text:
    Robert Rutter et al., Resp'ts, v. The Germicide Company of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Discovert—Books of corporation defendant.
    On a trial before a referee of an action brought against a corporation by-holders of preferred capital stock to obtain a specific performance of its contract to pay a 6 per cent, annual dividend, and for an accounting, the books of the defendant were brought into court in response to a subpoena duces tecum, and defendant’s officers examined them, but the requests of plaintiffs and of the referee, that an accountant be permitted to examine them there or at defendant’s office, was refused. On an affi-. davit of plaintiff’s attorney that such an examination was necessary to properly present plaintiffs’ case, and would show an improper appropriation of property, an order to show cause was issued, and on its return an order was issued granting the examination. Held,, that in view of the conduct of defendant in reference to the production of the books under, the subpoena duces tecum, the order was properly granted.
    Appeal from an order directing the defendant to produce its books of account and other books containing entries relating to the transaction of its business.
    The action was brought by the plaintiffs in behalf of themselves and the other holders of defendant’s preferred capital stock to-obtain a specific performance of defendant’s contract to pay its preferred stockholders a six per cent annual dividend quarterly,, and to secure such dividends by the deposit in the defendant company of fifteen per cent of its monthly earnings, and for an accounting. The answer admitted all the material allegations of the complaint, except the allegations that defendant’s net earnings had been sufficient to pay the passed dividends, and that its earnings had habitually- been illegally diverted. On the joinder of issue the action was referred to William M. Hoes, Esq., as sole referee, to hear and determine the same, and witnesses were examined before him at four hearings, some of defendant’s books of account being produced by its treasurer, in whose custody they were, under subpoena duces tecum. No bookkeeper designated by plaintiffs’ attorney was allowed by defendant’s treasurer or by its attorney to examine defendant’s books, although permission to make such examination was repeatedly requested both by the referee and by the plaintiffs’ attorney; and finally the learned referee suggested to plaintiffs’ attorney that he should apply to the court for an order of inspection, and furnished his certificate for that purpose.
    Plaintiffs thereupon filed a petition setting forth the importance to them of an examination of the books in question, and containing, in substance, the facts set forth in the following affidavit of plaintiffs’ attorney filed in support thereof:
    “P. H. Vernon, being duly sworn, says that he is attorney for the plaintiffs in the above-entitled action, which is now on trial before William M. Hoes, referee, and that the defendant appeared by Joseph G. Mathews, Esq., its attorney, but has recently been represented on the trial by L. J. Morrison, Esq., as counsel. That in deponent’s opinion it is very important for the interests of plaintiffs that defendant’s books of account and papers should be thoroughly examined by a competent bookkeeper, so that not only its receipts and disbursements, but also the results of its business, and the amounts of profits realized therefrom from quarter to-quarter, may be definitely ascertained; and that in deponent’s opinion a thorough examination of defendant’s books and papers is material and necessary to the proper presentation of plaintiffs’ case to the referee. That on various occasions during the progress of the trial deponent has requested Albert L. Cohn, Esq.; the treasurer of defendant, who has the custody of its books and papers, to allow deponent's representative to examine them, but said Cohn has persistently refused deponent’s requests for such examination, and has also refused the request of said referee, that he would allow the representative of deponent to examine said books. That on or about the 7th day of April, 1898, deponent gave to Mr. Otto J. Frickel, a bookkeeper in the employ of Messrs. Sweester, Pembroke & Co., Nos. 374, 376, 378 Broadway, in the-city of New York, a letter, a copy of which is hereto annexed, marked ‘ Exhibit B,’ and that deponent is informed by said Otto J. Frickel, mentioned in said letter, he, said Frickel, took the same to defendant’s office, 13 East Seventeenth street, in the city of New York, and delivered the same, in the absence of said treasurer, to Mr. William Law, defendant’s bookkeeper, who was in charge of its office; and that the said Law informed him that he had been instructed to allow nobody to see the books. That afterwards, and on the 12th day of April, 1893, the said referee wrote to said Cohn, and sent to deponent, for delivery to him, a letter, of which a copy is hereunto annexed, marked ‘ Exhibit I),’ by his assistant, Hr. F. R. H. Greaves, to said Cohn, at his law office, Ro. 280 Broadway, in said city ; and that said Cohn informed deponent’s said assistant that he would send a written answer to said letter, but that said Cohn never did so. That on the 19th day of April, 1893, some of defendant’s books of account were produced at referee’s office under a subpoena duces tecum, served upon said Cohn, but that, the referee being inadvertently absent from his office, said Cohn and defendant’s said counsel would not allow said books to be examined by said Frickel, who was present; and, as the referee did not appear within three quarters of an hour of the hour appointed for the hearing, said Cohn had said books immediately removed from said referee’s office. That deponent has examined said William Law, defendant’s bookkeeper, as a witness before said referee, and that from his testimony it appeal’s that said Cohn owes defendant several thousand dollars for moneys drawn from its funds, and that his brother, Caspar L. Cohn, who was president of defendant in July, 1891, but who went abroad about the end of said July on business in which the said defendant is not interested, and who has remained abroad ever since, is also indebted to defendant in $800 or $900, at least, for overdrafts of moneys; and that large amounts of merchandise, amounting to several thousand dollars, have been bought and paid for by defendant, and sent to germicide companies in Boston and Philadelphia, in which said companies said Gaspar L. Cohn is largely interested, and to said Caspar L. Cohn himself in England, and that defendant has never received payment therefor. That deponent verily believes, from the testimony of said Law, and from such cursory examination of defendant's books of account as deponent has been able to make during the progress of the trial, that the profits of defendant’s business during the periods mentioned in the complaint have been sufficient to warrant and require the payment of dividends to its preferred stockholders, in pursuance of the terms and conditions under which said stock was sold to plaintiffs by defendant; and that an examination of defendant’s books and papers by a competent bookkeeper will furnish full evidence of the allegations in the complaint, and entitle plaintiffs to a specific performance by defendant of its contract, according to the prayer of the complaint; and that there are entries in said books of all the matters of which plaintiffs seek a recovery; and that without an examination of said entries plaintiffs cannot, in deponent’s opinion, safely rest their case. That no previous application has been made for an order to show cause herein, and that, as a hearing in said action has been appointed for, the 16th day of May, deponent fears that if he gives an eight-days notice of motion there will not be time for an adequate examination of said books before said hearing."
    “Exhibit B.
    “ Dear Sir: The bearer, Mr. Otto J. Frickel, a bookkeeper in the employ of Messrs. Sweester, Pembroke & Co., would like to make some examination of the books of account of the Germicide Company of Rew York, in behalf of the Sweester plaintiffs, in the pending suit against said company, and for me. Kindly allow him to make such examination, and oblige.”
    The referee certified as follows:
    “ I, William M. Hoes, the referee heretofore appointed to hear and determine the issues in this action by an order of this court made on the 23d day of January, 1893, do respectfully certify that the hearing of this action was, on the 12th day of April, 1893, adjourned by me, on request of defendant’s counsel, to April nineteenth at ten o’clock A. M. That I was detained from my office on April nineteenth, and did not arrive there until about' eleven o’clock, when I was informed by a representative at my office that both parties to this action had appeared, and that no stipulation had been made by counsel in regard to any adjourned day. That I thereupon mailed to each of the counsel in this action a letter, of which the following is a copy:
    “ ‘ Gentlemen: I was absent from my office yesterday, and was under the impression that the hearing, in the above action was set down for eleven a. M. to-day, and I arrived here shortly after that hour, finding that both parties had been present I regret that this mistake on my part has occurred, and I have set the case down for Friday, April 28th, at eleven A. M., and hereby give ample notice to both parties.’
    “ That I have waited three-quarters of an hour on this 28th day of April, 1893, to wit, from eleven o’clock to eleven and threeqtiarters o’clock A. M., and have been attended only by Mr. P. H. "Vernon, attorney for the plaintiffs, and that neither Mr. L. J. Morrison nor Mr. A. L. Cohn nor Mr. Joseph T. Mathews has appeared before me, nor have defendant’s books of account been .produced, although, as shown by the subpoena duces tecum and ordinary subpoena, with proof of service thereof upon Albert L. Cohn, treasurer of the defendant, indorsed thereon, the said Albert L. Cohn was duly subpoenaed to attend and produce defendant’s books of account. That I further adjourned the hearing in this action to May 16, 1893, at eleven o’clock A. M., to enable plaintiffs’ attorney to apply to this court for an order directing the production of the defendant’s books of account, so that they may be fully examined by him, and by such bookkeepers as he may designate. That at a quarter after eleven o’clock this day a representative from Mr. Morrison’s office called and was informed by me that if said Albert L. Cohn did not appear and have said books produced before eleven and one-half o’clock this day, that I should give a certificate to the plaintiffs’ attorney, upon which he might apply to this court. That on the 26th day of April, 1893, I received from said Lewis J. Morrison a letter, of which the following is a copy r
    “ ‘Dear Sir: It will be impossible for either Mr. Cohn or myself to attend on the twenty-eighth by reason of previous court engagements. I intended writing you before, but have been changing offices, and this is the first opportunity I have had. Any day next week, except Friday, agreeable to you and Mr. Vernon, will suit us. Yours, respectfully,
    “ ‘ L. J. Morrison.
    “ 1 Mr. Wm. M. Hoes'

