text:
    MARY McVEY, Plaintiff, v. MARY A. CANTRELL, Defendant. JOHN G. C. TADDIKEN, Plaintiff, v. MARY A. CANTRELL, Defendant.

      Irrelevant and scandalous matter' — responsibility for inse/rtion of.

    The responsibility for the insertion of irrelevant and scandalous matter in pleadings rests upon the attorney preparing the same, and he should be charged with the payment of the costs of a motion to have such matter stricken therefrom.
    Appeal from an order made at the Special Term, directing that certain allegations should be stricken out of an affidavit as scandalous and impertinent.
    The plaintiffs in these cases having recovered judgment herein, defendant, upon an affidavit setting forth the fact of the recovery of the judgment, the giving of undertakings upon appeals therefrom and the justification of the sureties thereto, and the intention of the defendant to obtain a loan from an insurance company, moved to have the premises upon which the loan was to be made relieved from the lien of the judgment. The attorney for the plaintiff made an affidavit to be read in opposition to the motion, containing defamatory matter.
    This matter was, upon the application of the defendant, stricken out as “ scurrilous, irrelevant and defamatory, and as having been maliciously and unnecessarily inserted.”

      II. H. Morange, for the respondent.

      D. T. Robertson, for the appellant.
   Beady, J.:

The matter which was stricken out by the order appealed from was irrelevant, impertinent and scandalous. It is not necessary to discuss that phase of the appeal. Being of the character described, the responsibility of its insertion rests upon the appellant’s attorney, and not upon the client. It is the duty of the former to observe strictly the rules, which are well defined and which he must be supposed to understand, in regard to such matter. It is not necessary, therefore, to discuss this feature of the appeal. The rule is settled by a series of decisions ; but if it were not its propriety springs so naturally from the relations of attorneys and counselors to the courts and to suitors and to each other, that it requires nothing more than a statement of it to make it apparent and just and indispensable to the preservation of the dignity of the courts. The responsibility devolving upon the attorney, it was proper that the payment of the costs awarded should be made by him, and it is equally just that the costs of this appeal should be borne by him. The only duty for-this court to perform is, therefore, to order the affirmance of the order, with ten dollars costs and the disbursements of this appeal, to be taxed and to be paid by the appellant’s attorney.

This opportunity to censure the habit of placing upon the records of this court scurrilous or scandalous matters cannot be overlooked. It is regarded as reprehensible, highly so, and it is to be hoped, for the honor of the profession, that it may never again be necessary for this court thus to express itself. The occasions are rare on which the officers of the court so far forget themselves, but legal ethics will not prevail in this regard until we can say they never do.

It does not promote the ends of justice or contribute to the strength of a lawyer’s advocacy, to indulge in personalities, in writing or by speech, and the omission of both adds to his reputation and dignity.

Order affirmed, with ten dollars costs and the disbursements of this appeal, to be paid by the appellant’s attorney within twenty days after taxation and service of a copy of the order to be entered herein.

Davis, P. J., and Daniels, J., concurred.

Orders affirmed, with ten dollars costs and disbursements, to be paid by the appellant’s attorney within twenty days after taxation and service of copy of order to be entered herein.


source: Caselaw Access Project

author: Ready, J.:

license: Public Domain

text:
    ALEXANDER J. HOWELL, Respondent, v. HENRY K. VAN SICLEN, and others, as Executors, etc., Appellants. THE SAME v. THE SAME.

      Costs — judgment rev&i'sed on appeal, “costs to defendant to abide event” — only affects costs of appeal.

    Upon appeal from a judgment recovered by tlie plaintiff a new trial was granted, “with costs to the defendant to abide the event.” Plaintiff having recovered a judgment upon the new trial, taxed his costs for both trials. Held, that he was entitled so to do ; that the order of the General Term only deprived him of the costs of the appeal.
    Appeal from an order of the Special Term affirming a taxation of costs by the clerk.
    The case was twice tried, resulting in a judgment each time in favor of the plaintiff.
    . Hpon an appeal from the first judgment a new trial was granted “ with costs to the defendant to abide the event.”
    Hpon the taxation of costs after the second trial, plaintiff was allowed to include the bill of costs taxed upon the first trial.
    The defendant, upon the taxation, “ objected and excepted to each and every item in the foregoing bill of costs taxed on the first trial, on the ground of the language of the judgment of reversal, that only defendants should have costs on the new trial, if successful.”
    There was no question as to the propriety of the taxation, unless the order of reversal, by its terms, precluded it.

      Geo. W. Van Siclen, for the appellant.

      E. I. SpinJc, for the respondent.
   Ready, J.:

When a new trial is ordered the costs of the appeal are in the discretion of the court. (Code, § 306; Ayers v. Western Railroad Co., 49 N. Y., 660; Sturges v. Spofford, 58 id., 103.)

The costs in the action are a statutory right dependent upon success, except when they are as in certain cases designated (Code, § 306, supra), in the discretion of the court. When this court granted a new trial with costs to the defendant to abide the event, it was the costs of the appeal and not the costs in the action which were allowed. The plaintiff having succeeded was entitled to costs, but the defendant having reversed the judgment was allowed costs of the proceeding taken by him for that purpose, provided he succeeded in the action. The plaintiff could not have them in-any event, because he did not maintain his judgment. The defendant was not, when the appeal was taken, entitled to costs; he had not succeeded in the action; and the presumption must be against him, if any be indulged in, where the reversal of the judgment rests upon some error committed upon the trial. He was not the successful party, and still, insisting upon his non-liability for the plaintiff’s claim, he demanded a new trial. He was again unsuccessful, and the plaintiff became by the operation of the statute entitled to the costs in the action, except the costs of the appeal. These costs were awarded him, and properly. He was the successful party. The provision in the Code allowing a party to offer to let the plaintiff take judgment for a sum named, was designed to protect him against unnecessary litigation; and where he does not avail himself of it the burden imposed by the controversy is voluntarily assumed. He cannot complain if proceedings- which he has rendered necessary by his refusal to pay or adjust a legal demand are attended with expenses which he is required to pay.

We think, for these reasons, that the appeal from the taxation was not well taken, and that the order appealed from relating thereto should be affirmed with ten dollars costs and the disbursements of this appeal. We have examined the appeal from the order making an allowance of five per cent on the amount of the judgment, and which is about $215. We think the various proceedings in this action, including a commission and two trials, will warrant the allowance made.

We think the order in that respect should also be affirmed, with ten dollars costs and the disbursements of the appeal.

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

Orders affirmed with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    WILLIAM WARD, Respondent, v. SARAH JAMES, Impleaded with others, Appellant.

      Foreabswe — stay of proceedings — adjournments — auctioneer's fees — referee’s fees.

    Where, after a referee has been appointed to sell real estate, in pursuance of a judgment of foreclosure, and a notice of sale has been duly published, the defendant serves an undertaking to stay proceedings upon appeal, in pursuance of section 341 of the Code, the plaintiff is not required to abandon the proceedings instituted by him, but may adjourn the sale .until it can be determined whether or not the sureties will justify.
    No fees can be allowed to an auctioneer for services rendered upon the adjournment of a sale by a referee.
    A referee is only entitled to receive the same fees for selling real estate, as by law is allowed to a sheriff.
    Appeal from an order of the Special Term allowing certain costs and disbursements, and directing the same to be paid to the appellant.

      Edward D. James, for the appellant.
    N o appearance for the respondent.
   Davis, P. J.:

Costs and fees as between parties to an action, are the creatures of statute. Where no statutory right to charge or allow them is shown, no legal right exists. (Downing v. Marshall, 37 N. Y., 380.) The question in this case is not, therefore, what the referee ought to have for his services and disbursements, but what the law allows; and the court is bound to administer the law as it is found to be declared by statute. This was an action for the foreclosure of a mortgage. The plaintiff recovered a judgment directing a sale. A referee was appointed to make such sale, who prepared and inserted an advertisement of sale in the Daily Register. The defendant served notice of appeal from the judgment, and procured a judge’s order fixing the amount of security for the purpose of staying proceedings. She gave an undertaking with two sureties in the amount so fixed, accompanied by the affidavit of the sureties that they were each worth double the amount specified in the undertaking, as required by section 341 of the Code. These proceedings were completed on the day before the day fixed in the notice, for sale, and were served on the plaintiff’s attorney. The referee attended with an auctioneer for the purpose of making-sale, but, on being served with a copy of the notice of appeal and undertaking, he adjourned the sale for one week, and afterwards made three further adjournments, all of which were advertised in the Register, and then the proceedings were dropped. The affidavit shows that these several adjournments were made at the direction of the plaintiff’s attorney, for the purpose of giving the defendant an opportunity to perfect her undertaking, by the justification of the sureties, or of other sureties, the first having failed to justify. Section 341 of the Code gives the plaintiff the right to except to the sureties in the undertaking within ten days after notice of the appeal; and provides that unless they or other sureties justify, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. As steps to justify before the judge were taken in this case, it is fair to presume that due exception to. the sufficiency of the sureties was made by the plaintiff’s attorney. Under such circumstances, we think the right to adjourn the sale until it should be determined whether or not the sureties would justify, properly, existed. The stay was a contingent one, and would, by the provisions of the Code, have ceased upon failure to justify; and the plaintiff was not required to abandon the steps already, taken before notice of the appeal was given, until the sureties had completely justified. We think that reasonable adjournments may be had in such cases until the justification shall be complete. In our opinion, the expenses of advertising were properly chargeable. Their amount, however, is regulated by statute; and if not charged, as defendant alleges, in accordance with the statute, she is entitled to have them taxed, and reduced to the amount fixed by statute. The charges for auctioneer’s fees on adjourning the sale are not allowable. No statute gave such fees at the time these proceedings were had. The only way in which auctioneers could be compensated upon such sales was by making their fees a part of the terms of sale, to be paid by the purchasers; and if that course was not abused to the prejudice of defendants, there would be no reason for the court to interfere. In this case there was no sale, and no statute is produced to us showing that fees for adjournments by auctioneers can be charged in such cases.

