for even if it should be attended with that result, as the will made the same disposition of the personal as it did of the real estate, the foreclosure would still be in like manner defective.

The judgment which was recovered in this action was for these reasons erroneous, and it should be reversed and a .new trial ordered, with costs to abide the event.

Bradt, J.:

I concur, upon the ground that no one should be compelled to accept a > questionable title.

Davis, P. J., taking no part.

Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, •!.:

text:
    FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Appellant, v. GEORGE A. BOYNTON, Respondent

      JSoidence — examination of a party as a witness before the trial — only allowed to enable the applicant to procure testimony to make out Ms own case — Code of Oiml Procedure, sec. 872, sub. 4
    This action was brought upon two promissory notes made by the defendant, of which the plaintiff claimed to' be a bona fide holder, for value, without notice -of any defense thereto. The- defendant set up as a defense that the notes were first negotiated by him with .one Follett at a usurious rate of interest. The plaintiff, upon an affidavit setting forth these facts, that it had no knowledge whatsoever with regard to such negotiation, or its terms ; that Follett was and would be absent from the State for an indefinite time, and that it was informed by its attorneys, and believes that it was necessary for the prosecution, of the action to examine the defendant) “in order to establish whether such negotiation was in fact made by the said Follett; and if so, to show what were its terms and circumstances,” procured an order requiring the defendant to appear and be examined.

      Held, that, as it was evident that the plaintiff desired to examine the defendant, not to procure testimony which was material or necessary to enable him to make out his case upon the trial, but to discover the testimony which the defendant could give in support of his defense, the order .was properly vacated upon the defendant’s application.
    Appeal from an order made at a Special Term, vacating an order for tbe examination of tbe defendant as a witness before trial.
    In the affidavit upon which the order was made it was alleged, among other things, as follows:. “ This action is on two promissory notes made by said Boynton, of which plaintiff is the bona fide holder for value, without notice of any prior defenses whatsoever. The judgment demanded is the amount due on the notes with protest fees, namely, $11,002.66 and interest from November 11, 1882. The action is at issue by the service of an answer which sets up as a sole defense that the notes were first negotiated by the defendant with one Follett at a usurious rate of interest. Plaintiff and its officers have no knowledge whatsoever with regard to such negotiation or its terms, or the relations, if any, subsisting between defendant and said Follett, or with regard to any of the circumstances alleged as a defense in the answer. The said Follett is now absent from the State, and he will be absent for an indefinite time, and I am informed by persons in the employ of his assignees and believe that it is probable that he will not return before the first Friday of February next, for which day this action is set down for trial. I am informed by the plaintiffs said attorneys, after full and fair statement of the facts to them, and believe that it is therefore material and necessary for the prosecution of this action to examine the defendant above named, George A. Boynton, in order to establish whether such negotiation was in fact made by the said Follett, and if so, to show what were its terms and circumstances.”

      David J. II. Wilcox, for the appellant.

      Thom,as Darlington, for the respondent.
   Daniels, •!.:

, The action has been brought to recover the amount of two promissory notes made by the defendant and transferred to the plaintiff.

The answer set forth the defense of usury in the preceding transfer of the notes from the defendant to the person receiving them from him, and the examination of the defendant has been sought, to establish whether such negotiation was in fact made by the said Follett, and if so, to show what were its terms and circumstances.”

It is very evident from this statement- that the testimony desired to be obtained is not material or necessary lor the prosecution of the action by the plaintiff. The object of the examination, as thus disclosed, is simply to discover the testimony which the defendant may be able to give in support of his defense.

And for that object the provisions of the Code have supplied no authority for his examination at the instance of the plaintiff before trial. For that has been authorized when the application may be made by the plaintiff after issue joined, only to enable the plaintiff to obtain testimony which may be pertinent or useful in the prosecution of the action, by way of making out the case upon the trial. (Code of Civil Pro., § 872, subd. 4.)

This is the reasonable import of the language of the subdivision, and it has been so construed in many’instances by the courts. The case of Chapin v. Thompson (16 Hun, 53) is particularly in point upon this subject, and so is that of Beach v. Mayor (14 Hun, 79).

In the last ease the application received the disapproval of the court, for the reason “ that the object was not to get his testimony to use upon the trial, but to force him by an examination to furnish to the defendants the information necessary to enable them to look up witnesses to be used against him.”

