text:
    NATHANIEL KETCHAM, Respondent, v. CHARLES WOOD, Appellant, Impleaded with others.

      Mortgage — the recording of it is notice only to the extent of the amount then advanced, or agreed to be advanced, upon it — when a second mortgage is entitled to priority over advances,made upon a prior one after the recording of the second.

    On May 15, 1875, one 0. Ketcham executed and delivered-to the plaintiff a bond for $800 and a mortgage to secure the payment thereof, which was, on May 17, duly recorded. At the time of the giving of the mortgage the plaintiff advanced'to the said Ketcham the sum of $75, and thereafter and at various times between June 9 and July 13, 1875, he advanced the balance of the $300 to him, in such amounts as he required to pay for the labor and materials used in erecting a house upon the mortgaged premises. The mortgage did not show that it was given to secure future advances, nor was there any agreement proved that such advances should be made, or be secured by the mortgage. On June 3,1875, the said Ketcham, to secure an existing indebtedness, executed and delivered to the defendant Wood a bond for $450, and a mortgage upon the same premises, to secure the payment thereof; which mortgage was, on June 7, 1875, duly recorded. The plaintiff had no knowledge of the execution or existence of the Wood mortgage at the time of his making the subsequent advances to Ketcham.
    In an action to foreclose the mortgage given to the plaintiff, Eeld, that the recording of the plaintiff’s mortgage was notice to Wood to the extent only of the amount then actually advanced upon it.
    That the recording of the mortgage given to Wood operated as a legal notice to the plaintiff of its existence, and that, as to all advances thereafter made, the plaintiff was to be regarded as a subsequent incumbrancer, and that as to such advances the lien of his mortgage was inferior to that of Wood.
    Appeal from so much of the judgment entered herein, upon the report of a referee, as awarded to the plaintiff’s mortgage a priority -over one subsequently executed to the defendant, Wood.
    The action was brought to foreclose a mortgage. The referee to whom it was referred to hear and .determine the issues, ■found, among other facts: “ That the defendant, Conklin Keteham, •on May 15, 1875, executed and. delivered to his brother, the plaintiff, his bond, in the penal sum of" $600, dated on that day, •and conditioned for the payment of $300 and interest, on demand; •.and that on the same day the said Conldin Keteham, with Phebe A., his wife, duly executed, acknowledged and delivered to the plaintiff their mortgage upon tlie premises described in the complaint, to secure the payment of said boud, which mortgage was recorded in Queens County Clerk’s office, on May 17, 1875, in Liber ■307 of Mortgages, on page 345. That before the commencement •of this action the plaintiff duly demanded payment of the defendant, Conklin Keteham, of the amount owing on the said bond and mortgage. That there is now due and owing on the said bond and mortgage, to the plaintiff, the principal sum of $300, with interest .thereon from May 15, 1875, amounting to $68.25, making a total ■sum due for principal and interest of $368.25. That when the •said bond and mortgage was so executed there was nothing owing ■by the defendant, Conklin Keteham, to the plaintiff; that the said bond and mortgage were made to enable the said Conklin Keteham fo raise money to finish a dwelling-house that he was then erecting ■on the mortgaged premises; that at the time of the execution thereof the plaintiff advanced to the said Conklin Keteham about •$75 in cash, on account of the said bond and mortgage, and the balance of the principal of $300 thereof was thereafter paid to the •said Conklin Keteham by the plaintiff, in cash or by check, from •time to time, as the same was required to pay for labor and materials used in furnishing the said dwelling-house, the entire amount having been paid to him within a period of about seven weeks aftei the execution of the said bond and mortgage; four of such final payments were made by the checks of the plaintiff to the said defendant, Conklin Keteham, which are respectively dated and for-the amounts following, viz.: June 9, 1875, for $37; June 12,1875, for $45; June 29, 1875, for $40 ; July 13, 1875, for $40. That the defendant, Conklin Ketcham, not having the means to purchase and pay for the lumber to be used in building his said house, agreed, with the defendant, Charles Wood, that he should sell and deliver-such lumber, and that he, Conklin, would raise money by mortgage upon his lot when the house should be erected thereon, and pay the-said Wood for such lumber. That pursuant to such agreement, the said Wood did, from November, 1874, to April or May, 1875, sell and deliver to the said Conklin Ketcham, lumber which was used in such building, to the value of about $400, which was thereafter-increased, including interest, to $450, no part of which has been paid by the said Conklin Ketcham. That subsequently, on June 3,, 1875, for the purpose of securing the payment of the said last-mentioned sum, the said Conklin Ketcham made his bond to the defendant, Wood, in the penal sum of $900, conditioned for the payment of $450,' on demand, with interest, and on the same day the said Conklin, with his wife, executed and delivered to the.said Wood their mortgage on the premises described in the complaint,, to secure the payment of the said bond, which mortgage was recorded in the said clerk’s office, on June 7, 1875, in Liber 308 of Mortgages, page 440; and which last mortgage has since been foreclosed by the said defendant Wood, who purchased the premises on. the sale for an amount less than that owing to him on the said mortgage. That it does not appear that the plaintiff had anj knowledge or notice of the execution, or existence of the mortgage made-to the said defendant Wood, before he, the plaintiff, made the four-final payments to the said Conklin Ketcham on the $300 bond and mortgage held by the plaintiff. That the said plaintiff, at the time-lie took his said mortgage, had full knowledge of the agreement between his brother and the said Charles Wood, and as he testified,, supposed that the latter had not received his money or any part-thereof.”
    The referee held that the plaintiff’s mortgage was a paramount lien and incumbrance on the said premises for the entire amount due thereon, and was entitled to priority over all other mortgages thereon.
    From the judgment entered upon this report, and the order confirming the same, this appeal was taken.