A gross sum of fifty dollars was allowed to the referee. Doubtless, this was no more than a fair compensation, but its allowance was erroneous. The court had no power to award it. This court had occasion to examine the question of referees’ fees in Innes v. Purcell (2 N. Y. S. C. [T. & C.], 541). Where referees’ fees are in dispute they are the subject of taxation.

It follows from these views, that the order of the court below must be reversed, but, under the circumstances, without costs; and an order entered directing that the costs claimed in this case be adjusted by the clerk of the court, in accordance with the provisions of the statute and the decision of the court in the case above referred to.

Daniels, J., concurred.

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

Order reversed without costs; order entered directing that the costs claimed be adjusted by the clerk, in accordance with the provisions of the statute, and the decision of the court in the case referred to in the opinion.


text:
    JOHN MYER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Writ of error — what errors will be considered on — chcm'ge of judge.

    Upon the trial of the plaintiff in error for rape, the court refused to charge that he must have “ accomplished his purpose in spite of the utmost reluctance and resistance on her part.” The prisoner was convicted of an assault with intent to commit rape. Upon a writ of error to review this conviction, held, that as the refusal to charge, even if it were error, did not in any way affect the crime of which he was convicted, but only that of which he was acquitted, it furnished no ground to reverse the judgment.

      Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error of an assault with an intent to commit a rape.

      Wm. T. Howe, for the plaintiff in error.

      B. K. Phelps, district attorney, for the people.
   Davis, P. J.:

The prisoner was indicted for the crime of rape. But one of the exceptions taken in the course of the testimony is urged upon our attention by the counsel for the prisoner. That is said in his points, to be found at folio 68 of the error book; and on the points is stated as follows : ' “ The witness John Koehler was asked if he bad had intercourse with this woman (meaning the prosecutrix). The court ruled out the question. This was clearly error.”

On referring to “ folio 68 ” no such question and no such ruling are to be found. The counsel was there examining the witness as to the complainant’s character. He asked: “ Do you know this woman’s character ? ” The witness replied : “No, I don’t.” The counsel then asked: “You have a good deal of intercourse with her?” This question was objected to and dropped, without ruling or exception. Of course in the absence of a ruling and exception, there is nothing for us to consider. But the question itself did not relate to sexual intercourse; it apparently related to innocent general or business intercourse, from which knowledge of her general character might be derived.

We have looked at all the exceptions taken in the course of the trial prior to the charge, although they are not pressed upon us in the points, and find none of sufficient importance to justify a reversal.

At the close of the charge of the court, the counsel for the prisoner asked the court “ to charge the jury, in order to find the prisoner guilty of the charge, they must find that he accomplished his purpose in spite of the utmost reluctance and resistance on her part.” The court responded :, “ If she consented, the criminal character of the offense is done away with ; ” and afterwards, on being asked if he declined to charge as above requested, the court answered, “ Yes, sir;” and an exception was then duly taken.

This refusal to charge is the alleged error chiefly relied upon by the prisoner’s counsel.

But in this ease, although the prisoner was indicted for rape, the conviction was of an assault with intent to commit rape, and for that crime judgment was pronounced upon him. The request related to a crime of which the prisoner was not convicted; and even if the refusal would have been clear error had the prisoner been convicted of rape, it is not perceived that any error can be alleged when the conviction is of an assault with an intent to commit rape. The prisoner cannot be said to have been legally injured in any degree by such a refusal. The charge requested would have been entirely inappropriate if the indictment had been for an assault with intent. It would in such a case have been gross error to have said, that to find the prisoner guilty, the jury must be satisfied that he accomplished his purpose in spite of the utmost reluctance and resistance on the part of the female assaulted. As we are considering a conviction and judgment of assault with intent to commit rape (which necessarily in this case, involves an acquittal of the crime of rape), we must confine ourselves to such errors, if any were committed, as can be said to have injuriously affected the prisoner in respect to the crime of which he was convicted, without regard to those which affected the crime of which he was acquitted. If a prisoner who is indicted for murder, be convicted of assault and battery, lie cannot allege on error that the court erroneously defined the crime of murder, or the several degrees of manslaughter.

We do not therefore, pass upon the question whether there was error in the refusal of the court to charge as requested, or in what was said in response to the request; nor whether exceptions were properly taken to raise the question of error which might arise by coupling the response with the request.

There are no legal grounds for disturbing the conviction and judgment, and they are therefore affirmed.

Beady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    JAMES DEVLIN, Plaintiff, v. JOHN SHANNON and others, Defendants. THE SAME v. THE SAME.

      Inquests — Mule 86 — Chancery practice.

    Rule 36, authorizing inquests to be taken in cases in which no sufficient affidavit of merits has been made and served, does not apply to actions in equity.
    In an action to foreclose a mortgage, an inquest taken by the plaintiff upon defendants’ failure to file an affidavit of merits, is irregular, and a judgment entered thereon will he set aside.
    Appeals from orders denying motions to open defaults in the above entitled actions.

      William A. Gomsen, for the appellant.

      Jacob A. Gross, for the respondent.
   Davis, P. J.:

These were actions in equity brought to foreclose mortgages of leasehold premises owned by the appellant Shannon. The appellant interposed answers alleging the defense of usury. No affidavit of merits having been filed under rule 36, the plaintiff moved the cases out of their order at the March Special Term, and took judgment by default. The defendants moved to open the defaults for irregularity, which motion was denied. These appeals are brought from the order of denial.

The defaults were irregularly taken.

Affidavits of merits to prevent inquests under rule 36 are not applicable to actions in equity, triable by the court. That rule does not extend inquests, in default of such affidavits, to actions in equity, but simply provides that inquests may be taken in actions out of their order on the calendar, in eases in which they were heretofore allowed, * * * provided a sufficient affidavit of merits shall not have been filed and served.” “ Inquests ” were, and still are, in use only in actions at law. They were never applied to suits in equity; but, under the ninety-first rule of the Court of Chancery, mortgage cases of the fourth class were entitled to a preference over any other cases of that class, unless the defendant, before the case was heard, filed with the register or clerk an affidavit that he had a good and meritorious defense, and that his answer was not put in for the purpose of delay; the filing of which affidavit must have been noted on the calendar. The fourth class of actions were those to be heard upon pleadings, or pleadings and proofs. There is really no analogy between the proceeding provided for by the ninety-first' rule of chancery, and inquests regulated by the thirty-sixth rule in courts at law ; and it seems very manifest that the thirty-sixth rule has not preserved the old chancery practice. If however it had, that proceeding was not taken in these cases, and the court, and counsel for the plaintiff, appear to have acted solely under the thirty-sixth rule of the court. (See Barb. Ch. Pr., vol. 2, p. 182, note 24; 3 Wait’s Pr., 44, 45 ; Van Sant. Pr., 332.)

The plaintiff did not move upon affidavits, or to advance the causes for trial, on the ground that the defenses were interposed for delay merely, or upon any other equitable ground. The action of the court in allowing the inquests was irregular, and the defaults should have been opened. We do not feel at liberty to try the merits of the cases upon affidavits interposed to oppose the motion. To do so is merely to hear one side upon that question; but we are strongly impressed with the idea that no substantial defenses exist. The appeals are properly taken, because the inquests were irregular; and it was a matter of right to the defendant that the defaults should be opened.

We think, however, in these cases, as sales have taken place, and purchasers have entered into possession and made repairs and improvements, the better course is to open the defaults so far as to allow the trial of the issues at Special Term, the present judgments to stand, and the question whether they should be vacated to depend upon .the result of such trial.

The orders below should be reversed, and an order entered to this effect, with ten dolla2\s costs of one appeal and disbui’sements.

Daotels, J., concurred; Beady, J., concurred in the result.

Orders reversed and order entered according to opinion, with ten dollars costs,


author: Daniels, J.:

text:
    THE PEOPLE ex rel. LOUISA DOUAI WEHLE, Appellant, v. WILLIAM C. CONNER and others, Respondents.

      Sheriff’s hond —action upon — when permitted — Statute — mandatoi'y—permissive.
    The provision contained in section 8 oí title 5, chapter 8, part 8 of the Bevised Statutes, that upon due proof of any default or misconduct of the sheriff in his office “ the court shall order” his official hond to beprosecuted, is not mandatory but permissive, and the court will not allow such action to be brought unless it believes it to be just and proper so to do.
    Where, upon an appeal to the Court of Appeals from a judgment of the General Term, affirming a judgment recovered against a sheriff for a failure to return an execution within the time allowed by law, the sheriff gives the bond required by the Code to stay all proceedings upon the judgment pending such appeal, the court will not allow an action to be brought upon the official bond of the sheriff until such appeal be decided.
    Appeal from an order vacating an order, allowing- an action to be brought upon the official bond of the sheriff of the city and county of New York, for a failure to return an execution within, the time allowed by law.

      Charles Wehle, for the appellant.

