author: Geo. G. Reynolds, Referee. Barnard, P. J.

text:
    Sarah Maria Judd, App’lt, v. Mary E. Burrell el al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Contract — Agreement to convey land.
    In an action for specific performance of an oral agreement of a decedent to give certain land to plaintiff, the evidence shows that plaintiff advanced money to pay a mortgage on the place while she and her sister lived together under an agreement that they should live and work together and clear off the expense oí the house, and that it was to be plaintiff’s after the sister had done with it. Shortly before her death the sister stated that if she should die first the house would be Sarah’s. She left a will, made some years before, which gave plaintiff a life interest only. Held, that the evidence did not support a finding that the agreement was to be limited to the life of plaintiff.
    (Dykman, J., dissents.)
    Appeal from judgment entered upon report of referee dismissing the complaint.
    Action against the heirs and executors of Emily E. Butler, deceased, to have plaintiff declared the owner of the property described in the complaint. The complaint demands judgment for specific performance of a promise made by decedent that the property should be plaintiff’s on her death, or if performance could not be decreed; for judgment against the executor for the sums advanced by her in fulfilment of such agreement or promise.
   The following is the opinion of the referee:

Geo. G. Reynolds, Referee.

The testimony on which plaintiff relies to show the agreement set up in the complaint is too loose and unsatisfactory to lay a foundation for the relief asked for. The only witness who testifies to having heard any conversation between the parties on the subject in dispute is William Hodgins, who says, that “ Emily promised if Sarah put the money in the house and anything happened to her, the' place was to be hers.’’ This was when five hundred dollars was advanced by plaintiff, and yet this witness in a letter written November 3,1890, speaks of this sum as having been lent to Mrs. Butler, and of her claim “ for the 500,” without any suggestion of the promise which he now swears to. Besides, the part which this witness has taken in this family controversy, as shown by that letter, detracts considerably from the weight o£ his testimony.

The testatrix and plaintiff lived together upon the premises in question from 1876 till the death of the former, a period of about fourteen years. The will was made in 1881. Both before and after the making of her will the testatrix seems frequently to have stated to her friends her intention in reference to the provision to be made for plaintiff. The recollection of the witnesses may not be, and probably is not, accurate as to the exact words used by her, but as they state it, she said the house was to be Sarah’s after she was done with it, that if she died first it should go to Mrs. Judd; that the house would be Sarah’s; that she should try to see that what there was should go to her to take care of her; that it should revert to her ; that her property should go to her sister on her death. All this testimony is to be interpreted by the one great landmark in the case, the will. All these expressions are met in one sense by the disposition of the property which the will makes. There is no reason to suppose the testatrix was acting in bad faith towards the plaintiff, or that she intended to deceive her or her friends. When she spoke of the property going to Sarah, of the home being hers, of the-property going to her to take care of her, she doubtless meant just what the will provided ; that the plaintiff should have all her property as long as she (plaintiff) lived. If- these declarations are to be regarded as admissions by her of any arrangement or agreement between her and, plaintiff (and they can have no force in any other aspect), they cannot carry us beyond what clearly appears to have been the position of the case, in her own mind, as evinced by a solemn act, adhered to so many years, and down to the time of her death.

Thomas J. Keigharn, for app’lt; A. P. Bates, for resp’t, Burrell; Thos. M. Wyatt (John H. McCracken, of counsel), for resp’t, Gaze.

I am the better satisfied to arrive at this conclusion as, so far as the case discloses, there seems to be a natural equity in this disposition of the property.

Having come to this result, it becomes unnecessary to consider the questions of law discussed upon the briefs.

I should' have been inclined to give costs against the plaintiff, except for the fact that if costs are allowed at all, there are three defendants appearing separately, equally entitled, and under all the circumstances the amount of these bills would be rather oppressive to the plaintiff. She has stipulated to pay referee’s and stenographer’s fees in any .event, and beyond that I leave each party to pay his or her own costs.

Barnard, P. J.

The evidence does not the restricted finding of the referee that the agreement was to be limited to the life of the plaintiff. The fact is clear and is fully proven that the plaintiff advanced some $800 to free the land from a pressing mortgage. That the parties lived together; the plaintiff and her sister Mrs. Butler. Thatffhey made an arrangement that they should so live, and one go out as nurse and the other either did the same work or kept boarders. That all the plaintiff’s money went into the family support, while Mrs. Butler lived; that the agreement was unrestricted that the plaintiff had given the money under an agreement “ to live together and work together and clear off the expense of the house and in future years they should live together, and the house was to be Sarah’s, after she had done with it.” Some two years before she, Mrs. Butler, died, she stated, “Well, of course, if I die first, the house will be Sarah’s.” The will which gave a life estate was made some years before this statement.

The plaintiff is entitled to a reversal of the judgment, and a new trial at special term, with costs to abide event.

Pratt, J., concurs; Dykman, J., dissents.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    William B. Dayton, Pl’ff, v. William A. Parke et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Chaster party — Liability of consignee for freight.
    The consignee is prima facie the owner and liable for the freight.
    2. Same — Demurrage.
    The consignee is also liable for demurrage, and it is no defense to a claim therefor that the wharf selected was occupied when the vessel arrived.
    3. Costs — Offer of judgment.
    The complaint stated two causes of action; one for freight and the other for demurrage. Defendants served an offer of judgment for the freight. A recovery was had for the freight and six cents for demurrage. Held, that the offer was not more favorable than the judgment, and that, therefore, plaintiff’s costs were properly taxed and defendants’ rejected by the clerk.
    Appeals by plaintiff from so much of the judgment as awards him six cents damage for demurrages, and by defendants from the whole of said j udgment; also from order denying defendants’ motion to modify verdict and from taxation of costs.

      Thomas J. Ritch, Jr., for pl’ff; Parsons, Shepard & Ogden, for def’ts.
   Barnard, P. J.

The plaintiff represents the owners of the schooner, J. EL Parker. On the 19th of May, 1891, the captain of the vessel, acting for the owner, made a contract with Mallonee & Co., of Charleston, S. C., to carry a cargo of cross ties from Charleston, S. C., to the L. I. R. R. Dock, Hunter’s Point. The cargo, when loaded, was consigned to the defendants. On the 23d of June, 1891, the vessel arrived at the dock in question, and reported her arrival to the defendants. On the 28th of June the vessel began unloading, and finished July 1,1891. The time consumed before the unloading commenced was occasioned by the fact that other vessels with cargoes for the dock had arrived before the plaintiff’s schooner, and thereby had a right to unload in the order in which they came. Under these facts there is no defense to the claim for the freight. The consignee is prima facie the owner. Thompson v. Fargo, 49 N. Y., 188.

Not only was the cargo consigned to these defendants, but they were notified before delivery, and made no objections. They received the inspector’s certificate that the cargo was discharged, and accepted the same, and were willing to pay the freight. The defendants refused the bill of lading sent them. By its terms the consignees were to pay the freight as per charter party. The defendants, under all the evidence wholly uncontradicted, made themselves liable for the freight as matter of law. By the terms of the contract for carriage, the vessel was to deliver the cargo at a particular dock. She was compelled to be idle for lack of opportunity to unload at that dock. Are the defendants liable for demurrage ?

By the charter it is provided that “ for each and every day’s detention by default of said party of second part (consignor) or agent, fifty-two dollars shall be paid by said party of the second part or agent, to said party of the first part, or agent.” The contract in respect to unloading is expressed by the words “customary dispatch,” which have a definite meaning bv long usage and by a series of decisions thereunder. Customary dispatch means a berth where the vessel can unload as soon as she is ready to deliver cargo and the usual dispatch of persons who are ready to receive cargo. Unless there is some local reason to avoid this contract so construed, the plaintiff is entitled to recover for the six days. The charterer who selected the wharf was bound to be ready to receive, and it is no defense to the claim for demurrage that the wharf selected was occupied when the plaintiff’s' vessel arrived. The consignee is liable for the demurrage as well as for the freight. He is the prima facie owner, as has been stated. Scholl v. Albany, etc., Iron & Steel Co., 101 N. Y., 602.

The evidence further shows that they were the real owners and had agreed to sell to the Long Island R. R. Co.; they are, therefore, liable for the demurrage. The claim for the loss of time after the unloading commenced is a question for the jury. It is not proven that proper dispatch was not given so absolutely that a court can fix the amount of the demurrage in this respect. The plaintiff is entitled to six days demurrage at fifty-two dollars a day, and all beyond that must be established by a' jury.

