author: Barker, J.:

text:
    JONATHAN O. FOWLER, Appellant, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, Impleaded, etc.

      Expenditures made for the benefit of a trust estate in pursuance of an agreement with the trustee — when the pa/rty making them is entitled to a lien upon the prop&rty— all persons haring other liens thereon may be made pctrties 10 an action to establish the lien for such expenditures.

    Where executors and trustees, acting within the- limits of the powers conferred upon them, lease certain premises belonging to the estate for a term of years, and thereafter modify the terms of the lease by covenanting with the lessee “ as such executors as aforesaid, and not individually,” that they will, at the termination of the lease, pay to him a certain portion of the extra expenditures incurred by him in erecting a building upon the premises, and it does not appear that there is any other property belonging to the estate, the lessee is entitled in equity to have any debt due to him under the covenant, declared a lien upon the property, and to have the premises sold, if that be nece.ssary, to procure the payment thereof.
    In an action brought by him to have such a lien established all persons claiming to have interests in or liens upon the premises, whether prior or subsequent to that of the plaintiff, may be made parties defendant.
    ' Appeal from a judgment sustaining the demurrer of the defendant, The Mutual Life Insurance Company, to the plaintiffs complaint and dismissing the same. This is a suit in equity. It is alleged in the complaint that in April, 1859, Ann Walter and Andrew Boardman, as executrix and executor of the last will and testament of James R. Walter, executed and delivered to Alvin Higgins, a lease of certain premises in the city of New York, for the period of twenty-one years, which was duly recorded in the register’s office for the city and county of New York. That after-wards, the plaintiff, by assignment from the lessee, became the owner of the lease, and entered into the possession of the premises, and occupied and enjoyed the same until the termination of the lease, which occurred in May, 188G, when he surrendered up the premises, and thereafter this action was commenced. '
    In October, 1864, the terms and the conditions of the lease were changed, this plaintiff and the lessors being the parties to the instrument which was also recorded'in the register’s office in June, 1865.
    Thereafter, and in October, 1867, the lessors borrowed of the defendant, the Mutual Life Insurance Company, $125,000, and gave to it a mortgage upon the leasehold premises as security therefor, which mortgage contained a provision that in case of default in the payment of taxes on the premises, the mortgagees might pay the same, and have the amount so paid for taxes secured by and tacked on and to the mortgage.
    The rent reserved in the lease was $10,000 per annum for the first fifteen years, and $11,000 per annum for the remaining six years of the term. The lessees covenanting and agreeing to pay all taxes and water rents assessed on the premises during the term, and to pay interest upon all assessments made upon the premises which should be paid and discharged by the party of the first part, and to pay a portion of the premium for insurance upon the building, and that such interest and premiums were to be added to the rent, and made payable upon the quarter days as provided in the lease. By the terms of the original lease, permission was given the lessee to alter the buildings standing on the property, or to erect new ones in their place and stead, and the party of the first part agreed to keep the buildings insured, and in case they were destroyed, the money which the party of the first part should receive from the insurance company should be used in repairing the old buildings or constructing new ones thereon. At the • time of the making of the new agreement in 1861, the premises had been destroyed by fire, and the sum of $37,500 was the amount of the insurance money received by the lessors. The lessee was desirous of placing upon the property buildings of a greater value than could be constructed with the insurance money, and the instrument recited such intention on the part of the plaintiff, and that the value of the old material was worth the sum of $18,000, and the plaintiff agreed to erect and construct upon the premises a building which would cost more than $60,000. A covenant was entered into by the parties of the first part, agreeing at the end of the term to pay to the lessee a portion of the cost of the building beyond $60,000, and is in the following words:
    “ Fifth. The parties of the first part, as such executors as aforesaid, and not individually, agree for themselves and their successors and assigns, that they will, at the termination of said lease, pay to the said Fowler, his executors, administrators or assigns, such a portion of Ms extra expenditure as the value of the building at that time will bear to the cost of it, as above specified. For example: If the whole value of the said buildings, at completion thereof, pursuant to the principles aforesaid, shall be seventy thousand dollars, and the outlay of the party of the second part shall be twenty-two thousand dollars, then, if the value of the said buildings at the ' end of said lease be thirty-five thousand dollars, the party of the second part shall be entitled to receive ten thousand dollars from the parties of the first part, their successors or assigns.”
    The contract also provided for the mode and manner of ascertaining the value of the building at the expiration of the lease, if the parties could not agree between themselves upon the question of value.
    The-complaint alleged in substance that the value of the building was greater than $60,000, and that, under the clause of the agreement which has just been recited, a large sum of money would be due and payable to the plaintiff. It is also averred that the lessors have paid a portion of the taxes which accrued during the term, that a portion of the annual rent has not been paid, and sets forth in much detail other questions in dispute between the parties to the lease arising out of the mutual covenants and stipulations contained therein. It also sets up that the lessees had not paid certain taxes and assessments made upon the premises, and the mortgagee, the insurance company, to protect its lien, paid the same from time to time, and that, in the aggregate, such taxes amount to the sum of over $15,000. The complainant also sets forth, in substance, that a portion of the bond and mortgage has been paid and the.amount reduced to below $85,000, and that the insurance company threaten to foreclose its lien and sell the mortgaged premises, if it was neces: sary, to secure the payment of its debt. Plaintiff demanded that the sum due him from the lessors be ascertained, and that it be declared a lien upon the premises prior and superior to the mortgage lien of- the defendant, the insurance company; the complaint also contained a general prayer for such relief as shall appear just and proper, according to equity and good conscience.
    The defendant, the insurance company, demurred to the complaint, for the reason that it did not state facts constituting a cause of action against- it, and at Special Term the demurrer was sustained and the complaint dismissed with taxable costs, with an extra allowance in the sum of $100.

      John A. Brycm, for the appellant.

      O. II. Palmer, for the respondent.
   Barker, J.:

As between the parties to the lease, a case is stated in the complaint which entitles the plaintiff to an accounting and for relief.

Upon the facts averred, it also appears that the plaintiff is entitled to reimbursement in some sum based upon the covenant contained in the agreement of 1864, changing the terms of the original lease for the cost of the new buildings above the sum of $60,000.

This being a suit in equity, if the defendant, the insurance company, is a proper and necessary party for any purpose, then the demurrer should have been overruled, for the reason that a good cause of action is stated against a defendant, if he is a necessary party for any purpose whatever, to enable the court to give full and complete relief on any question involved in the litigation.

As to parties defendant, the Code of Civil Procedure provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant for the complete determination or settlement of a question involved thei’ein. (Code, § 447.)

This rule, as to parties defendant, is substantially the same as the one which prevailed in equity actions when the Court of Chancery was a separate and distinct jurisdiction.

If the plaintiff is entitled to have the moneys which may be found due him, under the covenant relating to erecting new buildings, declared a lien upon the premises, then the insurance company was a proper party, whether such lien be prior or subsequent to the mortgage.

Our inquiry will, therefore, be limited to the question whether the plaintiff is entitled in equity to have the debt, which he alleges is due him, declared a lien, upon the property, and the premises sold, if that be necessary, 'for the payment of the same. There is no personal covenant on the part of the lessors to pay over .to the plaintiff the moneys to which he is entitled under the covenants contained, in the lease, for they have, in express terms, limited their covenant and made it binding upon themselves only in their representative capacity.

The only property or fund out of which the plaintiff can be indemnified, is the trust estate in the hands of the trustees, and it does not appear that there is any other property embraced within the terms of the trust than the premises covered by the lease.

In disposing of the question now presented, we must assume that the trustees, in making the ■ lease and entering into the covenants therein contained, acted within the limit of the powers conferred upon them by the instrument of their appointment. We, therefore, have before us a case where a party has a just debt against a. trust estate, arising out of improvements put upon the property which constitutes the trust, without any personal covenant or promise for the payment of the same, which can be enforced in a court of law, and his only remedy is limited to a proceeding against the trust estate.

It seems very clear that the plaintiff is entitled to have his debt, whatever the amount may be, paid out of the premises held in trust, and the same to be declared a lien thereon. And if it shall appear upon the trial that a sale is necessary to accelerate a payment, the court has power to decree a sale for that purpose.

All the essential elements necessary to constitute a lien in equity, as contradistinguished from those which arise by operation of law, or are based upon special agreement, exists upon the facts averred in the complaint. (Story’s Eq. Juris., §§ 1216, 1237.)

It is not necessary to consider and determine the question whether the lien which the plaintiff is entitled to is prior or subsequent to the defendant’s mortgage.

It is a familiar rule that a party who has a lien upon real estate and is seeking to enforce the same in a court of equity, may make all persons parties defendant who assert any claim to the premises, whether prior or subsequent, because the order of the respective liens is involved in the litigation and should be determined in the final decree. (Brown v. Volkening, 61 N. Y., 76.)