This language is particularly applicable to the present case. For that is disclosed as the practical object of the examination of the defendant by the affidavit on which the order was made, which the court, on motion, vacated. Schepmoes v. Bousson (1 Abb. N. C., 481), Greer v. Allen (15 Hun, 432) and Crooke v. Corbin (23 id., 176) also sustain the same construction of this subdivision of the Code.

The order vacating the previous order requiring the defendant to appear and submit to the examination was right, and it should be affirmed, with ten dollars costs besides disbursements.

Davis, P. <1., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: DaNiels, J.:

text:
    ALBERT HOLLY, Respondent, v. LEOPOLD GRAF, Appellant.

      Supplemental complaint —facts showing a cause of action accruing after the action has been corh,menced, cannot be set up by.

    In November, 1882, the plaintiff commenced this action to recover the price of goods sold and delivered to the defendant. The defendant alleged in his-answer that a portion of the said goods were sold upon terms of credit which had not expired at the time the action was commenced. Thereafter, on the 9th day of February, 1883, the plaintiff obtained an order allowing him to serve a supplemental complaint alleging that the terms of credit upon which a portion of the goods were sold expired December 6, 1882, and the terms upon which another portion was sold expired January 13, 1883. The supplemental complaint was served to enable him to recover in this action the price of the goods which were sold upon a term of credit expiring after the action was commenced.

      Held, that the court erred in allowing him to serve the supplemental complaint.

      Corbin v. Knapp (5 Hun, 197), and Mncke v. Kourhe (20 id., 264), distinguished.

      Appeal from an order made at a Special Term, February 9,1883, permitting the service of a supplemental complaint.

      Thomas Darlington, for the appellant.

      Abram KUng, for the respondent.
   DaNiels, J.:

The action was commenced in November, 1882. It was to recover the price of goods sold and delivered by the plaintiff to the defendant. As to parts of the cause of action, a defense alleged by the answer was that the goods were sold upon credit which had not expired at the time when the action was commenced. The order providing for the service of a supplemental complaint allowed the averments to be made that the credit for the sum of $1,527.66 ■expired- on the 6th of December,. 1882, and that the credit for the further sum of $1,752.67 expired on the 13th of January, 1883. The object of these allegations was more specifically to include these several items within the issue to be tried and to permit the plaintiff to recover for them m this action.

To entitle the plaintiff to recover the amount sued upon, he must have the right to require payment of it at the time when his action may be commenced. Prior to that event the cause of action has not accrued, and its recovery by means of legal proceedings cannot be insisted upon. Section 544 of the Code of Civil Procedure, under the authority of which supplemental pleadings are permitted, las created no exception to this general rule. It has merely allowed a supplemental pleading for the purpose of alleging facts occurring after the former pleading, of the party or of which he was ignorant when it was made. These facts must relate to the cause of action upon which the suit has been brought, and be pertinent to the rights ■or liabilities of the parties connected with that cause of action. The provision does not permit the party to bring into the controversy a demand upon which no right of action had accrued at the time when the suit may have been commenced. This point was considered in Tiffany v. Bowerman, (2 Hun, 643), and it was held that “ a new and substantive cause of action cannot be set up by way of supplemental complaint as a ground of recovery, more especially a cause of action to which the plaintiff was not entitled when he commenced the action.” Id., 646, and McMahon v. Allen (12 How., 39, 44) is in principle to tbe same effect.

The allegations allowed to be made by the supplemental complaint do present other causes of action than those upon which the-right to recover had matured when the suit was commenced, for the right to prosecute an action for the. recovery of one of these demands did not accrue, according to the statement made of it, until the 6th of December, 1882, and the other did not mature-until the 13th of January, 1882, while the action itself was commenced in the preceding month of November.

It has been urged that Corbin v. Knapp (5 Hun, 197) and Fincke v. Rourke (20 Hun, 264) sustain the order permitting the supplementary • complaint to be served. But neither of them extends-this provision of the Code so far as has been ■ done in the present instance. The former of these cases was an action for a libel, in which a publication after the commencement of the action was-allowed to.be alleged.by supplemental complaint. The law relating-to this class of actions is somewhat peculiar. For under a complaint alleging a slanderous or libelous publication, the repetition of the words or the publication of the article on any number of different occasions before the commencement of the action, may be-given in evidence upon the trial, although not specifically alleged. (Root v. Lowndes, 6 Hill, 518; Distin v. Rose, 69 N. Y., 122.)