The defendants made an offer in the action. The complaint stated two causes of action. One for the freight and one for the demurrage. The offer was for an amount equal to the claim for freight. The judge allowed the claim for demurrage at six cents. The offer was not more favorable than the judgment. In the view we take of the claim for demurrage, the judgment should have been for a larger sum than the nominal amount rendered.

The taxation was, therefore, right and the order should be affirmed, with costs and disbursements.

Dvkman and Pratt, JJ., concur.


text:
    Howard S. Jones, Resp’t, v. Robert L. Moores et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Mechanic’s lien — Not waived by accepting note.
    The acceptance of a note by a contractor or material man does not destroy his lien.
    Appeal from judgment in favor of plaintiff.
    Action to foreclose a mechanic’s lien.

      George F. Alexander, for app’lts; Salter S. Clark, for resp’t.
   Barnard, P. J.

The plaintiff agreed with the defendants to furnish embossed cut and ground glass to be set and finished in the defendants’ houses. By the terms of the agreement when the work and materials were properly set and finished the defendants were to give their promissory note for the same three months from the date thereof. On the 20th of January, 1891, the work was completed to the satisfaction of defendants, and was accepted by them. On the 12th of January, 1891, the defendants gave the plaintiff a note for $500 at three months from date, and on the 21st of January, 1891, they gave the plaintiff another note for $125, being for the balance" due on the contract. Both notes word protested. On the 17th day of April, 1891, the plaintiff filed a lien on the premises. The only question presented is whether the giving and acceptance of the notes by the terms of the contract destroyed the lien. It was held by the court of appeals in Happy v. Mosher, 48 N. Y., 313, that the taking of notes of a third person did not affect the lien except to defer its enforcement. It was held by the same court in the case of Mott v. Lansing, 57 N. Y., 112, that work done upon a vessel upon the personal credit of the owner does not affect the right to a lien. That a lienor might give credit provided the lien was filed within the statute time. Both these cases were approved in King v. Greenway, 71 N. Y., 413. In this case the lien was filed within the ninety-days given by statute, and the' debt became due within that time.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Terence McCracken, Resp’t, v. William C. Flanagan et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Execution — Title oe purchases at sale.
    Where a judgment is declared void on the ground that the summons was not properly served, the title of a purchaser of real estate at a sale on execution issued upon such judgment fails with the fall of the judgment.
    Appeal from judgment in favor of plaintiff in an action of ejectment.

      Thomas J. McKee, for app’lts; Eugene S. Ives, for resp’t.
   Dykman, J.

This is an appeal from a judgment in favor of the plaintiff in an action of ejectment. The cause was tried before a judge without a jury and decided by him in favor of the plaintiff, and from the judgment entered upon such decision the defendants have appealed.

The plaintiff claims under a deed from Henry Kahle, who was the owner of the premises at one time, and in the possession of the same.

The defendants claim under a deed from the grantee of a sheriff, by virtue of a sale of the premises under a judgment against Henry Kahle, the grantor of the plaintiff.

The service of the summons in the action against Kahle was made by publication, and the affidavit upon which the order for publication was made was insufficient and the judgment was held to be void for that reason by the court of appeals.

The title of the defendants failed with the fall of that judgment, and their contention that the deed of conveyance from Kahle to the plaintiff was executed while the premises were in the possession of a person claiming tinder an adverse title is unsupported by the facts.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


author: J. Rider Cady, County Judge. Dykman, J. Barnard, P. J. (dissenting.)

text:
    William T. Reynolds et al., App’lts, v. Wilson S. Horton, Def't.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Attachment — Affidavit—Fraud .
    Proof by affidavit that defendant purchased goods for half cash, balance at thirty days, representing that he was worth about $800 in cash; that he paid no part thereof; that at the expiration of the credit plaintiffs’ agent called at his store, but found him absent, and his clerk said he had gone to Albany, and would then go to Poughkeepsie, where plaintiffs did business; that about that time defendant withdrew his bank deposit of $700, which had been in bank a month, and could not afterwards he found, is not sufficient to prove an intention to defraud creditors so as to authorize an attachment.
    (Babnabd, P. J., dissents.)
    Appeal from order of the Columbia county judge, vacating a warrant of attachment granted to the plaintiffs, made on motion of Charles A. Yan Deusen, a junior attaching creditor.
   The following is the opinion of the county judge:

J. Rider Cady, County Judge.

This case has been very earnestly and ingeniously presented by counsel, and I am much indebted to them for the assistance they have afforded me in resolving a somewhat nicely balanced state of facts. The warrant of attachment granted in behalf of the plaintiffs was allowed by me upon" an ex parte application, and a substantial question is, whether sufficient grounds for my action were presented by the moving papers.

Another question is, whether the affidavits upon which the junior attaching creditor, Yan Deusen, obtained his attachment are so much more explicit and full than those of the plaintiffs as to afford him a right to make the motion.

Answering the last question first, I do so in the affirmative, and conclude that the affidavits upon which Yan Deusen’s attachment issued warranted the judge who allowed it in doing so, and that they are stronger and more satisfactory than those furnished by the plaintiffs to the county judge upon their application. Yan Deusen’s affidavits leave no doubt in my mind of his right to the remedy he asked for. The sole remaining question is whether this much can be properly said of the plaintiffs’ papers. They disclose substantially the following facts, viz.:

That on the 13th, 17th and 24th days of May, 1892, the plaintiffs sold to the defendant goods, wares and merchandise, amounting in value to the sum of $515.21; that the defendant agreed to pay one-half of the sum of $441.96, which was the value of the goods sold to him on -May 12, 1892, in cash, on the delivery of said goods, and the other half thereof within thirty days, and that the balance of the goods were sold to him for cash; that the defendant has not paid said sum of $515.21, or any part thereof; that at the time the defendant made the purchase on May 12th, he stated that he was vyorth the sum of $800, and that the credit which was allowed to him by the plaintiffs was given to him on the strength of such statement as to his financial capacity; that he thereafter in a letter to plaintiffs stated that he was worth the sum of $800; that on the 13th day of June, 1892, the plaintiffs sent one of their employes to the city of Hudson, where, to quote -the language used by Geo. B. Cramer, one of the plaintiffs, in his affidavit upon the application for the attachment: “ The defendant resides, and is conducting his business, to demand payment of said bill; ” that the plaintiff’s representative did not find the defendant at his store in the city of Hudson, but did find a clerk there, apparently in charge of the business, who stated that the defendant had gone to Albany in the morning, and that from there he was going to Poughkeepsie, where the plaintiffs have their place of business; that during the 13th day of June the defendant was seen by Henry C. Brill, a salesman employed by the plaintiffs, in the village of Fishkill, where, as further appears in the affidavit of Neherniah Boyce, the wife and mother of the defendant reside, and that the said affiant, Boyce, was, on said 13th day of June, informed by William Bostwick, cashier of the Hudson River National Bank in Hudson, that the defendant had the sum of about $700 on deposit in said bank for about a month prior to June 11, 1892, and that on that day he drew about $700 in cash, being his entire deposit, except a few cents. These are the substantial and important facts disclosed by the affidavits of the plaintiffs. It also appeal’s that Boyce made inquiries in the village of Fishkill, on June 13th, concerning the whereabouts of the defendant, but was unable to ascertain them. The warrant of attachment was allowed on June 14th. I cannot resist the conclusion upon reflection that these facts, standing alone, as I must consider them, do not afford sufficient ground for the issuing of an attachment.