The order of the Special Term, sustaining the demurrer and dismissing the complaint,.should be reversed, and an order entered overruling the demurrer, with costs of the Special Term and of this appeal, and on payment of the same the defendant be at liberty to answer.

Brady, P. J., and Daniels, J., concurred.

Order reversed; order entered overruling demurrer, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS E. CRIMMINS, Appellant, v. JENNIE C. CRIMMINS, Respondent.

      Judgment of divorce because of the adultery of the wife— the custody of the children is to be awarded to the father — the court cannot subsequently modify the judgment by providing that the mother shall be allowed to see the chilcbren.

    January 7, 1879, a judgment was entered in this action by default, granting the plaintiff a divorce from the defendant, on the ground of her adultery, and awarding to him the custody of an infant child, a daughter, about eight years old- In February, 1882, the defendant presented a petition to the court, reciting such proceedings, alleging that the child was living with the plaintiff in the city of New York, that he refused to allow her to. see the child, and praying that the judgment might be so modified as to allow her to see the child, from time to time, under such circumstances as the court might think proper. She also stated in her affidavit that since she was divorced from her husband she had led a perfectly domestic and proper life. This latter allegation was denied in an affidavit filed by the plaintiff.

      Held, that the court had no j urisdiction over the proceedings and no power to modify the judgment as requested.
    Appeal from an order made at a Special Term.
    This was an action for a divorce a vinculo. The complaint charged the defendant with having committed adulteries, and demanded a dissolution of the bonds of matrimony and that he be awarded the custody of an infant child, a daughter, of the age of about eight years. The bill was taken as confessed. In the final decree the custody of the infant child was awarded to the plaintiff. The action was commenced on the 3d day of December, 1878, and the final decree entered January 7, 1879. In February, 1882, the defendant presented her petition to this court, wherein she recited the proceedings had in the divorce suit, and that the infant child was now living with the plaintiff in the city of New York, and that she, upon two occasions, requested her former husband, Thomas E. Crimmins, to allow her to see the child, and that he has refused such request, and will not permit her to see and visit the child under any circumstances, and that she is very anxious to have that opportunity, and prays that the decree of divorce be amended by inserting therein a clause permitting the petitioner to seo her said child, from time to time, and in such way and under such circumstances as to the court may seem proper, and for such other and further relief as may appear to be proper under the circumstances.
    In an affidavit accompanying the petition she states, among other things, that since she was divorced from .her husband she has led a perfectly domestic and proper life.
    The plaintiff appeared in opposition to the granting of the motion, and read affidavits tending to show that the defendant had not reformed and was still living an improper and adulterous life. The court at Special Term made an order referring it to a referee to take proof and report to this court as to' the conduct of the defendant since the granting of the divorce herein, and whether her life since that time had been free from blemish, and such as to justify a belief in her reformation. From this order the plaintiff appeals to this court.

      Henry JR. Beekman, for the appellant.

      Charles P. Miller, for the respondent.
   Barker, J.:

In this State when the marital relation is terminated by a decree of this court, the subsequent relation of the parties to each other is the same as though no marriage between them had ever occurred; and they have no claim upon.eaph other growing out of the former relation of husband and wife, except such as may be given to them by the judgment of separation. (Kamp v. Kamp, 59 N. Y., 212.)

When the decrep of divorce is granted upon the application of the.husband for the reason of the adultery of his wife, she ceases to have any right to the care, control, education or companionship of the minor children. This is so whether the final decree awards the custody of th'e children to the father or is silent on that subject.

The court has no jurisdiction on the petition of the wife after final judgment to enjoin upon the husband or the children the company of the woman who has violated her marriage vows. The idea that the court should interfere, and^impose upon the former husband the duty of admitting within the privacy of the family his divorced wife is repugnant to every sentiment of virtue and propriety.

The father at all times is regarded as the head of the family and may establish his home at such place as his interest and inclination induces him to select; and he is entitled to the care and custody of his children, with the right to provide for their education and to demand their services. This is subordinate, however, to the interests of the children and to the rights of the public; and the privileges of the husband may be interfered with when his life, habits or misbehavior make a proper case for judicial interference.

Whenever the father’s misconduct is such that an interference is demanded, and the marital relation continues between the father and the mother, she is often selected as the most suitable person to have the custody and management of the minor children, and the husband’s authority and privilege is limited and controlled according to the circumstances and features of each particular case.

When the mother is selected it is based upon the natural supposition that her virtues and the affection which she has for her children qualify her for the discharge of this duty. But when she is divorced from her husband, and, her family broken up by reason of the sins of her life, she is justly deprived of the favor and privilege for which the petitioner now prays.

There is no law nor custom for upholding the proceeding which the petitioner has instituted. It is not based upon the suggestion that there was any irregularity or mistake in entering the final decree with the provision that the custody of the child be given to the father.

This matter might very well be dismissed without further consideration upon the suggestions already made; but the provisions of the Revised Statutes upon the subject of divorce being in confirmation of the views which we have aVeady expressed, they are referred to in support of the order which we direct.

2 Revised Statutes, 148, section 59, chapter 8, is as follows : “ In any suit brought by a married woman for a divorce or for a separation from her husband, the court in which the same shall be pending may, during the pendency of the cause or at its final hearing, or afterwards as occasion may require, make such order, as between the parties for the custody, care and education of the children of the marriage, as may be necessary and proper, and may at any time thereafter annul, vary or modify such order.”

This section and its provisions are limited to cases where the wife applies for a divorce or a separation and the husband is the guilty party, conferring upon the court the power to take away from the husband the care, custody and education of the children for the reason of his adultery or on account of his cruelty or misbehavior to his wife.

The section has no application whatever in a suit where the husband is the plaintiff charging his wife with infidelity; nor was it necessary that the statute should provide for the custody of the children as between the father and the mother, for if the father should succeed in maintaining the accusations upon which his suit is based, in that event he would be in the full and complete enjoyment of his common-law privileges as the head of the family and father of the children, independent of any interference on the part of his divorced wife.

It was urged on the argument by the learned counsel for the plaintiff that as the final decree awards the custody of the child to the father that it is binding upon the defendant, and that this court has no jurisdiction to interfere on an application of this character.

We are of the opinion that it was a question which the court had jurisdiction to determine, as between the father and the mother, awarding the custody to the father and depriving the mother of any interference with the care, custody and education of the child, and' falls within the case of Kamp v. Kamp (supra), holding that the court has no jurisdiction to interfere and alter or amend the terms of the final decree.

The order of Special Term is’ reversed.

Brady, B. J., and Daniels, J., concurred.

Order reversed.


text:
    HORACE B. CLAFLIN and Others, Respondents, v. JULIUS BAERE and LOUIS BAERE, Appellants.

      Bit/i'den of proof — right to open and, close the case — what a defendant claiming the right so to do must show.

    The complaint in this action alleges “that the defendants were copartners; that, between September 3, 1878, and December 3,1878, both days inclusive, plaintiffs sold and delivered to defendants, as such copartners, certain goods and merchandise at the prices agreed upon between the plaintiffs and defendants, as such copartners, and which amounts, in the aggregate, to the stipulated sum of $6,269; that no part thereof has been paid;” and demanded judgment accordingly. The answer admits that the defendants were copartners, and “the sale and delivery of the goods as referred to in the .complaint.” It then set up, as a separate defense, that the goods were sold on a credit of four months, which term had not expired when the action was commenced; and then denied each and every allegation in the complaint not therein specifically admitted.

      Held, that the answ'er did not set up a substantial defense, but, in effect, denied that the defendants had promised to pay for the goods at a time prior to the commencement of the action.
    That the plaintiffs were entitled to open and close the case.
    Although the party holding the affirmative has a legal right to open and close the case, yet, when the defendant insists that he holds the affirmative, he must make it appear, beyond all reasonable doubt, that he has admitted, by his pleadings, all the essential facts upon which the plaintiff bases his right of action; and he cannot call upon the court to make a critical examination of the pleadings to determine whether or not he is entitled to the privilege he ■claims.
    Appeal from a judgment, entered upon a verdict in favor of the plaintiffs, 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 only error alleged on the part of the appellant, is in the ruling at the trial, that the plaintiffs held the affirmative and were entitled to make the closing address to the jury. The complaint alleges that the defendants were copartners in trade, and then avers as follows: “ That between September 3,1878, and December 3, 1878, both days inclusive, plaintiffs sold and delivered to defendants as such copartners, certain goods and merchandise at the prices agreed upon between the plaintiffs and the defendants as such copartners, and which amounts in the aggregate to the stipulated sum of six ' thousand two hundred and sixty-nine dollars; that no part thereof has been paid,” and concludes by demanding judgment. The answer, in terms, admits that the defendants were copartners. The second answer is as follows: “ The defendants admit the sale and delivery of the goods, as referred to in the complaint.”
    The third answer, which is set up as a separate defense, alleges that the goods were sold on a credit of four'months, which term had not expired at the time the action was commenced, and then follows a denial, as follows: “ The defendants deny each and every allegation in the said complaint not herein specifically admitted.”