      J. BE. Tuthill, for the appellant.

      John J. Armstrong, for the respondent.

       See Ackerman v. Hunsicker, 21 Hun, 53.

   Gilbert, J.:

The referee did not find that the plaintiff’s mortgage was given to secure future advances, nor does the mortgage on its face purport to have been given for that purpose; nor is there any evidence of an agreement on the part of the plaintiff to make further advances after the mortgage was delivered. When the mortgage to the plaintiff was delivered, he advanced to the mortgagor' $75 only. Before any further advances were made by him,, Wood’s mortgage had been duly delivered and recorded. Tim question is whether the plaintiff’s mortgage is entitled to priority over Wood’s mortgage, as to the advances which were made after Wood’s mortgage was recorded. No doubt a mortgage, given as, security for future advances to a specified amount, is valid, and the record of such a mortgage is notice of a lien to the extent of the advances specified. But if there is no agreement respecting further advances, and none are referred to in the mortgage, the record of the latter cannot, in the nature of things,, be a notice that it was given as a security for further advances.. It is notice of any advance actually made, because, although the record itself conveys no notice that any sum less than that stated therein was advanced, yet it is undoubtedly sufficient to put any one upon inquiry, and is notice of any fact which would, in the usual course of business, be ascertained upon such inquiry. (Williamson v. Brown, 15 N. Y., 361; Craig v. Tappin, 2 Sandf. Ch., 78.) Wood, therefore, is chargeable with notice only, of the fact that $75 had been advanced by the plaintiff, before he (Wood) took his mortgage. It was not notice that the plaintiff had made the subsequent advances, for. they had not been made; nor of any agreement to make them, for no such agreement existed; nor that the mortgage was given as security therefor, for no such purpose was legally manifested in any form.

It is clear then, that at the time Wood’s mortgage was delivered, the plaintiff’s lien actually amounted to only the sum of $75, and we are of opinion that if Wood had actually notified the plaintiff that he had obtained a mortgage on the same premises, the lien of the plaintiff’s mortgage for advances made after such notice would have been subordinate to that of Wood’s mortgage. I am not aware that this point has been directly adjudicated in this State, but the foregoing conclusion seems to me to be founded in justice and equity. When Wood’s mortgage was recorded, $75 only would have been necessary to be paid to redeem or extinguish the plaintiff’s mortgage. Subject to a lien for that sura only, the mortgaged premises belonged to the mortgagor to sell, mortgage, or otherwise dispose of at his pleasure. It would seem to follow as a corollary, that as respects the advances which were made by the plaintiff, after the delivery of Wood’s mortgage, the plaintiff should be treated as a subsequent incumbrancer. Was he such subsequent incumbrancer without notice of Wood’s mortgage? He had no actual notice, but the legal effect of the statute relating to the recording of conveyances, mortgages, &c., is to make the record thereof notice to incumbrancers, whose liens have accrued after the record was made. Although the plaintiff’s mortgage was first recorded, and such record was notice to Wood, yet it was notice only of facts which actually existed, and Wood might lawfully take another mortgage, upon the mortgagor’s equity of redemption. That included the whole estate in the mortgaged premises, except the lien which then existed in favor of the plaintiff. That being so, the plaintiff, could not increase the amount of his lien, without becoming, as respects such increase, an incumbrancer subsequent to Wood.