      H. W. Bookstaver, for the respondents.
   Daniels, J.:

It appears by the papers before this court on the present appeal, that the relator, as plaintiff, recovered two judgments in the Superior Court of the city of New York, on which executions were issued to the defendant William 0. Conner, then and still the sheriff of the county of New York. The sheriff neglected to return the executions within the time prescribed by law. For such default an action was commenced, and judgment recovered against him for the amount due upon the executions. He appealed to the G-eneral Term of the Superior Court, where the judgment was affirmed; and he has since appealed to the Court of Appeals, giving upon that appeal the'undertaking required to stay" proceedings for the collection of the judgments.

Upon these facts, leave to sue the sheriff’s bond was denied; and that has been objected to as erroneous, because of the direction contained in the statute, that upon proof of his default, the court shall order that such bond be prosecuted.” But while the terms used in the statute are, in form, mandatory, it is evident, from the fact, that an action cannot be maintained without leave of the court; that they were not designed to be so construed and applied. If the party having a right to redress, of the description mentioned in the statute, had been intended to be invested with an absolute and unqualified right to sue the bond, no precedent application to the court for leave to do so would have been rendered necessary, as it has been. (3 R. S. [5th ed.], 779, §§ 1, 3.)

The object of requiring an application to be made for leave could have been nothing less than to require the court, before it should be given, to make such an investigation into the case alleged as would enable it to determine whether the suit would be just and proper. The power to give the leave implied the existence of authority to deny it. The proceeding provided for was evidently intended to protect the sheriff and his sureties against needless actions ; and, at the same time, to allow all such suits upon the bond as should appear to be reasonably necessary.

By the judgment recovered in the action against the sheriff, a recovery has been had for the amount he has become liable to pay. And that has been so far secured, in the manner provided for by the Code of Procedure, as to stay the plaintiff’s proceedings for its collection until after a decision shall be made upon the sheriff’s liability by the Court of Appeals. By a suit upon the bond nothing more could, for the present, be accomplished. The unsettled point of actual liability would still be an open subject of litigation, following the same course as the suit against the sheriff alone. It would be unreasonable and oppressive to- subject him and his sureties to another action, which would necessarily be attended with precisely the same result as the one now in course of prosecution. And it would violate the policy and spirit of another provision of the statute, in terms requiring the remedy to be exhausted against the sheriff before redress can be secured from his sureties. • (3 R. S. [5th ed.], 781, § 15.) That can be as completely done in the action now pending as it could be by a suit upon the bond itself. And as the plaintiff elected to pursue that remedy, it is no more than just that its final result shall now become known before leave is given to sue the bond. If the judgment shall be affirmed, the plaintiff will be very likely to secure satisfaction for her demand by means of the undertaking given upon the appeal — even if the sheriff shall prove to be, as it is alleged he is, insolvent. It has been urged that the sureties in that undertaking are not of sufficient ability to pay the judgment in case of its affirmance. But as they justified in the amount required to render the undertaking effectual as a stay, there seems to be no sufficient foundation for that suspicion.

The proceeding already instituted for the purpose of securing redress, and now before the court of last resort, furnished a very good reason for the denial of the application made to sue the bond.

Another suit for the same end cannot be necessary until a final decision shall be procured, settling the rights and liabilities of the parties upon the appeal now pending. It could not have been designed by the statute that needless litigation should be sanctioned and directed by the court. And that would surely be done by allowing the bond to be, at this time, made the subject of an action to collect the money, which it is probable will be secured in the suit so nearly terminated.

The terms of the statute, though in form mandatory, must have been intended to invest the court with power to be exercised only as it should be required to promote the obvious ends of justice; and that has not infrequently been held to be the case.

Where similar language has been used by the legislature, the word may ” has often, been held to be the equivalent of must” or shall,” according to the subject-matter affected by the statute. And the word “ shall ” lias also been so far restrained as to result in the creation of simply a discretionary authority. (Malcom v. Rogers, 5 Cow., 188; Matter of Douglass, 58 Barb., 174; In re N. Y. Prot. Epis. Public Schools, 47 N. Y., 556; Willetts v. Ridgway, 9 Ind., 367; Wheeler v. City of Chicago, 24 Ill., 105.) And by subjecting the application to the action of the court, it must have been intended that the term should be understood as controlled by a like restraint, as it has been used in the statute now before the court.

It bas been further urged, in support of the appeal, that the statute declaring that for any violation of the provision directing that the sheriff should execute and return process delivered to him etc., according to the command thereof, he shall be liable to an action at the suit of the aggrieved party, in addition to any other fine, punishment or proceeding authorized by law, requires the application made to be successful. (3 R. S. [5th ed.], 739, § 98.) But there is clearly nothing in this provision which would render the sheriff liable to the different proceedings mentioned at the same time. They may all be prosecuted until satisfaction shall be finally successively secured. But in the exercise of the equitable authority of courts of justice, they should not all be allowed to be carried on at the same time when it is highly probable, as it appears to be in this case, that the one first instituted will result in satisfying the entire demand of the party entitled to redress.

The order appealed from should be affirmed, with ten dollars costs and the disbursements on the appeal.

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

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    THE PEOPLE ex rel. THE GALLATIN NATIONAL BANK, FREDERICK D. TAPPAN and others, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Defendant.

      National bamh — Taxation—Aot/ual, not par value of stoeh, the basis of — Surplus.
    The actual and not tlie par value is the standard to he adopted by commissioners of taxation, in assessing the value of shares of the capital stock of a national bank
    Such valuation is not affected by the fact that a portion of the capital of the bank is invested in United States bonds, or by the fact that the bank is required by law to accumulate and retain a reserve.

      The actual value of the stock, diminished hy the proportionate value of the real estate owned hy the bank, furnishes the proper sum upon which to assess the tax.
    Weit of certiorari to inquire into tbe validity of a tax imposed on shares of tbe Gallatin National Bank.
    Tbe Gallatin Bank is a national banking association organized in conformity with tbe act of congress passed 3d June, 1864, and pursuant to an act of tlie legislature of this State passed 9th March, 1865. (Chap. 97.)

    Tbe bank bad been previously organized under tbe general banking law of this State, but on reorganization it surrendered its charter as required by tbe enabling act, and in conformity with section 16 of tbe act of congress.it at once invested one-third of its capital in government bonds; and in conformity with section 33 it has reserved from its earnings an accumulated surplus of $300,000.
    The bank’s assets were as follows :
    Capital. $1 , 500 , 000
    Surplus. 300,000
    Premium on $591,000 United States bonds, over 20
    per cent.;.. 118)200
    $1,918,200
    This amount divided among tbe stockholders would give, per each share, sixty-three dollars and thirty cents. They were assessed by the commissioners at fifty-nine dollars each. The assessed value of the real estate of the bank was $50,000. The par value of each share, fifty dollars.
    The commissioners of taxes, in determining the tax to be imposed, included in the estimate of value the surplus and the reserve, deducting the assessed value of the relator’s real estate. The president of the bank objected and offered proof of the above facts. The commissioners, notwithstanding, made the assessment which the relator now seeks to have corrected.

      D. D. Lord, for the relators.
    The assessment violates the clauses in the act of congress, 3d June, 1864, and in the State enabling act of 9th March, 1865, prohibiting an unfavorable discrimination against national banks. The intention of these clauses was not limited merely to requiring that the taxes should be at the same per centage for both kinds of banks, but that no unfair discrimination should be made against the national banks, whether in the rate of tax, assessment of taxable value, or otherwise. (Austin v. Barton, 14 Allen, 365.) This prohibition is violated even when one uniform rate of taxation is applied to both classes of banks, if their constitutions are so different that it acts favorably on one class and unfavorably on the other. Such a rule, though literally uniform, might drive the national banks out of existence as effectually as an unequal assessment of the taxable value, or an unequal per centage of tax imposed. In the present case the rule mentioned is very unequal and injurious to the relators. The surplus and the premium on government bonds are included in the assessed value of the shares. They enter into the limit of value, stated by Mr. Tappan, which it appears by the return formed the basis of the assessment made by the commissioners. The retention of these bonds as well as of the surplus is not, by the voluntary action of the bank, for its own profit. So far as relates to the bonds the bank’s interest would be promoted by selling them, and the surplus also might advantageously be divided amongst the shareholders. The bank is compelled to retain them from motives of public policy. As the State banks are not under a similar obligation, the rule adopted by the commissioners compels shareholders in national banks to pay on a'surplus, while the shares in the State banks are not taxable above the par value, except at the election of their owners.

      Hugh L. Cole, for the respondents.
    The actual value and not the par value, where the two do not coincide, is the standard to be adopted by the commissioners in assessing the value of shares of the capital stock of a national bank upon the stockholders thereof. (Chap. 761 of the Laws of 1866; People v. The Assessors of Albany Qity, 2 Hun, 583 [1874] ; Hepburn v. The School Directors of the Borough of Carlisle, Pennsylvania, 23 Wall., 480 [1875].) The stockholders cannot avoid taxation on the actual value of their stock by the fact that a part, or even the whole, of the capital stock 'of the bank was invested in United States bonds. (Van Allen v. The Assessors, 3 Wall., 573; The People v. The Commissioners, 4 id., 244.)

       Decided November 15,1876.

   Beady, J.:

The actual value of the shares of the relators’ stock is the proper standard in assessing the tax to be paid.

The par value does not control. (Laws 1866, chap. 761, vol. 2, page 1641; 1 Rev. Stat., 393, § 17.) It was the duty therefore of the respondents to ascertain and act upon the true value of the stock as they have done. (People v. The Assessors of Albany City, 2 Hun, 583.) The provision, that the tax so assessed shall not exceed the par value, in the enabling act of congress of 9th March, 1865, does not affect this principle. The impost may be upon a sum exceeding the par value when that sum represents the actual value of the share.