      “ That I made no reply to said letter, and have not given my consent to any adjournment to hearing set down for this day, except as above stated.
    “ April 28, 1893. William M. Hobs, Referee.”

    On reading the foregoing the court “ ordered that defendant, the Germicide Company of Hew York, give to said plaintiffs a discovery and inspection and permission to take copies of its cash books, journals, ledgers, check books, bank-deposit books, invoice books, and other books of account, and other books containing entries relating to the transaction of its business, and that discovery and inspection bemade by forthwith permitting a competent person selected by the plaintiffs, or by their said attorney, to inspect and examine said books at defendant’s place of business, Ho. 18 Bast Seventeenth street, in the city of Hew York, and by having said books remain open to the examination of plaintiffs, their attorneys and accountants, during the ordinary business hours of each day, with the privilege of making extracts therefrom, and of any and all entries therein relating to the receipts and disbursements and expenses and profits of defendant's business during the period mentioned in the complaint; and that in default thereof defendant show cause, at a special term of this court to be held at chambers, at the county court house, in the city of Hew York, on the 8th day of May, 1893, at 11 o’clock in the forenoon, or as soon thereafter as counsel can be heard, why such inspection and discovery should not be made as aforesaid, and why the prayer of the annexed petition should not be granted, and why plaintiffs should not have such other and further relief as may be just, with the costs of this motion.”
    . Defendant having appeared and failed to show cause why such inspection and discovery should not be made as required by the foregoing order, the court further “ ordered, that the said defendant produce at its place of business, Ho. 13 Bast Seventeenth street, in the city of Hew York, or. the 17th day of May, 1893, at 9 o’clock in the forenoon, all the above-mentioned books and documents, and there allow plaintiffs and their said attorney, and accountant or accountants designated by them, or any of them, to inspect the same, and to take copies thereof and extracts therefrom, on said day, and on each following business day, from 9 o’clock A. M. to 6 o’clock p. M., for so many days as plaintiffs, their said attorney and designated accountants, shall desire for said purpose, not exceeding three weeks.”

      Joseph G. Mathews (L. J. Morrison, of counsel), for app’lt; P. H. Vernon (Vernon H. Brown, of counsel), for resp’ts.
   Per Curiam.

In view of the conduct of the defendant in reference to the production of the books under the subpoena duces tecum, we think the granting of the order for examination was justified. The order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Bollett and Parker, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Jacob A. Zimmermann et al., App’lts, v. Christian Jourgensen, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Contract—Completion by ownbb.
    A building contract provided that “should the contractor, at anytime during the progress of said work, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days notice in writing being given, to finish the said work, and the expense shall be deducted from the amount of the contract.” After a certain amount of the work had been done and paid for, the owner gave such notice, and after three days proceeded with the work. The contractor brought suit on the contract for payment, less the reasonable value of completing the building, and alleged that the work had been substantially completed when the owner took possession. On the trial it appeared that at such time the floors had not been laid, or the ceilings put in, and that portions of the building were exposed to the weather; also, that a portion of the work was imperfect and had to be done over, and that more was expended in completing the work than remained unpaid under the contract. Held, that there was no substantial performance, and plaintiffs were not entitled to recover.
    3. Same.
    Such contract provided that '• should the owner at any time during the progress of the said building request any alterations, deviation, addition, or omission from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, at a fair and reasonable valuation.” Held, that the fact that the owner departed from the plans and specifications in completing the building made no difference, it not being shown that the changes were made in bad faith.
    3. Same—Evidence.
    In such case, the referee properly refused to allow the carpenter who finished the work to answer the question whether he was able to state how much of the work he did was embraced or comprised in the plans and specifications, as it callecl for a conclusion which the referee could draw for himself, the specifications being present and the witness having testified as to what work he did.
    Appeal from judgment dismissing the complaint on the merits ■and in favor of defendant on the counterclaim interposed by him.

      J. G. Flammer, for app’lts; Charles G. Coe (Frank Rudd, of counsel), for resp’t.
   O’Brien, J.

This is the second time this action has come before this general term for review. It was brought on a building contract between plaintiffs, as contractors, and defendant, as owner, to recover a balance claimed by plaintiffs to be due for making alterations and additions to defendant’s building in Maiden Lane, in this city, under such written contract. By its terms the contract provided for the payment to plaintiffs of the sum of $14,199 for the entire work, in the following manner: $4,000 when the third tier of beams was placed in position, $4,000 when the, roof was on, and the balance, $6,199, ten days after the entire work was completed. Although no time was specified in the contract, it was insisted by defendant that May 1,1890, was agreed upon as the date of completion; but the referee has found against this contention, holding that no time was agreed upon between .the parties within which the said work should be finished. Upon the execution of the contract, which was made in March, 1890, the plaintiffs commenced work thereunder, and continued until August 20th, when the defendant, availing himself of a clause in the contract, entered into possession of the premises, and elected to complete the work himself for and on account of plaintiffs, claiming that they had neglected to supply a sufficiency of material and workmen. The first two instalments, $4,000 each, having been paid, there would have been due, had the plaintiffs fully completed their contract, $6,199, in addition to an unpaid balance of $355, which, as found by the referee, was due plaintiffs for, extra work performed at defendant’s request. The plaintiffs allege that defendant would be entitled to an allowance on the final payment of $1,118 for completing the work; and it is the entire balance, together with pay for the extra work, less such allowance to defendant, for which plaintiffs demand judgment.