They do not disclose, so far as I can discover, any false statement made by the defendant in obtaining credit from the plaintiffs. He said to them that he was worth the sum of about $800, and it affirmatively appears from the affidavit that at the dates of the sales, and for some time after, he had nearly that sum on deposit in a bank at Hudson. The papers throw no light upon the conduct of the defendant between the date of the last sale made to him by the plaintiffs on May 24, 1892, and June 13, 1892, when they sent their employe to Hudson, except that it appears that during that time the defendant had made no payment upon account of his purchases from the plaintiffs. When the plaintiff’s agent reached Hudson, on the 13th, he apparently found the defendant’s place of business open and in charge of a clerk. In fact Mr. Cramer’s affidavit expressly states that the defendant resided and was conducting his business at Hudson, on the day he made his affidavit, which was sworn to June 13, 1892. The defendant on June 13th was absent from his place of business, but it does not appear that he had concealed or was attempting to conceal himself. His clerk stated that he had gone to Albany, and was going thence to Poughkeepsie, and he was actually seen in the village of Fishkill, not far from the city of Poughkeepsie, on that day. His wife and mother reside at Fishkill, and it can scarcely be said that there was anything remarkable or suspicious in his being at that place on that day. The period of his credit with the plaintiffs had only recently expired. It is true that he had not made cash payments which he had agreed to make, but it does not appear that the plaintiffs had pressed him for a settlement. It is true that on May 11th he drew $700, or thereabouts, from the National Hudson River Bank, and had not up to the date of the application for the attachment applied any part of it to the payment of the plaintiffs’ claim.

J. S. Van Cleef, for app’lts; Brownell & Cochrane, for resp’t.

I think it would be unsafe to establish as a rule that the facts that a debtor is absent from his place of business on the day when his creditor chances to call for payment, the place of business being open, and the business being conducted therein in its usual course, the place being in charge of a clerk, who makes no apparent effort to conceal his employer’s whereabouts, coupled with the further fact that shortly before the creditor’s call the debtor has drawn either the whole or a part of his deposit from a given bank, will warrant the attachment of the debtor’s goods. Attachment is a severe remedy, and ought only to be employed in the cases, and under the circumstances provided for in the statute. It is frequently difficult for creditors to bring their proofs up to the requisite standard, but that is their misfortune, and does not justify the courts in legislating upon the subject, and in departing from the standard established by the statute. I am convinced by all the facts disclosed upon this motion, that Horton, the defendant, intended to defraud his creditors, but in disposing of the motion I am limited to the consideration of the bare facts stated in the plaintiffs’ original papers.

The motion is granted, without costs to either party.

Dykman, J.

This is an appeal from an order made by the county judge of Columbia county, vacating an attachment against the property of the defendant Horton.

Our conclusion is that the attachment was improperly granted and the order vacating the same was right

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

Pratt, J., concurs.

Barnard, P. J. (dissenting.)

On the 12th of May, 1892, the plaintiffs sold and delivered to the defendant goods of the value of $441.96. On the- 13th of May, 1892, they sold in addition goods of the value of $27.35. On the 17th of May, 1892, they sold to defendant goods of the value of $34; and on the 24th of May, 1892, an additional amount of $11.90; in all $515.21.

The defendant at the time of the first purchase stated that he was worth $800 in cash and he was to pay half on delivery of the goods and the balance in thirty days.

Defendant had a place of business in Hudson, N. Y., and the goods were at once delivered to him upon their purchase. The defendant did not pay the half cash, and upon being written to by plaintiff replied by letter that he was worth $800. Ho payment was made and on the 13th of June, 1892, the plaintiffs sent one Boyce to Hudson to collect the bill. He found the clerk in the store, who told him that defendant had gone to Albany in the morning and was going from there to Poughkeepsie, where the plaintiffs did business. He did not go there, but the plaintiffs heard that he was in Fishkill, Dutchess county. They sent a cleric there and the defendant’s wife and mother know nothing of hie whereabouts. The cashier of the bank in Hudson informed Boice that on the 11th of June, 1892, the defendant drew out his balance within a few cents, which was $700. The deposit had been there a month. The proof was hearsay as to the drawing out the bank deposit, but the evidence falls within the principle recognized in Buell v. Van Camp, 119 N. Y., 160; 28 St. Rep., 947. The facts stated show a fraudulent contraction of the debt and concealment by the debtor to avoid service of process.

The order should be reversed, with costs and disbursements.

Order affirmed, with ten dollars costs and disbursements.


text:
    Maurice Kelly, App’lt, v. The Pelham Hod Elevating Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Negligence — Non-suit.
    To justify a non-suit in an action of negligence on the ground of contributory negligence, it must clearly appear that no construction of the evidence and no inference from the facts will warrant a contrary conclusion.
    Appeal from judgment dismissing the complaint
    The plaintiff sued to recover his damages for injuries received August 15, 1890, in a lot bounded by York, Gold, Front and Bridge streets, Brooklyn, by being hit on the head by a boom owned and operated by defendant in excavating on said premises, said boom having fallen by reason of defective ropes or appliances supplied by defendants for raising and lowering it. Defendant denied its liability.
    On the trial it appeared that plaintiff was working as a laborer for one Buckley, a contractor, who was to erect a gas-tank on the premises. At the time of the accident an excavation was being made for the tank. Kelly was in the cut, and it was his duty to hook on buckets or tubs full of dirt or clay to a block attached to the outer end of the boom of a derrick supplied by defendant for hoisting the materials out of the cut. He was working around these tubs about two half days before he was hurt. The apparatus consisted of an upright mast fastened in the ground. To this a boom about thirty feet long was attached so as to swing around. This boom was raised by means of a wire rope running from the end of the boom over the top of the mast or upright and down to a drum, around which it was wound bv steam power. The boom did not slide up and» down the mast, but when it was raised it approached toward the perpendicular, and thereafter when it was lowered toward the horizontal'. There was a second drum around which was wound a second wire rope attached to a block at the end of the boom for the purpose of raising or lowering it so that the buckets containing the material excavated could be attached or removed. Defendant supplied all the machinery and had its own servants in charge thereof.
    The injury to plaintiff occurred in this way: He was in the cut waiting to hook on a bucket to the block at the end of the boom when, without any warning, it “ came down with -one slash on ” his head. Ordinarily, at the stage of the work immediately preceding the accident to plaintiff, the boom remained stationary six or seven feet above plaintiff’s head. A stone had been taken out of the cut by means of a chain attached to the boom ; plaintiff went into the cut, put up his hand to remove the chain so that he could hook on his bucket, and the boom fell on his head. The cause of the fall was that the wire rope by which the boom was raised and lowered was fastened to the drum by a piece or strand of manilla rope; in lowering the boom on this occasion the manilla strand broke and all the wire rope was unwound from the drum, causing the boom to fall with a crash to the ground, injuring the plaintiff.
    On the occasion of the accident the boom was ten or twelve feet above plaintiff’s head when the rope gave way, and it fell sideways, not in a straight down 'movement The witness Fazakerly says that he was three feet away from the boom when it came down, and he had to give a couple of pretty hard jumps to get out of the way.
    The witness Dougherty testified that, previously to the time this manilla strand was used, the wire rope used to go through a hole in the drum, and a knot was sometimes made in it to make it fast.
    The plaintiff testified that he could not tell very much about the construction of the derrick ; he had never worked around it, except for parts of two days. “ / was not aware of any danger attending my work there at that time.''

    The plaintiff was knocked senseless by the fall of the boom and did not recover consciousness until the next day.
    At the close of plaintiff’s case the court dismissed the complaint on the ground of contributory negligence solely.

      John, D. Bell, for app’lt; John E. Eustis (Geo. S. Coleman, of counsel), for app’lts.
   Dykman, J.

This is an action for the recovery of damages resulting from personal injuries sustained through the negligence of the defendant.

The plaintiff was nonsuited at the circuit upon the ground of contributory negligence on his part, and the appeal is from the judgment dismissing the plaintiff's complaint.

To justify the nonsuit of a plaintiff in an action of negligence upon the ground of his contributory negligence it must appear clearly that no construction of.the evidence and no inference drawn from the facts will warrant a contrary conclusion. If the facts be such that men of ordinary prudence and judgment would draw different inferences, and reach different conclusions upon them, then the question is for the jury and not for the court. Stackus v. N. Y. C. R. R. Co., 79 N. Y., 464.

Our'conclusion is that this case is not so plain and clear upon the question of contributory negligence as to justify its withdrawal from the jury, and the judgment should be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


text:
    Joshua C. Sanders, App’lt, v. James L. Parshall, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Pleading — Ejectment—Cloud on title.
    A complaint alleging that plaintiff is the owner of land; that defendant claims an interest therein by virtue of a tax sale, which is in tact invalid, though valid in appearance, but dues not allege that defendant is in possession or that the land is vacant, is not sufficient as a complaint in ejectment, though it demands judgment that defendant surrender possession to plaintiff; but states a good cause of action to remove a cloud on title.
    Appeal from judgment dismissing complaint.