The precise question is settled by the highest authority. (Hepburn v. The School Directors of the Borough of Carlisle, Penn., 23 Wall., 480.) The only restriction is, that the share shall not be taxed at a greater rate than is imposed upon other moneyed capital in the hands of individuals of this State. This limitation is not affected by the fact that a part of the capital stock of the bank is invested in bonds of the United States (Van Allen v. The Assessors, 3 Wall., 573; The People v. The Commissioners, 4 id., 244), or by the fact that the bank is obliged by law to accumulate a reserve. The respondents, in determining the tax to be imposed, adopted a standard of value founded upon the statement of. the relators’ president, and ascertained by deducting from such value the proportionate share of the assessed value of the relators’ real estate. The reserve, which is a part of the capital of the bank and the surplus as well, were properly included in the estimate of value. Both contribute to the value of the shares, and are necessarily, therefore, constituent elements of such value.’ The interest of the shareholder entitles him to participate in the net profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of his shares; and upon its dissolution, or termination, to his proportion of the property that may remain of the corporation after the payment of its debts. This is a distinct, independent interest or property held by the shareholder, like any other property that may belong to him, and, we add, of course subject to taxation. (Per Nelsoít, J., in cases in 3 and 4 Wall., supra.) It is quite apparent from these adjudications and the principles enunciated by them that the respondents have acted properly, and that the writ must be dismissed with costs.

Present — Davis, P. J., Beady and DANIELS, JJ.

Writ dismissed.


author: Beady, J. ;

text:
    ELIZABETH DUSENBURY and MARY M. DE GUERRE, Respondents, v. PATRICK CALLAGHAN, Impleaded with others, Appellant.

      Fraudulent foreclosure — Action to recover damages against fraudulent purchase!’at sale — Pelease by plaintiff of all interest in property to person acquiring title from such purchaser — No defense to action — Payment —when third person relieved from liability by— Covenants of seizin and warranty — breach of

    Appeal by the defendant Patrick Callaghan, from an order denying a motion for leave to file and serve a supplemental answer in this action, setting up as new matter:
    First. A conveyance of the property and premises in question by the defendants Lehmaier and wife to Jonathan Hanson and Jonathan Hanson, Jr., dated on or about December 16, 1872, and recorded on or about January 4, 1873.
    Second. A conveyance of the property and premises in question by Jonathan Hanson and wife, and Jonathan Hanson, Jr., and wife, to Thomas Handibode, dated on or about March 8, 1873, and recorded on or about March 14, 1873.
    Third. A deed of release of the property and premises in question from the plaintiffs and their mother, the widow of William A. De Guerre, deceased, to Thomas Handibode, dated on or about April 19, 1873, and recorded April 21, 1873.
    Fourth. The consideration paid by said Handibode for such deed of' release, and the amount thereof, or for such other or further relief in the premises as may be just and equitable.
    Also an appeal from a judgment for $12,964.03 in favor of. the plaintiff against the defendant Callaghan.

      The action itself was originally brought by the plaintiffs, who are the daughters of W. A. DeGuerre, deceased, to redeem the premises on the south-west corner of Third avenue and One Hundred and Twenty-seventh sti’eet,-fifty feet on Third avenue and one hundred feet on One Hundred and Twenty-seventh street, from the foreclosure of a mortgage of $1,000, and a sale thereunder, which mortgage was foreclosed by and under the direction of the defendant Callaghan ; and also to charge the defendant Callaghan, as an equitable and constructive trustee, for the value of the said premises, less what he had paid thereon, on the ground that he had conspired and colluded with their attorney and guardian ad litem to defraud them, by controlling the foreclosure, and drafting and arranging the terms of sale so as to destroy all competition, thereby purchasing and bidding in the property himself, at the foreclosure sale, for $3,100, while the real value of the same was $12,000.
    Stead and Lehmaier were made defendants, as subsequent grantees of Callaghan, and the Equitable Life Assurance Society, as a subsequent mortgagee for $15,000.
    After the commencement of this action against the other defendants, the plaintiffs became convinced that they should not be able to bring notice home to such defendants of the fraudulent acts of the defendant Callaghan, and they abandoned that portion of their claim for relief, which included the right to redeem, and prosecuted this action solely against the defendant Callaghan, claiming to charge him, as a constructive trustee, for the fraud alleged in the complaint, and subsequently proved on the trial, which occurred only the week after the decision of this motion, from which an appeal is here taken.
    The defendant Callaghan moved to set up by supplemental answer that the plaintiffs had, after the commencement of the action, released to one Handibode, a grantee of the property from the Hansons, to whom defendants had conveyed, with convenants of seizin and warranty, all their interest in the premises, for the sum of $3,000; the deed providing that such release should not in any way be construed as affecting the personal claim of the plaintiffs-and their mother against defendant Callaghan, personally, as the same was set forth in the complaint herein.

      The motion was denied, on the ground that the release was no defense to the defendant in this action.
    The court at General Term say : “ It appeared upon the trial that the plaintiffs and their mothor received $3,000, jointly, from the holder of the paper title, which was paid to them for a release to him of all interest in the land.
    This payment and the instrument obtained by it removed a cloud upon his title arising from assumed errors or irregularities in the foreclosure proceedings, and prevented the plaintiffs from asserting any claim to the land. The defendant, prior to the trial, sought to set up this fact by supplemental answer, but the motion made for that purpose was denied, upon the ground that it constituted no defense. The defendant complains of this decision, and from the order made has appealed, as already suggested.
    The release which the defendant sought to interpose was given to the holder of the title without any concert of action between him and the defendant. It was procured, doubtless, to set at rest all questions about the title; and obtaining it prevented an eviction by the plaintiffs, or surrender to them for paramount title, or any assault upon the title by them. The quasi owner bought his peace, in other words. He had no remedy against the defendant on the covenant of seizin, for his grant was not from him.
    The defendant’s covenant was broken, if at all, as soon as the deed from him was delivered; and being then converted into a chose in action, did not run with the land or pass by the conveyance of his grantee. (4 Kent [11th ed.], p. 555 ; Blydenburgh v. Gotheal, 1 Duer, 197, and numerous cases cited; Bingham, Acknr., v. Weiderwax et al., 1 Comst., 509 ; Mott v. Palmer, id., 564.)
    He could have no remedy on the warranty, because he prevented by friendly compromise any eviction or obligation to surrender the premises to the plaintiffs under their claim of title. {Ingersoll v. Hall, 30 Barb., 392.)
    No action could be maintained without one of these elements. {Greenvault v. Davis, 4 Hill, 643; Fowler v. Poling, 6 Barb., 165; Blydenburgh v. Gotheal, 1 Duer, 176, 196, and cases cited; Beddoe v. Wadsworth, 21 Wend., 120.) The result was that whatever privity existed between him and the defendant was, in effect, extinguished, because it was created only by the covenant of war-rarity running with the land, and which was ineffective because the necessary conditions to its enforcement could not arise upon any claim of the plaintiffs. The money paid could not be regarded, therefore, as paid in his interest or for his benefit, for aught that appears in the case.
    The holder of the title was a stranger, paying the money for a specific purpose, and not with any intention to relieve the defendant from any liability which he' might have incurred. To be effectual, payment, if by a third person, must be made by him as agent for or- on account of the one liable, and with the prior authority or subsequent ratification of the latter. (Atlantic Doali Go. v. The Mayor, 53 N. Y., 64, and cases cited.) The only advantage to grow out of the recovery in this case, on the assumption that it affords complete indemnity, would be a probable right in the payor to recover back the money he paid, as suggested in Blealdey v. White (4 Paige, 654). The justice was right, therefore, in denying the motion for leave to file a supplemental answer. "We think it also proper to say that the mother of the plaintiffs, having a dower right in the property, and having reserved any right of action against the defendant Callaghan by the terms of the release mentioned, the plaintiff could not recover the whole value of the property in excess of what was paid by the defendant when he took the title, inasmuch as she had not joined in the action.
    This will not, however, prevent them from recovering their individual claims when established. Whether this defect can be cured by amendment or release it is not our province now to declare.”
    The judgment was reversed, however, because of the judge at Special Term having, through an erroneous impression, discredited the statements of two witnesses.

      J. 8. Bosworth, for the appellant. JD. MoMahon and Samuel A. Noyes, for the respondents.
   Opinion by

Beady, J. ;

Davis, P. J., and Daítiels, J., concurred.

Judgment reversed, new trial ordered, with costs to abide event; order appealed from affirmed, with costs.


author: Davis, P. J.;

text:
    EDWARD BRADLEY, Appellant, v. SAMUEL McLAUGHLIN, Respondent.

      Beferee — report of, on conflicting evidence— Findings that evidence “ leaves the mind in doubt ” — err-or — Mistrial.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. This action was brought to recover the value of professional services alleged to have been rendered by the plaintiff, a physician, for the defendant and one of his grandchildren. The referee, after finding that the plaintiff was a licensed and practicing physician, as alleged in the complaint, reported that, as to the other matters alleged in the complaint, he finds that the evidence leaves the mind in doubt as to whether services referred to therein were or were not rendered for the defendant, or at his instance and request, or that the defendant promised to pay for the same; and, therefore, as to these matters, he finds that the plaintiff failed sufficently to prove the same. And, for a like reason, he finds that the evidence leaves the mind in doubt as to the matters alleged by way of counter-claim in the second branch of defendant’s answer, and therefore defendant has failed to sufficiently prove the same.
    As matters of law, from the foregoing finding, the referee finds and decides that judgment must be given in favor of the defendant against the plaintiff for the dismissal of said plaintiff’s complaint.
    The court at General Term say: ' “As the referee sat in the capacity of both judge and jury, his decision may be regarded as in the nature of a nonsuit of plaintiff, and, in that view, could not, perhaps, be objectionable in point of form, if rendered in a proper case. The course of the referee in that aspect is not one to be commended, however, because it is not safe for imitation, and is likely to lead to injustice. It devolves upon the court the duty to inquire whether there was not, as to some one or more of the allegations of the complaint, evidence which required the referee to pass upon the questions of fact by a finding of the facts, one way or the other.

