text:
    Alexander Gribbon, App’lt, v. Michael Ganss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Attachment—Affidavit—Manager.
    The manager of plaintiS’s business, who has general charge of and supervision over all the affairs connected therewith, may be presumed.-to have personal knowledge of the matters set forth in his affidavit for an attachment.

      2. Same,
    The affidavit for an attachment should be made by the plaintiff unless some reason or excuse for his not making it is shown.
    Appeal from order vacating attachment.

      J. J. Allen, for app’lt; D."Leventritt, for resp’ts.
   Per Curiam.

We do not think that the objection that there is nothing in the affidavit of Gilmour showing that the affiant had personal knowledge of the facts set forth in his affidavit is well founded. He swears that he is the manager of the plaintiff’s business, and that as such manager he has general charge of and supervision over all the affairs connected with the plaintiff’s business. Being such manager, and having such charge of and supervision over the plaintiff’s affairs, he may fairly be presumed to have personal knowledge of the matters set forth in his affidavit.

Another objection, however, is taken to the affidavit which we think is well founded, and will require an affirmance of the order-appealed from.

The Code requires that the affidavit upon which the attachment is issued must show that" the plaintiff is entitled to recover the sum stated therein over and above all counterclaims known to him. Gilmour swears that the plaintiff is justly entitled to recover from the defendants the sum of $394.85, over and above all counterclaims known to the plaintiff or to deponent; and that, deponent is familiar with the plaintiff’s business, and particularly with the transactions had with the defendant, and if there were-any counterclaims he would know of the same. When an application for an attachment is made, the best evidence obtainable of the facts upon which the application is based must be presented to the-judge. The best evidence in this case would have been the affidavit of the plaintiff himself as to counterclaims known to him. Instead of that the affidavit of his manager was presented and no excuse or reason is given why the affidavit of the plaintiff is not produced.

It is not stated that the plaintiff resides or does business abroad, and for aught that appears from the affidavit, he may have been present in the city of New York, and in company with the affiant at the time the affidavit was made.

The court is entitled to the best evidence in the first instance or an explanation why it is not furnished.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James I. Raymond, App’lt, v. Michael Ganss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Appeal from order vacating attachment.

      J. J. Allen, for app’lt; D. Leventritt, for resp'ts.
   Per Curiam.

For the reasons stated in the case of Gribbon against the same defendant, decided herewith, the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.


author: Per Ouriah.

text:
    Joseph F. Buckley et al., Pl’ffs, v. Mary Buckley et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Attorneys—Fees—Abandonment op cause.
    Where an attorney abandons an action of his clients for partition and is absent from the state for six years, and the parties have in the meantime settled the action, leave to enter judgment for his fees, costs and disbursements in such action is properly denied.

      2. Same—Substitution.
    An attorney can in no case be changed simply by the consent of the attorney himself; there must be consent both of the attorney and the party.
    Appeal from order denying motion for leave to enter judgment by an attorney for the full amount of the fees, costs and disbursements incurred, or to be incurred, in an action for the partition of real estate.

      G. IT. Stokes, for app’lt; H. W. Atwater, for resp’t.
   Per Ouriah.

Without considering the irregularities in the papers submitted upon this appeal, many of which properly form no part of the record and should be expunged therefrom in the disposition thereof, it seems to be sufficient to say that it appears upon the face of the -papers properly before the court that the appellant abandoned the cause of his client, left the state of New York, and was absent therefrom for the period of six years without paying any attention to the action in which he now seeks to have judgment entered for the purpose of recovering bis fees.

It is alleged upon the part of the appellant that he gave a substitution to another attorney to act for him as attorney of record. The appellant had no power to give any substitution. He was bound to render the services personally for his client or surrender the position of attorney. By rule 10 the attorney may be changed by consent of the party and his attorney, and not otherwise, except under special circumstances; but in no case can an attorney be changed simply by the consent of the attorney himself.

There seems to be no reason, therefore, why the parties should be required to wait six years for their attorney to return and assume the performance of his duties before disposing of the litigation which he had abandoned.

It appears from the record that the parties had settled between themselves the subject matter of this litigation, and the court should not at this late day lend its aid by any extraordinary means to the enforcement of any claim which the appellant may have.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.


text:
    In the Matter of the Application of The Board of Street Opening & Improvement. In re. Forest Ave.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Municipal corporations—Assessment for street opening—Laws 1883, chap. 410, § 970.
    Under § 970 of the consolidation act the power of the commissioners to levy assessments for the opening of a street is limited to a district comprised between the centre lines of the blocks adjacent thereto, except such damages as might arise from the taking of buildings, and the extension of the district in such case is only for the purpose of making compensation for such buildings.
    2. Same.
    The total awards in this case were over $10,000, of which only $1,000 was for a building. The commissioners assessed $4,776 on property within half a block of the improvement, and $5,883 upon property outside such district. Held, error.
    Appeal from order confirming the report of the commissioners of estimate and assessments in the above entitled matter,

      John O. Shaw, for app’lts; John P. Dunn, for resp’ts.
   Per Curiam.

By § 970 of chapter 410 of the Laws of 1882, it is provided that in case of the opening of any street or avenue or portions of any street or avenue in said city, when the street or avenue or portions thereof sought to be opened shall have been laid down' and shown upon any general map or plan made and filed in pursuance with any law of the state of New York relative to the mapping or planning of avenues in said city, where no buildings for which compensation can lawfully be made shall be taken, the assessment district shall not extend beyond the centre line of the blocks adjacent thereto, nor beyond the ends of the street or avenue or portions thereof sought to be opened.

In the case at bar it appeared that the total awards by the commissioners amounted to the sum of over $10,000; of which about $1,000 was an award made for a building, and fifty dollars was an award made for a fence. This amount was distributed by the commissioners over all the property within the area of assessment ; $4,776.65 was assessed upon property within half the block of the improvement upon either side ; and the balance, $5,888.49, was assessed upon the property outside the half of the blocks on either side of the improvement.

This right to extend the limit of assessment was claimed by the commissioners because there was an award made for a building, and because of such award the limitations contained in the said § 970 of the said consolidation act do not apply. In other-words, the commissioners having awarded $1,000 for a building, they levy over $4,000 in addition to the cost of the building upon property which, if the building had not existed, would not have been within any possible limit of assessment.

We think this is an erroneous construction of the law. The legislature provided that, where no buildings for which compensation could lawfully be made should be taken, the assessment district should not extend beyond the centre line of the blocks adjacent thereto, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened. And this seems to us to have been a clear legislative restriction upon the power of commissioners to levy the assessment for the improvement, except such as might arise from the' taking of buildings, beyond the limits named; and it was only when buildings for which compensation could lawfully be made should be taken that the assessment district was permitted to be extended ; and it was clearly the intention that it was only for the purpose of making compensation for those buildings that that was intended to be the limit of the extended assessment. Even if this were not the necessary construction to be placed upon the section in question, the method in which this assessment was levied was so manifestly unjust and out of harmony with the system upon which assessments of this kind should be levied, that the report of the commissioners should not have been confirmed upon that ground.

It is apparent that the theory upon which these assessments are levied is that the adjacent property shall pay for the land taken for the improvement, and that when buildings are taken then the area of assessment may extend beyond that limit, so as not to make the burden placed upon the land adjacent to the improvement too great or excessive. But in the case at bar, under the pretext of making an award for a building of $1,000, the property coming legitimately within the area of assessment is relieved of the burden to the extent of $4,000, out of a total assessment of $9,000, nearly one-half.

AYe think, therefore, that the order confirming the assessment should be reversed and the proceedings remitted to the commissioners for revision and correction.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.


author: .Per Curiam.

text:
    In the Matter of the Petition of Julia Blewitt for the Appointment of a Committee of the Person and Property of James Blewitt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Lunacy—Proceeding to vacate order.
    Where the alleged lunatic refuses to submit himself to the jurisdiction of the court, he has no right to compel the continuance of proceedings instituted by him to vacate the order appointing a committee, and such proceedings will be dismissed.
    Appeal from order dismissing all further proceedings under the petition of James Blewitt in the above lunacy proceedings. After the granting of an order for the appointment of a committee the alleged lunatic filed a petition asking that the order be vacated on the ground that he had had no notice of the proceedings. The application was denied, but he was allowed to traverse the allegations of the original petition, and a trial of the issue was directed. See 43 St. Bep., 926. The alleged lunatic, however, remained out of the state and refused to submit himself to the jurisdiction of the court.

      Isaac N. Miller, for James Blewitt, app’lt; Lorenzo Semple, for resp’t.
   .Per Curiam.