      J. C. Sanders (George H. Pettit, of counsel), for app’lt; W. Stebbins Smith (Jacob Fromme, of counsel), for resp’t.
   Barnard, P. J.

The complaint is not clearly drawn as a complaint for the recovery of the possession of land. The plaintiff avers plainly that he owns the title to a lot 100 feet square. He avers that the defendant claims an interest in or a title to the same, but he does not aver that the defendant is in actual possession, or that the lot is a vacant lot and that the defendant claims title thereto as provided by § 1502 of the Code. Banyer v. Empie, 5 Hill, 48.

By the demand for judgment the plaintiff asks that the defendant be adjudged to surrender the possession thereof to the plaintiff, but a demand for judgment will not supply an omission to state a fact which is essential to sustain such a demand under the rules of pleading. As a complaint in ejectment, the plaintiff’s complaint was properly dismissed. There is, however, a cause of action stated to remove a cloud on the plaintiff’s title. The complaint shows that he owns the land and that the defendant claims it by virtue of a sale thereof made b^r the county treasurer of Westchester county in 1870 for the unpaid taxes of 1868 thereon. That the tax was invalid, the sale illegal and without authority of law, though valid in appearance. The answer denies the plaintiff’s title and all the allegations in respect to the claim of the derendant thereto, and in respect to the invalidity of the tax, the void sale and the apparent lien. The plaintiff asks for a cancellation óf the papers given by the county treasurer. If the complaint of the plaintiff is proven he is entitled to such a judgment. Bockes v. Lansing, 74 N. Y., 437; Lockwood v. Gehlert, 127 id., 241; 38 St. Rep., 261; Remington Paper Co. v. O'Dougherty, 81 N. Y., 474.

The defendant’s title is apparently good, but is, in fact, totally bad.

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

Pratt, J., concurs; Dykman, J., not sitting.


text:
    John R. Drake, Resp’t, v. The New York Iron Mine et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Limitation — Assignment op dividends.
    One W., in 1877, executed notes in defendant’s name without authority and appropriated the proceeds. He charged' himself with the amount of said notes on the company’s books, and authorized the president to apply his dividends to said notes. In 1889 dividends were declared on the stock. In an action by a holder of some of the notes for payment out of the dividends, Held, that the right to relief was created solely by the declaring of the dividend, and that the statute ran only from that time; that the lien on the dividend was not impaired because the right to sue on the notes is barred.
    Appeal from interlocutory judgment sustaining plaintiff’s second defense, which set up the statutes of limitation of this state and of Michigan.

      Barlow & Wetmore (Geo. W. Weiffenbach, of counsel), for app’lts; Roger M. Sherman, for resp’t.
   Barnard, P. J.

The plaintiff is the owner of three notes, of $5,000 each, given by the New York Iron Mine to the First National Bank of Negaunee, Michigan. The notes were all given in 1877, in April and May. The defendant Wetmore executed the notes in the name of the Iron Mine Corporation vrithout authority. That corporation is a Michigan corporation. Wet-more applied the proceeds to his own use. The legislative act of Michigan gave the company a lien on Wetmore’s stock in the corporation for his debts to the company. Wetmore charged himself with the payment of the notes upon the books of the company in May, 1877, and assigned the dividends upon his capital stock, 1,333 shares, and authorized the president of the company to apply the dividends to the payment of the notes in question. Wetmore became a bankrupt in November of the same year. Eo payments have ever been made on the notes. On the 1st of March, 1889, the Iron Mine declared dividends upon the Wet-more stock to the amount of $35,000. The complaint alleges that the corporation either holds that sum or has paid it to the official assignee in bankruptcy. The relief sought by the plaintiff is that he be paid out of that fund. The defendants plead the statute of limitation both of the state of Michigan and New York, and both the six years and the ten years limitation. The defense pleaded is not good. The cause of action which is based upon an existing title in the notes only dates from the declaring of the dividends. In the case of Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85, the right to enforce the claim on the part of the creditor existed. The cases holding that a mere form of the relief sought will not exclude the operation of the statute have no relevancy. The right to the relief in this case is created solely by the defendant, Iron Mine, declaring a dividend in 1889. This remedy is, indeed, incidental to the notes which may be barred by the Statute, but the notes are not paid. The lien on the dividend is not impaired because the right to sue upon the notes is barred. Hulbert v. Clark, 128 N. Y., 295; 40 St. Rep., 401.

The.part of the judgment appealed from is, therefore, affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    Frederick M. Lotterle, Resp’t, v. John Murphy, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Summary proceedings — Jurisdiction of state courts over land ceded FOR BROOKLYN NAVY YARD.
    The United States leased a portion of the Brooklyn navy yard premises to plaintiff, who sublet to defendant, jHeld, that state courts have jurisdiction of a summary proceeding for nonpayment of rent under said sublease.

      (Barrett v. Palmer, 47 St. Rep., 876, followed.)
    Appeal from judgment of the Kings county court, affirming a final order in summary proceedings made by a justice of the-peace.

      James J. Rogers, for app’lt; S. T. Maddox, for resp’t.
   Barnard, P. J.

The United States government rent, by written lease, to the plaintiff, landlord, certain premises in Wallabout Bay, Kings county, which are part of the navy yard premises. The defendant, John Murphy, hired of Lotterle a part of the premises at a fixed rent and he has failed to pay. The case is a clear one under our laws in respect to the dispossessing of delinquent tenants, if the state courts have jurisdiction over the lands. The point seems to be settled in Barrett v. Palmer, 47 St. Rep., 876, that the jurisdiction of the state courts continue unchanged, except so far as the use of the lands is antagonistic to the interference of the state courts. As the case stands there is no such antagonism. The government of the United States has put the lands in the possession of the plaintiff for rent and for the private use of the plaintiff; and the defendant has taken these lands under similar conditions. The United States government has passed no laws so as to enable its tenant to get his rent of one who leases from him. The ordinary state laws cover the case, therefore,, of necessity.

The judgment should be affirmed, with costs.

Pratt, J.

We are not able to distinguish this case from Barrett v. Palmer, 47 St. Rep., 876, where the court of appeals held that the acquisition of lands by the general government does not operate to oust the judicial authority of the state. From that it follows that the justice of the peace had jurisdiction of the proceeding.

We have examined the other objections raised and do not find error.

Judgment affirmed, with costs.

Dykman, J., concurs.


author: Pratt, J.

text:
    Alfred B. Phillips, Resp’t, v. The Citizens’ Gas Light Co. of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Services — Evidence—Appeal.
    In an action for services as adjuster, evidence was given of a custom by which plaintiff would be entitled to fiveper cent upon the loss as adjusted, when the court refused to receive any more proof on the subject, and charged that the recovery, must be restricted to the “ reasonable value ’’ of the services. Held, that an objection that no proof was given of such “ reasonable value” could not be raised for the first time on appeal, as it might have been obviated if raised on the trial.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Thomas S. Moore, for app’lt; Walter R. Beach, for resp’t.
   Pratt, J.

The evidence established that the plaintiff was employed by and rendered service to the defendant in procuring the adjustment of a loss.

The only question as to which there can be any doubt is as to the amount of compensation to which plaintiff is entitled.

In respect to that question, defendant has no ground of complaint. After various witnesses had testified to a custom by which plaintiff would be entitled to five per cent upon the loss as adjusted, the court refused to hear further evidence on that subject, and charged the jury that the recovery must be restricted to the reasonable value of the services.

Defendant now claims that no proof was given of the “ reasonable value ” of the services, and that the verdict must be set aside for that reason.

Had that point been raised at the close of the testimony, it cannot be doubted that the omission to show in express terms the reasonable value ” would have been obviated.

It is plain that both court and counsel considered that proof of a custom to pay five per cent was evidence which the jury might consider upon the question of “reasonable value.” In this we find no error, and the verdict must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Henry H. Skinner et al., Adm’rs, Resp’ts, v. The Prospect Park & Coney Island Railroad Co., App’lt. (Two cases.)

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Negligence — Contributory.
    Plaintiffs’ intestates were killed by an engine running at the rate of forty-five or fifty miles an hour, without signals. The view was obstructed until the wagon passed the sidewalk and the horse's head was almost on the track. Several witnesses testified that although they listened they could not hear its approach. Held, sufficient to justify a finding that the deceased were free from contributory negligence.
    Appeals from judgments in two cases in favor of the plaintiffs, entered upon verdict.
    Actions brought by plaintiffs to recover for the deaths of their intestates by being struck by a wild cat engine while attempting to cross defendant’s track.