The plaintiffs, in their complaint, allege that the work was substantially finished when defendant took possession of the premises, and it is seemingly their theory that it is the entire contract price, less what would be the reasonable value of completion, which should determine the amount for which they are entitled to judgment. We think, however, that there can be no dispute, upon the evidence as furnished by the plaintiffs themselves, that when the defendant, after service of a notice upon the plaintiffs, assumed the right to take up the work and complete it himself, it was not substantially finished. The testimony shows that upon that date the premises were unfit for occupancy, glass flooring half laid, floor and ceilings wanting and portions of the building exposed to the weather. If the plaintiffs had abandoned their, work at that stage, we fail to see how they would have been entitled to recover anything, because, upon such facts, showing that the cost of completion, according to plaintiffs’ own theory, would be more than $1,000, and according to the defendant’s more than $6,000, there would have been no such substantial completion as, under the authorities, would have entitled the plaintiffs to recover the contract price, less the amount required to complete the building. The familiar case of Woodworth v. Fuller, 80 N. Y., 312, states under what circumstances a recovery may he had on a contract without a literal or exact performance of it in the following language:

“ Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects, caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. The defects must not run through the whole, nor be so essential as that the object of the parties to have a specified amount of work done in a particular way is not accomplished.”

In addition to the work which then remained to be done, there was imperfect work, which had to be done over, and which, as found by the referee, cost defendant $175. The existence of this condition of affairs, showing that a portion of plaintiffs’ work had "been imperfectly done, requiring the expenditure of time and money by the defendant, raises a serious question as to plaintiffs’ right to maintain the action at all. We do not, however, decide that this is an insuperable bar to a recovery, but will proceed to dispose of the case upon the merits as they were presented before the referee; but it is proper that the matter should be adverted to, as it is also that we should endeavor to ascertain from the complaint itself the theory upon which the plaintiffs base their right, to recover. As already remarked, we must discard the theory in one part of the complaint presented, that plaintiffs are entitled to recover because, having substantially performed their contract, they should receive the entire amount thereunder provided to be paid, less what was necessary to be expended by the defendant to entirely finish the work. In another paragraph of the complaint it is alleged that, after commencing, the plaintiffs continued the work “ conscientiously, diligently, and with all possible speed, and used their best endeavors to get prompt and sufficient supplies of the building material to be° used in the construction of the said work until August 20, 1890, when the defendant refused to permit the plaintiffs to complete the said work, and prohibited them, their agents and servants, from entering the said buildings, Nos. 96 and 98 Maiden Lane, and notified the plaintiffs that he would finish the said building, and deduct the expense thereof from the amount still due and owing to the plaintiffs under the said contract.” Had the plaintiffs succeeded in sustaining these allegations, then they would have been entitled to recover damages as against the defendant for a breach of the contract on his part, because the charge thus made is the exact equivalent of saying that the defendant wrongfully broke .his contract. Upon such facts the plaintiffs would have had three remedies in law: First, they could treat the contract as at an end, and claim damages for its breach ; second, they could recover on a quantum meruit for all work done by them up to the "breach which remained unpaid for; or, third, they could recover the full contract price if the contract was substantially performed. It is evident from the testimony that plaintiffs did not elect to proceed upon either the first or the second of the remedies above mentioned, and we are therefore left to assume that recovery was sought upon the theory that the contract was substantially performed. For reasons already given, it is difficult to see how a recovery could be had upon this ground; but, as the case was fully tried out, it is perhaps right that we should treat it as the parties themselves did seemingly upon the trial, by examining into the questions in dispute between them, regardless of the issues as made by the pleadings, and determine whether, upon the facts as proved and found by the referee, the conclusions of the latter were sound. Upon conflicting evidence the referee has found (and we see no reason to disturb such findings) as follows:

Sixth. That for some time prior to the 15th day of August, 1890, plaintiffs refused and neglected to supply sufficient workmen and material for the proper prosecution of the said work; that on the said day the defendant served on the plaintiffs a notice in writing, in accordance with the said fourth section of said contract ; that for three days thereafter, and down to said August 20, 1890, plaintiffs still failed, neglected and refused to supply a sufficiency of material and workmen, and thereupon the defendant excluded said plaintiffs, their agents and servants, from said premises, and proceeded to complete said work himself. Seventh. That a large portion of the work as called for by said contract, constituting a material and substantial part of said work, remained unfinished on the said 20th day of August, 1890, when the plaintiffs were so forbidden to finish said work.”

Upon these facts the defendant, under the terms of the fourth clause of the contract, was entitled to finish the work and deduct the expense from the amount due under the contract. That moré was expended to complete the building in the manner in which it was completed than remained unpaid under the contract is abundantly shown by the evidence. It is insisted, however, by the plaintiffs that the large expenditures thus made were the result of departing from the plans and specifications, and of introducing additional and extra work, which, if the defendant were entitled to deduct from the contract price, would result in injustice to them. It should be remembered, however, that the contract itself provided for changes in the plans and specifications in language as follows:

Third. Should the owner at any time during the progress of the said building request any alterations, deviation, addition or emission from said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

This provision, as well as the specifications themselves, show that it was in the contemplation of the parties, in view of the nature of the work, that variations from the plans and specifications would be necessary; and as it was not shown that any changes in such plans and specifications were made in bad faith, or with a view to injuriously affecting the plaintiffs, we do not see that they have any reason to complain. It certainly was not the duty of the defendant, after the plaintiffs had unreasonably delayed their work, and failed to provide necessary material and sufficient workmen, merely for the purpose of having correct accounts at the completion of the work, to adhere strictly to the plans and specifications, to his own prejudice. It would, of course, have saved much question, and presented the matter in a clearer way, if the defendant had kept a more exact statement of payments made for work done under the plans and specifications separately from the amounts expended for such deviations and alterations from the plans and specifications as were required by the nature of the work.

It was suggested in the former opinion of this general term that the burden was upon the plaintiffs of showing what it would cost defendant to complete the contract according to the plans and specifications, and that it was the contract price, less such cost, that they could alone recover. Exception is taken to this statement of the law; but if we assume the plaintiffs’ view to be correct, that the burden was upon the defendant, it was met, as far as the defendant had it in his power to meet it, by his presenting a detailed statement of the amounts paid all the different workmen, and by showing what such payments were made for. And after a careful examination, having the plans and specifications before him, the referee reached the conclusion upon such testimony that the cost to defendant of completing the contract was more than the final payment which would have been due to the plaintiffs had they themselves finished the work. As against such evidence, showing as far as it was possible what the completion of the work cost, there was presented by the plaintiffs their view of what they regarded as the fair and reasonable value of such work. ISfo sufficient reason has been assigned why we should differ with the referee, who, upon all the testimony, and after analyzing the proofs, reached a conclusion as to what was necessary to be expended by the defendant in order to complete the building.

In addition to the merits, the appellants rely upon certain rulings of the referee in the admission and exclusion of evidence. The first relates to a question asked of the carpenter who finished the work for defendant, whether he was able to state how much of the work that he did was embraced or comprised in the plans and specifications. This was objected to, and the objection sustained, upon the ground that the specifications would speak for themselves. This witness had testified fully as to what work he did, and the specifications were present for examination. The question called for the witness’ conclusion as to what portion of the work done by him he thought was embraced within the specifications, with respect to which the referee was competent and able to draw conclusions for himself.

Another error assigned was the permitting the defendant to give testimony as to whether or not there was a bulletin or directory for tenants on the inside of the building. We agree with the appellants that such evidence was entirely incompetent, but, .as shown by the conclusions reached by the referee, entirely harmless. It was no doubt introduced for the purpose of sustaining the defendant’s view that there was an agreement that the work was to be completed by May 1st; but, as the referee found with the plaintiffs upon this point, and against the defendant, it is evident that no harm was done by admitting this evidence.

The same may be said of the next exception, which relates to a ' ruling by the referee admitting the entire conversation at the time of the execution of the contract for the purpose of varying its terms. The ruling was erroneous, but as the conversation introduced was for the purpose of supporting the defendant’s theory that the work was to be completed by May 1st, and as the referee has found against the defendant upon that point, the ruling did no harm.