It appears from the papers presented upon this appeal that the petitioner, James Blewitt, refuses to submit himself to the jurisdiction of the court. If such refusal arises from his infirm condition of mind so as not to be responsible therefor, it necessarily follows that there is no necessity for the proceedings which were dismissed for the purpose of examining the question as to his restoration to sanity. If he is sane, then his refusal to submit himself to the jurisdiction of the court prevents his having any right to the equitable intervention of the court in the setting aside of the proceedings by which he was adjudged a lunatic.

It therefore necessarily follows that, whether sane or insane, James Blewitt had no right, under the circumstances presented by the papers upon this appeal, to compel the continuance of the proceedings which were dismissed.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., O’Brien and Andrews, JJ., concur.


author: Ingraham, J.

text:
    In the Matter of the Controversy between William Dunn and George H. Huether.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Vendor and purchaser—Title—Release of lunatic’s dower.
    A release of a lunatic’s inchoate right of dower is not expressly or impliedly authorized by law, and hence the act of her committee in joining with her husband in a conveyance of land belonging to the husband will not extinguish her dower right, and such deed will not convey a good title free from dower to the grantee.
    Submission of controversy without action.

      B. J. Douras, for William Dunn; Qoldjogle & Cohen, for Geo. H Huether.
   Ingraham, J.

By title 6 of article IY. of chap. 17 of the Code, §§ 2320 to 2340 inclusive, this court is given the custody of the person and the care of the property of a person incompetent to manage himself or his affairs in consequence of lunacy, idiocy or habitual drunkenness, and in this city the court of common "pleas has concurrent jurisdiction with this court as to the custody of the person and the care of the property of such persons.

The power of the court, however, is limited by the provisions of this title, and there is no express authority given for the court or the committee appointed by the court to dispose of the property of the lunatic.

Section 2339 provides that the committee either of the person or the property is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; but this direction and control cannot be construed to authorize the court to direct an extinguishment by the committee of the inchoate right of dower of the lunatic.

There is no express provision as to the powers of the committee when appointed, but by § 2321 the court must preserve the hmat'ic’s property from waste and destruction and out of the proceeds must provide for the payment of his debts and for the safe keeping and maintenance and the education when required of an incompetent person and his family, and § 2339 provides that the committee of the property cannot alien, mortgage or otherwise dispose of real property except to lease it for a term not exceeding five years, without the special direction of the court obtained upon proceedings taken for that purpose as prescribed in title 7 of the chapter.

I do not think that the court is by this title given any power to - divest a lunatic of her inchoate right of dower in her husband's property; none certainly is expressly given and I do not think it is given by implication.

Section 2348 provides for the application to sell the real property of the lunatic, and authority is there given to the court to order the sale, conveyance, mortgage or lease of the real property or a term estate or other interest in real property belonging to the incompetent person.

It has been held in the case of Witthaus v. Schack, 105 N. Y., 336; 7 St. Rep., 345, that an inchoate right of dower is not an interest in land at all, but is a contingent claim arising, not out of contracts but as an institution of law constituting a mere chose in action, incapablejof transfer by grant or conveyance, but susceptible only during its inchoate state of extinguishment, and such extinguishment can only be effected by the act of the wife in joining with her husband in the execution of a deed of land by force of the statute.

By § 16. chapter 1, title 3, part 2 of the Revised Statutes, it is provided that “no act, deed or conveyance executed or performed by the husband without the assent of his wife evidenced by her acknowledgment thereof in the manner required by law to pass the estates of married women * * * shall prejudice the right

of his wife to her dower or jointure or preclude her from the recovery thereof if otherwise entitled thereto.”

I think, therefore, that as this court or the committee appointed by the court is not directly authorized by statute to execute an instrument by which this inchoate right of dower shall be extinguished, and as the provision of the Code authorizing the sale of the lunatic’s property does not include an inchoate right of dower, and as the provisions of the Revised Statutes before cited provide that no deed of the husband without the assent of the wife shall prej udice the right of the wife to her dower, or preclude her from the enforcement thereof, that the act of the committee in joining with the husband in executing a deed of the property in which the wife has such an inchoate right of dower would not extinguish such right, and that in consequence thereof the deed tendered by the vendor would not pass a title in the grantee free from the wife’s dower.

Iluether is therefore entitled to judgment for the recovery of $500, with interest from October 17, 1891, together with the sum of $130, the amount agreed upon as the expenses for examining the title, and judgment should be ordered accordingly.

Van Brunt, P. J.—The papers submitted do not conform to the provision of the statute in that no statement of facts is agreed to, and the submission is not in the form of an action, but as the questions have been examined, and we concur in the foregoing opinion, we have concluded so to decide the question.

O’Brien, J., concurs.


author:
Patterson, J.
      Van Brunt, P. J.

text:
    In the Matter of the Estate of Edward D. G. Prime, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Collateral inheritance tax—Time of accrual.
    The right to the tax under the collateral inheritance act accrues at the death of the testator or intestate, and its validity does not depend upon, the date of its actual imposition.
    2. Same—Exemption—Foreign corporations.
    The exemption provided by chap. 553, Laws 1890, for charitable corporations, does not apply to foreign corporations.
    3. Same—American board of foreign missions—Laws 1877, chap. 376.
    The American Board of Foreign Missions was not reincorporated or made a domestic corporation by chap. 376, Laws 1877, giving it power to take, hold and convey property to a certain amount in this state.
    Appeal from order of the surrogate of New York county, fixing and assessing the tax.

      Ralph E. Prime and:Austin Abbott, for app’lts; E. J. Levy and Be Lancey Nicoll, dis’t att’y, for resp’t.
   Patterson, J.

The order appealed from in this proceeding was made by the surrogate of New York county, who assessed and fixed the amount of certain collateral inheritance taxes upon bequests made by a testator to residuary legatees and to charitable or benevolent institutions. There are three objections urged to the decision of the surrogate; one common to all the appellants, and the others applying only to the corporations referred to. The general objection is that the testator having died April 7, 1891, and the legislature of this state having passed an act (chap. 215, Laws 1891), which went into effect April 20th of that year, and which radically changed some of the provisions of the act of 1887, and the order fixing the amount of the tax on the legacies here involved not having been made until October 12, 1891, there was no authority to impose the tax, because by the changes operated by the law of 1891 the provisions of the act of 1887 were repealed by implication. We do not consider it necessary to comment at length on this contention, for it proceeds upon the assumption that the validity of the tax is to be determined as of the date of its actual imposition. If this were true, there might be force in the argument of the appellants; but the contrary has in substance been held by the court of appeals. Matter of Will of Vassar, 127 N. Y., 8; 37 St. Rep., 239. We consider that, from the terms of the statute, the right to the tax accrued as of the date of the death of the testator, and hence that the surrogate was correct in the disposition he made of that objection.

Concerning the objections taken by the corporations referred to, we are also of opinion that the decision of the surrogate was right. They claim that even if the act of 1887 were in force, and applied to the bequests made in Mr. Prime’s will, they are exempt because of the provisions of chapter 553 of the Laws of 1890. By that act it is. provided that any religious, educational, scientific, benevolent or charitable corporation may take and hold property up to a certain limit of value, and shall be exempt from taxation, and from the application of the collateral inheritance tax law. The two appealing societies are foreign corporations, and their claim is that the act of 1890 applies to foreign as well as to domestic corporations of kindred character. The surrogate held otherwise. It is quite clear to us, from the very object of the act of 1890, that it was the intention of the legislature that it should apply only to domestic corporations. It is an act to limit the amount of property to be held by corporations organized for other than business purposes. It is scarcely to be assumed that the legislature of this state would seek by a general act to impose restraints and disabilities on foreign corporations, or legislate as to their powers and capacities; or, without, express reference, put them on the footing as ‘to privileges of domestic corporations; as to which, whatever power of control or visitation there is, resides in the authorities of this state. In our opinion the act of 1890 does not relieve the appellant corporations and the law as expounded in Catlin v. Trustees of Trinity College, 113 N. Y., 133 ; 22 St. Rep., 189, controls.

It is further contended by one of the appellants, “ The American board of commissioners for foreign missions,” that it stands on the same footing as a domestic corporation, for the reason that it was virtually reincorporated in this state by an act of the legislature of June 2,1877. Passing by the solecism and considering the act last mentioned, it appears that it is therein provided that the society referred to shall be capable of taking by gift, etc., any real or personal property and hold and convey the same for all the purposes of said corporation; provided the annual income of its realty in this state shall not exceed the sum of $20,000. That is merely an enabling act and nothing more, limited to the one purpose of according to a designated foreign corporation a particular privilege. But it cannot be inferred from that, that it is made a domestic corporation. There is nothing in the act which gives this corporation such a status; any more than a general law which allows all foreign corporations to hold real estate and convey it on certain conditions would give them any further or other rights and privileges than those coming within the strict terms of the law.

The order of the surrogate was right in all respects, and must be affirmed, with costs.

Van Brunt, P. J.

In addition to the grounds in reference to the liability of the legacies to the tax stated by Mr. Justice Patterson, for another reason the statute under which exemption is claimed cannot apply to a foreign corporation.