      Morris & Whitehouse, for app’lt; Fullerton & Rushmore (Chas. J. Patterson, of counsel), for resp’ts.
   Pratt, J.

The testimony authorized the jury to believe that a casual or “ wild cat” train of defendant was driven through a frequented street and over a crossing at a rate of forty-five or fifty miles an hour, without ringing a bell or blowing a whistle.

The verdict having been in favor of plaintiffs we must treat those facts as established, and they justified a finding that defendant was negligent.

The important question is whether the two juries were justified in finding that the deceased were free from contributory negligence. Ordinarily where a person is, in broad day light, killed upon a railroad crossing, it is in consequence of negligence upon the part of himself or some one who controls his course. In the present case that inference is sought to be overthrown by showing a state of circumstances that otherwise explain the accident. Several witnesses agree that the customary signals, whistle and bell, were not given. Their absence does something to explain the accident without negligence on the part of the deceased. Hearing a moving train depends so much upon the condition of the atmosphere, the direction of the wind, the state of the road bed and the construction of the engine and cars, and perhaps other conditions, that it may well be that in many cases one may listen attentively, and yet not be adequately warned of a tram’s approach.

Several of the witnesses who saw this train testify that although they listened they did not hear it, and the deceased, who were in a moving vehicle, would be in a less favorable position to hear than some of the witnesses so testifying. If the witness who, while hanging clothes in her yard, saw the train coming but could not hear it, and being for that reason apprehensive that deceased might not hear, screamed to them to notify them of their danger, it may well be that they could not hear no matter how carefully they listened.

The testimony shows that the sides of the cross road down which deceased were passing was lined with trees and shrubs, as was also the road through which the train was going.

It is shown that from where the deceased were passing the railroad track was not visible until the wagon passed the sidewalk, and the head of the horse was almost upon the rail track.

It appears that at that moment the driver tried ineffectually to hold in his horse. Most likely the horse at the same time discovered the train and in consequence became unmanageable.

Upon all the facts we are satisfied with the verdicts. Appellants do not claim that any errors were made in stating the rules of law. None are claimed except in refusing to nonsuit, and in that respect we think the court below was right

Judgments affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Coffin, S. Pratt, J.

text:
    In the Matter of the Settlement of the Accounts of Sarah M. Worthington et al., Ex’rs.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Executors and administrators — Fees—Assionment.
    Until the commissions of an executor are a certained and fixed in the manner provided by statute none are due, and there is nothing upon which an assignment can act.
    2. Same.
    An executor in payment for services assigned any commissions to which he might be entitled. He was removed on account of lunacy and died before a settlement of accounts. Held, that there was nothing upon which the assignment could act, and that the assignee was not interested in the estate.
    Appeal from order of surrogate refusing to open and amend a decree settling the accounts of executors.
    The,petition of John A. Bryan stated, among other things, that he is an attorney at law ; that in the year 1880 the deceased died, leaving a last will and testament which was duly admitted to probate, by which he appointed Sara N. Worthington, William L. Bull, Harry F. Worthington and Charles C. Worthington, executors and trustees, all of whom qualified; that immediately thereafter, said Harry F. Worthington retained the petitioner as attorney and counsel for himself both in his individual and representative capacities, from which time until February, 1888, when said Harry was declared a lunatic, the petitioner rendered valuable services for him, and claims a balance due to him of at least $10,000 over and above all payments made to him on account; that in February, 1885, his client, individually and as executor and trustee, for the purpose of securing the petitioner for the moneys then due and to become due, assigned, through the medium of a third person, whatever he, said Harry, might then or thereafter be entitled to receive as commissions in his capacity of such executor and trustee'; that in March,'1888, notice of such, assignment was given to the executor, Bull, and to the attorneys for Frances T. Worthington, the wife of said Harry, who was then the committee of bis person and estate. The petitioner then proceeds to detail services which he rendered for said Harry as executor, and alleges that he died insolvent in March, 1889, and that he will be remediless unless he can collect such commissions. He further alleges that, on the application of the surviving executors and on the 4th day of November, 1891, a decree was entered settling their accounts, knowledge of which was purposely kept from him; that it was adjudged in and by the decree that said Harry had taken no part in the management of the estate and was entitled to no commissións. Then follow allegations to the effect that said Harry did render services as executor, etc., and which allegations are denied by the surviving executors. The petitioner prays that the decree may be ppened and amended in respect to such commissions, and that when the right thereto shall have been fixed, they shall be paid to him, the petitioner.
    The widow of Harry F. Worthington was executrix1 of his will and was made a party to the accounting proceeding of November 4, 1891. Her husband was removed from his office of executor and trustee in February, 1888, as being wholly unfitted and incompetent, both physically and mentally, to properly perform his duties as such.
   The surrogate’s opinion was as fallows :

Coffin, S.

On the facts stated, the question arises as to whether the position of the petitioner, as assignee of accrued and accruing commissions, is such as to entitle him to be heard in the matter. Before the Code, this court could decree payment only to a party, and not to the assignee of a party; but now, by § 2743 of that act, it may decree payment to the creditors, legatees, next of kin, husband or wife of the decedent or their ■assigns. Now, as the petitioner is not the assignee of any of these, the court had no power to decree payment to him of any commissions that might, under any circumstances, ha-ve been ■awarded to his deceased client.

It seems to be well settled that a mere executor is not a person interested so as to disqualify him from testifying to transactions or communications had with the' deceased, under § 829 of the Code. Loder v. Whelpley, 1 Dem., 368-377; affirmed 111 N. Y., 239; 19 St. Rep., 631.

The commissions are given by statute as compensation for services, and do not accrue to the executor as a gratuity by force of the will. It therefore seems that the petitioner is not a person interested in the estate under subdivision eleven of § 2514. Had he been informed of the pending accounting proceeding in time, he could not have made himself a party to the proceeding under § 2731 because he was not a creditor or person interested in the estate, nor was he such a necessary party ” as is contemplated by § 2743. It would therefore seem that he is not in a position to make this application.

It is strongly urged by counsel for the executors that the commissions of an executor are not assignable, especially in advance of work to be done, and many cases are cited to sustain this view; but it will be observed that all such cases relate to salaries or fees of public officers. Bliss v. Lawrence, 58 N.Y., 442; Bowery Nat. Bank v. Wilson, 122 N. Y., 478, 482, 34 St. Rep., 43, and many other cases cited. But an executor is not a public officer. His office does not concern the public. Jacobs in his Law Dictionary, title Office, says that every man is a public officer who hath any duty concerning the public. Here the office is clearly a private one with which the public has no concern, and no question of public policy is involved. Hence the cases cited by the learned counsel have no application, and the commissions accrued and to accrue seem to have been assignable.

But it appears that Harry F. Worthington was entitled to no commissions on the corpus of the estate, the value of the personalty being several hundreds of thousands of dollars, because of his removal before the completion of his duties. Matter of Hayden, 54 Hun, 197; 26 St. Rep., 911, and cases cited. It is said in the principal case that “ if, for any reason, the trustee does not perform the duty, his right to the commissions is not complete.” It can, therefore, make no difference whether he resigns, die, or be removed for cause. In either case no commissions can be allowed. So far as appeal’s, he received no income of the estate; and as there were four executors and trustees, the compensation to which three would have been entitled would have been required to be apportioned among them according to the services rendered by them respectively, he would have been entitled to no commissions on the increase. Hence the provision of the decree, here sought to be amended, is deemed to be correct.

Chas. A. Davison (W. W. Bryan, of counsel), for app’lt; W. A. Jenner, for resp’t.

Under the circumstances it becomes unnecessary to determine whether the facts stated in the petition are sufficient to warrant a modification of the decree, in the respect sought, under subdivision six of § 2481 of the Code

For the reasons alleged, the motion is denied.

Pratt, J.

This is an appeal from an order of the surrogate of Westchester county, refusing to open and amend a decree settling the accounts of the executors and trustees, filed November 4, 1891.