      On looking into the case, we find that there was no failure on the part of the plaintiff to give evidence to support all of the allegations of his complaint. On the contrary, he made out, on his part, a clear and satisfactory case by his own testimony, on which, with the corroborating proof, he was entitled, beyond doubt, to findings and judgment in his favor; but the defendant came in with flat denials of every thing, by his own testimony, thus producing a plain conflict of evidence (or at least of testimony), as to the facts alleged. If the case had been before a court and jury, there can be no doubt as to the course that must have been taken. The court must have sent the case to the jury to find the facts upon which the decision would depend; and it would have been palpable error for the court to have nonsuited the plaintiff, because the jury could not agree as to the facts. Nor could the court have taken the case from the jury “ because the evidence leaves the mind in doubt.” The questiou had become one of credibility upon conflicting testimony, and had thus passed beyond the control of the court. The case could not be disposed of until the jury had settled the conflict by a finding of fact, one way or the other. So, it seems to us, that where there is an abundance of evidence before a referee to support the allegations of either side, and the only question is to which side he shall give credit, it is his duty to pass upon the facts, aud find in one direction or the other, and not say, as in this case, the conflicting evidence “ leaves the mind in doubt; ” and, therefore, I dismiss the complaint, because of my inability to solve the doubt. Before a jury, such a conflict is -easily disposed of by a verdict against the party holding the affirmative; and that is a short mode of finding the facts. But before a referee under the Code, a more formal mode of finding the facts, by a report in writing, is requisite; and it follows that in cases where conflicting evidence leaves the mind in doubt, it is the duty of the referee to find the facts adversely to the party holding the affirmative, and not to send up to the court a report of his inability to find them. We are therefore of opinion that the report of the referee is an improper and insufficient one, under the facts and circumstances of this case; and, as proper exceptions were taken, we think the case ought to go back for a new trial on the ground of mistrial; for the same reason, in substance, as a case stands for retrial where a jury fail to agree because of conflicting evi dence.”

      E. Y. Bell, for the appellant. Briggs da Fellows, for the respondent.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

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


author: DaNiels, J.;

text:
    FREEMAN D. MARCKWALD, Plaintiff, v. THE OCEANIC STEAM NAVIGATION COMPANY (Limited), Defendant.

      Bill of exceptions — Settlement of case presenting only questions of lew — insertion of all the evidence in, not pi'oper — Statement of facts established, by the eminence — substituted for the evidence, when.

    Appeal from an order denying a motion for the resettlement of a case containing exceptions. The motion was made on the ground that a bill of exceptions should contain only so much of the evidence as should be necessary to present the questions of law raised on the trial.
    The question presented related to the insertion of certain depositions and the stenographic notes of the testimony of a witness, in the case.
    The court at General Term, after deciding that their insertion was unnecessary, further say : “ The practice of inserting the evidence at large in cases presenting only questions of law is not to be commended ; the parties, their counsel and the court are all interested in securing its discontinuance. It imposes unnecessary expense upon the parties and at the same time complicates their controversies. In many cases the needless cost of procuring full notes of the evidence, and afterwards printing them for the counsel and the court, will equal or exceed all the other expenses of the litigation. What would more than compensate counsel for putting the case in a concise and convenient form has to be paid for writing out the notes or printing the papers, and that too without dispensing with this labor; for that which should be done when the case is made and settled, must afterwards be carefully performed if the briefs for the argument are properly made out. The labor in the end is not dispensed with, but its performance is required after the recollections of the trial and the points reserved have become obscured, and all must be learned over again.
    A presentation of all the evidence renders it much more laborious for the court to ascertain and determine the points involved. They are confused and concealed by it, and in some instances, certainly, imperfectly considered, by reason of the difficulty experienced in gathering what may be the relevant and important evidence for that purpose. It not unfrequently happens that in a case of 100 pages all the material evidence could be well contained in less than half a dozen. Much time is lost and great labor is bestowed, in sifting that which is serviceable from the great mass of what is worse than useless in the case. That time should be devoted to the consideration of the points perspicuously presented by the facts, or by only so much of the evidence as may be required to develop them, instead of being wasted upon a service that is beneficial to no one. The idea that it can do no harm to make papers unnecessarily voluminous has arisen out of a misapprehension of the fact. It is often a positive injury to the parties, for it deprives the courts of the ability to give the real controversy the attention it is often found to require, and which the pressure of other official duties often precludes it-from receiving. The practice in this respect cannot be too soon corrected, and the defendant’s motion for a resettlement of the case was a step in that direction. (Dunlap v. Eawldns, 2 N. Y. S. C. [T. & 0.], 292, 298, 299; Rowland v. Woodruff, 60 N. Y., 73.) * * *
    It has been objected 'that the order made is not appealable ; but the addition of the evidence secured by the depositions and the detailed examination of the witness Pennell, would very materially increase the expenditures required to be made to bring the case before the court. And as that would have to be borne by the defendant, in order to secure a hearing of the exceptions, it rendered the order appealable, even though discretion was to a certain extent involved in making it. (People v. New Yorlc Central R. R. Co., 29 N. Y., 418; Matter of Duff, 41 How., 350.)

      The order appealed from should be reversed, but without costs, and an order entered directing a resettlement of the case, by excluding from it the depositions and the stenographic notes of the witness Pennell, and substituting in place thereof, so far as that may be proper, a statement of the facts which such evidence proved, or tended to prove, upon the trial.”

      William A. Goursen, for the plaintiff. Everett P. Wheeler, for the defendant.
   Opinion by

DaNiels, J.;

Davis, P. J., concurred; Beady, J., concurred in the result, on the strength of rule 43.

Order reversed without costs; order entered as in opinion.


author: Talgott, J.:

text:
    HORACE J. THAYER, Respondent, v. SIMON B. MANLEY, Appellant.

      Pra/adulent representations — Promissory notes — obtained by — Measure of damages — where notes are not transferred before maturity.

    Upon the trial of an action brought by the plaintiff to recover damages for fraudulent representations, by means of which he was induced to deliver to the defendant his three promissory notes, each for $500, with interest, it appeared that all the notes were still in the possession of the defendant, and that one of them was then overdue. The court charged that the plaintiff was entitled to recover the face of .the notes, with interest. Upon appeal from a judgment in favor of the plaintiff, held, that this was error ; 'that the verdict of the jury established the invalidity of the notes in the hands of the defendant; and that, as to the note then overdue, the plaintiff was only entitled to nominal damages; that he was entitled to recover the face of the other two, with interest, as they might be transferred before maturity to bona fide purchasers in good faith.

      Held, further, that if the defendant had canceled or surrendered the other notes at the trial, plaintiff could only have recovered nominal damages for them also.
    Appeal from an order denying a motion for a new trial, made upon a ease and exceptions, after a verdict and judgment in favor of the plaintiff.

      Sherman 8. Rogers, for the appellant.

      O. D. Murray, for the respondent.
   Talgott, J.:

This action is brought by the plaintiff to recover damages for certain false and fraudulent representations, by means of which the defendant procured the plaintiff to execute and deliver to him (the defendant) three promissory notes for $500 each, payable to the defendant or bearer, with interest, at two, three, and four years from date respectively.

The notes were all dated on the 8th day of October, 1812. The suit was commenced in the month of August, 1874, and was tried in January, 1875. The defendant continued to be the holder of the three notes at the time of the trial, and produced them on the trial; but, so far as the case shows, did not cancel them or any of them, and did not deliver or offer to deliver them to the plaintiff. In fact, the defendant was placed in an embarrassing position in reference to the cancellation or return of the notes. He contended before the jury, and gave evidence, as the ease states, tending to disprove the allegations of the complaint, and it could only be known after the verdict was found, whether the jury would sustain the claims of the plaintiff or otherwise.

The only question presented on the appeal is in relation to the measure of damages, and it is certainly one not free from difficulty. Undoubtedly the measure of damages for converting a negotiable promissory note is prima facie the amount of the note, with the interest. But this is where the note is the obligation of a third party, and its value is to be presumed to be the amount secured ■by it, unless some evidence is given tending to impair that value, such as the insolvency of the maker or the invalidity from some cause of the note. The cases of Ingalls v. Lord (1 Cowen, 240); Potter v. Merchants' Bank (28 N. Y., 641), and Booth v. Powers (56 id., 22), (the latter of which seems to have been solely relied on as furnishing the ground for refusing a new trial at the Special Term), were all cases where the note of a third party had been converted, and the rule before referred to, of course, applied.

But an action may be maintained for the conversion of a note made by the plaintiff (Murray & Ogden v. Burling, 10 Johns., 172; Decker v. Mathews, 12 N. Y., 313); but in both these cases the note had been negotiated, and in the one case paid by the maker, and in the other, though it was still outstanding, it was said, in the only opinion delivered, that the plaintiff was liable upon it, and the presumption was that he had paid it voluntarily, or would be compelled to pay it.