And even where proof of the repetition of the words after the commencement of the action has been received as a matter of aggravation of damages, a subsequent action for their speaking may-still be maintained. (Campbell v. Butts, 3 Comst., 173.)

The additional publication of the libel allowed to be alleged was an aggravation and repetition of the original wrong, and might for that reason be allowed to be proved upon the trial as pertinent to the cause of action alleged in the complaint. In the second of these cases the action' was upon a contract payable by installments, and it was to allow the allegation to be made, that one of these had subsequently matured, that the supplemental complaint was directed. These cases' have extended the provisions of the Code certainly as far as that can with any propriety be done,-but they fail to warrant the order from which the present appeal has been taken, for that has allowed other rights of action which could not legally be made the subject of a suit at the time when this action was commenced, to be included in the plaintiff’s statement of the case.

If, however, they could be made a part of the plaintiff’s action, no necessity existed for a supplemental complaint, for they were included in the aggregate amount stated in the complaint itself, and by the answer the fact that these particular goods were sold upon credits which did not expire until after the commencement of the action was alleged by way of defense. The facts themselves were accordingly within' the issue which had been framed, .and nothing really additional was made a part of it by these statements of the supplemental complaint. There was no necessity, therefore, for any addition of this nature to the pleadings in the case. (Hasbrouck v. Shuster, 4 Barb., 285.)

The order from which the appeal has been taken should be re versed,, but as the authorities to which reference has been made may have very well misled the counsel, it should be without costs.

Davis, P. J., and Beady, J., concurred in the result.

Order reversed, without costs.


text:
    FREDERICK S. HEISER, Executor, etc., of CHRISTINA E. SMITH; Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      City — when it is not liable for the wrongful oats 'of its boa/rd of assessors acting under a special statute — when a person injured by a public improvement is confined to the remedy provided in the statute — 1872, chap. 729.
    The board of assessors of the city of New York, while acting under chapter 729 of 1872, authorizing it to consider and allow the damages sustained by persons owning buildings fronting upon Eighth avenue, which might be damaged by the change in its grade by said act directed to be made, bears no such relation to the city government as to render the city liable for the wrongful or illegal acts of such board.
    The only means of redress provided for those injured by the change of grade are those specified and prescribed in the act.

      Appeal from a judgment in favor of tbe defendant, entered upon an order dismissing tbe complaint made upon tbe trial of tbe action before tbe court without a jury.

      JI. M. 'Whitehead, for the appellant.

      D. J. Deem, for the respondent.
   Daniels, J.:

Tbe action was brought to annul certificates made by tbe. board of assessors of tbe city of New .York, assessing .the damages sustained by tbe testator from changes made in the grade of the Eighth avenue at the sum of $5,000, and the benefits to be derived from the improvement at an equal amount, and to recover the damages alleged to have been sustained. By the statement made of the cause of action, the damages were very large in their amount, and it is stated that the board of assessors, with intent to injure and defraud the plaintiff, illegally, covertly and fraudulently made and filed these certificates. '

These allegations must be accepted as the truth in the determination of the appeal, for the action was dismissed upon the ground that neither the complaint nor the opening of the counsel stated a cause of action against the city. The plaintiff, as the case appears by the complaint, was seriously injured in the practical denial of his right to compensation by the board of assessors. But it is not perceived how the defendant can be charged with liability on account of the misconduct of that board. It was not a subordinate department of the city government as the statute created it. This was done by chapter 302 of the Laws of 1859. The number of the members of the board, their tenure of office, and their appointment by the commissioners of taxes, were provided for by the fifteenth section of the act, and their functions and authority were by succeeding sections defined and declared.

The board derived its authority wholly under this statute from the legislature of the State, and it was, in its exercise, in no respect subjected to the action or control of the governing authorities of the city. But it was, so far as its powers and functions extended, in the nature of ato independent department wholly created by the legislature ‘r for that reason, under the -authorities, the city could not be rendered liable for the misconduct of its members resulting in injuries to other persons. " The mere circumstance that the appointment of the commissioners of taxes was vested in the Comptroller, 'who was one of the officers of the city, will not render these conclusions inapplicable to the case. (Maximilian v. The Mayor, etc., 2 Hun, 263; affirmed, 62 N. Y., 160; Tone v. The Mayor, 70 id., 157.)