It is, perhaps, unnecessary to add anything to the opinion filed by the surrogate, that an issue might be raised by the representatives of the deceased executor who made the assignment whether the assignment was a valid instrument, and upon this issue the parties would be entitled to a trial by jury, which could not be had in the surrogate’s court.

It seems clear that, when the assignment was made, there were no fees or commissions on which the assignment could act.

The mode of ascertaining and fixing the commissions of executors are entirely statutory, and until they are so ascertained and fixed none are due, and in this case, by reason of the lunacy and death of Harry T. Worthington, none ever became due and payable.

The petitioner, at most, was a mere creditor of Harry T. Worthington, and his claim, if any, should be made against the estate of the said Harry. Matter of Harris, 4 Dem., 463; Wheelwright v. Rhoades, 28 Hun, 57; Freeman v. Freeman, 4 Redf., 211; Carroll v. Hughes, 5 id., 337.

It did not appear in this proceeding that said deceased executor had earned or become entitled to any fees before his death.

There is neither authority or reason for any such claim as is made by the petitioner.

Order affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


author: Coleman, S.

text:
    In the Matter of the Judicial Settlement of the Trustees under the Will of Henry Bull, Deceased.

      (Surrogate’s Court, Orange County,

      Filed January 20, 1893.)

    1. Executors and administrators — Assessment on bank stock.
    By the will of testator the executors were directed to hold certain bank stock owned by him. Upon the settlement of the estate the executors were directed to retain the stock in two banks, as trustees, and pay the income to testator’s daughter for life and the stock on her death to her issue; if none, to certain of testator’s children. One of the banks failed, and an assessment was made on the stockholders for the amount of the stock. Held, that the legatees interested under the will took their interest subject to all the necessary incidents, including the possibility of such assessment, and that the trustees should sell the other bank stock to pay said assessment and distribute the balance among those entitled under the will.
    2. Same.
    The daughter died without issue, and, in the meantime, certain of testator’s children had also died. Held, that the interest of such as died lapsed with their death, and the fund should be distributed among the survivors.
    Henry Bull died in 1863, and in 1866 his executors had a formal settlement of their accounts before the surrogate of Orange county. By the decree máde on the settlement, the executors were directed to retain forty shares of Quassaic Bank stock and five shares of Middletown Bank stock, and pay over the income thereof to the testator’s daughter, Catherine Ann Bull, during her natural life, and at her death to pay over said bank stock to her issue, if any there be; if none, then to certain of the testator s children.
    Catherine died in June, 1892, and several of the testator’s children named had died in the meantime.
    At the time of this settlement the Middletown Bank stock still stood in the books of the bank in the name of the testator. Several years ago the bank failed, and an assessment was made upon the stockholders for the amount of their stock. In the meantime the executors had received the dividends on the stock and paid them over to the daughter, Catherine. The receiver of the bank is a party to this proceeding, and asks that the trustees be directed to pay the amount of the assessment. On behalf of the trustees it is urged that the claim is against the estate of the deceased, and that the receiver should look to the residuary legatee.

      M. N. Kane, for trustees; W. Vanamee, for receiver.
   Coleman, S.

At the time of the judicial settlement of the accounts of the executors, in 1866, their duties as such executors with reference to the property then accounted for ceased, excepting only the duty imposed upon them by the decree to apply the balance of the estate remaining in their hands in the manner therein directed, and when that was done they had no further connection with such property as executors. They had previously advertised for creditors, and any creditor presenting a claim thereafter could recover nothing from them unless subsequently other property should come into their hands belonging to the estate. By the decree the executors were directed to retain certain bank stock upon a trust created by the will. Now the fact that the trustees and the executors are the same persons does not place such a creditor of the estate in any better condition with reference to the trust fund than would have been the case if the executors had transferred the trust property over to other persons as trustees. Nor has such creditor any greater rights in this trust property because it remains in character the same as when held by the executors, than he would have had had such property been converted into money, and the money paid to the trustee.

Some doubt may arise as to the correctness of the latter statement because of the liability of the testator’s estate growing out of the fact that the stock still remains upon the books of the bank in the name of the testator. It must nevertheless be true, becausq no claim, by reason of this liability, was made by any one upon the executors before the title, to the property had passed by the decree from them as executors. A creditor may pursue property for the payment of his debt after it has passed from the executor, but that is not done by means of proceedings against executors. If the receiver can compel the payment of his claim in these proceedings it must grow out of some other reason than that he is a general creditor of the testator.

These accounting trustees received the capital stock of these two banks as so much property already invested to be held upon the trust set forth in the will. If instead of receiving bank stock they had received cash and had invested it in these bank stocks and during their holding of them one of the banks had failed, the liability created by the ownership of the stock of the failing bank would have had to have been met by the trustees from funds derived from the sale of the other, then there would have been no residuary estate to resort to. True they might not legally invest trust moneys in such securities, but this difficulty could have been, removed by the testator directing them so to invest by his will, and that, in effect, is what was done in this case. The testator took a short cut. Instead of directing the investment of a certain sum in stock of these banks, he directed his executors to hold certain stock in which he had already invested. Such being the case the legatees interested under the will in the trust fund took such interest subject to all the necessary incidents resulting from the character of the property set apart by the testator for them, and among others was this very possibility of loss by assessment as well as on the other hand the possibility of becoming more valuable during the continuance of the trust.

I am, therefore, of the opinion that these trustees must sell the Highland Bank stock and from the proceeds pay the receiver’s claim and distribute the balance among those entitled under the will.

By the will the use of this bank stock was given to the testator’s daughter Catherine during her life and at her death it was given to her “ lawful heir or heirs * * * and in case she leave no heir or heirs at law at her death surviving her, then ” such bank stock was given to certain of the testator’s children. Catherine was never married and left no lawful issue. In the meantime several of the testator’s children who were given a contingent interest in the bank stock have died. The interest of such as have died lapsed with their death, they not having survived the event upon which their interest would become vested, that is, the death of their sister Catherine leaving no issue. The balance of the fund will, therefore, be distributed among those surviving Catherine.


text:
    In the Matter of the Claim of J. C. Hampton v. The Estate of Bertha Stoehr, a Minor.

      (Surrogates Court, Orange County,

      Filed February 1, 1893.)

    Infants — Surrooate’s court.
    The Surrogate’s court has no power to settle and determine disputed claims against an infant’s estate for moneys and services alleged to have heen expended and rendered in the care of the infant’s property.
    Proceeding to compel payment by a general guardian of a claim for services rendered by a guardian ad litem in litigations resulting in securing the property now held by said guardian.

      John R. Devany, for petitioner; George G. Keeler, for guardian.
   Coleman, S.

This is a proceeding to compel a general guardian to pay an alleged claim for services rendered and expenses incurred by the petitioner as guardian ad litem of the minor in certain litigations which resulted in securing the property now in the control of the general guardian.

The general guardian, by her answer, disputes and denies the justness and validity of this claim.

It is well settled that the surrogate’s court has no power to hear and determine the validity of a disputed demand against an estate of a deceased person except when made by executors or administrators. And there seems to be the same lack of statutory power to determine as to claims against the estate of minors, except as it may be given by §§ 2846 and 2472, subd. 7, which are hereinafter referred to.

In the case of Welch v. Gallagher, 2 Dem. 40, it was held that the surrogate’s court had no power to determine a disputed claim for board and apparel of an infant.

In the Matter of Kerwin, 37 St. Rep., 436, it was held by the general term, fifth department, that § 2846, above mentioned, gave the surrogate’s court power to determine controversies upon demands for support of minors; and under § 2472 to compel the payment and delivery of money or other property belonging to wards, and in cases specially prescribed by law to control the conduct of guardians. That was a proceeding to compel the guardian of the property to pay a third person an amount owing for the support of the minor under an agreement made with the guardian of the person; and it was there decided thatdt was the duty of the surrogate in that particular instance to inquire into the matter and grant or refuse the petitioner’s application upon the merits. It will be noted that the circumstances “in this particular instance ” were peculiar, and it very far from establishes the general principle that the surrogate’s court is given, by the sections referred to, the general power to determine all disputed claims against a minor’s estate.

By § 2472, subd. 7, the surrogate is given the power to compel a guardian to pay over money and deliver property belonging to his ward; such payment or delivery must, however, of necessity be made to a party having an established right thereto in some tribunal having authority to establish that right; and the surrogate may thereby also control the conduct of guardians, but only in cases specially prescribed by law; and there surely is no law requiring a guardian to pay a claim which he disputes until that claim has been properly adjudicated.