We are of opinion, therefore, that the record of Wood’s mortgage was a sufficient notice thereof to the plaintiff. I do' not deem it necessary to review the authorities on this subject. They are conflicting, and it will suffice to refer to Washb. R. P., ch. 16, §§ 4, 42, et seq.; 1 Jones Mort., §§ 365-378; Thomas Mort., 61, 62; and 4 Kent’s Comm., 175, where citations of and comments upon them will be found.

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

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Part of judgment appealed from reversed, and new trial granted at Special Term; costs to abide event.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    CAROLINE J. LIEGEOIS, Respondent, v. JOHN McCRACKAN, Appellant.

      Demurrer — cm interlocutory judgment must he entered upon the decision of cm issue of law — Code of Civil Procedure, § 1021.
    Where a demurrer interposed to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, is sustained, and leave is given to the plaintiff to amend his complaint within twenty days, on payment of the costs, an interlocutory judgment to that effect must be entered before the time, within which the plaintiff must amend his complaint, will commence to run.
    Nor can a final judgment dismissing the complaint, with costs, be entered* until such an interlocutory judgment has been entered.
    Where leave to enter the final judgment on the failure of the plaintiff to comply with the terms of the interlocutory judgment is not given by the decision, application for leave to enter it must be made as upon a motion.
    Appeal from an order denying a motion to set aside an interlocutory judgment entered herein, and for leave to tbe defendant to enter up a final judgment dismissing the plaintiff’s complaint, with costs.
    This action was brought to enforce the specific performance of an alleged contract, or in lieu thereof to recover a specific sum as damages for the breach of the same. The defendant demurred to the complaint on the ground that the facts stated therein did not constitute a cause of action. The demurrer was sustained by this court, and leave given to the plaintiff to amend her complaint within twenty days on payment of the costs. An order to this effect was, on January 20, 1880, entered, and a certified copy thereof, with notice of the filing of the original, was served on the plaintiff’s attorney. The defendant’s costs, were, on notice, taxed, and notice of their amount was served on the plaintiff’s attorney. The plaintiff appealed to the General Term of this court from that order. That appeal was, in February, 1880, dismissed by the General Term, on the ground that no apjieal could be taken from an order overruling or sustaining a demurrer. The plaintiff, on March 20, 1880, entered an interlocutory judgment, and immediately thereafter served on the defendant’s attorney a notice of appeal therefrom. This interlocutory judgment the defendant moved the court to set aside on the ground that the same ■was irregularly entered, and that no interlocutory judgment could be entered herein, and that the defendant have leave to enter final judgment of dismissal, which motion was denied. From that order this appeal is taken.

      William D. Veeder, for the appellant.

      JE. W. Page, for the respondent.
   Gilbert, J.:

The defendant demurred to the complaint on the ground that the same did not contain facts sufficient to constitute a cause of action. The issue of law thus raised was tried at Special Term, and the court decided that the demurrer should be sustained, with leave to the plaintiff to amend in twenty days on payment of costs. An order, dated January 22, 1880, was made conformably to that decision, and duly served, but no judgment was entered upon the decision at the instance of the defendant. The plaintiff did not avail herself of the leave to amend given her Iby the order, but after the expiration of twenty days from the service of the order she caused a judgment to be entered that the ■demurrer “ be and the same hereby is sustained, with leave to plaintiff to amend her complaint within twenty days, on payment ■of the sum of $17.66, defendant’s costs as adjusted.” This is an appeal from an order denying a motion of the defendant to vacate and set aside the said judgment.