This was also the theory of chapter 729 of the Laws of 1872, from which .the board of assessors derived, their authority to consider and allow the damages sustained by persons owning buildings erected and fronting on the avenue which were injured by the change in its grade, for it subjected the city to no duty in the proceeding which it authorized to be taken. The authority to be exercised was confined wholly to the board of assessors. That board was authorized and directed to assess upon the property intended to be benefited by the improvement of the avenue the damages which each owner of such building had or would sustain by reason of the changes of grades made in the improved avenue, and when the damages were ascertained by it the board were required l;o file in the finance department of the city a just and equitable statement of the amount. In this proceeding the municipal authorities of the city could not'1 participate, but it was wholly to be confined to the claimant and the action of the board itself; and when such action resulted in the filing of the certificate the municipal government would be concluded as to the rights of the claimant; and then the duty was imposed upon the comptroller to issue assessment bonds of the city to pay the damage assessed by the board of assessors, and that with the act of payment was practically all that the city could have to do with the proceeding. To and including the time of filing the certificate itself, the board was required to act exclusively as an independent body, subject to no control whatever on the part of the municipal authorities of the city. There was, therefore, no such relation between the government of 'the city and the board of assessors as would render the former legally liable for this alleged misconduct of the latter. The remedy provided by the statute was intended to be complete and adequate for the redress of the injury sustained by the change in the grade of the avenue, and this result was not prevented by any fault or defect in. the law, but, as the ease has been stated in the complaint, by the misconduct of the board of assessors ; and that board, and not the city, was liable'for the consequence of such misconduct.

Without this act of 1872 it has been settled that for the change in the grade of the street, where no part of the property fronting upon it is taken, the owner of such property can maintain no action for damages because of the fact that his property may have been injured by the alteration of the grade. (Radcliff’s Executors v. The Mayor of Brooklyn, 4 Comst., 195.)

The only means of redress afforded to the plaintiff, therefore, were those provided for by this act. It was not a cumulative remedy that the statute created, but it was the sole and only remedy which the owner could resort to for the assessment and recovery of the damages sustained by him. The rule upon this subject is, that where by statute a new right is given and a remedy is provided for its protection and redress, it is exclusive in its nature, and the party complaining can obtain satisfaction only by pursuing the course and availing himself of the remedy provided by the statute. (Calking v. Baldwin, 4 Wend., 668.)

The case of Russell v. The Mayor (2 Denio, 461) is in no manner in conflict with this rule. For there the property itself had been taken, and the owner, by means of the Constitution itself, became entitled to be paid an adequate compensation for its value; and that had been abridged by the phraseology of the act then before the court. The same observation is applicable to People v. Hillsdale, etc., Turnpike Company (2 Johns., 190). In that class of cases, the owner whose property may be taken for a public use has the right, before he can be divested of it, to be compensated for it under the provision of the Constitution of the State. And legislation providing for inadequate compensation will not satisfy the constitutional requirements. But in the present case no such right to compensation was secured by the Constitution, or by any law or principle of law prior to the enactment of chapter 729 of the Laws of 1872. The plaintiff was wholly dependent upon the provisions of that act for the recovery or allowance of any damages whatever to him, and he was confined to the provisions made by it in his proceedings for redress.

It may very well be- that the action of the board of assessors might have been reviewed by means of the writ of certiorari, and ' in that way the improper decision made by them corrected. But it is clear that no action can be maintained by the plaintiff on the facts set forth in his complaint against the defendant.

The judgment was legally right, and should be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with costs.


author: Daotels, J.:

text:
    WILLIAM J. HUTCHINSON, Respondent, v. FREDERICK N. LAWRENCE, President of the New York Stock Exchange, Appellant.