The demand of the petitioner in this case is not for the “ support and education of the infant,” but is for money and services alleged to have been expended and rendered in the care of the infant’s property. Whether this was so done this court is not given the power to settle and determine, and these proceedings will, therefore, be dismissed, but without costs.


author: Adlington, S.:

text:
    In the Matter of the Application of Charlotte Shepherd. In the Matter of the Application of Charlotte E. Connal. In the Matter of the Application of Eda L. Comings.

      (Surrogate's Court, Monroe County,

      Filed March 8, 1893.)

    Tbusts — Extinguishment of.
    A valid, active trust to continue during the lives of the beneficiaries named cannot be extinguished by the union in the same person of the right to the income for life and the right to the principal after the death of the beneficiary, viz.: where the beneficiary has pm chased the interest of the remainderman.
    Applications by each of the above named petitioners to have a fund held for her benefit by a trustee of the estate of Temperance S. Lewis, deceased, paid over to her as the owner thereof.

      W. A. Sutherland, for petitioners; Wm. N. Cogswell, for trustee.
   Adlington, S.:

The will of Temperance S. Lewis was admitted to probate in this county in 1878. It contained the following provisions, viz.: “ I give and bequeath unto my sister, Charlotte Shepherd, the use and income of thirty (30) shares in the Western Union Telegraph Company for and during her natural lifetime, and after her death I give and bequeath the above mentioned stock to the Board of Foreign Missions of the Presbyterian Church in the United States of America, incorporated by the legislature of the state of New York.

“ I give and bequeath unto my niece, Charlotte E. Shepherd, the use and income of ten (10) shares of stock in the Western Union Telegraph Company, for and during her natural life, and after her death 1 give and bequeath the same to the Board of Home Missions of the Presbyterian Church in the United States of America, incorporated by the legislature of the state of New York.

“ I give and bequeath unto Eda L. Shepherd the use and income of twenty (20) shares of stock of the Western Union Telegraph Company, for and during her natural life, and after her death I give and bequeath the game to the Board of Home Missions of the Presbyterian Church, incorporated by the legislature of the state of New York.

“Lastly, I appoint my friend, Edwin S. Hayward, of the city of Bochester, Monroe county, executor and trustee of this my last will and testament, * *• * and I hereby empower him, if he should deem it for the interest and benefit of the estate or legatees, to sell and convey the same or any portion thereof, always securing the proceeds for the benefit of and purpose hereinbefore mentioned.”

The executor qualified, set apart the bequests of stocks as directed in the foregoing bequests, and after a time sold the same under the authority given him by the will.

He invested the proceeds and paid over the income to the respective beneficiaries until he was removed from office, when he paid over said funds to his successor in office, The Rochester Trust & Safe Deposit Company.

Each beneficiary for life, mentioned in the foregoing bequests, alleges in these proceedings that she has purchased the interest of the Board of Missions in the principal fund and its title thereto, and asks to have the money paid over to her as the owner thereof, divested of the trust. The legal question is the same in each case and the applications will be considered together.

It is plain that the testator intended by these bequests to secure to the persons named a regular income for life, instead of giving them a gross sum absolutely, and that her intention will be defeated if these applications can be granted.

By the provisions of the will already quoted, there were created valid, active trusts to continue during the several lives of the beneficiaries named. Ward v. Ward, 105 N. Y., 68; 6 St. Rep., 798; Marx v. McGlynn, 88 N. Y., 358-375. And the legal question raised by these proceedings is whether such a trust can be extinguished by the union in the same person of the right to the income for life and of the- right to the principal after the death of the life beneficiary. In valid testamentary trusts of personal property like these there are three estates or interests, viz.:

1. Thau of the person to whom the income is bequeathed for life;

2. That of the person to whom the principal is given after the death of the cestui que trust.

3. That of the trustee, which involves the right to the custody and legal title to the trust property during the life of the cestui que trust, and also the duty of keeping the same safely invested, paying over the income regularly, and the principal upon the death of the life beneficiary, after deducting commissions.

Tire union of any two of these interests in one person ought not, upon principle, to extinguish the third; and the point seems to have been decided adversely to the petitioners, both by the general term of the supreme court and by the court of appeals.

In Greer v. Chester, 62 Hun, 329; 42 St. Rep., 289, the testator, by the residuary clause of her will, created a trust to pav the income, rents and profits of her entire estate to her husband for life, and after his death to pay one-half of such income, rents and profits to her grandson during his life, with a direction to accumulate the other half during said grandson’s life, at the termination of which there was a gift over of the entire estate with the accumulations to charitable corporations.

This residuary clause was declared invalid and decedent intestate, except as to the trusts to pav over income during the lives of the husband and grandson. They were the only persons entitied to take the decedent’s personal estate under the statute of distributions, and by reason of her intestacy become the owners of their respective shares thereof, and claimed that they should be put into possession of the property as such owners, divested of the trusts.

It was held, however, that they only took their distributive shares subject to the trust, and that they were not entitled to the possession of an estate conditioned upon their own deaths.

Notwithstanding the union in them of the right to the income for life and the title to the principal after their deaths, the court says that the object of the testator * * * to secure the income to the beneficiaries for life against the risks of business or improvidence should be carried out.

In Asche v. Asche, 113 N. Y., 232; 22 St. Rep., 799, the will converted all the testator’s property into personalty and gave it all to the executors in trust to pay the income, with the exception of an annuity to his mother, to his wife for life, with remainder over to his two children, who survived him. One of the children, a daughter, died intestate after the death of the testator. The widow became, on the death of this child, the owner as next of kin of said child of one-half of her estate, and claimed, therefore, to be entitled to have that much of the daughter's part of the estate of the husband turned over to her in possession.

The court says: “It is quite clear that the widow's interest in the trust estate did not merge into the legal estate which she acquired by the death of her daughter.

“In equity the union of legal and equitable estates in tl e same person does not effect a merger unless such was the intention of the parties, and justice and equity require it. * * * There could be no merger because of the existence of a valid trust with the right in the trustees to the possession of the trust fund for the purposes of management and control during the life of its beneficiary. The trust must exist so long as the widow lives, and during her life there could be no merger. She has no estate in the subject of the trust; she had an interest in it as beneficiary, but it was essential to the existence of that interest that the trust estate should be maintained."

If these trusts had been of real estate to receive the rents" and profits, and apply them to the use of these petitioners for life, with remainder over, the trusts would have been indestructible, and the interest of the life tenants inalienable, under our statutes, during the continuance of their several lives. Genet v. Hunt, 113 N. Y., 168; 22 St. Rep., 774; Douglas v. Cruger, 80 N. Y., 15-19; Lent v. Howard, 89 id., 181. And the courts have extended the same rule bv analogy to the trusts of personal property. Genet v. Hunt, 113 N. Y., 168; 22 St. Rep., 774; Graff v. Bonnett, 31 N. Y., 13.

I think the applications must be denied. Orders to that effect may be entered on two days notice.


author: Pryor, J. Bischoff, J. Daly, Ch. J. (dissenting.)

text:
    William B. Taylor et al., Resp’ts, v. Thomas E. Satterthwaite, Imdl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Interpleader — Brokers.
    Where plaintiffs sue for brokers’ commissions for the sale of certain real property, the action of another broker against defendant for work, labor and services in the sale of the property is not a demand for “ the same debt,” within § 830 of the Code, so as to allow an order of inter-pleader, as’ the claims are not necessarily conflicting, and the evidence to support them would be different.
    (Daly, Ch. J., dissents.)
    Appeal from order denying motion for interpleader.
    Upon a sale of defendant Satterthwaite’s property both Taylor and Read claimed the compensation.

      John A. Dutton, for app’lt; Theron G. Strong and C. W. Western resp’ts.
   Pryor, J.

The learned judge at special term assigned a single cause for the denial of the motion ; but the order will be upheld if it may be supported upon any ground apparent in the papers. Nevertheless, we are quite satisfied that the reason given for the decision in question is sufficient to sustain it.

By the terms of the Code, § 820, an order of interpleader is allowable only when the competing creditors demand “ the same debt or property.” The thing about which these creditors are in controversy is a debt; and the question is as to the identity of the claims they respectively prefer. As the party sought to be substituted for the defendant has reduced his claim to the formality and certainty of a cause of action in a complaint, that statement of it, undoubtedly, is the most authentic exposition of its character.