Upon the trial of a demurrer, the court is required to direct the final or interlocutory judgment to be entered thereupon. (Code Giv. Pro., § 1021.) . Such direction was not formally given in this case. But both parties have treated the order of January 22,1880, .as such a direction; the plaintiff contending that it directed an interlocutory, and the defendant contending that it directed a final judgment. No legal effect can be given to the order referred to, other-wiser than as a direction of some kind. Treating it as a direction to enter judgment, it became the duty of the clerk at once to enter a judgment in conformity therewith, namely, that the demurrer be .sustained, and that the plaintiff have leave to amend, &c. Such a judgment is interlocutory, for a judgment must be interlocutory or .a final determination of the rights of the parties. (Code Civ. Pro., § 1200.) And section 1021 of that Code expressly designates .a judgment, which permits a party to plead. anew or amend as an interlocutory one, and provides that when such a judgment is directed by the decision, the latter must also direct the final judgment to be entered, if the party in fault fails to comply, &c. 'These' provisions clearly show that the -practice which the Legislature intended in cases of this kind, was to substitute an interlocutory judgment for an order and. to allow a final judgment to be entered only after a failure to comply with any of the directions given by the interlocutory judgment. It is urged that 'in case the party in fault complies with the terms imposed, no judgment at all will be necessary. The answer is that terms cannot be imposed otherwise than by an interlocutory judgment, and, therefore, there can be no failure to comply, until the period fixed for compliance by the interlocutory judgment has elapsed.

The decision in this case did not direct the final judgment to be •entered. Application for such judgment must, therefore, be made .as upon a motion. (Code Civ. Pro., § 1230.)

The order must be affirmed, with costs and disbursements.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with costs and disbursements.


author: «Gilbert, J.:

text:
    WILLIAM COLES, Respondent, v. CHARLES E. APPLEBY, Appellant, Impleaded with JAMES C. BENHAM and others.

      Mortgage — when the receipt of the amount due thereon by the mortgagee, from a grantee assuming it, does not operate as a payment thereof — the grantees of' land may enforce the equities existing in famor of their grantors.

    This action was brought to foreclose a mortgage given by one Benham to* Joseph Coles. After it was given Benham conveyed, by a full covenant deed, a portion of the mortgaged premises to one Beach, and the residue thereof to-one Baldwin, the amount due on the mortgage being retained from the-price paid by Beach, who promised Benham to pay the same therewith. Subsequently, upon a settlement had between Joseph Coles and Beach, the-amount due upon the mortgage was paid to Coles, but not with the intention of satisfying the mortgage, which was assigned to the plaintiff in place of a mortgage for the same amount, then held by him, and which Beach desired to have, and which was, satisfied. Subsequently Beach morfc- ' gaged the lot in question, together with other premises, to one Appleby, who* thereafter foreclosed the mortgage and purchased the premises at the sale.

      Meld, that by procuring the Coles mortgage to be assigned to the plaintiff and by paying interest upon it until the time of his death, Beach showed that he-did not intend to satisfy the same, and that his acts amounted to the making of a new mortgage.
    That as Beach would, as against Benham, have been estopped from claiming-that the mortgage had not been paid, and as the several grantees stood in. the shoes of their respective grantors, the lot mortgaged to and purchasecL by Appleby must be sold before the lot conveyed by Benham to Baldwin.
    Appeal from a judgment of foreclosure and sale, entered upon, trial of tliis action by tlie court, without a jury.
    The justice before whom the action was tried, found, among-other things: “ That the defendant, James C. Benham, on or about May 11, 1868, executed and delivered to one Joseph Coles, a bond for $600, together with a mortgage to secure the payment, thereof, which covered the premises hereinafter referred to.
    “ That James C. Benham and wife, by a deed bearing date the first-day of January, 1870,-for the consideration of thirteen hundred: dollars, conveyed to Elias J. Beach a portion of the premises embraced in the said mortgage to Joseph Coles, being the whole of the said premises, except a strip of land twenty feet one and one-half .inches in width, fronting on School street, and extending back one hundred and twenty-eight feet, which said strip was on the same-day conveyed to one Jonathan Baldwin. That the said deeds were, in form, the usual full covenant warranty deeds, the grantor covenanting that the premises thereby conveyed were free from all incumbrances. That at the time of receiving the said deed the said Beach, paid to the said Benham the sum of $700 in cash, and retained $600,,. and promised the said Benham to pay the mortgage in question therewith. That afterwards and on or about November 1,1873, the said, Joseph Coles, by an assignment bearing date that day, and for the consideration therein mentioned, assigned to "William Coles, the plaintiff in this action, the said bond and mortgage, together with the moneys-due, and to grow due thereon, with the interest, and thereupon the said bond and mortgage was delivered to the said plaintiff, who has-ever since been and still is the lawful owner and holder thereof,, which said assignment is recorded in the office of the Clerk of Queens-County in Liber 343 of Mortgages, page 424, on August 22, 1877.. That on July 10, 1873, Joseph Coles, who was then the owner and holder of the said bond and mortgages, and Elias J. Beach had an accounting and statement, and on that day the said Beach paid to-the said Coles the sum of $154, which, with a mortgage of $1,000,. was the balance found due from the said Beach to the said Colesupon such accounting, including the amount due on the $600 mortgage, a note of $500, and one month’s interest on the Mooney mortgage, but that it was not the intention of the said Beach and the-said Coles, that the said bond and mortgage were to be thereby satisfied and paid. That on February 10, 1874, the said Elias J. Beach and his wife, in order to secure the sum of $10,000, at that: time advanced and loaned to him by the defendant Charles EAppleby, executed and delivered to the said Appleby a mortgage-embracing the said premises conveyed to the said Beach by the said Benham and wife (with other premises), which mortgage was-recorded in said Clerk’s office in Liber 283 of Mortgage, page 100, on February 17,1874, but that the said Appleby did not examine the title to the said premises before taking the said mortgage. That upon a sale had under a foreclosure of the saidmortgage Appleby became-the purchaser of the mortgaged premises. That the said Beach died on the 18th day of May, 1877, seized of the said mortgaged premises, and that up to that time the interest upon the plaintiffs mortgage had always been paid.”
    The judgment directed that that portion of the mortgaged -premises sold by Benham to Beach be first sold under the decree.