      A. Bdumenstiel, for the appellant,

      Melville H. Begensberger., for the respondents.
   Barker, J.:

The defendants, by the form of their answer, have determined that the plaintiffs held the affirmative, of an essential issue of fact, and were therefore entitled, as a matter of right, to open the case and make the concluding argument to the jury. The plaintiffs’ cause of action was to enforce the defendants’ promises to pay to the plaintiffs the sum of $6,269 on the 3d day of December, 1878, the "consideration of the promise being the sale and the delivery of the goods mentioned in the complaint.

The complaint is somewhat inartificially prepared even under the system of pleading established by the Code, as there is no specific averment that the defendants promised to pay to the plaintiffs the sum of money which they seek to recover, nor as to the time when the payment was to be made.

Although no question is made by the defendants as to the form and sufficiency of the plaintiffs’ pleadings, yet it was for the plaintiffs to prove upon the trial the fact that the defendants did promise to make the payment, and at a time prior to the commencement of this suit. The defendants, on their part, must have intended to put in issue the fact that they promised to pay the sum mentioned, on a day prior to the commencement of the action, otherwise they could not have presented the defense which they pleaded, and upon which they stand to bar a recovery.

An issue of fact is framed by the averment of a material fact by one of the parties to the action and the denial of the same by the opposite party.

The plaintiffs come into the court and state that they sold and delivered goods to the defendants at an agreed price, and that the same is now due and unpaid.

The defendants appeared, and in their answer admitted the sale and delivery of the goods at the price agreed upon, and denied that they promised to pay for the same at the time mentioned by the plaintiffs, and averred that they were to have four months’ credit, which had not expired at the time of the commencement of the action.

These are counter statements of a fact, and an issue is joined over the question in dispute.

We are not considering, nor do we need to, the question of proof as to the natufe and kind of evidence which would be sufficient to make out the plaintiffs’ side of the controversy.

The answer setting up that a credit was- given on the sale of the goods is not a substantive defense, but it is in effect a denial that the defendants promised to pay for the goods at a.time prior to the commencement of the action and that the debt is due as claimed by the plaintiffs.

This alone constitutes a denial of an essential fact which the plaintiffs were required to maintain on the trial, in some form, either by the defendants’ admissions or by proper proof establishing the fact. (Fridenbergh v. Jaroslauske, 64 Barb., 463.) The denial contained in the answer also puts in issue the same fact.

The admission in the answer is a guarded and stinted one, and? is in these words: “ The defendants admit the sale and delivery of the goods as referred to in the complaint, and followed by a denial of every other fact connected with the bargain and sale.

The rule undoubtedly is that the party holding the affirmative upon an issue of fact has the right upon the trial to open and close the proof and to reply in summing up the case to the jury. This is regarded as a legal right not resting in the discretion of the court, and when denied the denial may be qxcepted to and the ruling reviewed upon appeal (Millerd v. Thorn, 56 N. Y., 402), yet when the defendant in an action insists that he holds the affirmative and may open the trial and conclude the argument, he is called upon by the form of his pleadings to make it appear beyond all reasonable doubt that he has admitted the essential facts upon which the plaintiff bases his right of action, and he cannot call upon the court to make a critical examination of the pleadings to determine whether he is entitled to the privilege claimed or not.

By their answer the defendants joined issue with the plaintiffs over the question of fact as to time when they were to make payment for the goods.

Upon the trial the plaintiffs admitted that the goods were sold upon a credit of four months, which had not expired at the time this action was commenced.

The bill of exceptions does not contain any statement of fact, or set forth evidence establishing any fact, that would show that the plaintiffs were held to the terms of the contract as to credit, and that their action was prematurely brought.

But as the appellant’s counsel stated upon the argument, and repeated the same in his brief, that the only question presented by the appeal was whether there was an error in the ruling of the court that the plaintiffs held the affirmative on the trial.

We therefore assume that the bill of exceptions was prepared to present this single question as stated by the appellant.

The judgment and the order are both affirmed, with costs.

Brady, P. J., and Daniels, J., concurred.

Judgment and order affirmed, with costs.


text:
    In the Matter of the Application of MARGUERITE BECKER, to set aside the Probate of the last Will of HENRY SITTIG, Deceased.

      Bwrrogate —jurisdiction of, over infants — the failure to appoint a guardian for them renders the judgment voidable, but not void — within what time an infant must apply to have the judgment vacated— 0ode of Oivil Procedure, secs. 2647, 2648, 2481, sub. 6.
    Upon an application for the admission of a will to probate, the surrogate acquires jurisdiction over the person of an infant by the service of a citation upon him, as prescribed by chapter 362 of 1863, and the omission to appoint a guardian for him, as required by the statute, though an error, will render the judgment voidable only, but not void.

      A petition for the revocation of the probate of a will, made under section 2647 of the Code of Civil Procedure, by one who was an infant at the time the will was admitted to probate, and for whom no guardian was then appointed, must be made within one year from the time the petitioner attains his majority.
    Although there is no fixed and invariable rule requiring an application (under subdivision 6 of section 2481 of the Code of Civil Procedure, which is entirely independent of section 2647 above mentioned) to have the probate of a will revoked, made by one who was an infant when the will was proved and for whom no guardian was appointed, to be made within two years after the disability of infancy has been removed, yet it is the general and customary practice to deny the application, unless made within that time.
    As the limitation of one year has been fixed by the Code as the time within which an application to revoke the probate of a will should be made by petition, strong and controlling reasons should be presented to the court for extending the time for granting the relief, when the application is made in a less formal manner and founded upon affidavits.
    The will of the petitioner’s father was admitted to probate on August 25, 1873. The citation to attend the probate was served upon the petitioner personally; she being then an infant of the age of twenty years. She had no general guardian, and no special guardian was appointed for her upon the hearing she being described as being of full age. In January, 1882, she applied to have the probate revoked upon the ground that the decree was not binding upon her; that the will'was not properly executed and that its execution was procured by undue influence. Immediately after arriving at full age, the petitioner brought an action against the executors and prosecuted it to final judgment, thereby showing that she knew that the will had been admitted to probate.

      Held, that the application was properly denied on account of the laches of the petitioner.
    Appeal from an order made in the Surrogate’s Court, for the city and county of New York, denying the application of the petitioner, Marguerite Becker, to revoke the probate of the will of Henry Sittig, her father, who died in the city of New York on the 10th of August, 1873. A paper purporting to be his last will and testament was admitted to probate on the 25th of August, 1873.
    The petitioner was one of the children of the testator, and at the time the will was admitted to probate was a minor, being of the age of twenty years. Citations to the heirs-at-law and next of kin were duly issued and served upon the petitioner. She had no general guardian, and no special guardian was appointed for. her upon the hearing — in the proceedings she was' described as being of full age. The petitioner now seeks to have the probate of the will 'revoked and set aside upon the ground that the decree was not binding upon her, and that the testator was unduly influenced and coerced to make the will, and that the same was not made and published by him as his last will and testament, according to law. These pioceedings to annul the probate of the will were initiated in January, 1882, by the filing of the petition in the surrogate’s office.

      Thomas Stevenson, for the appellant Marguerite Becker.

      John Q. Clegg, for the executors.

      William Settle, for Henry Sittig and others.
   Barker, J.:

The proceedings had before the Surrogate’s Court, on admitting the will to probate, were not coram non judice, and therefore void as against the petitioner. The court had jurisdiction of the subject-matter, and process was duly served upon the petitioner. The omission to appoint a guardian ad litem for the petitioner, who was then an- infant, was an error which rendered the decree voidable, and the same might have been set aside if timely application had been made for that purpose.

The proceedings were not void, but only voidable at the election -of the infant, which she was called upon to make on arriving at full age, and within the time limited by the rules of the court in which the proceedings were pending.

It has never been held that entering a judgment against an infant, who has been served with process, and has not appeared in the suit, or who, after the service of process, did appear in person or by an attorney of his own appointment, is void.

On an application to probate a will in a Surrogate’s Court, the statutory mode of securing jurisdiction over the person is the issuing and service of a citation. If the person sought to be bound and brought before the court is a minor over the age of fourteen years, the service may be- made on him personally. To make such service full and complete, it is not essential that the service should be made upon any other person, nor that a guardian be appointed before such service.