The next exception is as to the testimony allowed as to the cause of refusal of tenants to take offices in the building. This, of course, was incompetent, but as it was introduced for the purpose of showing loss of rentals, which was not allowed by the referee, who upon this subject found with the plaintiffs, it presents no reason for disturbing the judgment.

Our conclusion, therefore, upon an examination of the entire record, is that the disputed questions between the parties were fully and fairly tried; that the substantial issue as to the exact cost to defendant of the completion of the work subsequent to his having taken possesion thereof on August 20th was upon conflicting testimony presented for the consideration of the referee, and that we find no ground for interfering with his findings, or with the conclusions which necessarily follow, resulting, as they did, in the judgment appealed from.

The judgment should therefore be affirmed, with costs.

Follett, J., concurs; Van Brunt, P. J., concurs in result


author: Barrett, J.

text:
    Giles E. Leach et al., Pl’ffs, v. Charles F. Linde, Def’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Judgment—Foreign—Evidence—Laws of foreign state.
    In an action in this state on a judgment obtained in North Carolina, it is proper to admit in evidence, to prove the laws of that state, books which purport to have been published by three men, under certain statutes, and copyrighted by the secretary of state “ for the benefit of the state.”
    3. Same—Jurisdiction.
    In such case, when it appears that the court by which the foreign judgment was rendered had original jurisdiction in all civil actions whereof exclusive jurisdiction was not given some other court, it is sufficient proof, prima facie, that the court had jurisdiction of the action in which the judgment was rendered.
    Exceptions ordered heard in the first instance at general term, after verdict for plaintiff directed by the court.

      Oudin & Oakley, (Lorenzo Semple, of counsel), for pl’ffs; Edward S. Clinch, for def’t.
   Barrett, J.

This action is upon a judgment of the superior court of Wake county, H. G. The pleader took the complaint in the Horth Carolina action, and embodied it almost in toiidem verbis in the complaint here. He then pleaded the judgment, but did not say that it was recovered upon the preceding facts. The only connection which is suggested in the complaint between these preceding facts and the judgment as pleaded is the statement that such judgment was duly given upon certain findings of the jury in the Horth Carolina action, which findings seem to refer to some of these facts. Comparing the record in the Horth Carolina action with the facts thus loosely inserted in the present complaint, there can be no doubt of what the pleader designed. He meant to aver the exact facts upon which judgment was there recovered, and then to plead the judgment as duly recovered upon such facts. Whether he has succeeded in this is immaterial. It is sufficient that he has properly pleaded the judgment, and that he has a good cause of action thereon. If the facts which precede the averment of the judgment are to be treated as, in themselves, and apart from the judgment, constituting an independent cause of action, the defendant should have had such cause of action separately stated and numbered. Such preceding" facts do not affect the cause of action upon the judgment. If, however, they are to be treated as mere matter of inducement leading up to the judgment, or as surplusage, the action is still upon the judgment. Krower v. Reynolds, 99 N. Y., 245. The question, therefore, is whether the verdict for the amount of the judgment was properly directed.

When the plaintiffs rested, the defendant moved to dismiss the complaint upon two grounds: “ First, that the cause of action set forth in the complaint had not been proved; second, that the action is brought upon a contract to which Eichard B. Lawrence is a party, and that he is not a party to this action, and that a defect of parties defendant is set up in the answer.” There is nothing in the latter point, as the judgment is against Linde alone. As to the first point, the defendant did not contend that the plaintiffs had averred the fraud and deceit for which the North Carolina judgment was obtained, and that the complaint should be dismissed because of a failure of proof on that head. We may say, however, that, even if this point had been taken, and it had been conceded that the North Carolina action was founded upon the fraud and deceit averred in the present complaint, the record in that action conclusively establishes the fraud and deceit so averred. The verdict of the jury was specific upon these charges. The sole question, then, is whether the foreign judgment was properly proved. The defendant objected to the introduction of two printed books which were offered to prove the Code of North Carolina. We think these books purported to have been published by the authority of that state, and were presumptive evidence of its laws. Upon the title page we find a statement to the effect that the volumes were prepared by William T. Dortcb, John Manning and John S. Henderson, under chapters 145 and 315 of the Laws of 1881 and under chapter 191 of the Laws of 1883. The reasonable inference is that these persons were commissioners appointéd under the laws so specified, and that these laws were laws of the state of North Carolina. On the page next to the title page are the words: “ Copyright, 1883, by William L. Saunders, secretary of state, for the benefit of the state of North Carolina.” It is also a reasonable inference that Mr. Saunders was the secretary of state of North Carolina. By § 922 of the Code, thus proved, the superior court of Wake county was shown to be a court of original jurisdiction in all civil actions whereof exclusive jurisdiction was not given to some other court. That proof was sufficient prima facie. It was for the defendant to show that exclusive jurisdiction of such an action as that in question was given to some other court. Jurisdiction having thus been shown, the law conferring it must be presumed to exist until proved to have been changed. Raynham v. Canton, 3 Pick., 293. But these negative objections were not specifically taken by the defendant at the trial. H they had been, the plaintiffs might have accepted the burden of showing affirmatively the continued existence of the law, and the fact that exclusive jurisdiction of such actions as that which was brought against the defendant in the superior court of Wake county had not been given to any other court.

There is also an exception to the exclusion of the defendant’s testimony. This testimony either tended to disprove the fraud and deceit charged in North Carolina, of the fraud and deceit charged in this action. In either case the ruling was correct. The fraud and deceit charged in North Carolina were conclusive^ established by the judgment there. If the fraud and deceit charged here are to be deemed the same as charged in the North Carolina action, the like rule applies; but, if not, and if treated independently, there was nothing to disprove, for there was nothing proved. The exceptions should be overruled, and judgment rendered for the plaintiffs, upon the verdict, with costs.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    Jacob Lawson, Pl’ff, v. The Terminal Warehouse Co., Def’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Interpleader—When improper.
    In an action against a warehouse company to recover certain bales of bagging, a bank was substituted as defendant, which alleged that the bales in question were a part of a large number in dispute between the bank and various parties, and that, if not entitled to the bagging, the company were liable to it therefor, and also that the right of the company to storage was forfeited. Feld, error to make the substitution.
    • Appeal from an order interpleading and substituting the appellant, The Central National Bank, in the place and stead of the defendant, The Terminal Warehouse Company.

      Martin & Smith (A. P. Whitehead and George A. Strong, of counsel), for app’lt; Platt & Bowers (J. M. Bowers and Robert L. Luce, of counsel), for resp’t Warehouse Co.; Clarence L. Westcott, for pl’ff.
   Van Brunt, P. J.

This action was brought to recover possession of five bales or packages of burlaps, which the defendant, the Terminal Warehouse Company, claimed to hold as a bailee in its warehouse in the city of New York, upon the ground that the defendant wrongfully withheld and detained said burlaps from the plaintiff. The defendant thereupon made an application for an order of interpleader, alleging that the same property was claimed by the Central National IBank, and that the same was received and stored from the firm of Lipman & Co., to whom the defendant had issued its warehouse receipts, and that said receipts were now held by the Central National Bank, and that the defendant had no interest in the property, except that of bailee and warehouseman, and for its fees for storage of the same, and that it could not safely determine to which of said claimants the property should be delivered, and was ready and willing to deliver the same as the court might direct upon payment of its fees for storage, and upon being discharged from further liability; that the storage fees amounted to $33.50 ; and that there was no collusion between the defendant and the plaintiff or the Central National Bank.