It is the well settled rule in this state, that its statutes have no extra territorial force, unless specially so provided. I concur.

O'Brien, J., concurs.


author: Van Brunt, P. J.

text:
    Henry W. Peabody, Resp’t, v. Emilio Cortada et al., App’lts.

      (Supreme. Court, General Term, First Department,

      Filed April 14, 1892.)

    Bill of particulars—Breach of cortract.
    Where the breach of an agreement to protect defendants’ credit by paying certain drafts is set up as a counterclaim, and it is alleged that, in consequence thereof, persons having accounts with defendants withdrew them, and that other persons who would otherwise have done business with them refrained therefrom, defendants may be required to furnish a bill of particulars of the names and addresses of such former customers as had withdrawn accounts, and of the amounts in which defendants claim to have been damaged by the withdrawal of the accounts, by the loss of business from those who would otherwise have traded with them, and by the destruction of their credit; but cannot be required to give the names of persons who might have become customers if such credit had not been impaired.
    Appeal from order requiring a bill of particulars.

      H. A. Forster, for app’its; Seth S. Terry, for resp’t.
   Van Brunt, P. J.

This appeal is taken from an order directing the defendants to furnish a bill of particulars of the counterclaim based on the alleged breach by the plaintiff of an agreement to protect the defendants’ credit 'by paying certain drafts. The answer alleges, amongst other things, that numerous persons having accounts with the defendants, which accounts-were for great sums of money, and from which the defendants derived great profits, in consequence of the dishonor of the drafts, and the loss of the defendants’ credit thereby, withdrew their accounts, and refused and still refuse to do any business with them, thereby depriving the defendants of great profits which they would otherwise have made; and, also,-that the credit of said defendants was so injured by the non-payment of said drafts that many persons who would otherwise have done business with them did not do so, thereby causing great losses to the defendants.

A bill of particulars was ordered, amongst other things, requiring the defendants to set forth the names and addresses of the persons or firms who had accounts but had withdrawn them by reason of such breach of agreement to honor the drafts, and also setting forth the names and addresses of the persons who-would otherwise have done business with the defendants, etc.

The learned counsel for the appellant in his brief states that the defendants appeal from so much of the order as directed them to furnish the name and address of every person with whom the defendants would have done business if their credit had not been destroyed, and the profits that would have been derived from each of such persons, and an itemized statement of the amounts making up their total loss of credit.

Upon an examination of the appeal, however, it will be found that the notice of appeal is broader than that which is stated in the points.

We see no reason why the defendant should not be required to furnish the names and addresses of the firms who had accounts with the defendants, but withdrew them by reason of such breach of the alleged agreement to honor the drafts; because if such persons exist they must know them, and would be entitled to give evidence of the fact upon the trial, and in order that the plaintiff may be prepared to meet the same it would be necessary that he should know the parties referred to in the bill of particulars.

So far as the order requires a bill of particulars setting forth the names of the persons who would otherwise have done business with the defendant, but who refused to do so by reason of the alleged failure to honor such drafts, it seems to us that the plaintiff was not entitled to this, because it may be exceedingly uncertain as to how far particularity in evidence upon this charge can be gone into upon the trial of the action.

In respect to that part of the order which requires an itemized statement of the amounts making up their total loss of credit, we think that the plaintiffs were entitled to know in a general way the respective amounts in which the defendants claim their credit has been injured by the different classes of causes referred to in their answer. That is, the plaintiffs were entitled to know to what amounts the defendants claim to have been injured by the withdrawal of accounts; and also the amounts in which the defendants claim to have been injured by reason of the loss of business from those who would otherwise have done business with them, and also the amount in which they claim to have been damaged by reason of the destruction of their credit. But beyond this we do not think that the plaintiff is entitled to 'claim information from the defendants as to the items of damage.

The order should be modified in accordance with the suggestions in this opinion, and as modified affirmed, without costs.

O’Brien, J., concurs.


author: Andrews, J. Van Brunt, P. J. O'Briex, J.

text:
    Herman Wronkow, Resp’t, v. Hobart Oakley et al. In the Matter of the Petition of Charles Wolff, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Judicial sale—Release of dower—Power of attorney.
    The title to land sold on foreclosure came through one B., who conveyed the same by a deed executed by him for himself, and also for his wife as her attorney in fact, under a power of attorney executed by her prior to his acquiring such land, which authorized him to contract for the sale of and to sell and convey all or any lands to her belonging * * * andin her name, to sign, seal, execute and acknowledge and deliver all necessary or proper contracts, deeds, conveyances, releases, releases of dower and thirds, etc. Held, that as it was at least doubtful whether the power of attorney would include a release of dower in lands owned by the husband, the title was not such as a purchaser should be required to take.
    (Andrews, J., dissents.)
    Reversed by the court of appeals, June 17, 1893.—[Ed,

      Motion by purchaser of premises sold under judgment of foreclosure to be relieved from, purchase.

      D. Solis Ritterband, for resp’t; Glover, Siveezy & Glover, for petitioner, app’lt.
   Andrews, J.

(dissenting).—The action was brought to foreclose a purchase money mortgage for $5,000, dated September 2,1890. The action was commenced October 22, 1891, and judgment of foreclosure and sale was entered December 22, 1891. By the * terms of the judgment the premises were directed to be sold subject to a lease expiring May 1, 1898, and to a first mortgage for $17,019.22. The property was sold at auction on January 21, 1892, and the petitioner, Charles Wolff, was the purchaser for the price of $5,600 over and above the incumbrances above mentioned ; and said petitioner paid to the referee $560, ten per cent on the amount of his bid, together with the auctioneer’s and exchange fee, and signed the usual terms of sale. Subsequently a motion was made by the petitioner to be relieved from his purchase, and from the order denying such motion this appeal is taken.

It appears that one Moritz Bauer became the owner of the equity of redemption of the mortgaged premises, by deed from Hobart' Oakley, dated October 4, 1890. By deed dated October 20,1890, executed by said Moritz Bauer in his own behalf, and also executed by said Bauer in the name of his wife, Cecilia Bauer, as her attorney in fact, such equity of redemption was conveyed to one Randolph Guggenheimer. The power of attorney under which said Bauer acted as the attorney of his wife was executed and acknowledged by her and recorded in the year 1881. It describes both the parties thereto as being of the city of New York; and so likewise does the deed to Guggenheimer. Said power authorizes said attorney “ to contract for the sale of, and to grant, bargain, sell and convey all or any lands, tenements or hereditaments, or real estate, to me belonging, situate, lying and being within the United States of America, whether belonging to me individually or jointly with another or others, at public or private sale, for cash or upon credit, or partly for cash and partly upon credit, and for such price or prices and upon such other terms and conditions as to my said attorney may seem meet and proper, and for the purpose aforesaid, and in my name, place and stead, as my act and deed, to sign, seal, execute and acknowledge, and deliver all necessary or proper contracts, deeds conveyances, releases, releases of dower and thirds and right of dower and thirds, or other instruments for the conveying, surrendering and relinquishing all or any part of my estate, right, title and interest, whether vested or contingent, choate or inchoate, therein.” Mrs. Bauer was not made a party to this action.

It also appeared that certain persons had obtained judgments against Moritz Bauer, prior to the time that he acquired title to the property in question, and which, by orders of court, made, also prior to Bauer’s acquisition of title, had been marked “ lien suspended,” or “ partially suspended upon appeal,” and that such persons were not made parties to this action.

The objection to the title based upon the failure to make the wife of Moritz Bauer a party to the action presents the questions: (a) of the power of a resident married woman to release her dower by attorney ; (b) of her right, if she has such power, to make her husband her attorney for such purpose; and (c) whether the power of attorney, if otherwise valid, authorized the release of the wife’s dower in "after-acquired property and for a nominal consideration ? These questions are important, because the decision of them not only affects the title of the property in question, but may affect many other titles.

The Revised Statutes of this state contain the following provision : “ ISTo act, deed or conveyance executed or performed by the husband, without the assent of his wife, evidenced by the acknowledgment thereof in the manner required by law to pass the estates of married women, and no judgment or decree confessed by or recovered against him, and no loches, default, covin or crime of the husband shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.” 4 R. S. (8th ed.), 2456.

It has been decided by the courts of this state that the only way in which a wife can release her dower during the life of her husband is by joining with him in a conveyance to a third person. Carson v. Murray, 3 Paige, 483; Elmendorf v. Lockwood, 57 N. Y., 322; People v. Knickerbocker Life Ins. Co., 66 How. Pr., 115 ; Ford v. Knapp, 31 Hun, 522. It has also been held by the courts of other states, under statutes similar to our own, that the wife must execute the release herself, and that she cannot release by power of attorney. See Am. & Eng. Encyc. of Law, vol. 5, p. 914, and cases -there cited. In 1878, however, the legislature of this state passed the following statute :

“ Any married woman, being a resident of this state and of the age of twenty-one years or more, may execute, acknowledge and deliver her power of attorney with like force and effect and in the same manner as if she were a single woman.”