By the provisions of section 6 of the act of 1837, chapter 460, it was made the duty of the surrogate, before issuing citations, to ascertain who of the persons interested in the estate of the testator were minors, and if such, person had no general guardian within the State, it was made the duty of the surrogate, by an order to be made and entered, to appoint a special guardian for such minor, to take care of his interest in the premises, and to procure the written consent of such person to act as guardian, and to file the same with the surrogate. After such appointment, he was directed to issue a citation, as required by section 7 of the same act, which was to be served upon all the persons to whom it was directed, including the guardians appointed for the infant parties.

By chapter 362 of the Laws of 1863, section 6 of the act of 1837 is repealed, and section 8 is amended; and provides that, if the citation is directed to a minor under the age of fourteen years, within this State, it shall be served on him personally, and also on his father, mother or guardian, if there be any such person living within this State, and if there be no such person, then on the person having the care and control of such minor.

If the minor is above the age of fourteen years, it is good and sufficient service if the same is served on him personally.

It is provided by the act of 1863 (sec. 1), that upon the return day of the citation, or before taking any proceedings upon the will, the surrogate shall ascertain whether any, .and which, of the persons mentioned in section 5 of said chapter are minors, and the names and places of residence of their general guardians, if they have any; and if there shall be no general guardian within this State, who shall have_been served with said citation, the surrogate shall, by an order to be entered, appoint a special guardian for such minors, to take care of tíieir interest in the premises; and the written consent of every peifion so appointed special guardian, to serve as such, shall be filed with the surrogate; and such special guardian shall appear in person before said surrogate before any evidence is taken in regard to the will. ■

Infants are deemed to be wards of the court, and when brought in by the service of process it is the duty of the court to look after and protect their interests.

It is true as a general proposition and applicable to all courts that the court must acquire jurisdiction before the parties can be bound by its judgments. There is no invariable rule defining what legal proceedings constitute due process of law, conferring jurisdiction upon a court to deal with and bind tbe property or interests of infants. Notice in some form, actual or constructive, is essential. But the legislature may prescribe bow sucb services may be made upon an infant, and that it may be by serving tbe process of tbe court on tbe infant personally, or by giving notice to tbe parent or guardian 01» other person representing tbe infant; and proceedings bad in conformity witb tbe statute in such cases will be valid and tbe infant will be bound.

In this instance personal service was made upon tbe infanffwhen of tbe age of twenty, years, and in strict conformity witb tbe provisions of tbe statute in regard to tbe service of process issued by Sm'rogates’ Courts, and as to tbe mode and manner of sucb service upon those who are infants ; thereby tbe Surrogates’ Court gained jurisdiction over the person of tbe infant. The omission to appoint a guardian as required by tbe statute was an error which rendered tbe judgment voidable but not void. (McMurray v. McMurray, 66 N. Y., 177; Croghan v. livingston, 17 id., 218; Bloom v. Burdick, 1 Hill, 143; Ingersoll v. Mangam, 84 N. Y., 622.)

As tbe omission to appoint a guardian constitutes an error only, and tbe judgment must remain in full force and effect until vacated and set aside, we are now to inquire whether tbe application made by tbe petitioner is within tbe time limited by the. statutes applicable to tbe subject and tbe course of procedure adopted by the court in sucb cases.

By section 2652 of the Code of Civil Procedure power is conferred upon tbe surrogate to revoke tbe probate of a will for tbe causes set forth in tbe petitioner’s application.

Tbe course of procedure and the time within which the application shall be made are prescribed by sections 2647 and 2648. By tbe latter section tbe application must be made within one year after tbe probate of tbe will, unless tbe applicant is laboring under a disability as provided in section 396, of'which infancy is one; then tbe time during which sucb disability continues is not part of tbe year in which application must be made.

If tbe infant appeared by general or special guardian or otherwise on said probate then tbe disability does not apply to an infant. (See section 2648, as amended 1881.) More than one year has elapsed since tbe removal of tbe disability arising out of tbe petitioner’s infancy, therefore her application does not come within the provisions of this section, and she is not entitled to any relief under the same.

In section 2481, subdivision 6, power is also conferred upon the surrogate to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court, or to grant a, new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. This power is broad enough to give the surrogate jurisdiction to revoke the probate of a will for any of the reasons mentioned, and is not controlled in the least by the proceedings authorized by sections 2647 and 2648, for it is therein expressly provided that the provisions of those sections and proceedings thereunder, shall no wise affect an application made in pursuance of the sixth subdivision of this section. The powers conferred by subdivision 6 of section 2481, “must be exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises the same powers,” and “ upon an appeal from the determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate; and his determination must be reviewed as if an original application was made to that term.” There is thus conferred upon this court the power to consider the petitioner’s application, as if the same was originally addressed to this court.

In reaching a conclusion whether the petitioner’s application is timely, we must apply the same rule of practice which is followed and observed by this court, in similar applications made in actions originally brought and prosecuted in this court. TJnder the common law practice, the customary proceeding to correct errors of this character was by a writ of error, wherein the error alleged was set forth as an error of fact, and to reverse the judgment. This writ is now abolished, and the only way to correct the error is by motion, made in the court where the action or proceeding is pending. The time within which the writ of error could be sued out, when that was the remedy, was within two years after the infant arrived at full age. There is no fixed and invariable rule requiring applications of this nature to be made within two years after the disability of infancy has been removed. But it is the general and customary practice to deny applications of this character, unless made within that time.

As the limitation of one year has been fixed by. the statute within which application to revoke the probate of a will should be made by petition, strong and controlling reasons should .be presented to the court for extending the time for granting relief when the application is made in a less formal manner, and founded upon affidavits.

The rights of suitors require that some reasonable limit of time should be fixed within which motions to vacate judgments should be made. The law presumes that persons of full age are aware of the law of .the land, and that their acquiescence in proceedings had in the courts, affecting their interest, is based upon their approval of what has been done.

In this instance the petitioner was advised, upon arriving at full age, of the proceedings had in the Surrogate’s Court, admitting her father’s will to probate. The circumstance that she brought an action, immediately upon arriving at full age, against the executors, and prosecuted the same to final judgment, is a conclusive circumstance that she was aware of what had been done in the Surrogate’s Court, at least six years before she filed her petition to have the probate of the will revoked. This long acquiescence on her part in those proceedings, not moving to secure relief from the effect wdiich they had upon her. interests, bars her of the right to have the same disturbed.

The time within which applications of this character should be made and the mode and manner in which they should be conducted are fully considered in the case of McMurray v. McMurray (41 How., 41), and we concur in what is there said as to the time .within which motions of .this character should be made. (See, also, McMurray v. McMurray, 66 N. Y., 177; Arnold v. Sandford, 14 Johns., 417.)

The order of the surrogate is affirmed, with costs.

Brady, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    CATHERINE HANCOX, Respondent, v. ELIZA A. WALL, and Others and SAMUEL M. MEEKER, Executor and Trustee, etc., Appellants.

      Will — when the executors must sell the real estate — how far the court will control the discretion vested in them ly the testator — right of the owner of the life interest to compel the trustee to account.

    A testator gave all his property, both real and personal, with the exception of a few articles of personal property, to his executors in trust, to pay to his wife a net income of $12,000 a year during her life and to allow her to occupy his homestead and after paying, all his just debts, and all taxes, assessments and other charges on his real estate, and keeping the buildings thereon insured and in proper repair, to divide the residue of his estate into eight equal parts or shares, and
    ■ invest the same separately in bonds and mortgages, or in United States or State securities, and^apply the income of each of said shares to the use of one of the testator’s eight children during his natural life, and upon his decease to pay and divide the principal thereof among his children. The will further provided, “ I do hereby authorize and empower my said executors to let or lease my real estate, to receive the rents and profits thereof, and after the decease of my wife, to sell and convey the same, for such prices, and upon such terms as they may deem best for the interest of my estate.”
    Held, that it was the intention of the testator to convert all his real estate into money upon the death of his wife, and that the trustees had no discretion or judgment to exercise as to whether or not the conversion should then take place; that their discretion extended only to determining the prices at which and the terms upon which, the sales should be made.
    Although where a .trustee, authorized to exercise his discretion in determining the prices and terms upon which real estate shall be sold, is acting in entire good faith and without intent to injure the owner of the life interest for the benefit of the remainderman, the court will not interfere with the exercise of his judgment; yet, if the action of the trustee is unreasonable and injudicious, and a failure to make the conversion is producing injury to the owner of the life interest, the court can and will compel him to ihake the conversion under its supervision and direction.
    Even where a trustee is acting in good faith and is exercising the discretion vested in him by the testator wisely and properly, the owner of the life interest has a right to call upon him, from time to time, to disclose to him the nature and character of the property in his haüds constituting the trust fund, to show its value, the income derived therefrom and the expenses to which the trustee is subjected in its management, in order that he may be able in the future to watch and look after his own interests.