The Central National Bank, in answer to this application, alleged that it held a warehouse receipt issued by the above-named defendant to it, which specified, among many others, the bales of burlaps mentioned in the complaint, and that these burlaps were a part of a large number which were in dispute between the bank and various persons, each of whom claims less than the entire number claimed by the bank. The affidavit then further states the controversy which had arisen in regard to the title to these bur-laps, and asserts a claim upon the part of the bank that if the course of business of the defendant should be subject to the criticism made upon it by the plaintiff, it would claim a liability against the defendant, the Terminal Warehouse Company, to make good any loss which might be suffered by the bank. It also alleges a claim for the conversion of these bales by the defendant, and a forfeiture of all right to storage. The court granted the motion for the interpleader, and from the order thereupon entered this appeal is taken.

We do not see how, under the circumstances disclosed by the papers upon which this order was granted, the defendant had a right to the relief which it obtained upon the motion. The defendant does not propose to deliver the entire property to the person directed by the court. It claims its lien for storage, which is denied by the party sought to be made defendant. It further appears that the defendant does not stand indifferent between the parties, because the claims of the various parties arise, apparently, out of the manner in which the Terminal Warehouse Company has dealt with the property in question, and its manner of issuing its warehouse receipts. It is apparent, for these reasons, that no substitution could be made. The order should be reversed, with ten dollars costs and disbursements, and the order for interpleader denied, with ten dollars costs.

Follett and Parker, JJ., concur.


text:
    David A. White et al., Resp'ts, v. Wilson Reid, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Judgment—Foreign—Defense of fraud.
    In an action in this state on a judgment obtained in another state, the defendant may show that he had a good defense which he set up in the original action, but that he abandoned it by reason of the fraudulent representation of plaintiffs that they would discontinue the action, whereupon they took judgment.
    Appeal from a judgment in favor of plaintiffs, entered upon a verdict directed by the court on the pleadings.

      Daniel D. Sherman, for app’lt; Kidder & Melcher (J. S. Melcher, of counsel), for resp’ts.
   Van Brunt, P. J.

This action was brought upon a judgment recovered by the plaintiffs against the defendant in the superior court in the commonwealth of Massachusetts. The defendant, in his answer, admitted the bringing of the suit, and that he appeared therein and set up his defense, and that judgment was thereafter entered in said suit as alleged in the complaint. In order to avoid the effect of this admission, the defendant, further answering, alleged that he had, and now has, a good and valid defense to said actions, and the plaintiff had no valid cause of action; and that in November, 1890, said judgment being entered on the 5th of January, 1891, the defendant was induced, by fraudulent representations and assurances of the plaintiffs, made to the defendant and one of his co-defendants, and upon which he relied, to the effect that said action would be discontinued, to abandon his defense to said action, and not to appear further therein, and that the plaintiffs fraudulently and without the knowledge of the defendant procured the judgment mentioned in the complaint to be entered against him. Upon the trial a verdict was directed in favor of the plaintiffs upon the pleadings, upon the ground, we imagine, which is urged before this court, viz: that the fraud for which a judgment may be avoided must be such as prevented the defendant from ever appearing in the suit, and that when the defendant has appeared and set up his defense in the foreign state all subsequent proceedings in that suit, including the judgment, are conclusive upon him, because he has had his day in court, and should not be allowed to try the issues again. This, we think, is an entirely erroneous view to take of the sanctity of the judgment of a sister state, such judgment not being a foreign judgment. The constitution of the United States provides that full faith and credit shall be given in this state to the public acts, records and judicial proceedings of every other state; but such provision does not give greater force to the judgment of a sister state than that which obtains in our own state. Many cases have occurred in our own state where the validity of judgments has been attacked upon the ground of fraud, and where the defendant has been deprived of his defense by the fraud of the plaintiff with the connivance of his attorneys; and we are somewhat surprised that the jurisdiction of the court in this respect should be questioned. That such jurisdiction exists is expressly recognized in Mayor v. Brady, 115 N. Y, 617; 26 St. Rep., 340; Pom. Eq. Jur., 400, and in U. S. v. Throckmorton, 98 U. S., 61, where the court, speaking of the evidence of this power, defines it as follows:

“ If the court has been mistaken in the law, there is a remedy by writ of error. If the jury has been mistaken in the facts, the remedy is by motion for a new trial. If there has been evidence discovered since the trial, a motion for a new trial will give appropriate relief. But all these are parts of the same proceeding. Belief is given in the same suit, and the party is not vexed by another suit for the same matter. So in a suit in chancery, on proper showing, a rehearing is granted. If the injury complained of is an erroneous decision, an appeal to a higher court gives opportunity to correct the error. If new evidence is discovered after the decree has become final, a bill of review on that ground may be filed within the rules of law on that subject. Here, again, these proceedings are all parts of the same suit, and the rule framed for the repose of society is not violated. But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there has. been in fact no adversary trial, or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him, as by keeping him away from court by a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the act of the plaintiff; or where an attorney fraudulently or without authority assumes to represent the party, and connives at his defeat; or where an attorney regularly employed corruptly sells out his client’s interest to the other side, these and similar cases which show that there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to annul the former judgment and decree, and open the case for a new and a fair hearing.”

We think, therefore, that the court erred in directing judgment upon the pleadings, as seems to have been done, upon the ground that, the defendant having appeared in the action in Massachusetts, his defense could not be sustained. This being the only question presented upon this appeal, we think that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Eollett and Barrett, JJ., concur.


author: R. E. Deyo, Referee: Van Brunt, P. J.

text:
    In the Matter of the Judicial Settlement of the Account of William Collins, Trustee under the Will of John G. Collins, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Will—Construction—Vested estate.
    Testator, by his will, devised certain real property to the use of his wife “ during her life,” and directed that at her death it be sold, and the proceeds divided between his children. Held, that the children took a vested remainder in said property.
    "2. Executors and administrators—Accounting.
    Testator provided that his executor should set apart a fund for an annuity for his widow, and the money for the fund was contributed by his children. Held, that the executor, as such, is not required to account for the fund.
    S. Same.
    Testator devised certain real property to his wife for life, and directed that at her death it be sold, and the proceeds divided among his children. The executor sold the property during the widow’s life-time, the children joining in the conveyance, and invested the proceeds for her benefit. Held, that on the death of the widow the executor must account for the proceeds of the sale as personal property.
    Appeal from a decree of the surrogate confirming the report ■of the referee, holding that there was no trust created under the will of John Gr. Collins, deceased, and that there are no assets of his estate in the hands of William Collins, as executor or trustee.
   The following is the opinion of the referee:

R. E. Deyo, Referee:

John Gr. Collins died in 1858. His estate consisted of personal property, a piece of real estate, Ho. 41 Wooster street, and another piece in Eighty-fourth street (York-ville). His will was admitted to probate September 20, 1858. It provided that during her widowhood his wife should have the1 net income of his property in Wooster street for the support of herself and their children. He also gave her certain personal property absolutely, and “ the interest and income, use and benefit, of all the residue of my estate during her widowhood.” If she remarried, she was restricted to the use “ during her life ” of the house and lot in Eighty-fourth street, sometimes called the “ house in Yorkville,” and an annuity of $50. In the event of her remarriage, the income of his estate, except the annuity and Eighty-fourth street (Yorkville) house, was to be divided between his children until his son George W., who was his youngest child, arrived at age. At that time, if his widow had remarried, all his estate, except the Eighty-fourth street house and the amount set apart to raise her annuity of $50, was to-be divided between his children. At the death of his widow, the Eighty-fourth street (Yorkville) house was to be sold by the executors, and the proceeds thereof “and of all my other estate” divided “between my descendants.” The testator left him surviving his widow and three children, William, John W., and George W. Collins; the two latter then being infants. In 1860 the widow married Daniel Saunders. In 1861 William Collins and John Findley, the only executors who qualified, rendered an account in this court. The usual proceedings were had, and a decree was entered June 1, 1861, showing a balance in their hands of $523.36, which they were directed to-distribute. The rents of the Woostcr street property were received by William Collins, as executor, from the time of his mother’s remarriage, in 1860, until the property was sold to him, as hereinafter stated. George W. Collins, the youngest son, became of age in August, 1866. In May, 1867, William Collins purchased, from his two brothers their interest in the Wooster street property, and'thus became its sole owner. In April, 1874, the Eighty-fourth street (Yorkville) property was sold to Abbie M. W. Peffers. Two conveyances were made, one by William Collins-as executor; the other by Mary Saunders, the widow, William and John W. Collins and their wives, and George Collins. The total consideration was $8,500, made up as follows: $4,000 secured by a mortgage on the Eighty-fourth street property ; $4,000 by a mortgage on property in Eighty-third street; Harlem Bank stock, par-value $200; and cash, $300. The mortgage-on the Eighty-fourth street property has been paid. The mortgage on the Eighty-third street property was foreclosed, and the property bought in by William Collins, he taking the title as executor. From the time of her remarriage until her death Mrs. Saunders was not called upon to bear any portion of the expenses of the Eighty-fourth street house, such as taxes, repairs, etc., and after the Eighty-fourth street house was sold, and the mortgage on the Eighty-third street house taken in part payment thereof had been foreclosed and bought in, she received the gross rents-pf that house to the time of her dpath, all the expenses being. paid by William. Collins, and charged nominally against the estate. John W. Collins died January 7, 1877, leaving a widow: also one child, named Emma L. Collins. Mrs. Saunders died in October, 1886. William Collins collected the rents on the Eighty-third street house from the widow’s death down to May 4, 1888, when the property was sold for $15,750. Part of the purchase money was secured by a mortgage on the property, but on the 4tli day of January, 1889, the whole amount had been paid up. Emma L. Collins is the general guardian of Emma L. Collins, who is an infant over the age of fourteen years, the said infant being the only surviving child of John W. Collins.

On January 13, 1890, the said guardian filed her petition setting forth, among other things, that William Collins was the sole surviving executor of John 0. Collins; that by reason of the death of John W. Collins, her father, said infant was entitled to a distributive share in the undistributed proceeds of the estate; that various payments had been made to the general guardian on account of such distributive share, and that the petitioner believed that other funds had not been accounted for or distributed. The prayer was that the executor be required to account. On January 13, 1890, the said executor filed a petition that all parties in interest be cited to attend upon such accounting, and thereafter, and on March 3, 1890, an account was filed. Objections having been filed on behalf of the said Emma L. Collins, an order was entered referring the matter to J. H. Stewart, Esq. Subsequently, and -on May 7, 1890, an amended account was filed. To this also the said Emma L. Collins, by her guardian, filed objections. After a large mass of testimony had been taken before Mr. Stewart, he resigned, and I was appointed his successor by an order entered July 22, 1890, which order contained a provision that the testimony taken before Mr. Stewart was to be considered as though it had been taken before me, and that I should proceed with the taking of the testimony.

I think some of the rulings of my predecessor are different, from those I would have made under the same circumstances; but, had they been made as I think they should have been, I do not think it would affect the results at which I have arrived. As appears by the decree on the accounting in 1861, the estate consisted of $523.36 in money, and there were, besides, the premises in Wooster street, and the house and lot in. Eighty-fourth street (Yorkville). To the income of all of this the widow was entitled if she remained unmarried, but as, at the time of the accounting iq 1861, she had already remarried, she was only entitled thereafter to the annuity of fifty dollars and the use of the Eighty-fourth street (Yorkville) house during life ; and because of such remarriage, the remainder of the estate, viz., the $523.36 of money and the Wooster street property, became the absolute property of the testator’s three sons, both being subject to the payment of the annuity of fifty dollars. It is evident-that the $523.36 alone was not sufficient to raise the annuity of fifty dollars; consequently that annuity could not be paid with-out a resort, for a part at least, to the Wooster street property. These difficulties were surmounted when John W. and George W. sold their shares in the Wooster street property to William, which was May 8, 1867, in the following manner: They made an agreement in writing that a fund of $1,000 should be set apart to raise the annuity, to which fund each should contribute one-third; that this fund should be left in the hands of William, and that the shares of John W. and George W. should be contributed out of their shares of the purchase money due from William on the Wooster street property. It does not appear that Mrs. Saunders -objected to this arrangement.

It is claimed on behalf of Emma L. Collins that this fund, or at least so much of it as was contributed thereto by John W. and George W., together with any interest realized thereon in excess of fifty dollars, the amount of the annuity, shall be accounted for as assets of this estate. It is attempted to support this claim on the theory that the annuity was a charge upon the Wooster street property, and, as such, enforceable by the executors; that the fund •of $1,000 was substituted in place of the Wooster street property, and that thereby the same became an asset of this estate by operation of law. Conceding that the annuity was a charge, in whole or in part, upon the Wooster street property, still the direction to the executors to make the necessary provisions for its payment ■did not impress upon the charge any characteristic of a trust. The annuity was simply a legacy, and, as such, it was alienable or releasable by the annuitant Lang v. Ropke, 5 Sandf., 363, 370; Hawley v. James, 16 Wend., 60; Griffen v. Ford, 1 Bosw., 123, 143, 144; Maurice v. Graham, 8 Paige, 483, 487; Hunter v. Hunter, 17 Barb., 25, 90; Mason v. Jones, 2 id., 229, 247. Having the power to release the property absolutely from the charge, and also to release the estate from any claim for the annuity itself, a fortiori, she had the right to consent to or acquiesce in an arrangement by which the annuity was raised from a sum of money contributed as a fund by her sons or anybody else; and it is immaterial whether it was contributed out of the proceeds of the sale •of the property subject to the charge, or from some other source. If the sons had continued to hold the property jointly until their mother’s death, they would then have it free "from the charge, or liability to account, and in the same way they and their representatives now have the substituted fund. If William has not. accounted and settled properly for it, those aggrieved have a remedy, but not in this court.

The said agreement also provided that from the purchase money there was to be reserved $333.33 from the amount due from William to each of his brothers, to cover the expense of paving Eighty-fourth street, and other disbursements, subject to approval. It is claimed that so much of the share of this fund as was contributed by John W. Collins, deceased, is to be accounted for in this proceeding. I overrule this claim, on the ground that the agreement shows that the $333.33 belonged to John W. Collins individually, and that the disposition of it did not concern the estate of John G. Collins.

The remaining, and most important, question relates to the Eighty-fourth street (Yorkville) property. As before stated, this was sold and conveyed prior to the death of the widow, she and the three sons and the executor joining in the conveyance; but subsequent thereto, and before the death of the widow, John W. Collins died, leaving a daughter, and it is to be determined whether the conveyance by John W., her father, prevented the vesting in her of the interest he had in the Yorkville house, if he had not conveyed it, and had survived his mother. The clause of the will covering the subject is as follows : “ Eighth. At the death of my wife, the house and lot in Yorkville to be sold by my executors, and the proceeds thereof, and of all my other estate, to be divided between my descendants according to law.” The first inquiry to be made is, whom did the testator mean by the term 41 my descendants?” Descendants,” in its légalas well as its ordinary sense, includes the issue of the body of the testator of every degree, no matter how remote. Van Beuren v. Dash, 30 N. Y., 393, 419; Hamlin v. Osgood, 1 Redf, 409. Consequently, as the members constituting the class my descendants ” must, in the course of nature, vary according to the point of time at which the determination is to be made, it becomes necessary to decide what was the period at which the testator intended that those who then answered to the designation of descendants would be entitled to receive the gift. This must be one of two periods, viz., the death of the testator, or the death of the life tenant. If the death of the testator is the period, then his three sons were the only persons answering to the description at that time. If the death of the life tenant is the period, then John W. Collins, as he did not survive his mother, took nothing, or, what is equivalent, that which he took was subject to be divested by his death before his mother; and his daughter, Emma L. Collins, who was at the time of the death of the widow a living descendant of John G. Collins, was entitled to take as such.