In this case the payee still holds the notes, and one of them has become over-due in his hands. "What damages then has the plaintiff sustained Í The court instructed the jury that, as a matter of law, the plaintiff was entitled to recover the face of three notes, with the interest. In the case of Decker v. Mathews (supra), the court said: The note in the hands of any one not a bona fide holder was without value; and it maybe conceded, that had the defendant destroyed it, no action could have been maintained against him by the plaintiff. But the defendant Mathews took the note and by his wrongful act, caused it to become valuable in the hands of a bona fide holder; and he received, as the fruit of his wrongful act, the full amount of such value and made the plaintiff liable therefor; and herein is the gravamen of the action.”

As to the note still in the hands of the defendant and past due, the verdict in the case .shows that the note is invalid as between the parties, and there is no possibility that it can be in the hands of a bona fide holder for value so as so enable such holder to enforce it as against the plaintiff. It was held expressly in Booth v. Powers (supra), that in an action for damages for converting a note, the fact that the note was invalid might be shown upon the question of damages. The verdict in this case would be conclusive of the invalidity of the notes; and as to that past due would be evidence of the fact in the hands of any subsequent holder.

We think it clear, therefore, that as to'the matured note, the plaintiff, at best, was entitled to recover only nominal damages, and that as to the other two notes he was entitled to recover the face of them, principal and interest, as they stood at the time of the trial, because the defendant had it in his power to transfer them to a bona fide holder for value; in which case the plaintiff would become liable to pay, the same as he was in the case of Decker v. Mathews.

If, however, the defendant had seen fit to cancel the notes on the trial, or to return them to the plaintiff, we do not see how the plaintiff could have recovered more than nominal damages; and the right of cancellation or return of the notes not yet matured, will be available on another trial.

New trial ordered, costs to abide the event, unless the defendant shall cancel and return the notes and pay the costs of the action within thirty days. In the event he so cancels and returns the said notes and pays said costs, including the costs of the appeal, the complaint to be dismissed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Ordered accordingly.


author: Taloott, J.:

text:
    DANIEL C. MUNRO and JOHN MUNRO, Appellants, v. JOHN M. WHITMAN, Respondent.

      Partnership — what constitutes — agreement simply to shrn'e profits.

    Plaintiff and defendant entered into an agreement, whereby plaintiff was to furnish. the capital to carry on the business of manufacturing and selling wooden-ware, the latter to receive one-third and the former two-thirds of the profits, nothing being said in the agreement as to any possible losses. Held, that the mere fact that no provision was made in the agreement, whereby the defendant was bound to pay his proportion of the losses, did not prevent the parties to the agreement from becoming partners inter sese.

    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought to secure an accounting between the parties hereto, the plaintiffs claiming that they and the defendant were copartners. The referee found “ that on or about the 10th of May, 1866, the plaintiffs and defendant entered into business relations as follows : The plaintiffs, who owned certain real estate in Chicago, Illinois, suitable for the manufacture of wooden-ware, agreed to furnish the same and necessary stock to carry on the manufacture and sale of wooden-ware, and the defendant agreed to take charge of the said business and superintend the same, and it was agreed between the parties that the plaintiffs should have two-thirds of the profits, and the defendant should have one-third of the profits.

      Pursuant to such arrangement, the parties aforesaid soon thereafter commenced the manufacture and sale of wooden-ware in Chicago, Illinois. The plaintiffs, from time to time, as requested by defendant, furnished capital for said business, until in or about the month of April, 1868, in all to the amount of about $11,154.68 more than they drew out, and the' defendant during that time continued to labor and superintend the business.
    About the time of entering upon said enterprise the parties issued a card as follows: “ Chicago Tub and Pail Manufacturing Company, Munro, Whitman & Co., proprietors; manufactures of wooden-ware, pails, tubs, churns, half-bushels, etc., North pier, Chicago. P. O. box 2794. D. C. Munro, J. Munro, J. M. Whitman.” This was used by the parties in advertising said business.
    When the contract for engaging in the business was entered into, nothing was said about losses, and none of the parties contemplated such a contingency.
    No profits were made, but there was a loss of nearly all the stock thus put into the business.
    The defendant received while thus at work about the sum of $638.88 from the avails of such business, which he used for his own support.”
    He also found, as matter of law, that the plaintiffs and defendant were not partners, and that the plaintiffs were not entitled to an accounting, and accordingly dismissed the complaint.

      Munro dk Mavis, for the appellants.

      Sedgwiels, Kennedy & Traey, for the respondent.
   Taloott, J.:

This action was commenced for an accounting as between partners. The referee has dismissed the complaint, on the ground that there was no partnership. In this he has proceeded entirely upon the ground that, at the time of the agreement by which the relations of the parties was established, nothing was said about any possible losses, none of the parties contemplating such a contingency. In the conclusion that the parties were not partners, because of the absence of any agreement to share the losses, the referee clearly committed an error. True, a person may, by the agreement between the parties, be entitled to share the profits of the business without constituting him a partner, but in such case it must appear that he was to receive a share of the profits as a compensation for his labor and services. The whole foundation on which the principle rests is, no partnership inter sese was intended by the parties.

That the agent is not clothed with the general powers, rights and duties of a partner; that the share of profits given to him is not designed to make him a partner, either in the capital stock or the profits, but to excite his diligence and secure his personal skill as an agent of the concern, and is contemplated merely as a compensation therefor. (Story on Partnership, §§ 47, 48.) A lawful agreement may be made that one of the partners should bear a less proportion, or even no part 'of the losses. (Id., §§ 22, 23.)

In the case of Lamb v. Grover (47 Barb., 317), chiefly relied upon by the referee, Lamb agreed to furnish groceries to sell, in the village of Oakland, and to pay the rent of the store in which the goods were to be sold, and Adams agreed to sell the groceries for one-half of the profits on the sale of the goods. The referee found in that case, that the share of profits to be received by Adams was in payment and in compensation for the services rendered by him in the business. In such a case it is clear that there was no partnership created by the agreement.

The doctrine that persons cannot be partners as between each other, unless they agree to participate in the losses, is founded on the language of the judges in many cases, and in some is the apparent ground of the decision. (Parsons on Partnership, chap. 5, p. 41, note a.) But.the result of all the cases and the modern doctrine seems to be, that the exemption from losses is a fact which, though not conclusive, is strong evidence that the party thus exempted is not an actual partner; and, taken in conjunction with other circumstances, may clearly show that fact. (See Parsons on Part., note a, supra,; Vanderburgh v. Hull & Bowne, 20 Wend., 70; Burckle v. Eckart, 1 Denio, 337; S. C., 3 Comst., 132 ; Ex parte Langdale, 18 Vesey, 301.)

Bindley states as leading propositions in the law of partnerships as follows:

“ Prop. 2. Partnership is prima faoie the result of an agreement to share profits, although nothing may be said about losses.
“ Prop. 3. Partnership is prima, facie the result of an agreement to share profits; although community of loss is stipulated against.” (Lindley on Partnership, book 1, chap. 1, pp. 13, 17.)

The fact reported in the case before us, and which the referee relies on as conclusive to show, of itself, that there was no partnership, brings the case within the second proposition thus stated by Mr. Lindley, and affords prima facie evidence that the agreement between the parties did contemplate a partnership.

There was much evidence bearing upon the question whether the intent of the parties was to create a partnership inter sese, and the referee should have determined and reported whether the share of the profits was simply intended as a compensation to the defendant for the time and services employed by him in the business, or whether, from the agreement to divide the profits, the usual result of the creation of a partnership followed. The fact that nothing was said about participating in the losses is only evidence on the question of the intention, and may, in conjunction with the other circumstances of the case, clearly establish that the parties did not intend to create a partnership. So, too, the assumption of a firm name, though affording strong evidence that a partnership was contemplated, and probably conclusive in favor of third parties, is not at all conclusive as between the parties themselves, who might, notwithstanding, lawfully agree that as between themselves, the defendant was not to have the rights, or come- under the obligations of a partner.

Judgment reversed, and a new trial is ordered before another referee, costs to abide the event.

Present — MulliN, P. J., SMITH and Taloott, JJ.

Judgment reversed, and new trial ordered before another referee, costs to abide event.


author: Taloott, J. :

text:
    CHARLES T. MOORE, Appellant, v. C. CERESA McCLURE, Respondent.

      Cause of action— Com/plaint — when sufficient — Promissory note signed “J. 8. McClure, agent" —liability of principal upon.

    The complaint alleged that the defendant, by J. S. McClure, her agent, made and delivered her promissory note, in writing, setting forth a copy of the note, signed J. S. McClure, agent, and alleging that the consideration of the note was goods sold to the defendant. The defendant demurred. The demurrer was sustained at Special Term on the grounds that the note did not refer to the defendant by name, and did not show that McClure had authority to sign as her agent. Held, that the complaint stated facts sufficient to constitute a cause of action.
    That, under the allegation that the defendant made and delivered her promissory note, it would be competent to show that the person signing the note was duly authorized by her so to do.
    The fact that the name of the defendant did not appear upon the face of the note, would not prevent the plaintiff from introducing evidence to show that she was bound thereby.
    Appeal from an order made at the Special Term sustaining a demurrer to the second count of the complaint herein.
    The count was as follows : “And for a second and further cause of action the plaintiff alleges that on the 7th day of January, 1875, the said defendant, by J. S. McClure, her said agent, made and delivered to this plaintiff her promissory note in writing, of which the following is a copy :
    Canandai&ua, January 1th, 1874.
    Twenty days after date I promise to pay to the order of C. T. Moore sixty-one and sixty-two one-hundredths dollars, at Williams & Remington’s Bank, value received, with use and exchange on New York.
    JOHN S. McCLURE, Agent.”