Looking, then, to the complaints of the creditors proposed to be interpleaded, we find that they proceed upon essentially different claims or causes of action. The Taylors sue for broker’s commission as such; and, accordingly, they allege their employment as brokers to sell the property; a sale of the property ; their effective agency in the sale; the customary commission for the sale of real property ; and their complaint concludes with a demand of judgment for that specific commission. Read’s action is for work, labor and services in the sale of the property; and consistently he omits the allegations as to the customary commission; that he was the procuring cause of the sale; and, indeed, that a sale was actually consummated. To entitle a broker to his commission on a sale, he must be the procuring cause of the sale; but one employed only to render services in a sale may conceivably recover for those services, although he did not, in fact, negotiate the sale. Hume v. George C. Flint Co., 16 Daly, 360; 33 St. Rep., 651.

The decisive test of the identity of debts is the identity of the evidence to support them; and here manifestly to support the causes of action advanced by the claimants would require a diversity of proof.

We are unable to affirm that the claims of Taylor and Read, respectively, against Satterthwaite constitute one and the same debt.

Another ground, apparent in the papers, affords sufficient support to the order. “ To sustain an action of interpleader it must appear that the plaintiff is ignorant of the rights of the respective claimants.” Trigg v. Hittz, 17 Abb., 436; Howe, etc., v. Gifford, 66 Barb., 599; Morgan v. Fillmore, 18 Abb., 217. The plaintiff must show that “ he is ignorant which claimant has the better right.” Baltimore, etc., v. Arthur, 90 N. Y., 234, 237. In a letter to the Taylors, the owner of the property sold, now moving for the interpleader, recited the facts of the transaction, and concluded : “I think, therefore, you will readily see on these facts as now given you, that you are not entitled to a commission on the sale.” The facts recited show to demonstration that the rival claimant was entitled to the commission.

Upon the defendant’s own statement there can be no reasonable doubt as to the validity of Read’s claim, and of perfect security in paying the money to.him; and this fact presents still' another ground in support of the order. Nassau Bank v. Yandes, 44 Hun, 55; 8 St. Rep., 415.

But, although the defendant makes a case for interpleader under the Code, it does not follow, of course, that the order will issue. It is still within the discretion of the court whether to grant the relief, Barry v. Ins. Co., 53 N. Y., 536, and we are of opinion that in this instance an interpleader is inconsistent with a judicious discretion.

Before notice of the motion Read had begun an action on his claim in the superior court. He had a right to select his forum; and it is a familiar rule that the court first acquiring jurisdiction retains it to the end. Comity suggests that such court should not be molested or hindered in the disposition of the case by the action of a co-ordinate tribunal. It is answered that to interplead Read in the action depending in the common pleas will in no way interfere with his action in the superior court. If that be so then two actions for the same cause will be in agitation at the same time before different tribunals, and may result in contradictory judgments. In the superior court it may be adjudged that Read is entitled to the money, and in the common pleas that the Taylors recover the identical debt. Here "would be an embarrassing conflict; If it be that the interpleader of Read in this court will not arrest his action in the superior court, the fact affords a conclusive reason why, in the exercise of discretion, we should not compel him to come hither. If, on the contrary, the effect of an order of interpleader be to detach the action from the control of the superior court, then do we oust their jurisdiction in regard of the comity which is indispensable to the harmonious co-operation of co-ordinate tribunals. Grant v. Quick, 5 Sandf., 612. In either alternative it would appear that our discretion had been improvidently exercised.

Nor is this all. It may be that, by compelling an interpleader, we should embarrass the claimants in maintaining their respective rights. For support of his action in the superior court Read will undoubtedly rely on Satterthwaite’s admission of liability to him; but would that be evidence against the Taylors ? On the other hand, would a declaration of Satterthwaite favorable to the Taylors be competent evidence against Read?

Be this as it may, we are persuaded that the learned judge at special term discreetly exercised his discretion in denying the interpleader.

Order affirmed, with costs.

Bischoff, J.

By express provisions of § 820 of the Code of Civil Procedure a motion for an order of interpleader is addressed to judicial discretion. The granting of the order is therefore not a matter of right, Barry v. Mutual Life Ins. Co., 53 N. Y., 536; and unless it plainly appears that the discretion has. been improperly exercised by the judge at special term his order denying the motion should not be disturbed.

To bring himself within the provision of § 820 of the Code of Civil Procedure defendant Satterthwaite had necessarily to allege that George R. Read, who was sought to be substituted as defendant in his stead, “ makes a demand against him for the same debt ” and without collusion with him ; ” and to substantiate the allegation of a demand by Read defendant’s affidavit refers to Read’s complaint in the superior court action. ISTo other demand is alleged. From that complaint, however, it appears that Read’s claim is for services rendered at defendant’s request in and about the sale of certain real property, and, from the complaint in this action, that plaintiffs claim commissions, as brokers, for having effected the sale. The claims, therefore, though arising from the same subject matter, are in no sense conflicting. Both may be valid and subsisting at one and the same time. Hence from defendant’s own showing a constituent ground for the motion is disproved.

True, from Read’s affidavit, which was submitted for the purposes of the motion, it appeared that he then asserted a claim for commissions for procuring the sale. But it does not appear that he had at any time prior thereto asserted a similar claim. His complaint in the superior court action is based upon -essentially different grounds, and his affidavit is that of a person in interest. The learned judge at special term may, therefore, well have concluded that Read’s claim for commissions was only made for the purpose of the motion, and collusively so, to secure an order of interpleader; and if so, it was not only his province, but also his duty, to deny the motion.

’The order appealed from should be affirmed, with costs.

Daly, Ch. J. (dissenting.)

The order for interpleader was refused upon the ground that the two claimants were not demanding the same debt. Code, § 820. The plaintiffs, as brokers employed to sell defendant’s property, allege that by means of their services, the property was sold to one George G. Havens, Jr., and they demand the customary brokers’ commission. The other claimant lias also sued the defendant upon a complaint alleging an indebtedness to him for work, labor and services as real estate broker performed at the request of defendant in the sale of the same property.

Upon the face of the two complaints it might be questionable whether the latter action might not be for services other than procuring the purchaser Havens; but all doubt upon the subject is dispelled by the affidavits of the plaintiff in that action, George R. Read, and his employe, William McAllister. In those affidavits they show that Read'sues for the “usual brokers’commissions for the sale of the house ” to the purchaser above named. They swear to the employment and to effecting the sale, and Read says that his claim is for the usual brokers’ commissions for the sale of the premises mentioned. With such affidavits, it is impossible to deny that both claimants are after the same commission or debt. The learned judge at spec.al term has decided upon the pleadings only, but these are controlled by the positive affidavits of the parties that whatever vagueness there might be in the complaint of Read, his demand is the same as that of the plaintiffs in this action. It is urged that the defendant knows which party is entitled to the commission, but in the nature of things the owner of the premises cannot know that. The transactions of the purchaser were not had in his presence; and he can have but an opinion based upon information. Such an opinion he expressed in a letter to these plaintiffs, in which he states the facts-lie knows, and then concludes that the plaintiffs are not entitled to the commissions. But the merits of the respective claimants can only be ascertained when the two claimants adduce their proofs before a jury, as against each other, and this interpleader should, therefore, be allowed.

It is urged, as a reason for denying this motion for interpleader, that the claimant Read has begun an action in the superior court. No interference with that action will result from the order now applied for. The defendant here will pay into court the fund in dispute and leave the two brokers to contest their right to it. That will leave him still subject to the jurisdiction of the superior court, to which he must apply for any relief it may deem proper to grant him. The action in this court was the first one brought. Had the superior court acquired jurisdiction first, I should be in favor of withholding the interpleader in this action until a similar motion had been submitted to the court, as I think the application should be first made in the tribunal in which the defendant is first sued, and, if made in good faith, should be granted. To hold otherwise and decide that where the claimants have sued in different tribunals an insuperable objection to interpleader is presented, would enable claimants in every case to nullify the statute of interpleader and prevent the exercise by the courts of the discretion vested in them by the legislature for the ends of justice.

The order should be reversed, and the motion for interpleader granted.

Order affirmed, with costs.