The question presented for decision is whether, assuming that prior to the passage of this statute a married woman could not release her dower through an attorney in fact, this statute has authorized her to do so. It is suggested that the statute does not authorize a married woman to release her dower through an attorney, because the act provides that she may execute, acknowledge and deliver her power of attorney with like force and effect and in the same manner as if she were a single woman ; and that the legislature in assimilating the case of the wife to that of the single woman could not have intended to authorize the former to act through any attorney in any matter in which the latter could not do so; and that as a single woman cannot, of course, ever be vested with such an estate, and cannot, therefore, appoint an attorney for the purpose of releasing dower, therefore a married woman cannot do so. We think this is too narrow an interpretation of the statute.

It is a general maxim of the law that whatever a man sui juris may do of himself he may do by another; and the same maxim applies of course to a single woman. We think that the true interpretation of the statute is, that just as a single woman can ap- . point an attorney to perform any act which she herself can do, so any act which can be done by a married woman of herself can be done by her duly appointed attorney; and as a married woman ■can release her dower by joining with her husband in a conveyance of the property to a third party, she may perform that act through an attorney.

It may be said that as the legislature originally prescribed a particular way in which a married woman could release her dower, such special provision of the Revised Statutes should not be considered as modified, or affected, by the general provisions of the above quoted act of 1878, which does not in terms refer to the release of dower, and which authorizes a power of attorney to be acknowledged in the same manner as if the woman executing the power were single. There would be force m this objection if the law in relation to acknowledgments of deeds and other instruments, by married women, had remained as it was when the Revised Statutes were adopted. It was provided in those statutes that the acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her should not be taken unless, in addition to the requisites required in the case of other persons, she acknowledged, on a private examination apart from her husband, that she executed such conveyance freely, and without any fear or compulsion of her husband. And the provision of the Revised Statutes above ■quoted, in regard to conveyances releasing the right of the wife to her'dower, provided that the assent of the wife must be evidenced by the acknowledgment thereof in the manner required by law to pass the estates of married women.

It appears to have been considered by the legislature that these provisions in reference to the manner in which conveyances executed by married women should be acknowledged afforded great protection to them; but whether such opinion was or was riot well founded, such provisions have been entirely swept away by later legislation; for, in 1879, the legislature passed the following statute: “ The acknowledgment by married women, or the proof of the execution by married women, of deeds, or other written instruments, may be made, taken, and certified, in the same manner as if they were sole; and all acts and parts of acts which require from them any other or different acknowledgments, proofs, or certificates thereof, are hereby repealed." 4 R. S., 8th ed., 2487.

As above stated, under the said act of 1878, acknowledgments of powers of attorney could be made by married women as if they were single; but under said act of 1879, all acknowledgments of married women of the execution of deeds and other written instruments can now be made, taken, and certified, in the same manner as if they are single, and the protection, if it was any protection, of married women, in regard to their dower rights, and other rights in real property, afforded by the provisions as to private examination, has been entirely taken away ; and so far as the protection of such rights is concerned, it can make no possible difference whether the married woman releases her dower by joining with her husband in a conveyance, or whether she releases the same through an attorney appointed by her for that purpose. Nor do we perceive any good reason whatever why a married woman may not as well appoint an attorney to execute a deed which releases her dower lights, as to execute such deed herself. The reason of the rule ceasing, the rule itself fails, and we think that the objection is not well taken.

The second question raised is, whether, if a married woman has the power to appoint an attorney to release her dower, she can make her husband her attorney for such purpose.

We do not think this objection is well founded It has been held that husbands and wives may legally contract with each other in reference to their separate estates. Owen v. Cawley, 36 N. Y., 600; Bodine v. Killeen, 53 id., 93; that they may become agents for each other, Knapp v. Smith, 27 N. Y., 277; that a husband may assign to his wife a chose in action, Seymour v. Fellows, 77 N. Y., 178; and it has very recently been held that the common law disability of a married woman to engage in a business, as a copartner, or jointly with her husband, was removed by chapter 90 of the Laws of 1860. Suau v. Caffe, 122 N. Y.,308; 33 St. Rep., 506.

Under these decisions, if a married woman can release her dower rights through an attorney, as we think she can, we are of the opinion that she can appoint her husband such attorney.

The third question raised is as to whether the power of attorney given by Mrs. Bauer to her husband gave him the right to convey property acquired after the execution of such power.

The power in question authorized Mr. Bauer to sell and convey all or any lands belonging to Mrs. Bauer, situate within the United States. There is nothing whatever in the power which restricted it to lands belonging to Mrs. Bauer at the time the power was executed, and we think that it covers lands subsequently acquired.

Another objection to the title is, that certain judgment creditors should have been made parties to the action.

On April 10, 1889, one King recovered a judgment in the court of common pleas, for $2,299.54. On June 12, 1889, an appeal was taken from said judgment to the general term, and, upon the consent of the plaintiff and the sureties upon the appeal bond, the judgment was marked “ Lien suspended on appeal; ” and upon the record in the county clerk’s office, where the judgment liad been docketed, a similar entry was made. On February 5, 1890, the judgment of the general term was entered, affirming the above named judgment, and for $117.67 costs. Subsequently an appeal was taken from said last mentioned judgment to the court of appeals. On July 2, 1890, an order was entered, suspending the lien of both judgments as to property on which said judgments were, or might become liens; this order was entered by consent of the American Surety Company. On December 3, 1891, the lien was restored by proper entries in the judgment book, and on December 4, 1891, both judgments were assigned to the American Surety Company.

Moritz Bauer took title to the property in question on October 4, 1890, and conveyed the same on October 20, 1890.

The order entered on July 12, 1889, directing that the lien be suspended on appeal, did not in terms apply to after-acquired property. It is not necessary for the purposes of this appeal to decide, and we. do not now decide, whether, under the various provisions of the .Code in reference to the suspension of the lien of judgments on appeal, this order suspended the lien of the judgment as to property acquired by Bauer after it was entered. It is not disputed that the order entered suspending the lien upon the original judgment and upon the judgment for costs at the general term was entered upon the consent of the American Surety Company that such lien should be suspended, not only as to property upon which the judgments were then liens, but as to after-acquired property. It is also undisputed that on February 4, 1891, both judgments were assigned to the American Surety Company, and that that company only can raise an objection as to the regularity of the foreclosure so far as relates to said judgments; and that company is estopped from raising such question by reason of the consent above mentioned.

Some question is also raised in regard to judgments recovered by one Healy; but, by an order of this court, entered on consent of the plaintiff, all the real property of Moritz Bauer (with an exception which does not include the property in suit) upon which said judgments were „or might thereafter become a lien was exempted from the liens of said judgments; and such exemption remained in full force at the time of the recording of plaintiff’s mortgage and at the time of filing the notice of lis pendens herein.

We are of the opinion that it was not necessary that either of the judgment creditors above mentioned should have been made parties to the action, and that the order appealed from should bo affirmed, with costs.

Van Brunt, P. J.

I dissent from the foregoing opinion upon the ground that the power of attorney did not authorize the execution of the release of dower. Mr. Justice Andrews correctly states that the power authorized the conveyance of any and all lands belonging to Mrs. Bauer and that it applies to lands subsequently acquired as well as those owned at the time of the execution of the power, but the lands in question never belonged to Mrs. Bauer but to her husband, and she had not estate in them,

simply an inchoate right of dower. By the power full authority is given to convey lands belonging to the donee of the power, but nothing more. It is true that the attorney is authorized to execute releases of dower, but only for the purposes aforesaid, viz.: to convey lands belonging to Mrs. Bauer.

The words “releases of dower” have no relation to the power as granted, and hence are surplusage.

Even if this were not clearly so, it cannot be said that the question is free from reasonable doubt, and hence a -purchaser should not be compelled to take, as Mrs. Bauer is not bound by our adjudication.

I think, however, that there is much more than a reasonable doubt and that under a power to sell and convey the estate belonging to a married woman a release of dower cannot be executed.

O'Briex, J.

Apart from the objection that certain judgment creditors should have been made parties to the foreclosure suit, three others are presented against the validity of the title based upon the failure to make the wife of Moritz Bauer a party, presenting three questions thus formulated by Mr. Justice Andrews:

First. Of the power of a resident married woman to release her dowry by attorney.
Second. Of her right, if she has such power, to make her husband her attorney for such purpose.
Third. Whether the power of attorney, if otherwise valid, authorizes the release of the wife’s dower in after acquired property and for a nominal consideration.