      Appeal from an interlocutory judgment, entered upon an order overruling demurrers to the plaintiff’s complaint. The only ground of demurrer assigned is, that the complaint does not state sufficient facts to constitute a cause of action. The plaintiff is one of the children of William Wall, deceased, and a legatee named in his last will and testament, and her alleged right of action is based upon the provisions in the will for her benefit. Mr. Wall died in the year 18Y2, and his will was admitted to probate in the month of May, the same year. The defendant Samuel M. Meeker was named as one of the executors and trustees under the will, and he is now sole surviving executor and trustee, his associates in the trusteeship having died before the commencement of this action. The estate of the testator consisted of both real and personal property, and he left him surviving his wife and eight children, who were his only heirs-at-law and next of kin. All his estate, excepting a few articles of personal property, given to' his wife absolutely, was given to his executors in trust, among other things, to pay to his wife a net annual income of $12,000 a year; he also gave to his wife the use of his homestead, situated on Fifth avenue,in the city of New York. A special provision was made for his daughter Celia, who is one of the defendants, the nature and extent of which it is not necessary to mentiop.
    The executors and trustees were directed to pay all his just debts and all taxes, assessments and other charges on his real estate, and keep the buildings and improvements thereon insured and in proper repair. The sixth clause of the will, which creates the trust in favor of the plaintiff and his other children, is in the following words: “ After providing for above-mentioned debts, legacies, taxes and charges, to divide the residue 'of my estate into eight equal parts or shares, and invest the same separately on bond and mortgage, or in United States governments or State securities, and apply the income of one of said equal eighth parts or shares to the use of my son Charles during his natural life, and at his decease, to pay and divide the principal of such equal eighth part or share to and among the lawful issue of my said son Charles equally.” He also made a separate and similar provision for each of the other of the seven children, and concludes the bequests by giving to the trustees a power which is in the following words: “And I do hereby authorize and empower my said executors to let or lease my real estate, to receive the rents and profits thereof, and after the decease of my wife to sell and convey the same for such prices and upon such terms as they may deem best for the interests of my estate.”
    Mrs. Wall, the widow, died in the year 1878, which was about one year prior to the commencement of this action. The complaint gives a general description of the real estate which passed into the hands of the trustees under the will, showing that the same is located in the central parts of the cities of New York and Brooklyn, and that a portion of the same is unimproved and unproductive and subject to taxation; that the plaintiff has requested the trustee, Mr. Meeker, to • sell the real estate and convert it into money and .to separate the portion of which she is to have an annual income, and that he has wrongfully neglected and refused so to do, and continues to hold the trust estate in bulk to the great injury of the plaintiff, although a reasonable time has elapsed within-which a sale might be effected; that the real estate, particularly the unimproved part, is subject to heavy taxation, amounting to between the sum of $10,000 and $15,000 per annum, the payment of which consumes, as the trustee claims, a large amount of the annual income of the entire estate; that the sum of .money which she receives from the hands o| the trustee as the annual income given to her as provided by the will is varying and fluctuating, some years not amounting to more than $300, and that if the real estate was sold and converted into cash and invested as required by the will, her annual income would be largely increased and her interests would be more certain and secure, and that it would be greatly to her advantage to have the conversion in fact now take place. One of the prayers for relief is that the share of said estate set apart for the use of the plaintiff be sold and converted into money and t^e proceeds thereof invested for her use, and the interest and income of such proceeds be paid to her; and there is also a general prayer for such relief as the plaintiff may be entitled to by the rules of law applicable to the case stated.

      Jackson <& Burr, for the appellant Meeker, the trustee.

      II. K. Dougherty, for the appellants E. A. Wall and others.

      II. F. Averill and George F. Betts, for the respondent.
   Barker, J.:

All the parties before the court on the hearing of these demurrers agree that it was the intention and purpose of the testator to convert all his real estate into money. The direction in the will on this subject is peremptory, and it is made the imperative duty of the trustees to sell the real estate and convert it into personal assets, and no discretion whatever is vested in them on this question.

It is not left to their personal judgment and election whether the conversion shall take place or not. As to the mode and manner of administering the trust estate, the prices for which the real estate should be sold and the time of payment, they have a discretion, and that is all the discretionary power which the testator intended to give them under the will.

The clause of the will is so clear and certain that there is no room for misapprehension. The language is as follows: “I do hereby authorize and empower my said executors to let or lease my real estate, to receive the rents and profits thereof, and after the decease of my wife to sell and convey the same, for such 'prices, and upon such terms, as they may deem best for the interests of my estate.”

Mrs. Wall being dead the time has arrived, fixed by the testator, when all his real estate should be converted into money.

In executing this power it is the duty of the trustee to exercise his best judgment in fixing upon the prices at which the several pieces of property should be sold, and so long as he acts in entire good faith, and without intent to injure the persons having the life estate in the trust property, and is not seeking to benefit the remaindermen, the court will not interfere in the exercise of his best judgment. But if the action of the trustee is unreasonable and injudicious, and a failure to make the conversion is producing injury to the life annuitant, then this court has the power, and it is its duty, to control the action of the trustee and compel him to proceed and make the conversion, and the same will be done under the supervision and direction of the court.

A court of equity, by virtue of its general jurisdiction over trusts and trustees, can, irpon a proper state of facts, direct how a discretion of this character shall be exercised by the trustee.

The exercise of this power of the court is in no sense an interference with the discretion which the testator intended to give the trustee. It is simply compelling the trustee to act and to adminis ter the trust fund. (Hill on Trustees [4th Am. ed.], 762, 773 ; Ireland v. Ireland, 84 N. Y., 321; Furniss v. Furniss, 51 How., 64.)

There being two classes of persons interested .in the question as to'when the conversion should take place, it requires considerate action on the part of the trustees. They who take an absolute title in the trust fund after the termination of the life estate, may be largely benefited by a delay in the conversion, which may be to-the great disadvantage and disappointment of the life annuitant.

It is, however, the plain and manifest purpose of the testator that his children should at once, upon his death, enjoy an income to be derived in part from the sale of the real estate; and if it be true, as the plaintiff claims, and as is averred in her complaint, that there has been a reasonable time in which to make the sale and investment, and that the delay is unnecessary and wrongful, and to her disadvantage, then the trustee should be controlled in his action, and required, under the direction of the court, to make the conversion, and the sale will be watched by the court with a view of protecting the interests of all the parties.

If the averments in the complaint as to the delay in making the conversion were insufficient to show that the trustee was not exercising a reasonable judgment and fairly protecting the interests of the plaintiff, we would still be of the opinion that the plaintiff states facts sufficient to entitle her to relief of a different nature and character.

The plaintiff being interested in the property which is to be converted into money and invested for her benefit, she has a right, although the trustee is acting in good faith and is exercising the discretion vested in him, wisely and properly, to call upon him, from time to time, to disclose to her the nature and character of the property in his hands constituting the trust fund-— to show its value, the income derived therefrom, and the expenses to which the trustee is subjected in its management, that she may be able in the future to watch and look after her own interest.

In this case, the trustee has had the possession and management of this large trust estate for a period of years. The plaintiff’s income to be derived therefrom is yet undetermined, and the defendant claims that most of the income received is expended in paying taxes and caring for the real estate. Tt seems to us to be eminently pi oper that the trustee should make a full and complete exhibit of the situation of the trust estate, disclosing to the plaintiff the character of the property, and the mode and manner in which it is managed, even if she fails to prove such facts as would justify the court in interfering and controlling the action of the trustee in making a conversion of the real property into cash items. (Costabadie v. Costabadie, 6 Hare, 410; Hill on Trustees [4th Am. ed.], 165.)

In disposing of this appeal, we do not deem it necessary to' determine the question discussed upon the argument whether, under the will, the trustee may hold the trust funds after a conversion has taken place, in bulk, for the benefit of the beneficiaries, or whether it is an imperative duty to make separate and distinct investments for each of the life annuitants. That question can be more properly determined upon the final hearing.

The interlocutory judgment is affirmed, with leave to the defendants to answer on payment of costs at Special Term and on this appeal.

Brady, P. J., concurred; Daniels, J., concurred in the result.

Judgment affirmed, with leave to answer over on payment of costs.


text:
    EZEKIEL Y. BELL, Assignee, etc., Appellant, v. EDWARD L. MERRIFIELD, Respondent.

      Limited partnership — liability of a special partner withdrawing pa/rt of the firm capital — a firm creditor cannot enforce such liability until the reimn unsatisfied; of an execution issued upon a judgment recovered against the firm.

    A special partner wlio, in violation of the statutes, withdraws the capital contributed by him or any profits from the firm, and thereby reduces its original capital, is not. only liable to be treated as a general partner but may also be compelled to account in a proper action for the moneys' so received as being held by him as a trustee for the benefit of the creditors of the firm.
    In order to authorize a creditor of the firm to maintain an action against a special partner to recover money or choses in action so paid or transferred to him, a judgment must first have been obtained against the firm and an execution have been issued thereon and returned unsatisfied.

      Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    In 1870, a special copartnership was formed, in pursuance of the provisions of the Revised Statutes concerning limited partnerships, in which Silas Merrifield and William 0. McDowell were the general partners, and the defendant Edward L. Merrifield was the special partner, and they assumed the copartnership name of Merrifield & McDowell. This firm did business until the 10th day of April, 1871, when it was dissolved. At the time of its dissolution this firm was indebted to Henry Lawrence & Sons, in a large sum of mone^ for goods, wares and merchandise sold, in the sum of $18,000 and upwards. The defendant Edward L. Merrifield, by the terms of the articles of copartnership, was to contribute as such special partner the sum of $5,000, and insists that he did make such contribution in cash and in good faith. At the time of the dissolution the defendant also claimed that the firm had done a prosperous business, and that he was entitled to withdraw his profits, a considerable sum of money, in pursuance of the terms of the articles. After thé dissolution, by an arrangement entered into by and between the defendant and the general partners, he did draw out a sum equal to his capital, and profits to the amount of $3,900. On the trial the plaintiff gave evidence tending to show that at the dime of the dissolution the firm of Merrifield & McDowell were insolvent; and gave some evidence fairly tending to prove that the cash capital which the defendant Edward L. Merrifield agreed -to pay into the copartnership was • not paid in cash, but that it was only colorable, and that the transaction was a mere shift he, in fact, turning in property instead of cash. The plaintiff, in his complaint, asks for a money judgment of $8,900, and interest thereon from the day of dissolution, and seeks no other relief. The plaintiff also averred in the complaint, and proved upon the trial, that the plaintiff had recovered a judgment against the general partners, in the Superior Court of the city of New York, on the 1st day of February, 1877, for the sum of $21,585. It is also averred that execution in due form was issued upon said judgment against the general partners, to the sheriff of the city and county of New York, which was returned wholly unsatisfied. He gave no proof concerning the issuing and return of tbe execution, the same having’ been put in issue by the defendant’s answer. The defendant, by his answer, put in issue the particular facts upon which the plaintiff relied, to make out his cause of action, and set up that the judgment against the general partners, already referred to, was a bar to a recovery in this action.
    It appears by the proofs that the defendant was made a party defendant in the action in the Superior Court, and he appeared and put in an answer denying his liability as a general partner, and pleading that he was a special partner in exemption of liability for the debts of the company. On the trial of that action the verdict was against this defendant, with the other defendants. The General Term in that court set aside the verdict against this defendant, and judgment was entered thereon against the general partners. The plaintiff appealed to the Court of Appeals, and gave the usual stipulation for judgment absolute in case of the affirmance of the order. The Court of Appeals affirmed the decision of the General Term.
    The defendant, in his motion to dismiss the complaint, placed it upon the ground that the judgment in favor of this defendant in the former action was res ad/judicata as to this action, and a bar to a recovery. The plaintiff’s counsel requested to go to the jury upon the questions, whether or not the moneys set forth and claimed in the complaint to have been diverted by the general partners had been so diverted by them and received by the defendant when the firm of Merrifield & McDowell was insolvent, as stated in the complaint, and whether the defendant had violated any of the provisions of the second, seventeenth, twentieth, twenty-second and twenty-third sections of the act (3 R. S. [5th ed.], 61, et seq.) concerning limited partnerships. The court denied the motion and dismissed the complaint.

      Matthew Dailey, for the appellant.

      Britton (& Ely, for the respondent.

       The reporter was informed, after this case and subsequent cases had been put in pages, that a reargument had been ordered herein, on the ground that the court had misapprehended the facts of the case in assuming that an execution, had not been issued and returned unsatisfied.] —Rep.

   Barker, J.:

Upon a state of acts, such as the plaintiff’s evidence tended to prove, a case would be made creating a liability against the defendant, as a general partner, for all the debts of the firm of Merrifield & McDowell.

There is no claim made by the- plaintiff but that all the conditions and requirements of the statute (3 R. S. [5th ed.], 61, et seq.) were complied with in creating a limited partnership and starting it in business, except as to the failure to pay in, in cash, the capital to be contributed by the defendant. The other violation of the statute which the plaintiff sought to prove, on the trial, and upon which he relies to maintain this action, consists in withdrawing the capital contributed by the defendant and the alleged profits of the company, it being at that time insolvent. The scheme of the statute is to permit the formation of business companies so that members of the same, called special partners, shall not be liable for the debts and obligations of the company, beyond the capital contributed, and that he may, at the same time, share in the profits of the business, if any are made. To secure this immunity, the special partner must perform all the requirements and observe all the conditions in the statute, if he fails to do this and disregards its commands and injunctions, the shield which the statute intended to give him is gone, and he, in fact and in law, becomes a general partner, with all the common-law liabilities incident to that relation. (Madison County Bank v. Gould, 5 Hill, 309; The First National Bank of Canandaigua v. Whitney, 4 Lans., 34; Haviland et al. v. Chace et al., 39 Barb., 283.)

By the eighth section it is declared that no partnership, under the statute, shall be deemed to have been formed until all the requirements of the statute are complied with, and if they are not, and any false statement is contained in the affidavits, then all the persons interested in the partnership shall be liable for all its engagements as general partners. If, after the formation of the company in strict conformity to the statutory requirements, any effects of the concern are transferred in violation of the provisions of section 20 or 21, with the assent of the special partner, then he is made liable in the same manner and to the same extent.

There is also a provision that no part of the sum which any special partner shall have contributed to the capital stock shall be withdrawn by him, or paid or transferred to him in the shape of dividends, profits or otherwise, at any time during the continuance of the partnership, but he is permitted to receive lawful interest on the sum contributed by him, if the payment of such interest shall not reduce the original amount of the capital contributed by him. {Section 15.)

By the next section it is provided, if it shall appear that by the payment of interest or ■ profits to any special partner the original capital has been reduced, the partner receiving the same shall be bound to restore the amount necessary to make good his share of the capital with interest. The statute omits to declare that a violation of the provisions just mentioned shall have the effect to make the special partner liable, and to remit him to his common-law liability as- a general partner, but it was held in the case of the Madison Gownty Bank v. Gould (supra), that such consequences are visited upon the special partner for violating the restraints imposed by sections 15 and 16, it being the manifest intention of the statute that the sum contributed by the special partner shall remain unimpaired until all the debts and obligations of the copartnership are discharged. (See, also, Haviland v. Ghaoe, 39 Barb., 283.)

It is only by force of the statute that the liability of the special partner is limited, and the existence of the copartnership, in a legal sense, is continued until its affairs are wound up, although the period through which the copartnership was to continue has expired.

All the facts and circumstances upon which the plaintiff now relies as creating a liability on the part of the defendant, as a general partner, existed, when the action was commenced in the Superior Court to charge the defendant as a general partner. All the proper and necessary parties to recover the plaintiff’s debt against the copartnership were made defendants and served with process, and the issues were so framed that the plaintiff had the light to recover against the defendant as a general partner, if he was liable as such for having violated any of the provisions of the statute. It must therefore be held that that action constitutes a bar to this, so far as the plaintiff seeks a recovery, based upon any liability which the defendant has incurred as a general partner.

The proposition seems so plain that it is unnecessary to follow it any further with argument or illustration, or to cite authorities in support of this view of the case.

It was understood by the court on the argument, that the learned counsel for the plaintiff did not contend against this view of the case and conceded that a recovery could not be had, and none was sought in this action against the defendant based upon his common-law liability, as a general partner; but that upon the facts averred in the complaint, and which the evidence tended to prove, the plaintiff made a cause of action of a different character, and that he could recover as a creditor of the copartnership, a sum equal to the amount withdrawn by the defendant after the formal dissolution of the limited partnership. In considering the correctness of this position,we must regard it as established, that at the time of the dissolution the firm of Merrifield & McDowell were insolvent. That being so, the withdrawal by the defendant of the capital contributed by him and the further sums, which were supposed profits, was against the positive provisions of the statute, and the defendant has no right in law or equity to have and keep the same as against the creditors of the copartnership; as between himself and his associates, who turned over these assets to him, he may hold them as against them so far as we need to determine on this hearing. The right of the defendant to withdraw this ■ sum of money and retain the same is not made to depend on the question of good faith on his part; the fact of insolvency is controlling against him, the transaction was illegal and void, and the defendant holds this sum of money as a trustee, for the benefit of the creditors, and in a proper action can be made to account for the same. But the defendant’s.liability thus to account cannot be enforced in an action at law. The legal liability imposed upon the defendant in acting contrary "to the statute is that of general partner and none other. The statute has declared his liability to be that of a general partner, which can only ordinarily be enforced by an action at law. At the trial the case proceeded as an action at law. A jury was called, and at the close of the evidence, the plaintiff’s counsel insisted upon the right to go to the jury upon the whole case, urging upon the court that he had made out a cause of action, which entitled him to a verdict for the sum claimed, with interest thereon, from the time the defendant received the moneys from his copartners.