      Daniel P. Says, for the respondent.

      .A. S. Wayner, for the appellant.

      Jno. J. Armstrong, for James 0. Benham.
   «Gilbert, J.:

Before the assignment of the bond and mortgage in suit, ■Benham, the mortgagor, had conveyed the mortgaged premises to Beach. Afterwards the mortgagee received from Beach the full amount of the mortgage debt. Ordinarily this would be legally regarded as a payment thereof. But it appears that Beach had •occasion to procure a satisfaction of a mortgage -for a like amount -which the plaintiff held against one Betts. Accordingly, he caused -the bond and mortgage in suit to be assigned to the plaintiff, and 60 transferred the same to him in substitution for the Betts mortgage. That, therefore, was equivalent to the making of a new mortgage by Beach, and it occurred before Appleby acquired any •Interest in the mortgaged premises. Although Beach was bound both by contract and professional duty to satisfy the mortgage, instead of keeping it alive, yet it is plain that''he did not do so. The taking of the assignment of it to the plaintiff and his subse-quent payments of interest thereon, show that a payment was not intended by him. The decision at Special Term on this point, we think, was clearly correct.

The lot of Appléby should be sold first, for the reason that as between Beach, Appleby’s grantor and Benham, Baldwin’s grantor, Beach would be estopped from claiming that the bond and mortgage in suit had not been paid, Beach having received from. Benham sufficient money to pay it, and having undertaken to pay it. These grantees stand in the shoes of their respective grantors.

None of the exceptions affect the case as it really stood before -the court.

The question, whether the infant defendants were proper parties, is not regularly before us.

Judgment affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed with costs.


text:
    MARION B. HOLYOKE, as Executrix, &c., of GEORGE E. HOLYOKE, Respondent, v. UNION MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Assets — pass to the administrator appointed in the State where they are situated —a foreign executor cannot sue to recover them.

    George Holyoke died on May 7, 1875, at Brooklyn, leaving a will, letters testamentary upon which were duly issued to the plaintiff by the surrogate of Kings county. Thereafter, and on October 5, 1875, letters of administration, with the will annexed, were duly issued to one Bonney by the Probate Court of Cumberland County, Maine. On January 17, 1871, one Perkins, a resident of the State of Maine, had assigned to Holyoke all his right, title and interest in and to a paid-up policy of insurance issued upon his life by the defendant. This assignment was, at the time of Holyoke’s death, within this State, and it was, subsequently thereto, received by the plaintiff. The policy was, at the time of his death, in the State of Maine, aud the same was subsequently received by the administrator there appointed, and by him assigned to another person.
    In an action brought by the plaintiff, after the death of Perkins, to recover the amount due upon the said policy,