      Practice — examination of the defendant to enable the plaintiff, to prepm'e Ms complaint — when it should he directed— Code of Oivil Procedure, sec. 872.
    The plaintiff, in an action brought, to obtain a judgment declaring a resolution of the governing committee of the New York Stock Exchange to he void and restraining its enforcement, applied for an order requiring the defendant, the president of the hoard, to appear- and be examined in order to enable the plaintiff to frame his complaint. In his affidavit he stated that he had been expelled from the Stock Exchange, and deprived of his seat therein, which was worth $3Q,000, and alleged that the proceedings by which this had been effected were unlawful and invalid. He alleged that charges had been made against him, and that he had been allowed to appear before the governing committee of the Exchange and answer them; that he did not know what was subsequently done, but had received credible information in relation thereto, but that such information was not sufficiently definite to enable him to set forth the facts in his complaint; that he was informed that evidence was received in his absence; that the resolution expelling him did not receive the vote required by the constitution of the Stock Exchange; that some of the charges made against him were sustained and others were not, but that he was ignorant as to which were so sustained; that he had applied to the committee for information as to those matters, but had been unable to procure any; that the defendant, who Aas the president of the Exchange, was present throughout the whole of the alleged trial, and that all the matters as to which the plaintiff sought to be informed were peculiarly within the defendant’s knowledge.

      Meld, that the court properly granted the application.
    Appeal from an order denying a motion to vacate an order requiring the defendant to appear and submit to an examination as a witness before trial.

      The plaintiff stated in his affidavit that the action was brought to obtain a judgment of the court declaring a resolution passed at a meeting of the governing committee of the New York Stock Exchange to be illegal and void, and to restrain the enforcement of the same. That the plaintiff had been allowed to appear before the said committee, which was authorized by the constitution of the Exchange to expel members by a two-thirds vote, and personally answer charges which had been preferred against him. That he denied all the charges and claimed an opportunity to disprove the same. That he had no knowledge of the subsequent proceedings, except what he had heard from other persons. That he was informed that the resolution of expulsion did not receive the requisite two-thirds vote. That evidence and statements relating to the charges were received in his absence; that some of the charges were sustained and others dismissed, but the plaintiff could not ascertain which had been so sustained. That the information of the plaintiff as to these facts was not sufficiently accurate to enable him to properly set forth the necessary facts in his complaint. That he had applied, through his counsel, to the governing committee for information in respect to the matters aforesaid, but that the same was refused by it. That the defendant, who was the president of the Exchange, was present throughout the whole of said alleged trial, at all the meetings of the committee, and that all the said matters were peculiarly within his knowledge.

      James 0. Garter, for the appellant.

      Joseph H. Choate, for the respondent,
   Daotels, J.:

The examination provided for by the order was to afford the plaintiff an opportunity to discover facts claimed by him to be necessary to enable him to frame his complaint in the action; and that such an examination may be had under section 872 of the Code of Civil Procedure, is in effect settled by the case of Glenney v. Stedwell (64 N. Y., 120).

That case was decided under similar provisions contained in the Code of Procedure. So far as this right was involved, those provisions have not been materially changed by the enactments in the present Code. The provisions certainly are as broad now as they were when that case was determined by the court; and it must be regarded as settling the right of the plaintiff to such' an examination, where its necessity shall be reasonably evidenced by the affidavit made to obtain the order.

It appears by the affidavit made use of in this instance that the plaintiff had been expelled from the Stock Exchange as a member of that body. His seat is averred to have been of the value of $30,000, and the proceedings resulting in his expulsion are alleged tó have been unlawful, and for that reason inoperative. Precisely what those proceedings were he states himself unable to set forth. The charges made against him were served upon him and he personally appeared to answer them, but what afterwards transpired which produced his dismissal he has not been able to ascertain. It is true that as to the fact that other proceedings were had he has received credible information and formed a belief. But this information was not so definite as to enable him to set forth in his complaint a history or averment of what really had taken place.

Evidence is believed to have been received in his absence and a vote to have been taken upon it, but what that evidence was or the number of votes given for his removal do not appear to have been ’ embodied in the information received by him, and for that reason he is not able to show by his complaint, without further information upon this subject, what was done or precisely in what the illegality of his removal may be alleged to consist; and it is practically to remove this inability to state his case as he considers it important for him to do in his complaint, that the order for the examination of the defendant has been obtained. He was apparently a party to the proceedings and is able to furnish the information required to make reasonably definite allegations upon these subjects.