    That said note was given by said McClure to plaintiff, for and as .the agent of said defendant, and that said note was given by said defendant, by her said agent, for and on account of goods, wares and merchandise theretofore sold and delivered by said plaintiff to said defendant.

      J. E. Roe, for the appellant.

      Qeorge F. Jackson, for the respondent.
   Taloott, J. :

This is an appeal from an order made at the Special Term in Monroe county sustaining a demurrer to the second count of the complaint. The cause of demurrer assigned is, that the count does not state facts sufficient to constitute a cause of action.

The count contains, in substance, the following averments : That the defendant, by J. S. McClure, her agent, made and delivered to the plaintiff her promissory note, in writing, of which a copy is set forth, and appears to be a note in the ordinary form, promising to pay to the plaintiff or order sixty-one dollars and sixty-two cents at a bank therein named, for value received, purporting to be signed as follows : John S. McClure, agent. That the note was given by said McClure to the plaintiff for and as the agent of the defendant for goods, wares, and merchandise theretofore sold and delivered by the plaintiff to the defendant. That the defendant, before the commencement of the action, promised and agreed to pay the note; that no part thereof has been paid, and that there is due and owing from the defendant to the plaintiff sixty-one dollars and sixty-two cents, with interest from January J, 1875, on the note.

The demurrer was sustained on the ground that the note does not refer to the defendant by name, and the count does not show that J. S. McClure had authority, as the agent of the defendant, to make the note, or that it was made in the business of his agency.

We think the count is sufficient. It avers that the defendant, by her agent, in consideration of goods etc., sold and delivered to her, made her note. The statement that it was made by her agent was unnecessary,' and is superfluous. The allegation that the defendant made her note, when it appears to have been in fact signed by another party, necessarily includes the allegation that such other party was duly authorized to make the note in behalf of the defendant, and under it proof could have been given, and would be requisite, to establish that it was in fact the note of the defendant, by proving the authority of the agent to make the note in her behalf. It could not be true that she made and delivered her note, unless the agent was duly authorized to make and deliver the note in her behalf. The fact that the name of the principal does not appear on the face of the note is not, under the modern decisions in this State, at all conclusive. If it was intended to be given in the business of the principal, was in fact so given, and with due authority, it is binding on the principal, and all this is matter of evidence, all covered by the averment that it is the note of the principal.

The order sustaining the demurrer is reversed with costs, with leave for the defendant to amend within twenty days, on payment of the costs of the demurrer and appeal.

Present — MulliN, P. J., Shith and Taloott, JJ.

Order sustaining demurrer reversed with costs, with leave to defendant to answer, on payment of costs of demurrer and appeal.


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    JAMES M. KENT, Appellant, v. ANDREW C. REYNOLDS, Respondent.

      Surrender and cancellation — of note, not paid in full — no right of action exists thereafter' for amount unpadd.

    Where a creditor surrenders to his debtor an obligation for the purpose of cancellation, and the latter, in pursuance of such agreement, cancels and destroys the same, no action can thereafter be maintained thereon by the creditor, in the absence of any fraud, mistake or illegality in the transaction, even though the amount paid by the debtor was less than the amount due upon the obligation surrendered.
    Appeal from an order of the County Court of Onondaga county granting a new trial.

      F. M. Fvarts, for the appellant.

      W. Sanders, for the respondent.
   Taloott, J.:

The assignor of the plaintiff held certain notes against the defendant, made in 1868, amounting to $150, without interest, on which only five dollars bad been paid. The defendant becoming insolvent, the holder of the notes agreed to take fifty cents on the dollar for the notes. The defendant procured a relative to advance to take up the notes seventy-five dollars, being at the rate of fifty cents on the dollar for the face of the notes, not including five dollars which had been paid. The assignor of the plaintiff received the seventy-five dollars from the defendant’s relative, Turner, and the promise of the defendant to pay the balance to make up the sum of fifty cents on the dollar, as the plaintiff claims. The defendant denies this, and insists that the notes were sold to Turner for the seventy-five dollars paid. At all events, the notes were delivered up by the assignor of the plaintiff to Turner, with the full intention of surrendering the same. It is claimed by the plaintiff that the notes were not purchased by Turner, but that the seventy-five dollars was, in fact, a loan from Turner to the defendant, and the payment was, in substance, by the defendant of seventy-five dollars in satisfaction of a larger sum due on the notes. Turner held the notes for two years or thereabouts, when the defendant gave to Turner his note for the seventy-five dollars, and interest, and received his own note for $150, which he destroyed. The plaintiff’s assignor, the father of the plaintiff, testifies that he fully agreed to surrender the notes for fifty cents on the dollar, and that he delivered them to Turner with no agreement or expectation that they should be returned to him, and that he relied on the promise of the defendant to pay him the difference between the seventy-five dollars and the amount necessary to make the payment equal fifty per cent of the notes, which he states to be twelve dollars and fifty cents.

The action was originally commenced in a Justice’s Court, where the plaintiff recovered a judgment for fifteen dollars and ninety-two cents and costs, which was probably the amount with interest remaining unpaid on the. compromise. The plaintiff appealed to the County Court for a new trial. The cause was retried in the County Court, where the plaintiff’, under the charge of the court to the jury, obtained a verdict for $100. The County Court set the verdict aside, and granted a new trial on the minutes, and from the order granting a new trial the plaintiff appeals. The new trial was granted in the County Court, on the ground that the charge was erroneous. The county judge had instructed the jury as follows: “If the agreement between Kent and Reynolds was that fifty cents on the dollar, amounting to eighty-seven dollars and fifty cents, was to be paid to effect the compromise, and there was no absolute sale of the notes by Kent to Turner, but Turner advanced the seventy-five dollars to Kent, and received the notes from him at the request of Reynolds, acting for him pursuant to to the agreement between Kent and Reynolds, that Reynolds would pay the balance of twelve dollars and fifty cents to make up the compromise money, or fifty cents on the dollar, then the plaintiff was entitled to recover the full amount of the notes, less the seventy-five dollars paid by Turner.”

To this part of the charge the defendant excepted, and requested the court to charge “that in. any event the plaintiff could only recover the balance of the compromise money', twelve dollars and fifty cents, and the interest thereon,” and the court refused so to charge, and the defendant excepted. We think the County Court was correct in ordering a new trial. Conceding that the amount paid by Turner was to be considered as a loan by him to the defendant, and that Turner acted merely as the agent of the defendant in receiving the notes and paying the seventy-five dollars, and that the plaintiff' relied upon the promise of the defendant to pay the twelve dollars and fifty cents to make up the full amount of the compromise, yet .the holder of the notes voluntarily surrendered them for cancellation, without any fraud or mistake, but voluntarily and in pursuance of his own agreement, and for a consideration deemed advantageous at the time. When the obligation of a debtor is thus surrendered for cancellation, and in pursuance of such surrender the debtor has, as he was authorized by the agreement to do, cancelled or destroyed the obligation, no action can afterwards be maintained thereon by the creditor, who alleges no fraud, mistake or illegality in the transaction. (Beach v. Endress, 51 Barb., 570.) This is not like the case when a usurious obligation has been taken for a valid debt. In the latter case the contract by which the usurious obligation is substituted is unlawful and declared by the statute to be void, and if the obligor sets up the illegality of the substituted obligation, the original valid debt is revived, and may be recovered. (Winstead Bank v. Webb, 39 N. Y., 330.)

We think the plaintiffs recovery should have been confined as stated in the defendant’s request to charge.

The order is affirmed,, with costs.

Present — Mullin', P. J., Smith and Taloott, JJ.

Order affirmed, with costs.


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    HARLEY BROWN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Forged note •— name of fictitious person — evidence of payment of, immaterial — Evidence of prior arrest of prisoner!' — Objection to question tending to degrade — mary be ialcen by counsel when witness is a pm-ty.

    It is not necessary, in order to constitute tile crime of forgery, that the name alleged to be forged should he that of any person in existence; it may he the name of a purely fictitious person.
    Upon the trial of an indictment for uttering a forged promissory note, evidence tending to show that the note had been paid is immaterial, and is properly excluded.
    Upon an indictment for forgery the prisoner, on his examination in his own hehalf, was asked, with a view of impeaching his character, “How many times have you been arrested ? ” Held, that the question was improper, as the mere fact of his arrest had no tendency to impeach his character in any particular.

      Brandon v. The People (42 N. Y., 265) distinguished.

      Semble, that although the right of a witness to object to answering any question, on the ground that it will tend to disgrace and degrade him, is a personal privilege which must be claimed by the witness, yet that the rule is different in the case of a party examined as a witness, and that in this case the objection may be taken by his counsel, whose duty it is to protect his rights and interpose objections in his interests growing out of any incident in the litigation.
    Writ of error to the Court of General Sessions of Ontario county, to review the conviction of the plaintiff in error of forgery.
    The indictment upon which the plaintiff in error was convicted contained two counts' — one for feloniously forging a promissory note, signed by Edwin Brown, Lucretia Brown (father and mother of plaintiff in error), and Albert Bennett; and the other for uttering and publishing the same with intent to defraud one Joseph C, Shelton,

      JE. IP. Gardner, for the plaintiff in error.

      Frank Riee, district attorney, for the defendants in error.
   Taloott, J.:

The writ of error in this case brings up a record of the conviction'of the plaintiff in error in the General Sessions of Ontario county, with a bill of exceptions attached. The conviction is for feloniously uttering as true a forged promissory note for the payment of money.