Upon this appeal from an order refusing to release a purchaser at a judicial sale, it is not necessary, in order to relieve a purchaser, that all the questions should be decided in his favor, the rule being, that if the questions of law presented are of so serious a character as renders it improper for the court to pass upon them, in the absence of persons interested therein, he should not be compelled to take the title. In other words, where doubtful and debatable questions of fact and law exist, which for their final determination require the presence of other parties, the court will not, in the absence of such parties, make a determination for the purpose of compelling a person to specifically perform a contract to purchase land.

In respect to the first of these questions, as to the power of a resident married woman to release her dower by power of attorney, it seems reasonably clear that no such right would exist were it not for the statutory authority which it is claimed exists by virtue of.chapter 300 of the Laws of 1878. The serious question, however, presented under this section is, as to whether it relates to acts other than those connected with her separate estate and business, and can be construed into a repeal of all prior provisions specifying the manner in which she may execute a power of attorney. This precise question has never been passed upon, and having in view the peculiar nature of a wife’s inchoate right of dower and the various statutes passed in relation thereto, I cannot but regard it as a serious and doubtful question. Assuming, however, that a wife can make her husband attorney for such purpose, the other question is presented, as stated by Mr. Justice Van Brant, as to whether the terms of the power of attorney and the conditions thereof have been complied with.

The power itself is open to the construction that it refers and relates only to property then owned, and did not cover or include interest acquired after the granting of the power. I think upon a judicial sale a purchaser is entitled to a marketable title free from, reasonable doubt, and such I do not think was the one tendered to the purchaser here, and having made his application to be relieved, it should, under the circumstances, have been granted.

I think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the application of the purchaser for an order to be relieved should have been granted.


author: Finch, J.

text:
    Helen Matthews, Resp’t, v. Horace Matthews, App’lt.

      (Court of Appeals,

      Filed June 14, 1892.)

    Specific performance—Oral agreement.
    Defendant made an oral agreement with plaintiff that if she and her husband would leave their home, sell their property, live with him and keep house for him, he would give them the use of a part of his premises and of certain chattels during his life, would give the same to plaintiff upon his death, and when they came would give them a written agreement tó the above effect. The plaintiff relied upon said agreement, sold out at a sacrifice and moved to defendant’s home, but quarrels arising he ejected them, disposed of the property and refused to make the writings. The complaint in the action set forth the above for a cause of action, averred that the removal was effected by legal proceedings which were afterwards reversed, and alleged a conversion by defendant of crops belonging to plaintiff’s husband and assigned to her, and asked judgment for $8,500, which was granted by the referee. Held, error; that this constituted an action 'for damages for breach of contract, and did not set up an equitable cause of action upon which specific performance could be directed, and that until the court first determined that the action was in equity, and second, that the plaintiff was entitled to a specific performance, the substituted damages founded upon the value of the property could not be awarded.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon the report of a referee.

      A. W. Boynton, for app’lt; F. A. .Rowe, for resp’t.

       Reversing 41 St. Rep., 851.

   Finch, J.

We cannot adopt the conclusion of the general term that this action is a suit in equity for a specific performance, the right to which was established. The findings show that the plaintiff and her husband left their home in Pierrepoint and moved to the residence of the defendant in Keeseville upon the faith of his promise that if they would there make a home for him he would give to the plaintiff the use of the house and its belongings and of four cows, and would transfer to her absolutely the home place when he was done with it; that upon her objection to acting upon a mere verbal promise he agreed to make the necessary papers as soon as she should arrive at Keeseville; that they trusted to his promise and sold out at a sacrifice; moved to defendant’s home and entered upon the performance of their part of the contract; that quarrels arose between the plaintiff’s husband and the defendant, and the latter ejected them from the premises, refused to make the writings, and incapacitated himself from performance by a sale and conveyance of the home place. Substantially these facts are alleged in the-first count of the complaint. The second avers that the removal effected by the defendant was accomplished by legal proceedings which were afterward reversed; and the third is for the conversion by the defendant of certain crops alleged to belong to plaintiff’s husband, who had assigned to her all his rights of action and claims for damages. The only judgment asked is for the sum of twenty-five hundred dollars. The last two counts contain nothing but legal causes of action, and the same thing seems also to be true of the first and principal one. On its face it alleges merely a contract, and its breach followed by a claim for damages. There is nowhere about it any trace of a demand for specific performance, and no assertion of the appropriate facts showing the need of such performance in order to do complete justice, save as they may be gathered from the facts attending a breach of contract. No one upon a perusal of the complaint would suspect it of setting up an equitable; cause of action. Nor is there any hint of such a claim through the course of the trial. At the outset proof was given of the value of the home place and of its use. No foundation had then been laid for the evidence, but the objection interposed was not to the order of proof, but to its competency as a measure of damages. The terms of the objection show that the defendant at least understood the action to be for the recovery of damages on a breach of contract, and a similar objection pervades the whole current of the trial. The only proof offered by the plaintiff not usual in such an action was the conveyance of the home place by the defendant, but since the contract alleged and proved might be performed by the provisions of a last will, it was necessary to show that he had incapacitated himself from affording that redress. When the plaintiff rested, a motion for a nonsuit was made. The first ground stated was a failure to prove performance by the plaintiff of the conditions of the alleged contract, and the second that no breach of any legal contract had been established. At the close of the case the plaintiff’s counsel presented sixty requests for findings of fact and nineteen for conclusions of law. Among all of the latter there was no request to find that the plaintiff was entitled to a specific performance, but that damages equivalent thereto should be awarded by reason of the impossibility of such performance. On the contrary, the sixth request was for a finding that plaintiff may maintain an action upon said agreement for a breach thereof by the defendant, and the seventh that the measure of plaintiff’s damages is the value of the property agreed to be conveyed. The referee’s findings follow the lines of a legal cause of action, and he entirely fails to determine that plaintiff is entitled to a sjieeific performance either of the agreement to draw writings or of the contract to convey.

In addition there are specific findings of a character which make it at least doubtful whether the referee sitting in equity would or should have decreed a specific performance if that question had been- at all presented for decision. These are that the conduct and language of plaintiff’s husband toward defendant in the spring of 1887 was such as to render defendant’s stay in said home unpleasant; that plaintiff’s husband used profane and threatening language toward defendant, and on several occasions assaulted him with her knowledge; and that trouble arose between plaintiff’s family and defendant, and the latter ordered the former out of the house by reason thereof. When we recall the peculiar character of this contract, which contemplated a living together in home relations of the parties, a residence under one roof, a daily meeting at one table, and the continual association of personal care on one side and benefits bestowed on the other, it becomes apparent that a decree of specific performance possible of execution would -have perpetuated and intensified án amount of strife and discord likely to end in violence and utterly destructive of the real and beneficial purposes of the contract. The discretion of a court of equity would hardly be exercised to chain together the belligerents and call it making a home. At all events, the trial court reached no such conclusion, it determined, as the findings show, no such question, and what its decision might have been had it been at all invoked, we cannot assume to lcnow. And until the court first determined that the action was in equity, and second, that the plaintiff was entitled to a specific performance, the substituted damages founded upon the value of the property could not be awarded.

I am not able to agree that upon such pleadings, upon such a trial, and upon such findings we ought to convert the legal action into an equitable one in order to save the judgment, nor that without some finding that plaintiff was entitled to judgment of specific performance the substituted damages- here awarded can be given. Undoubtedly the plaintiff was entitled to recover the value of her services when the defendant asserted the invalidity of the paroi contract, and it may possibly be that in her own right and as assignee of her husband there were other elements of damage which she should recover, but the judgment before us was founded upon an invalid contract and awarded a wrong measure of damages.

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

All concur.


author: Fihch, J.

text:
    In the Matter of the Petition of George Christie et al.

      (Court of Appeals,

      Filed June 14, 1892.)

    Will—Trust.
    The will of B. gave one-third of his real and personal estate to his wife, and the rest to eight children and one grandchild, the legacies to he paid within a year after the youngest became of age. It also gave his wife, as executrix, the entire estate in trust for the payment of the legacies, with a power of sale, to he exercised after they all came of age. She having died, these proceedings were brought to appoint another trustee in her stead. Held, that the trust or power was void as unlawfully suspending the power of alienation, and in such case the court will not appoint a new trustee in room of one deceased.
    Appeal from a judgment of the supreme court, -general term, third department, reversing an order appointing Frank H. Graham a trustee under the will of Oliver Butterfield in place of Ehoda Butterfield, deceased. Oliver Butterfield by said will gave one-third of liis estate, real and personal, to his wife Blioda. He divided the rest and residue, real and personal, among liis eight children and one grandchild. The legacies were to be paid within a year after the youngest child became twenty-one. He then continued: “I give all my real and personal estate of every kind to my wife Blioda, executrix, * * in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same.”

      Matthew líale, for app’lt; Young & Kellogg, for resp’t.
   Fihch, J.