And under the doctrine of the case to which reference has been made, and these provisions of the Code, he has the right to call upon the defendant to supply this essential information. Without it he would practically be groping in the dark, and might discover when the case came to be tried that very material variations would be found between his allegations and the proof which would then be developed. To avoid this possibility and to prevent himself from being surprised at the trial, the precaution of taking the defendant’s examination has been adopted, and no good reason is disclosed for dispensing with such an examination. The certainty in the allegations which would be required to be made for the purpose of sustaining the action, if that can be done at all, can, under the circumstances, be attained in no other manner. And as the law has provided the plaintiff with this mode of ascertaining the facts the defendant should submit to the examination already ordered.

It may be that an effort will be made to extend it beyond what may appear to be necessary to obtain a knowledge of the facts required to be known to present the plaintiff’s case. But that possibility will not justify a denial of the remedy.

The officer before whom the examination will take place is vested with abundant authority to properly limit it and prevent, in that manner, the authority of the law from being made the subject of abuse. If the defendant should be interrogated concerning matters not strictly relevant to what the complaint may be expected or ought to contain in such an action, ample power exists to prevent such interrogatories from being answered. In important respects the plaintiff is manifestly dependent upon the disclosures of the defendant for the information required to frame a proper complaint. And to that extent he has the right to obtain them under the authority of such an order. Beyond that he has no right to go, and the justice before whom the examination will be had will surely restrict the proceeding within such limits. No direction upon that subject can be required in the present dispositions of the case.

The order, under the circumstances, was a proper one, and it should be affirmed, with the usual costs and disbursements.

Davis, P. J., concurred.

Present — Davis, P. J., and Daítiels, J.

So ordered.


author: Davis, P. J.;

text:
    LEONARD GROVER, Respondent, v. CARRIE SWAIN, Appellant, Impleaded, etc.

      Injunction — a mere agent or servant of the person whose actions the plaintiff is entitled to restrain should not he made a pa/rty defendant.

    Appeal from an order of the Special Term continuing an injunction against the appellant Swain.
    This action is brought against the appellant, Carrie Swain, impleaded with Charles Denison and Robert E. Stevens, to perpetually enjoin and restrain her and them from selling or in any manner disposing of a play, or drama called “ Cad, the Tomboy,” or from playing, performing or representing the said drama or play upon any stage or at any place of amusement, and from playing and representing any other play or drama under the title of “ Cad, the Tomboy,” or any play under a similar title, and for an accounting between the plaintiff and the defendants, and that the defendants pay to the plaintiff the sum found due and owing upon such accounting, and that defendants be ordered and adjudged to return and deliver up to the plaintiff the manuscript of said play, and that any copies thereof which' the defendants have be destroyed.
    The court at General Term said: “Assuming that a good cause of action is shown against the defendant Denison, entitling the plaintiff to all that is asked in the prayer or his complaint, it is quite, clear, we thiijJ^, that no cause of action is shown against the appellant Swain. Under the contract set forth in the papers made between the plaintiff and the defendant Denison, the former agreed to write for the latter a play or drama upon the terms specified in the contract. The defendant Oárrie Swain was then an actress in the employ of the defendant Denison, and the play was to be written and adapted to her style and manner of acting, and particularly to her ability as an actress, but she was not a party to the contract and bore no legal relation to it whatever. Nor is any fact shown which afterwards changed her relation to the parties or to the play from those of an employe or. servant of the defendant Denison, by whom the play was to be produced upon the stage. No facts are alleged either in the complaint or in the affidavits that established, or tended to establish any contract, express or implied, between the plaintiff and the appellant, and all that is stated simply establishes that she continues to hold the relation of employe or servant of the defendant Denison, and under his direction is performing as an actress as such servant and employe in the play of 4 Cad, the Tomboy.5
    “ "While the facts stated may property be considered, perhaps, as sufficient to justify the injunction against the defendant Denison, which would operate to prevent him from playing the drama, or causing or allowing it to be played, they are not such as would subject the appellant Swain to such restraint otherwise than as the agent or servant of Denison.