The will affords but little light as to which of these two periods the testator had in mind. It says that if the widow remarried the income of all the property, except the Yorkville house, and an annuity of fifty dollars a year, was to go to his children until his son George W. arrived at age, and then all his property, with the exceptions aforesaid, was to be 41 divided between my children, share and share alike.” (Sixth clause.) By the clause succeeding, if the widow remained unmarried after his youngest child attained lawful age, his whole estate was to remain unsold during her widowhood, 44 unless she and my children shall think it best to sell the same, in which case they are authorized, with her concurrence, to sell the same, and to give the purchaser or purchasers good and sufficient deeds for the samethe proceeds to be invested in the name of the executors, and the income applied to the use of the widow during her widowhood. (Seventh clause.) All these provisions show that, so far as they applied, the testator had in mind benefits to his children only, and the very property given by the eighth clause to his 44 descendants ” it was provided by the seventh clause might be converted from real estate into personalty by his children, with the widow’s concurrence, if she was unmarried. Giving this control over his property to his children during the widowhood might indicate that the testator used the word “ descendants,” in the eighth clause, as synonymous with the word “ children,” because, if he had not so intended, he probably would not have given his children the power of changing the character of the property in which others, ordinarily included in the word “ descendants,” might be interested.

Assuming that there is nothing in these or any other expressions in the will to indicate when those constituting his descendants, for the purposes of taking under the eighth clause, are to be ascertained, it is well to look at the consequences which might follow, and which the testator must have had in mind as likely to follow, provided he intended his gift for those constituting his descendants at the death of the life tenant. The testator died in 1858, leaving three sons, the youngest of whom became of age in 1866. The age of the widow does not appear, but it could not have been gre#t. She was young enough to lead the testator to suppose she would probably remarry, as appears from the numerous allusions to that emergency in the will. She did remarry in about two years after the testator’s death, and survived him until 1886, about twenty-eight years. In the course of nature it was probable that her three sons by the testator would not only survive her, but that before her death they would marry, and have children of their own. If, therefore, these three sons and their children had survived their mother, then, if those constituting his descendants were to be ascertained at the death of the life tenant, the three sons would have to divide the estate with their children, for the children of the sons of the testator would be descendants of the testator as well as the sons. Hot only this. Inasmuch as there would be an equitable conversion of the realty into personalty by the execution of the power of sale, the taking would be per capita. 2 Williams Ex’rs, 6th Am. Ed., 1114, bottom paging, and cases cited in note c. If John W. Collins, the father of Emma L. Collins, the infant in these proceedings, had survived his mother, he would, under the construction contended for by the infant, have to divide wuth his daughter ; and if the three sons of the testator bad a different number of children, the estate would be divided in unequal degrees. It seems impossible that any such results could have been contemplated by the testator. This conclusion harmonizes with the rule of construction that “ a devise to a class of persons takes effect in favor of those who constitute the class at the death of the testator, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to consideration in construing its provisions.” Campbell v. Rawdon, 18 N. Y., 412, 415. I hold that by “my descendants ” the testator meant his descendants living at his death, and that his three sons, who were the only persons who constituted the class of his descendants at that time, took all that was given, after the life estate; that the term “ my descendants ” was used as an equivalent of the words “ my children,” used in the sixth. clause to indicate where his property, except that set aside for his widow in case of remarriage, should go ; and that the scheme of the will was that, if his widow remained unmarried, she should enjoy the whole income of his estate during life, with remainder to his three children, and, if she should remarry,, then his children should at once take a portion, and the remainder at her death. Had she died without remarrying, there would be nothing to indicate that the testator meant one portion of his property should then go to his children living at his death, and another portion to all the issue of his body living at her death, except the fact that in one case he speaks of his “ children ” and in the other of his descendants; ” and this, as has been attempted to be shown, was not enough. Further, the will does not show that, in case of the widow’s remarriage, the testator’s disposition of the remainder in the Yorkville house was to be any different than if she had not remarried. If “ my descendants,” in the eighth clause, is to be read as though it were “ my children,” the authorities are uniform that at the testator’s death his three sons took a vested remainder in fee in the Yorkville house, subject to the life estate of their mother, and subject also to the execution of the power of sale.

In Post v. Horning, 6 St. Rep., 716 (Sup.Ct., Gen. Term, Second Dept.), the devise of the estate to the testator’s wife for life, or until her remarriage, if she should remarry, and upon her death or remarriage the devise of the rest, residue and remainder to the testator’s children, created a vested remainder in fee in the children. The fee was absolute at the time of taking; possession only was postponed. In Williams v. Freeman, 98 N. Y., 577, the will .gave to the executors $4,000, to be held in trust, the income to be paid to a sister of the testator during her life,and upon her death the principal to go into the residuary estate; also $25,000, to be held in trust for the benefit of the testator’s wife “ during her natural life or widowhood,” and “at her decease or remarriage” the principal to revert to his estate. Held, that the beneficiaries entitled to the residuary estate took vested estates in remainder in said trust funds. In Re Hedger's Estate, 6 N. Y. Supp., 769, 25 St. Rep., 603, affirmed by 9 N. Y. Supp., 347; 30 St. Rep., 459, the testator, after giving the use of his personalty and realty to his wife for life, gave two pecuniary legacies, and devised all his real and personal estate, except the legacies, to certain of his children and grandchildren, naming them, to be divided equally between them, share and share alike. “ Such devises and bequests are to take effect, and such division of my estate is to be had, after the decease of my wife.” He also authorized his executors, after the death of his wife, to sell his real estate, and divide the proceeds as above directed. Held, that the interests of all the legatees and devisees vested at the death of the testator, subject to the life estate in the widow, and the power of sale in the executors, and none of them lapsed by the death of the legatees or devisees during the life of the widow. See, also, Livingston v. Greene, 52 N. Y., 118; In re Mahan, 98 N. Y., 372; Warner v. Durant, 76 N. Y., 133, 136. Some of these cases refer to disposition of personal property, but by 1 R. S., 773, § 2, limitations of future or contingent interests in personal property are subject to the rules in relation to future estates in lands. Gases seemingly contrary to the position I have reached will, I think, be found to turn upon the fact that the title of the property was vested in trustees during the intermediate estate, or that there was a specific devise over to issue if the taker of the first estate did not survive the life tenant. Teed v. Morton, 60 N. Y., 502 ; Delafield v. Shipman, 103 N. Y., 463; 4 St. Rep., 247. It is contended on behalf of Emma L. Collins that the clause should be read as though the gift had been to the testator’s children, with a proviso that, if any of the said children should die before the widow, leaving issue, such issue, if living, should at the widow’s death take the share which the parent of such issue would have taken if living. If this were so, the share of John W. Collins would still yest in him, subject to be divested by his death before his mother. But a devise over to his issue or to others is not a matter to be presumed, because it is in derogation of the rights of the heir, and must be effected by express words." See, also, Livingston v. Greene, supra, and Byrnes v. Stilwell, 103 N. Y., 453 ; 4 St. Rep. 241.