It is not denied by the argument made on behalf of the appellant that the power of sale conferred upon the executrix suspends the absolute power of alienation beyond the permitted period. It is limited not upon lives in being, as the statute requires, but upon five minorities, which may prevent a complete transfer for as many lives. No conveyance could give a perfect and absolute title while overshadowed by the trust power which might at any time during the prescribed minorities defeat the estate granted. The learned counsel for the appellant, while frankly admitting the difficulty, seeks to avoid it by insisting that the unlawful restriction may be cut off and disregarded, and the power in trust be allowed to stand free from the prohibition declared. It is quite true that cases occur in which that sort of judicial remedy is applied in order to save valid trusts from the peril of some unlawful incident or limitation, but the doctrine is only applicable where the vicious provision is clearly separable from the valid devise or trust, and may be disregarded without maiming the general frame of the will, or the testator’s, substantial and dominant purpose. This is not such a case. The power is given explicitly upon condition, and only upon condition, that it shall not be exercised until the five minor children have all become of age; and the prohibition not only forms an essential element of the power as given, but cannot be disregarded without also destroying the general scheme of the will and frustrating the testator’s principal purpose. What that was is very plain. He first gave to his wife one-third of all his real and personal estate and then divided the residue among his eight children and one grandson, but specifically provided that their shares should be paid to them within one year after the youngest child should reach the age of twenty-one years. He named his wife and son, Duane, as executrix and executor, and then gave to the wife and mother as executrix a discretionary power of sale, but expressly directed that it should not be exercised until the majority of the youngest child. His manifest purpose, and almost the only one which made his will necessary, was to keep the real estate unsold and undivided so that it might serve as a home for his family until the last period of infancy had passed and the ultimate division was to occur. To strike from the power of sale the express restraint upon its exercise would materially change the character and purpose of the power and imperil the vital intention underlying the will. We are not at liberty to go so far.

Without, therefore, considering whether this trust power could or could not be exercised by an administrator with the will annexed, it is enough to say that the court will not appoint a new trustee in room of one deceased where it is plainly and clearly apparent that the trust or power in trust is void.

The order of the general term should be affirmed, with costs.

All concur.

       Affirming 36 St. Rep., 99.


author: Parker, J.

text:
    Pauline Heckemann, App’lt, v. David B. Young, Impl’d, Resp't.

      (Court of Appeals, Second Division,

      Filed June 14, 1892.)

    1 Judgment—Merger—Joint debtors.
    In an action against this defendant and one A. both defendants appeared by separate attorneys. Subsequently A. withdrew his answer and consented to the entry of judgment against him. This defendant being in default, judgment was entered against both. Thereafter the judgment was vacated as to this defendant as irregular and he answered setting up the recovery of the judgment against A. in bar and the complaint was dismissed on the ground that the debt had become merged in the judgment against A. which constituted a bar against any further proceedings against defendants. Held, error.
    2. Same.
    As the judgment against defendant was not vacated on plaintiff's motion but opposed by him, the determination of the court to open the judgment as to one of the defendants and let him in to contest his liability cannot be deemed an election by the plaintiff to extinguish the cause of action which the court by its order said the defaulting defendant might litigate.
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment entered on the dismissal of the complaint.
    Action to recover from the defendants George W. Adams and David B. Young, formerly composing the firm of Adams & Young, the sum of $5;892.28, with interest from May 1, 1886, due and owing for moneys previously advanced for freights on goods sold and delivered by plaintiff while residing in Germany.
    The summons and complaint were personally served in June, 1886, on each of the defendants, who thereupon appeared generally in the action by separate attorneys. On the 11th day of August, 1886, an amended complaint herein was duly served on each of said attorneys. Adams served an answer to the amended complaint, but it was subsequently withdrawn. The defendant Young neglected to serve any answer to the .amended complaint. Accordingly, on the 20th day of January, 1887, both defendants being in default, judgment was entered by default in favor of plaintiff and against both defendants for the sum of $6,165.25. On the 2d day of May following, and between three and four months after the entry of judgment, the defendant Young moved to vacate it as to himself. The motion was granted against the plaintiff's objection, the order providing, among other things, that Young have twenty days in which to serve an amended answer. The answer served in pursuance thereof contained the following averment: “For further, separate and distinct defense, this defendant alleges that since the commencement of this action the plaintiff has taken and entered in the office of the clerk of this court a judgment in this action against the defendant George W. Adams. That said judgment was regularly entered in this action against said defendant Adams, and thereby the debt for which this action is brought to recover against this defendant and the said Adams as joint debtors became merged in the said judgment, so entered as aforesaid against the defendant Adams, which said judgment this defendant alleges is a bar to any further proceedings against this defendant to recover said alleged indebtedness of said firm of Adams & Young to the plaintiff, as set out in the complaint herein.” Ho order was ever obtained giving the defendant leave to set up this new matter by way of supplemental answer. Hor was any motion made by the plaintiff to strike it out. On the trial plaintiff introduced evidence establishing the cause of action alleged in the complaint and rested. Thereupon the complaint was dismissed on the sole ground that the debt to recover which the action was brought had become merged in the judgment then standing against Adams, which judgment constituted a bar against any further proceedings against the defendant.

      Gilbert R. Hawes, for app’lt; A. Edward Woodruff, for resp’t

       Reversing 29 St. Rep., 55.

   Parker, J.

It is the rule of the common law recognized and enforced by the courts of this state, except as modified by § 1278 of the Code of Civil Procedure, that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. Candee v. Smith, 93 N. Y., 349; Suydam v. Barber, 18 id., 468.

Section 1278 of the Code of Civil Procedure provides that in case of a confession of judgment by one or more joint debtors, judgment may be entered and enforced against them, “ and it is not a bar to an action against all the joint debtors upon the same demand.” That section is not in terms applicable to the situation before us, but it is instructive as indicating a legislative intent to limit1 in some measure the common law rule. This court had before it in Harbeck v. Pupin, 123 N. Y., 115; 33 St. Rep., 220, a case which was held to be governed by that section. It was objected that the action was not within its provisions because not brought against “all the joint debtors,” but against the personal representatives of one of the joint debtors; also that it was not “ upon the same demand,” but upon a demand reduced by payments made in pursuance of a compromise with two of the joint debtors after confession of judgment. It was said that “to adopt a construction so narrow and literal as this would be to practically nullify a remedial statute intended by the legislature to abrogate a harsh and technical rule of the common law that frequently operated to defeat a just claim." Except as modified by the statutory provision to which we have referred, the common law -rule obtaining at the time of its enactment continues in force. But such enactment should be regarded as a caution against any extension of the rule beyond the lines already firmly established by authority..

In Suydam v. Barber, 18 N. Y., 470, the court, in assigning a reason for the rule that a judgment against one of several joint debtors obtained in an action against him alone is a bar to an action against the others, said : It is held to be a bar upon the ground that by the recovery of the judgment the promise or cause of action, as to the party sued, has been merged and extinguished in the judgment by operation of law, at the instance and by the act of the creditor.” Having but one debt, although two or more persons may be jointly liable for it, the creditor has but one cause of action, which he is not permitted to split up into as many different actions as there are joint debtors. Having but one cause of action, if he prosecute that to judgment against less than the whole number of joint debtors, he is deemed to have intended to waive his right to proceed against the others. The idea of election by the creditor is necessarily involved. Being presumed to know the law, the extinguishment of his cause of action by the recovery of a judgment against only a part of his joint debtors is presumed to be intended by him, because the result of his own act

Now, this plaintiff did not elect to proceed to judgment against Adams alone. Adams & Young were parties defendant, and a joint judgment was rendered against them. And the recitals in the judgment indicate that the plaintiff was, at the time of its entry, entitled to judgment against both defendants. Subsequently, it is true, the judgment was vacated as to the defendant Young, and he let in to answer. But this was not on plaintiff’s motion. On the contrary, he opposed it. He insisted on the right to retain his judgment against both defendants, and the determination of the court to open the judgment as to one of the defendants and let him in to contest his liability cannot be deemed an election by the plaintiff to extinguish the cause of action which the court, by its order, said the defaulting defendant might litigate.

The record does not contain the motion papers and we are, therefore, in the dark as to the ground upon which the special term based its decision vacating the judgment as to Young and letting him in to contest the cause of action alleged in the complaint So far as this record disci oses,, he had no defense at the time when the motion was made. Certainly, the court did not intend that the order granted should create a defense where none existed, nor can such an effect be given to it. The judgment should be reversed.

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

All concur.


author: Brown, J.

text:
    Oliver S. Carter et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 14, 1892.)