The bill of exceptions contains numerous exceptions to the rulings of the court on the admissibility of evidence, to the charge and refusals to charge. To consider in detail all these exceptions is impossible, within any ordinary limits; and since we are of the opinion that the judgment should be reversed and a new trial ordered,- we shall only advert to some of the leading questions presented on the trial— such as are likely to arise on another trial.

The evidence tending to identify Albert L. Bennet as the person designed to be represented by the forged signature, such as the name by which said Bennet was usually known in the community, the place of his residence, in connection with the statement of the defendant, and the fact that no other person by the name of Albert Bennet was known in the county of Ontario, was all admissible on the question as to who was intended to be represented by-the forged signature. The omission of the initial of the middle name of the person, whom the evidence showed was intended to be represented by the forged signature, was immaterial. In order to constitute forgery it is not necessary that the name alleged to be forged should be that of any person in existence. It may be wholly fictitious; yet when made or uttered with intent to defraud, such making or uttering is punishable as a forgery. ' (1 Oolby’s Crim. Law, 183.)

The evidence offered by the defendant to show that the note had been wholly or partially paid, or had been secured by a chattel mortgage, did not answer the legal inference of the intent to defraud which grew out of the false making, or knowingly passing as genuine, the note in question; and being immaterial was properly rejected, (1 Oolby’s Crim. Law, and cases there referred to.)

Edwin Brown, who, with his wife Lucretia, purported to be signers of the note in question, had testified concerning the signatures of himself and wife, in a manner tending to show that the said Lucretia had personally placed her signature to the note; and the note being legitimately in ¿videnee before the jury, we see no objection to the course of the public prosecutor in calling attention to the fact claimed by him, that both the signatures of Edwin' and Lucretia appeared to have been written by the same hand. This was done to throw some discredit on the testimony of Edwin Brown; and though of no great importance, we do not think any exception could be taken to the refusal of the court to stop that line of argument.

The prisoner having offered himself as a witness in his own behalf, was, on cross-examination, asked by the district attorney, the following question : How many times have you been arrested ? ” This was objected to by the prisoner’s counsel as incompetent, irrelevant, tending to degrade the witness, etc. The objection was overruled and the prisoner’s counsel excepted. The question was asked with a view of impeaching the character of the prisoner by the answer, and he answered: Five times, I believe.” We do not think this evidence was admissible as an impeachment of the prisoner’s character, either generally or for truth and veracity — for which purpose only it is claimed to have been offered. (Jackson v. Osborn, 2 Wend., 555 ; People v. Gay, 7 N. Y., 378; Lipe v. Eisenlerd, 32 id., 229, op. p. 238.) In the case of Jaolcson v. Osborn, referred to, it was held, that, even evidence of indictments found against the witness for forgery and perjury were inadmissible, without proof of conviction. How, then, can evidence of a mere arrest, without even specifying that the arrest was upon the charge of crime, be admitted as an impeachment of the character of the party arrested, in any particular. The evidence was calculated to prejudice the prisoner in the minds of the jury, for which purpose it was offered; and having been admitted against his objection, we cannot say that it did not produce some effect, however much the other evidence in the case might be supposed to have warranted the conviction.

In the case of Brandon v. The People (42 N. Y., 265), the admission of a similar question was sustained; but- as we understand that ease, wholly upon the ground that the only objection made to it was that the prisoner had not put her character in issue, wholly ignoring the rule that the prisoner, having made herself a witness, was subject to the same liability to have her character attacked by proof of facts having a tendency to degrade her in the estimation of the jury that any ordinary witness was liable to; and we understand the case to, impliedly at least, concede, that had the proper objection been stated the question should have been excluded.

There is, in reference to the testimony thus objected to, another question which gives rise to grave doubts. The counsel for the prisoner then on the witness stand, interposed the objection that the prisoner (and witness) was.privileged from answering the same, on the ground that the answer must tend to disgrace and degrade him, and was wholly immaterial to any issue in the case. This is answered by saying that the privilege is personal to the witness, and the objection must be taken by him. True, this is the rule where the person under examination is a mere witness ; and it is held that, in such a case, the objection of the party is unavailing. But under the present state of the law where the parties are also witnesses, it would seem that a different rule should prevail, and that a party to the suit being under examination as a witness, the objection may properly be stated by his counsel, and that it should be held that the witness and party must be assumed to speak through the mouth of his counsel, who is presumed to be authorized and required to protect his rights, and interpose objections in his interest growing out of any incident in the litigation.

How this may be it is not necessary to decide at this time, inasmuch as we think the question was inadmissible upon the general objection that the answer could have no legitimate tendency to impeach the character of the prisoner, and was therefore irrelevant and calculated to prejudice him. For this reason, and without more particularly discussing the numerous other exceptions taken in behalf of the prisoner, we think the conviction should be ■reversed and a new trial ordered.

Judgment reversed and proceedings remitted to the General Sessions of Ontario- county, with directions for a new trial.

Present — MulliN, P. J., Smith and Taloott, JJ.

Judgment reversed and proceedings remitted to the General Sessions of Ontario county, with directions for a new trial.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LYMAN SHAW, Respondent, v. WARREN SCOTT, Commissioner of Highways of the Town of Arkwright, Appellant.
    M’eeholder— Title to real estate — Trilwritanee siibjeet to power of sale.

    One who has a title to real estate is a freeholder, irrespective of the amount or value of his interest therein.
    A testator, hy his will, directed the sale of certain real estate, and the distribution of the proceeds among the children of his present wife, the will naming no executor and containing no power of sale. R'eld, that the title to the real estate vested, upon his death, in his heirs at law, and that a child by a former wife was, until a sale should be made in pursuance of the will, a freeholder, and, as such, authorized to sign a certificate as to the necessity and propriety of opening a highway.
    Appeal from a judgment entered upon 'the report of a referee awarding a peremptory mandamus.

      Morris <& Bussell, for tbe appellant.

      Julius A. Parsons, for tbe respondent.
   Taloott, J.:

This is an appeal from a judgment awarding a peremptory mandamus, requiring tbe defendant, sole commissioner of highways of tbe town of Arkwright in Chautauqua county, to open and work a certain proposed highway.

The proposed highway passes through improved and cultivated lands, whereby, in order to authorize the opening of the same against the owners’ consent, a certificate- of twelve reputable freeholders of the town that the highway is necessary and proper, became requisite. Such a certificate the relator claims was made. The commissioner, however, refused to open said highway upon the ground that Ransler Luce, one of the twelve who had signed the certificate, was not a freeholder of the town. The relator appealed from the refusal of the commissioner to the county judge, who, pursuant to the statute, appointed three referees, who reversed the decision of the commissioner and ordered the road to be laid out.

The commissioner still refusing, the relator obtained an alternative mandamns. To this the commissioner appeared and answered, and issue was joined between the parties upon the question, whether said Ransler Luce was a freeholder or not. The issue came on to be tried at the Chautauqua Circuit, when it was referred by consent of both parties to a counselor of this court. The matter was tried before the referee, who reported in favor of the relator. The report was confirmed, and judgment that a peremptory mandamus issue was ordered. From that judgment the appeal was taken. The only point decided by the referee was, that Ransler Luce was a fi-eeholder, and that he was the owner of a distributive portion of forty acres of land in said town, title to which was acquired by said Ransler Luce by inheritance, as one of the heirs at law of Moses Luce, deceased.

By the term “freeholder” is meant such as have title to real estate. (People v. Hynds, 30 N. Y., 472.) The amount or value of such freehold interest is not prescribed.

The said Ransler Luce was one of the heirs at law of Moses Luce, deceased, and the question, whether he took title to any part of the forty acres, depends upon the construction of a clause in the will of Moses Luce, which is in the following words, viz: “ I direct that my forty-acre lot, being the east, middle part of lot twenty-six, be sold, and the proceeds be divided between the children of my present wife, equally, except my son John Luce is to have $100 less than an equal share, and my son William B. Luce is to have fifty dollars less, and my son Curtis Luce, is to have fifty dollars less than an equal share.”

The will named no executor, and no power of sale was contained in it, except as aforesaid. Pansier Luce was a son by a former wife. By the common law the laud descends to the heir, unless devised to somebody else (4 Kent, 375); and the heir is not to be deprived of the inheritance, except by express words or necessary implication. To take away the right of the heir the utmost certainty'of the'testator’s intention is required. (1 Black. Com., 450.)

The clause in question directs a sale of the forty-acre lot, and a division of the proceeds. A power in trust to sell and divide is thereby implied, and if an executor had been named, probably the power in trust would have devolved on him; but in the absence of such appointment, the court will appoint a trustee; such trustee of the power will not take the title to the land, but a naked power. Where, in the mean time, does the title vest ? It can only vest in the heirs at law, subject to the execution of the power of sale. Such a provision in a will is not a devise of the land to the dis-tributees. “ They took the price of the land, not the land itself.” (Meakings v. Cromwell, 1 Seld., 136.) The gift was of money, not of land. Conceding that, for equitable purposes, the land is to be deemed as converted into money; yet it is not so converted, and in the mean time the legal title must vest in somebody; unless devised to somebody else, it descends to the heirs at law, and the mere legal title is the subject of inquiry. If the power had been by the will devolved upon executors or other trustees, then, as they were not empowered to receive the rents and profits, the statute declares that no estate shall vest in the trustees, but the land descends to the heirs, subject to the execution of the power. (1 R. S., 729, § 56 ; Germond v. Jones, 2 Hill, 569 ; Reed v. Underhill, 12 Barb., 113.)

The referee, therefore, was correct in deciding that the said Ransler Luce was a freeholder within the meaning of the highway statutes.

The judgment is affirmed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Judgment affirmed.