The next question is whether the three sons, being seized of the fee of the Yorkville house, subject to the life estate of the mother and subject to the execution of the power of sale, could effectually convey the premises with the consent of the mother and of the surviving executor.

First. As to the life estate. Mrs. Saunders had the use of the house until her death. This was a mere life estate. It did not possess any characteristic of a trust. It was hers absolutely, and she was at liberty to do as she pleased with it. 1 Washb. Real Prop., marg. p. 91, § 13. Under certain circumstances a trust might have arisen. While she remained unmarried any part of the real estate could be sold with the concurrence of the widow and children, and the proceeds would constitute a trust fund, the income of which was to go to her during life. (Seventh clause.) The property was not sold during her widowhood, and therefore, on her remarriage, the provision of the will above referred to became inoperative.

As to the power of sale. If the conclusion is right that the three sons took a vested remainder in the fee, subject to the execution of the power, then they took the same interest in the ■proceeds as if the power had been executed at the termination of the life estate. The assent of the donees of the power to the sale in the widow’s lifetime was shown in that the surviving executor joined in the conveyance. This brings this case fully within the principles laid down in Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15, where Judge Andrews, writing the opinion, says: “ The case is clearly within the rule that, where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent'of the executors and all the persons interested, provided the persons interested and who join in the conveyance are sui juris, and the conveyance is not in contravention of any trust, and is consistent with the substantial purpose of the testator in creating the power. Perry Trusts, § 783, and cases cited Garvey v. McDevitt, 72 N. Y., 563; Hetzel v. Barber, 69 N. Y., 1.” It follows that by virtue of the instruments delivered the fee of the Yorkville property vested in Abbie M. W. Peffers, the grantee, freed from the power.

I.t is claimed on behalf of Emma L. Collins that, the full consideration, viz. $8,500, being recited only in the conveyance by the executor, the consideration in the deed by the sons and the life tenant being nominal, this sum of $8,500 became a part of the estate of John G\ Collins, and was held by the executor as such. I cannot assent to this. The property, by virtue of the will itself, was at the absolute disposal of the three sons and their mother in any manner upon which they might agree, and the proceeds of sale were their absolute property. Under the rule laid down in Kilpatrick v. Barron, supra, the conveyance by the executor did not show that he was interested in the proceeds, but that he assented to the nullifying of the power to sell after the widow’s, death. It is a matter of grave doubt whether the conveyance would not be effectual without the assent of the executor, or even against his will; for when the purpose for which the power was created becomes wholly unattainable the power ceases, and this is so although the purpose is defeated by the voluntary act of the person for whose benefit the power was created. Hetzel v. Barber, 69 N. Y., 1. If, therefore, by the assent of all the parties to the conveyances, the proceeds of the sale were kept in the name of the executor as such, this was done by virtue of an agreement between the grantors that he should do so, and not by virtue of any authority derived from the will. Consequently, as the only trustees over whom this court has jurisdiction are testamentary trustees, any accounting as to the disposition of those proceeds cannot be had here on the theory that he holds those proceeds as executor. The use of that title of his own motion or by agreement, with others cannot constitute him an executor, and any person who feels aggrieved by the disposition of those proceeds must pursue William Collins individually in the courts having jurisdiction of such actions. It makes no difference that, instead of money, a mortgage on other premises was taken in part payment, which ran to the surviving executor, or that such mortgage was foreclosed, and the title to the premises was taken in the name of such executor, and subsequently conveyed by the same description. If the proceeds of the sale had once lost the character of assets of the estate of John Gf. Collins, that character could not be restored by using the title of executor in transactions concerning such proceeds. As the executors accounted in 1861, and the balance in their hands was properly distributed, and as no other funds belonging to the estate have come into their hands since, the petition of Emma L. Collins as guardian of her daughter Emma L. Collins should be denied, and all subsequent proceedings had upon the theory that William Collins can be required to-make an accounting as surviving executor of John G. Collins ■should be set aside. Nor can William Collins be allowed to voluntarily account here for his acts in relation to property not belonging to the estate, by assuming to make such an accounting as an executor. Consent does not confer jurisdiction as to a subject-matter.

J. S. Van Wyck, for app’lt; R. H. McGrath, Jr., and Daniel G. Rollins, for resp't.

Van Brunt, P. J.

In view of the correct statement of facts contained in the referee’s report, which formed the basis of the surrogate’s action, it is not necessary to restate the same in this opinion.

W e also concur in the conclusions arrived at by the referee that the children of John G. Collins took a vested remainder in the property situated in Eighty-fourth street, devised to the widow of said John G. Collins for and during her natural life, and that the executor was not required to account as such for the $1,000 which had been provided by such children to pay the annuity of fifty dollars to the widow of the testator, for the reasons stated in his opinion. But we do not concur in the referee’s conclusion that there are no assets of the estate of John G. Collins in the hands of William Collins as executor. The theory upon which the referee arrived at this conclusion is that the proceeds of the sale of the premises in Eighty-fourth street, made under the circumstances stated by him, did not remain assets of the estate, but belonged to the persons in whom the fee was vested, and that the holding of the same in the respondent as executor was done by virtue of an agreement between the grantors that he should do so, and not by virtue of any authority derived from the will. It will be seen upon an examination of the will that this property in Eighty-fourth street was bequeathed to the widow of the testator during her life, whether she married again or not; and there was also a provision that, in case she remained unmarried after his youngest child attained lawful age, his estate was to remain unsold during her widowhood, unless she and his children should think it best to sell the same, in which case they were authorized, with her concurrence, to sell the same, and give the purchaser or purchasers good and sufficient deeds for the same, and in such case the proceeds should be invested upon bond and mortgage or other approved securities, and the net income thereof applied to the use of his wife during her widowhood. The wife having remarried, this provision of the will did not apply.

The will then further provides that at the death of his wife the house and lot in question were to be sold by the executors, and the proceeds, with all his other estate, to be divided between his descendants according to law. But prior to the death of the wife the executor sold this property in Eighty-fourth street, received the proceeds, and invested them in his own name, and applied the income to the use of the wife; and, in order to give efficacy to the title, the wife and the children executed conveyances for nominal consideration. This they had the power to do, as is expressly held in the case of Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15, in which it is held that the rule is that, where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, provided the persons interested and who join in the conveyance are sui juris, and such conveyance is not in contravention of any trust, and is consistent with the substantial purpose of the testator in creating the power. Applying this rule to the case at bar, by the consent of all the parties interested the executor was permitted to sell prior to the death of the wife, instead of awaiting the happening of that event, thereby accelerating the execution of the power, and nothing else. This was the understanding of the parties at the time of the execution of the conveyance, because the executor received the consideration precisely as he would have done had he sold under the power of sale after the death of the wife, and invested the proceeds in his own name as executor. This being the case, the proceeds are to be treated precisely the same as though they had been realized upon a sale had within the strict terms of the will. Such proceeds were to be deemed personal estate, and to be treated by the executor as such, because the direction to sell this house and lot upon the death of the wife is peremptory, and leaves no discretion in the executor; and the real estate, therefore, became converted from that time. It would seem, therefore, that the executor in this proceeding was bound to account for the proceeds realized from the sale of the house and lot, and that the personal representatives of the deceased child, as well as his heirs and next of kin, were necessary parties to such accounting. The decree of the surrogate should be reversed, and this proceeding be remitted to the surrogate, so that the proper proceedings may be had for an accounting of the executor in reference to the proceeds of the house and lot in question, with costs to-abide event.

O’Brien and Follett, JJ., concur.