    Railroad—Elevated—Evidence.
    Upon the trial of an action for an injunction and damages against an elevated railroad the trial court received the opinions of owners of adjoining property as witnesses, to prove the existence and amount of damages sustained by plaintiff. To the questions propounded to such witnesses defendants objected on the ground that the evidence was “ immaterial, incompetent and hypothetical, and that the difference in value was not the measure of damages." Held, that such objection should have been taken specifically that the question calls for a fact not provable by opinion, and as the same question was put to and answered by defendants’ expert witnesses the objection was insufiicient to raise the point that the opinion of the witness was inadmissible.
    (Follett, Oh. J., and Vann, J., dissent.)
    Appeal from a judgment of the general term of the superior court of the city of Few York, affirming a judgment of the special term.

      Julien T. Davies, for app’lts; Joseph II Choate, for resp’ts.

       Affirming 28 St. Rep., 581.

   Brown, J.

J.— A careful examination of the voluminous record in this case has failed to disclose any error which would justify the reversal of the judgment. A single question requires notice. The point is made, as it is in nearly all the late appeals in this class of cases, that the trial court erred in receiving the opinions of witnesses as proof of the existence and amount of damages sustained by the respondents.

The objections taken to questions propounded to such witnesses were that the evidence was “ immaterial, incompetent and hypothetical, and that the difference in value was not the measure of damages.”

This court has recently decided that to make available an exception to the admission of testimony of this character the objection must be specifically taken that the question calls for a fact not provable by opinion, Kernochan v. Elevated R. R. Co., 128 N. Y., 559: 41 St. Rep., 110, and reference was there made to the remarks of the court in the McGean case, 117 N. Y„ 219 ; 27 St. Rep., 337.

In McQearüs case, the objection was almost identical with that taken in the case before us. It was that the evidence was “incompetent, irrelevant and hypothetical, and the witness not competent to give an opinion,” and in reference to that form of objection it was said: “ The objection seemed to imply that opinions were competent on the subject. The trial seems to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that all opinions were admissible as to rental value of the premises, and the causes which affected it.”

Such without doubt was the theory of the parties in the case before us, as we find that the identical question, the admission of which is now urged as ground for reversal, was put to and answered by all the expert witnesses called by the defendant on its defense, and as was said in McQearCs case, “it seems ungracious in it now to insist upon a rule which it systematically violated during the course of the trial.”

In view, therefore, of the course pursued by both parties at the trial, we think the case falls within the rule applied in the McQean and Kernochan cases, and we, therefore, hold that the objection was insufficient to raise the point that the opinion of the witness was inadmissible.

Upon the merits of the case, we are of the opinion that the award of damages is amply sustained by the evidence, and the judgment, therefore, should be affirmed, with costs.

All concur, except Follett, Oh. J., and Yaistít, J., dissenting.


author: Merwin, J.

text:
    John P. Douglas, Ex’r, Resp’t, v. George E. Yost et al., Adm’rs, Impl'd, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Will—Action to construe—Jurisdiction.
    Plaintiff’s testatrix by her will directed the executor to pay to her infant, imbecile son so much as should be due on account of her administration of his father’s estate and occupation of his land; designate d two persons to take care of such son, and directed the executor to pay them from the rents and profits of her estate a sum sufficient for his maintenance. She also gave the executor authority to rent real estate. The executor had an accounting and settlement with the son’s committee. After the son’s death a controversy arose with the maternal and paternal heirs of the son; the latter claiming that the settlement with the committee was void for want of notice to them, and the former that the provisions of the will authorizing the renting of real estate by the executor were void. It was also a question in dispute whether an annuitant had a lien on real estate, and the surrogate refused to allow the executor certain disbursements for counsel fees unless the supreme court said that they were authorized by law and could be allowed. Held, that under these circumstances an action to construe the will was properly brought in the supreme court.
    2. Executors and administrators—Counsel pees.
    The supreme court has power to make an allowance to an executor for counsel fees necessarily and in good faith incurred by him in securing the probate of the will.
    3. Same.
    The propriety of such payments may be passed upon by the court before they are actually made, so long as the judgment contains no provision for credit to the executor before actual payment.
    4. Same—Bar.
    A decree of the surrogate allowing the executor taxable costs is not an • adjudication that that is all he is entitled to receive for expenses of counsel, and is not a bar to an application for a further allowance.
    Appeal from an. interlocutory judgment entered in Jefferson county, September 1, 1891, upon the decision of the court at special term June, 1891.
    Action for the construction of the will of Harriet Chase and for a settlement of the accounts of plaintiff as executor, and for direction as to his duties.

      Thompson & 0 hapman, for app’lts; Watson M Rogers and J. Atwell, Jr., for resp’t.
   Merwin, J.

The appellants claim that the surrogate’s court of Jefferson county possesses jurisdiction and power to determine all the questions arising in this action and that no sufficient reason is shown for bringing an equity action in the supreme court. It is not alleged in the answer that the plaintiff has an adequate remedy at law. This, in some cases, has been held to be necessary. Ostrander v. Weber, 114 N.Y., 102; 22 St. Rep., 979.

The supreme court possesses jurisdiction concurrent with the surrogate’s court to entertain an action or proceeding for an accounting by executors. Haddow v. Lundy, 59 N. Y., 320; Cass v. Cass, 61 Hun, 460; 41 St. Rep., 36. As a general rule, however, circumstances should appear indicating that complete justice cannot be done in the surrogate’s court. Sanders v. Soutter, 126 N. Y., 200; 37 St. Rep., 1. It is claimed by the respondent that such circumstances do appear here.

In June, 1883, Harriet Chase died, being then the owner of real and personal property and leaving, as her sole heir and next of kin, her son James Chase, Jr., who was then a minor and an imbecile. She left a will, in which she directed her executor to pay to her son for his benefit so much, if any, as she was legally bound to pay on account of her administration of the estate of his father and on account of monies received by her for the use and occupation of lands which descended to the son from his father, deducting so much as was just and proper for the maintenance of the son and excluding her right of dower and her distributive share in the estate of her husband. She directed that “ the sums to be paid by this provision may be paid out of my personal or real estate, or both, as my executor may elect.”

Then, after giving legacies to the amount of $2,000, she gave to her two sisters an annuity of $500 each during their respective lives, with the provision that her executor might, in his discretion, suspend such annual payment or reduce the amount to $300 annually, if he deemed it best and proper for the benefit of her estate. She named two parties who should have the power to superintend the care of the person of her son during his life, with the right to designate the place of his residence and the persons who should have the immediate charge of him, and might, if they deemed it necessary, purchase a residence for that purpose, and she directed her executor to pay to them, from her estate real and personal and the rents and profits thereof, such sums as may be reasonably necessary for the maintenance of the son over and above what he may have from his own estate, and also such sums as they may fairly expend for the purposes named, as well as a reasonable compensation for their own services. She named the plaintiff as the executor and authorized and directed him “ to lease and rent any and all of my real estate after my death for such times and on such terms as he may deem best." There was a codicil but its contents do not appear.

On the 23d June, 1883, the plaintiff presented to the surrogate’s court a petition for the probate of the will. Objections to the probate were thereafter filed on behalf of the son and a contest was had in the surrogate’s court. Pending .this, and on the 3d September, 1883, John D. Ellis was appointed temporary administrator of the estate of Harriet Chase, deceased, and on the 21st June, 1884, a committee was appointed by the supreme court of the person and estate of the son. On the 28th November, 1884, a decree was made by the surrogate refusing probate to both said will and codicil, and in connection with this the surrogate passed upon and allowed the plaintiff the full bill of costs and disbursements provided by statute, being the sum of $904.72, of which $420 were costs and $484.72 were disbursements, and the same were accepted by the plaintiff. Thereafter the plaintiff appealed to the general term, and in July, 1886, a decision was rendered, 41 Hun, 208; 4 St. Rep., 195, reversing the decree and directing a new trial before a jury. A new trial was had, which resulted in a verdict sustaining the will and rejecting the codicil. In pursuance of this verdict, and on the 3d February, 1887, a decree was entered in the surrogate’s court admitting the will to probate and granting letters testamentary to plaintiff, who thereupon qualified and entered upon the discharge of his duties. In this decree there was adjudged to the plaintiff for costs and disbursements accruing and incurred by plaintiff as proponent of said will and codicil, subsequent to the prior decree, the sum of $1,435.70, of which $285 were costs and $1,150.70 were disbursements. These sums were paid to the plaintiff or his counsel.

After .plaintiff’s qualification as executor, Ellis, the temporary administrator, rendered an account of his proceedings. Over this there was a contest, and the same was finally settled by decree of the surrogate’s court on March 31, 1888. On the 10 th April, 1888, the plaintiff received from Ellis the personal estate, amounting to $22,748.86. Ellis also surrendered to the plaintiff the real estate of the testatrix, consisting of three farms, and the plaintiff has since then received the rents and profits.