      “ It was not proper to make her, under such a state of facts, a party to the suit, and to restrain her as such party and as though she had an interest in the subject-matter of the action. To do that it is essential that some legal liability to the plaintiff upon the facts stated, either as a joint wrong-doer or tort-feasor, or as a party to some agreement or arrangement with him which could be enforced by judgment in an action, should be shown. She occupies to this action, upon the plaintiff’s own showing, the relation simply of a servant in the employ of Denison, who is under his direction performing as an actress in the exhibitions of the drama. Restraint of him will restrain her as one of his servants; but beyond that the plaintiff shows no right or title to affect her by any process in the suit.

      “ He has, however, obtained an order continuing the injunction as an independent one against her as a party to that suit; and this order, in our opinion, is unsupported by any averment in the complaint or in the established practice of the courts.”

      G. W. Dayton, for the appellant.

      A. H. Hv/m/mel, for the respondent.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — Davis, P. J., Daotels and MacoMbeb, JJ.

Judgment reversed, new trial ordered, costs to abide event:


author: Daniels, J.;

text:
    JOHN M. MASTERSON, Respondent, v. JAMES BOYCE, APPELLANT.
    Mndence— when pa/i’ol evidence is admissible to varry a written agreement — such am agreement only concludes pan'ties, privies and those claiming through it — right to enforce the liability of am undisclosed principad.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The recovery was had for the breach of a warranty made upon the sale of 1,100 shares of the stock of the Maryland Union Coal Company. The sale was in form made by John White, who, it was alleged, acted as the agent of the defendant in making it. The fact of this agency did not appear in the contracts entered into in writing between White and the defendant, nor in the agreement subscribed by the plaintiff, under which he received the stock. Before either of the agreements was made the defendant was the owner of a large tract of land, considered to be valuable on account of its coal deposits, situated in the State of Maryland, and it was finally arranged between himself and White that he should convey this land to the coal company and receive its stock, amounting to the sum of five millions of dollars, in payment of the purcjiase of the property. Three-fourths of this stock he agreed to sell and transfer to White by an agreement in writing made the 22d of November, 1879. This agreement was not performed by White during the time prescribed for that purpose. And on the 3d of March, 1880, these parties entered into another agreement, under which White paid for and received oné-fourth of the stock, and. the terms upon which he was to receive and pay for the residue of the three-fourths were again declared and embodied in the writing. These agreements provided for the sale and delivery of the stock to White, and he alone became bound to the defendant for the payment of the pnrehase-price. Neither of them contained anything indicating that White was either empowered or expected to act in the disposition of the stock as the agent of the defendant, and for that reason the letters and oral proof offered to establish the agency were objected to at the trial.
    The court at General Term said: “ In support of the objection it .was claimed that the agreements themselves were conclusive, and could not be contradicted for the purpose of establishing the fact of this agency. The objection was not sustained, but the proof was received, and it is now insisted, for the reason assigned, that the evidence was not proper. JBut in the purchase of the stock the plaintiff in no manner became a party to either of these written instruments; neither did he stand in privity with either of the persons by whom they were subscribed.
    “ The instruments in no manner entered into the transaction by which the plaintiff acquired his title to the stock, and they were in no form brought to his notice; neither was he informed of their contents. The only manner in which he became a party to any of the transactions between White and the defendant was by receiving from the former a portion of the shares of stock which he had received from the latter. These shares are not set out in the case, but from the facts which have been stated it may be inferred that the shares delivered to the plaintiff were a portion of those received by White from the defendant. And it was only to that extent, therefore, that he became in any form connected with what had transpired between White and the defendant. The agreements executed by those persons neither in form nor effect entered into the transaction.
    “ The plaintiff derived no right or interest under those agreements, and accordingly was not in privity with them, as that relation has been defined by the authorities. (1 Greenl. on Ev. [7th ed.], §189; Stacy v. Thrasher, 6 How. [TJ. S.], 44, 59; Campbell v. Hall, 16 N. Y., 575; Goan v. Osgood, 15 Barb., 583.)
    “He was, therefore, not precluded by these instruments from showing- the true state of tbe relations existing between the defendant and White. He was a stranger to these agreements, and not prevented by their terms, for that reason,,from showing that the relation of these persons was not that of vendor and vendee, but was that of principal and agent. {Lowell Manufacturing Oo. v. Safeguard Ins. Oo., 88 N. Y., 591; 2 Pars, on Con. [6th ed.], *556; 2 Whart. on Ev., §. 920.)