ITpon the averments contained in the complaint a good cause of action in equity was stated against the defendant, entitling, the plaintiff to relief; requiring the defendant to account for the' moneys improperly withdrawn, and which he holds as trustee for the benefit of the judgment-creditors of the company.

The recovery of the judgment in the Superior Court against the general partners is set forth in the complaint and followed by the allegation that execution thereon had been issued and returned wholly unsatisfied. Proof of these facts, together with the other averments alleging the improper withdrawal of the capital contributed by the defendant, would entitle the plaintiff to maintain an action in the nature of a judgment-creditor’s suit.

Upon the trial the plaintiff failed to prove the issuing of the execution and a return thereon unsatisfied. If these facts had been proved as alleged, then, with the evidence which the plaintiff did give, the complaint ought not to have been dismissed, and the jury should have been discharged and the action tried as a suit in equity.

The money and assets which were transferred to the defendant being owned by the copartnership and transferred to him, with the consent of all the parties having the legal title 'thereto, the defendant acquired a perfect title, except as to the judgment-creditors of the partnership.

If the assets transferred to the defendant had been personal property subject to levy and sale on execution, or real estate upon which the judgment would have become a lien, then the plaintiff could have reached them by execution and there would have been no necessity for resorting to an equitable action to set aside the transfer and compel an accounting. But as the property transferred to the defendant was money, or choses in action, it was necessary for the plaintiff to have an execution upon the judgment issued and returned unsatisfied before he could reach the money and assets in the hands of the defendant.

There are a class of cases holding that where a limited copartnership becomes insolvent that any creditor of such insolvent firm may file a bill in equity, in behalf of himself and all the "other creditors of the limited copartnership, to restrain the insolvent partner from disposing of the property and effects of the concern, contrary to the provisions of the statute, and ask that -a receiver be appointed of the copartnership assets, although the creditor has not obtained judgment upon his debt.

Actions of this nature are supported with a view of producing a distribution- of the assets of the' company ratably among all its creditors. The proceeding is based upon the legal proposition that the assets of a copartnership of this nature are a special trust fund for the payment of all the copartnership debts ratably. (Innes v. Lansing, 7 Paige, 581; Whitewright v. Stimpson, 2 Barb., 379.)

Similar actions may be maintained by any member of the copartnership firm, for the purpose of placing the assets in the hands of a receiver, to prevent waste and to secure a just and equitable distribution among the creditors. Where the members of the firm omit to take this step, then any general creditor can step in and prosecute the suit for his own protection. (Van Alstyne v. Cook, 25 N. Y., 489.)

This case is plainly distinguishable from those cited, for the reason that by the act of the general partners, which was lawful, so far as they were concerned, and of which they cannot complain, the title to the funds and assets which the plaintiff seeks to reach, became vested in the defendant, and as his title is perfect against all persons, except the creditors, he may insist upon the requirement that there be an execution issued against the property of the general partners, and returned unsatisfied, before he is called upon to account for the moneys which he has received.

Where the judgment-creditor pursues his remedies at law against the insolvent special partnership, by causing execution to be issued upon the judgment and returned unsatisfied, he thereby secures a prior special lien upon the assets which have been transferred in violation of sections 20 and 21. Without taking these steps he secures no priority whatever.

By section 21, it is declared that every sale, assignment or transfer of any of the property or effects of a general or special partner, made by a general or special partner, when insolvent, or in coirtemplation of insolvency, with the intent of giving to any creditor of the partnership a preference over creditors of the partnership, and every judgmént confessed, lien created, or security given by any such partner, shall be void against the creditors of the copartnership. The object and purpose of these sections is to hold the copartnership assets for equal distribution among all the creditors.

If the plaintiff be allowed, in this action, without proving the issuing and returning of an execution unsatisfied, to recover the assets transferred to the defendant, it would be to defeat the very object and purpose of the statute.

We are, therefore, of the opinion that the plaintiff failed to establish a cause of action at law, or for relief in equity, and that there was no error in dismissing his complaint.

The judgment appealed from is affirmed, with costs.

Beaut, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANK R. SHERWIN, Appellant, v. MICHAEL L. MEAD, Respondent.

      Court of Oyw and Ten'miner —jurisdiction of, over an indictment found in the Court of Sessions — one indicted cannot belet to bail by a judge, while the court is in session— Bench warrant issued by district atkrrney — requisites of— Code of Criminal Procedure, §§ 301, 302 — Failure of witness to obey subpoena — the offense is committed where the court is held — the witness may be indicted for the contempt.

    One indicted in tlie Court of Sessions for contempt in failing to appear at a term of a Court of Oyer and Terminer, after having been duly subpoenaed, may he tried in a Court of Oyer and Terminer held in that county, although the case has not been sent there by any order of the Court of Sessions.
    While a Court of Oyer and Terminer, having jurisdiction to try an indictment, is in session, a justice of the Supreme Court has no power to let the prisoner to hail.
    It is not necessary that a bench warrant, issued for the apprehension of one who has been indicted, should he as full and complete in all -its recitals and statements as a warrant issued under the statute to apprehend a party to he brought before a magistrate for a preliminary examination. It is sufficient if the nature of the offense for which he stands indicted, and the place and the court in which the indictment is pending, are clearly indicated.
    A bench warrant issued by the district attorney of Albany, commanded the arrest of the relator, “who stands indicted by the Court of Sessions of the county of Albany for contempt.”

      Held, that the warrant was sufficient.
    Sections 301 and 302 of the Code of Criminal Procedure, containing provisions as to the form and contents of bench warrants, relate only to those issued by the clerk, aud not to such as are issued by the district attorney himself.
    The relator was duly served in the city of New York with a subpoena requiring him to attend at a term of the Court of Oyer aud Terminer, to he held'in the city of Albany, to testify in behalf of the people, on the trial of an indictment then pending. The relator failed to appear as required.

      Held, that lie was guilty of a contempt of court.
    That the offense was committed and was triable in the county of Albany.
    That he might be indicted therefor in the Court of Sessions of Albany county, without inquiry being made as to whether or not the court, whose process had been held in contempt, had taken steps to prosecute him therefor.
    Appeal from an order made by a justice of tbe Supreme Court, refusing to discharge the relator from arrest on the return to a writ of habeas corpus.

    On the 4th day of February, 1882, the relator was in the custody of the respondent, Michael L. Mead, in the city of New York, by virtue of a bench warrant, issued by the district attorney of the county of Albany, dated the 3d day of February, 1882, wherein he was commanded to take into his custody the relator. The following is the part stating the offense: “ "Who stands indicted by the Court of Sessions of the county of Albany, for contempt, and bring him before said court, at the City Hall, in the city of Albany, in said county, if the said court shall then be in session, together with this warrant; but if the said court be not in session, you are hereby commanded to deliver him, together with this warrant, to the keeper of the Albany county jail, etc.”
    ■On the said fourth day of February, Justice Donahue, on the petition of the relator, issued a writ of habeas corpus, commanding the person having the custody of the reiator, to bring him before the justice that he might be discharged, the petitioner claiming that he was illegally arrested and detained, and if it should appear that he was lawfully in custody, that he might be let to bail. An immediate return was made by Mead, wherein he stated that he had arrested the prisoner and held him pursuant to the said warrant, a copy of which was annexed, and by no other process. Without further proceedings being had that day, they were adjourned until the eighth day of February.
    The hearing proceeded from day to day until the first day of March, when said justice dismissed the proceedings, and remanded the relator to the custody of the said Michael L. Mead. It was made to appear to the said justice that the Court of Oyer and Terminer, in and for the county of Albany, commenced a term of its court on the sixth of February, and was in session during the' pendency of the proceedings. The relator, pending the proceedings, preseated to the court a paper purporting .to be a copy of the indictment, upon which the bench warrant was issued, which appears to have been received by the court and acted upon by the counsel for the relator and the district attorney as a true copy of the indictment pending against the prisoner. The indictment charged, in substance, that the prisoner had been duly and lawfully subpoenaed to attend a term of the Court of Oyer and Terminer in and for the county of Albany, at the City Hall, in the' city of Albany, on the 18th day of May, 1874, at three o’clock in the afternoon of that day, then and there to testify and give evidence on behalf of the people concerning a certain indictment, then to be tried in said court, against Charles H. Phelps, for grand larceny; that said writ of subpoena was on the 1st day of May, 1874, at the city of New York, State of New York, exhibited to the said prisoner and duly served upon him, and that the prisoner, with an intent to impede and obstruct the due course of justice, unlawfully and willfully disobeyed the writ of subpoena, and did not appear before the Court of Oyer and Terminer at the time and place specified in the writ of subpoena, to testify as by said precept he was commanded, to the great hindrance and delay of public justice, and in contempt of said court. It was ruled on the hearing that the prisoner was lawfully arrested and detained, by virtue of the precept in the hands of Mead, and that the prisoner was not entitled to be let to bail, for the reason that the Court of Oyer and Terminer in and for the county of Albany was then in session, having jurisdiction to try the indictment. It was conceded by the district attorney that no order had been made by the Court of Sessions transferring the indictment to the Court of Oyer and Terminer for trial. From the order dismissing the habeas corpus proceedings and remanding the prisoner to the custody of Mead, the relator appeals to this court.