On the 22d December, 1890, James Chase, Jr., died, and the appellants Yost and Chase were on the 29th December, 1890, appointed administrators of his estate. In September, 1884, Fred VYaddington -was appointed by the surrogate of Jefferson county administrator de bonis non of the estate of James Chase, senior, in place and stead of Harriet Chase, deceased. In December, 1888, plaintiff had a settlement with such administrator concerning the indebtedness of Harriet Chase to that estate by reason of her administration thereof, in which settlement it was found that $7,-927.04 was the amount of such indebtedness, and this was duly approved by the surrogate’s court, and the plaintiff authorized by that court to pay the same to such administrator. About the same time, there was a settlement between plaintiff and Wadding-ham as committee of the estate of James Chase, Jr., by which it was found that the indebtedness from Harriet Chase to her son at the time of her death, by reason of her use and occupation of the real estate of her son, was the sum of $2,179.59. This settlement was affirmed by both the supreme court and the surrogate’s court, and the plaintiff authorized to pay the same to the said committee. Of the sums so found due, there is still unpaid about $1,000.

It was found by the special term, upon sufficient evidence, that the defendant Yost administrator, etc., and some of the paternal heirs of James Chase, Jr., claimed that the settlement and adjustment of the indebtedness of Harriet Chase with said Waddingham was illegal and void for want of notice of the same to the paternal heirs, and that such settlement would not be acquiesced in, nor binding upon them.

It was also found that upon the trial it was claimed by some of the maternal heirs of James Chase, Jr., that the provisions of the will authorizing the renting of the real estate by'the executor were void, and that the rents received by him were real estate and should be paid to the maternal heirs, to the exclusion of the administrators of the estate of James Chase, Jr. and his paternal heirs, and that it was the duty of Waddingham upon his appointment as committee to have taken possession of the real estate of .the testatrix and received the rents and profits down to the time of the death of said James; that it was claimed by the administrators of James Chase, Jr., that the rents and profits received by plaintiff were personal estate and that they were entitled to receive the same as such; that Waddingham claimed he had no right to take possession of such real estate or receive the rents and profits. The appellants’ counsel claims that there is no proof to sustain these findings. Ho exception is taken to them. The answers of the defendants, the maternal heirs, and of Waddingham are not printed in the appeal book. The complaint is broad enough to cover all these questions. It is quite apparent from the pleadings that are printed and from the requests of the appellants that a question was made as to the validity or extent of the power of the plaintiff over the real estate. There was also apparently a question whether the surviving annuitant had directly a lien on the real estate, or indirectly a lien through the exercise by the plaintiff of the election given him in the first clause of the will, whereby the debts there referred to would be payable horn the real estate, thereby increasing the amount of the personal estate applicable to the payment of the annuity.

It further appears that the plaintiff, in the litigation concerning the probate of the will, employed counsel whose services were reasonably worth several thousand dollars over and above the sums awarded as costs in the decrees of the surrogate’s court. It is found upon sufficient evidence that such employment by the executor was necessary, and was made in good faith and for the benefit and protection of the estate. There is no dispute in the ¿vidence as to the value of the services After such services were rendered and the will admitted to probate and letters testamentary issued to plaintiff, the surrogate informed -the plaintiff that counsel fees on account of said probate proceedings could not be lawfully paid by him on account of said estate, and that no allowance could be made on the settlement of plaintiff’s accounts as executor for payment of such services, whatever their value, unless it should be first determined by the supreme court that the same are authorized by law and can be allowed to an „ executor on his final accounting.

Having in view the character of the will in question, the proceedings by plaintiff thereunder in the administration of the estate and the diverse interests likely to exist as well as claims made, and the situation of the plaintiff himself as to expenses incurred by him in the line of his duty as executor, we are inclined to the opinion that sufficient reason is presented for bringing the action in the supreme court.

The maternal heirs of James Chase, Jr., the committee Waddingham, and the attornies who claim counsel fees, were all parties defendant in the action and seem to have answered in the case. None of those parties, howevér, are made parties upon this appeal. The main question raised by the appellants here upon the merits relates to the counsel fees, and we may as well come directly to-that subject. In doing so, we assume that the appellants can raise the question whether the plaintiff has a right to be reimbursed for the expenses of counsel, although such counsel have not been brought in upon this appeal. If the plaintiff deemed it important that they should be parties here, it was probably his duty to have moved for an order requiring the appellants to bring them in, and in that way perfect their appeal. This was the practice followed by this court in Hubbell v. Syracuse Iron Works, decided by this court in April, 1890, and affirmed by the court of appeals in 121 N. Y., 716; 31 St. Rep., 997.

. The special term, after finding the amounts due the respective counsel as the fair -and reasonable value of their services, and that the emplo37ment of such counsel by the executor was necessary and in good faith and for the benefit and protection of the estate, decided as matter of law that it was the duty of plaintiff to pay the respective counsel the sums found, as a part of the expenses of administration, and to charge the same against the estate. An' accounting was directed before a referee in which the executor would be credited with payments so made.

It is suggested by the appellants that the court had no right to pass upon the propriety of such payments before they were actually máde by the executor. The appellants had full opportunity to be heard both as to the right and the amount, and it is difficult to see how the rights of the appellants have been injured or impaired by the determination of the question before actual payment. The judgment does not provide for any credit to the executor for such charges before actual payment, and in that respect is not within the rule laid down in Matter of Bailey, 47 Hun, 477; 14 St. Rep., 325, and kindred cases. As said by Finch, J., in an analogous case, Matter of Ally. Gen. v. North Am. Life Ins. Co., 91 N. Y., 61, they are none the less the necessary expenses of his trust, because fixed in-advance of actual ¡payment. In Gilman v. Gilman, 6 T. & C., 211, affirmed in 63 N. Y., 41, counsel fees seem to have been allowed before payment.

We then come to the question whether the plaintiff is entitled to be indemnified from the estate for expenses necessarily and in good faith incurred in obtaining the probate of the will. The claim of the appellants is that the plaintiff can obtain for s.uch expenses nothing beyond the costs awarded to him in the decrees of the surrogate’s court made in November, 1884, upon refusing probate of the will, and in February, 1887, upon admitting the will to probate. The costs allowed in those decrees were those permitted by §§ 2558 to 2561 of the Code, and may properly be called the taxable costs of the proceedings and were apparently paid by the temporary administrator while the estate was in his hands. They are not, as between the attorney and the client, the measure of the value of the services of the attorney. Gallup v. Perue, 10 Hun, 525. The statute, 4 R S., 8th ed., 2564, § 58, with reference to the settlement of accounts of executors, provides that “ in all cases such allowance shall be made for their actual and necessary expenses as shall appear just and reasonable.” This would include expenses of the character stated, incurred in the employment of legal counsel on the application for probate. Redfield Sur. Pr„ 2d ed., 458; 1 Williams Ex’rs, 6th Am. ed., 442, note y; Bx, parte Young, 8 Grill, 285. It was the right of the executor and, ordinarily, his duty to present the will for probate. 1 Williams Ex’rs, 855. So that his reasonable expenses in that regard would be incurred in the discharge of the duties of his trust. His right would be deemed as accruing at the date of the death. 1 Williams Ex’rs, 696.

It has been held by the court of appeals that the supreme court has power to make allowances to trustees and others acting in a fiduciary capacity for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees, and that the power to do this is independent of the statutory provisions relating to costs. Weimore v. Parker, 52 N. Y., 466, referring to Downing v. MarsJiall, 37 id., 380. This is applicable to executors, and the existence of the principle seems to be conceded in Matter of Application of Holden, 126 N. Y., 593; 38 St. Rep., 504. See, also, Woodruff v. N. Y, L. E. & W. R. R. Co., 41 St. Rep., 193. There is nothing in the provisions of the Code as to the costs in probate cases that interferes with this principle. There is no good reason presented for inferring an intent to so interfere. Did not such a rule exist, there would be many cases where the wills of testators, as well as their estates, could not be fairly protected without great personal loss to the executors. A testator, in naming an executor, gives him an implied authority and direction to do all he reasonably can to prove and carry out the will, and this carries with it the right to charge the estate with the reasonable expense. We see no good reason in the present case why the plaintiff should not be indemnified. It is not necessary here to consider the effect of the provisions of § 2562 of the Code, as that does not refer to counsel fees in a case like the present.

But it is said that the surrogate’s court in its decree as to costs adjudicated that the costs then allowed were all that the plaintiff was entitled to receive for expenses of counsel in those proceedings. There was no adjudication in terms to that effect, nor is that the fair inference from those decrees. The taxable costs were allowed. The question of what the plaintiff had incurred for counsel fees or should be allowed was not then before the court. The parties were not there who had a right to be heard on the question. In Unglish v. Marvin, 128 N. Y, 380; 40 St. Rep., 277, it is said that a party relying upon a former adjudication as a bar must show that the point involved was decided in the former suit. We fail to find here any former adjudication that affects the question.

Ho other questions are presented that call for particular consideration. No fault is found with the form of the decree. It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.