      “ There was nothing in the transfer of the stock from the defendant to White, or from the latter to the plaintiff, or in the agreement subscribed for taking the stock, which was inconsistent with the production of this proof, for neither of the instruments so made use of in any manner defined the capacity in which White acted in the transactions. By the stock it would at most appear that it had been derived by White from the defendant; but how,. or in what capacity he acted in receiving it, was in no manner either expressly or by implication declared. The same construction may also be placed upon the agreement by which the plaintiff subscribed for the'stock. It was simply an agreement to purchase from White the number of shares set opposite the respective names of the subscribers, for which they agreed to pay upon delivery the sum of thirty dollars a share. That White was acting as the- agent of the defendant and that the purchase was made from him in that capacity, was entirely consistent with all the terms of the subscription, as well as with the forms adopted for the transfer of the shares themselves. And the plaintiff was, therefore, at liberty, if such was the fact, to prove that while he in form purchased the stock from White, White in fact sold it as the agent of the defendant. The rule is very well settled which permits a person dealing with another to show by proof that that other was the ' agent of an undisclosed principal, and in that manner to charge the latter, whenever he may be discovered, with the legal consequences of the transaction itself. And the circumstance that the agreement may have been reduced to writing, will not exclude the case from the operation and effect of this rule. This point was considered in Ford v. Williams (21 How. [H. S.], 287). The agreement subscribed by the purchasers in that case was the same in its effect as that which the plaintiff subscribed for the purchase of these shares. And yet it was held that the person named in it could be shown to be in truth the agent of the plaintiff in the transaction.. «-In the course of the decision in that case it was said that ‘ the contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein; and notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, it is well settled that the principal may show that the agent who made the contract in his own name was acting for him. This proof does not contradict the writing; it only explains the transaction.’ (Id., 289.) The correctness of this legal proposition was assumed in Meeker v. Claghorn (44 N. Y., 349), and it is fully sustained in Huntington v. Knox (7 Cush., 371), Bank United States v. Lyman (20 Vt., 667), and Beckham v. Drake (9 Mees. & Wels., 78).” * * *

      Luther B. Marsh, for the appellant.

      A. J. Ya/nderggoel, Coles Morris and Michael Oa/rdozo, for the respondent.
   Opinion by

Daniels, J.;

Macombee, J., concurred.

Present — Davis, P, J., Daniels and Macombee, JJ.

Judgment reversed, with costs to defendant to abide the event, and the verdict set aside on payment by him of the costs of the trial.


author: Maoombeb, J.;

text:
    In the Matter of the Application of ALPHONSINE MERTIAN, to compel payment to her by EDWARD W. BRENEN of Money received by him as her Attorney.

      Aitwney — when compelled, upon petition of client, to pay over money collected for him.

    Appeal from an order of the Special Term requiring Edward W. Brenen, attorney-at-law, to pay over to the petitioner the sum of $200 and ten dollars costs of motion.
    By the verified petition and other proofs in the case, it appears that the appellant had collected for his client, the petitioner, in three several suits from various debtors of the petitioner, the sum of $271. In addition to that sum, he had received for disbursements from the petitioner herself fifty-one dollars, mating in all the sum of $322. After deducting the compensation due the appet lant under an agreement between him and bis client by which he should receive ten per cent of the amount of collections where there was no litigation, and twenty-five per cent of the amount in the cases that were litigated, there was a sum coming to the petitioner of $225.50, but the amount directed by the Special Term to be paid by the attorney was, by consent of the petitioner, reduced to $200.
    The court at General Term said: “ The facts of the petition standing substantially uncontradicted, we think it was competent for the Special Term to direct in this summary manner the attorney to pay over the moneys to his client. Were there any facts in dispute between the parties as to the condition of the accounts between them, we should be inclined to put the petitioner to her action at law against her attorney, but where it stands admitted that an officer of this court has money belonging to his client collected by him in the course of his employment and refuses to pay over the same, the court has the power, without putting the party to an action, to compel the attorney to pay it.” ' .
    The order should be affirmed, with costs and disbursements.

      Thomas Nolan, for Edward W. Brenen, appellant.

      John McCrone, for the petitioner, respondent.
   Opinion by

Maoombeb, J.;

Davis, . P. J., and Daotels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.