      H. E. Tremaine, for the relator.

      IF. O. Moak, for the people.
   Barker, J.:

The Court of Oyer and Terminer in and for the county of Albany had jurisdiction to try the relator upon this indictment, without any order from the Court of Sessions, in which the indictment was found, sending the same to the Oyer and Terminer for trial. (2 R. S., 205, §§ 29, 30; 2 Edm. Stat., 214; The People v. Myers, 2 Hun, 6; The People v. Gay, 10 Wend., 509; The People ex rel. Hasbrouck v. The General Sessions, 3 Barb., 144; The People v. Quimbo Appo, 20 N. Y., 531.)

The Court of Oyer and Terminer being in session while the proceedings were pending, a justice of the Supreme Court had no power to let the prisoner to bail, for the reason that the statute limits his authority in express terms. (2 R. S., 728, §§ 56, 57; The People v. Clews, 14 Hun, 90; S. C., 77 N. Y., 39, 40.)

In this ease, it was distinctly affirmed in this court and in the Court of Appeals that, if the court having jurisdiction to try the indictment was in session at the time the judge was applied to to let the prisoner to bail, he had no power to do so.

It is claimed by the relator that the bench warrant did not, upon its face, charge the relator with having committed an indictable offense, and for that reason he should have been discharged.

The statute authorizing the district attorney and other officers to issue bench warrants for the apprehension of indicted parties makes no requirements as to the form of the warrant, or the matters which shall be stated therein, and the sufficiency of the same must, therefore, be determined by the common-law rule on the subject. (2 R. S., part 4, chap. 2, title 4, art. 2,p. 278, § 55; as affected by Laws 1847, chap. 338; see 3 R. S. [6th ed.]. 1022, § 57.)

The statute declares that every person who shall be guilty of any criminal contempt, as defined therein, shall be liable to indictment therefor as a misdemeanor, and upon conviction shall be punished in the mode and manner also determined by the statute. A criminal contempt is defined to be a willful disobedience of any process or order lawfully issued by a court of record.

This bench warrant recites the fact that the prisoner had been indicted, the court wherein it was pending, and stated the offense imputed to him. It is not necessary that a bench warrant, issued for the apprehension of the indicted party, should be as full and complete in its recitals and statements as a warrant issued under the statute to apprehend a party to be brought before a magistrate for a preliminary examination. It is sufficient if the nature of the offense for which he stands indicted is clearly indicated, and the place and the court in which he indictment is pending.

Here the fact is stated that the prisoner is indicted, the court wherein it was found, and the nature and character of the offense imputed to him. It indicated that the offense’charged upon him was a misdemeanor and not a felony, and he was sufficiently informed to prepare for trial at the place mentioned in the warrant. (Pratt v. Bogardus, 49 Barb., 90, and the cases there cited; People v. McLeod, 1 Hill, 378; Barbour’s Criminal Law, 525.)

It is also urged by the learned counsel for the relator that the bench warrant was void, for the reason that, being for a misdemeanor, there was not a compliance with sections 301 and 302 of the Code of Criminal Procedure.

This indictment was found in 1874, before those sections were enacted, and it is provided in section 962 that all actions and proceedings commenced prior to the enactment must be conducted in the same manner as if the same had not been passed. The provisions referred to, as to the form and contents of the bench warrant, has no application to this case. (The People v. Sessions, 62 How., 415.)

By section 300 it is in terms provided that a bench warrant for the arrest of any offender, indicted, may be issued by the district attorney in the same manner and form now prescribed by law, at any time after such indictment shall be found. Sections 301 and 302 .only apply to the form of a bench warrant to be issued by the clerk, and he is authorized to issue a bench warrant on the application of the district attorney, in instances where the prisoner has been discharged on bail or has deposited moneys instead thereof, and has failed to appear in pursuance of his recognizance.

When the district attorney issues the bench warrant himself, he is not required to pursue the form provided in section 301, and section 302 seems to be intended to provide for the form of a bench warrant to be issued by the clerk, on the order of the court, when the offence is a misdemeanor only.

The point was also made that the Court of Sessions for Albany county had no jurisdiction to find the indictment; and that it appears from the indictment itself that the prisoner had not committed any offense in the county of Albany, and that if he was liable to indictment for disobeying the process of the court, that the offence was committed in the city and county of New York and not elsewhere.

The prisoner is a citizen of the State, owing obedience to its laws and he is charged with having violated the same. Having been duly notified to attend at a particular tipie and place, before the tribunals of the State, then and thereto give evidence in a pending proceeding, and having willfully and purposely failed so to do, the offense of nonappearance was consummated and committed in the eye of the law in the county of Albany. The injury to the public, resulting from his non-attendance, occurred in that county, and not in the city and county of New York where the process was served upon him.

Personal presence at-the place where the crime is perpetrated, is not always indispensable to make out an offense against the accused party, and there are many instances where the offender will not be allowed to gainsay that he was not at the place where the crime imputed to him happened. This is one of that class.

The court whose process he disobeyed was a court in and for the county of Albany, and the offense charged upon the prisoner consists in not being in the presence of the court, ready to testify when called for that purpose. Por aught that does appear, he was within the county of Albany on the day that he was required to be in court and answer to his name; and if such was the fact, the district attorney may prove it upon the trial, with a view tp establishing willful disobedience to the process of the court.

The case is similar to the one where a person sends threatening letters from one county to another through the mail. The offense in such a case is regarded as consmnmated at the place and time where they were received by the person to whom they are addressed, and the sender may be indicted and tried in such county. The act of sending produced the injury in the county where it was received, 'by disturbing and harassing the feelings of the party to whom it was addressed.

In the case at bar, the act of non-attendance was an indignity to the court sitting in the county of Albany, and impeded and delayed the administration of justice at that place, and the law presumes that the prisoner intended that his behavior should have that effect and influence. (The People v. Rathbun, 21 Wend., 509; The People v. Adams, 3 Denio, 190.)

On the hearing, the relator proposed to show that the officer had other bench warrants in his possession, of the saíne character and import as the one returned, and that the officer had served the same and claimed the right to detain the prisoner by such authority. This was overruled and the relator excepted.

If that was a pertinent and proper question for the prisoner to raise upon the hearing, we are unable to discover how the ruling, limiting the inquiry to the validity of the warrant presented by the officer, can lead to a reversal of the order dismissing the habeas corpus proceedings, for the reason that the officer did present valid and sufficient authority for continuing the custody and arrest of the prisoner.

The offer which was made to go into an inquiry, as to the facts and circumstances upon which the indictment was founded, was properly rejected. '

The officer had jurisdiction to inquire whether there was any such record of indictment, as claimed by the people, and if there was none, or the court in which it was found had no jurisdiction over the subject-matter, then to discharge the prisoner. But as to the guilt of the prisoner, as charged in the indictment, no inquiry could be made in these proceedings. The prisoner’s counsel has sought to test the validity of the indictment and the sufficiency of the warrant, by applying those rules and tests which are applicable to a case where a party is charged with contempt of court and the court has instituted proceedings with a view to the punishment of the offender, and has condemned him and pronounced sentence, and issues its order of arrest to carry its judgment into effect.

These rales have no just application to this case, where the party is proceeded against upon the complaint of the people, and is in due form indicted by a grand jury attending upon a court having jurisdiction of the offense.

The statute -has declared in express terms that every person who shall be guilty of a willful disobedience of any process or order lawfully issued or made by a court of record, is guilty of a misdemeanor and may be punished therefor.

The prosecution by indictment may proceed by the usual and customary course of .procedure, without inquiry whether the court, whose process has been held in contempt, has taken notice of the disobedience, with a view of punishing the offender as provided by statute. Each of the proceedings is entirely independent of the other. They may be prosecuted at the same time, and a conviction under one is no bar to a prosecution under the other:

The order dismissing the habeas corpus proceedings is affirmed, and the form of the order of affirmance will be settled by Mr. Justice Brady.

Brady, P. J., and Daniels, J., concurred.

Order affirmed; order to be settled by Brady, J.