      Held, that, whether the assignment of the policy was an absolute one, or was only intended to secure the payment of a sum due from Perkins to the testator, the policy, or the debt so secured, was assets in the State of Maine, and passed to the administrator there appointed, by whom alone any action to collect the amount due upon the policy must be brought.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    On the' 17th day of January, 1871, Alfred S. Perkins, by an instrument under his hand and seal, assigned and transferred unto George E. Holyoke all his right, title and interest in and to a paid-up policy of insurance for ¿ of $2,500, issued upon his life by the defendant. George E. Holyoke died at 201 Adelphi street, Brooklyn, New York, on May 7, 1875, where he had lived continuously for sixteen years prior thereto, having his office in the city of New York. He left a last will and testament, in and by which he devised and bequeathed his whole property to his wife, the plaintiff, subject to certain trusts, which will was admitted to probate, and upon which, on June 8, 1875, letters testamentary- — -reciting that said deceased was at the time of his death an inhabitant of the county of Kings, and the administration of all and singular the goods, chattels and credits of the said deceased belonged to the surrogate of said county — were duly issued to the plaintiff. After the death of Mr. Holyoke the assignment was found among his effects at his South street office, in the city of New York, and was delivered to the plaintiff, and has been in her possession ever since. October 18, 1878, Alfred S. Perkins died. The plaintiff immediately gave proper proofs of his death to the defendant, and has duly performed all the conditions required of her by the policy.
    The defense interposed was that the assignment in question was a collateral assignment only, to secure Perkins’ indebtedness to Holyoke; that letters of administration, with the will annexed, upon the estate of Holyoke, were on October 5, 1875, issued to one Percival Bonney, by the Probate Court of Cumberland county, Maine. That the amount due to Holyoke had been paid and that the policy, which was in the State of Maine at the time of his death, had been by Bonney assigned to, and was now held and owned by, another person, residing in the State of Maine.

      Merritt E. Sawyer, for the appellant.

      E&wa/rd B. Oowles, for the respondent.
   Gilbert, J.:

•It is apparent that at the time of the death of George Holyoke, the legal title to the policy in controversy was vested in him. He held a written assignment of the policy, and in contemplation of law it was in his possession. The assignment was received among other assets of the testator by his executrix, who is the plaintiff in this suit. The policy, however, was in the State of Maine when the testator died’, and was received by an administrator of his goods, •&c., with his will annexed, who had been appointed by a Probate Court in that State. The assured having died, conflicting claims have been made against the defendant for the amount due upon the policy —one by the plaintiff, and another by one who holds an assignment of the policy made by the administrator in Maine. The ■separation of the policy from the assignment thereof to the testator has no legal significance, for each claim is based upon the fact that the testator was vested with the legal title to the policy when he died. The case has been argued upon both sides as if it depended upon the question whether the assignment was an absolute one, or one ^iven as collateral security for the payment of a debt of the as.signor. But we think that whether the assignment was absolute or defeasible, the Maine administrator became vested with the title to the policy to the exclusion of the plaintiff. If the assignment was given as collateral security for a debt of the assignor, the debt was the asset, and the assignment of the policy was only an incident thereof. The debtor being a resident of Maine, no one could enforce payment of the debt in the courts of Maine, or release or ■control the same, save an administrator appointed in that State, for ■an-administrator appointed in one State has no power over property in another State. (Morrell v. Dickey, 1 Johns. Ch. 153; Doolittle v. Lewis, 7 Id., 45; Chapman v. Fish, 6 Hill, 555; Beers v. Shannon, 73 N. Y., 292-299.) If the assignment is absolute, the policy is the thing which formed a part of the property of the testator. The assignment is only a muniment of title to that property, and must follow the thing assigned. If the testator had left a chattel in Maine which remained in that State until after his death, it is ■cleai’ that the chattel would belong to an administrator in Maine as against an administrator in New York, although a bill of sale transferring the chattel to the testator was found among his papers in New York, because administration of the property of deceased persons can be had only in the jurisdiction where the property is found after the death of such persons. The fact that the property in controversy is a chose in action makes no difference in the rule of law on this subject. (Cases supra.)

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

Present — Barnard,, P. J., Gilbert and Dykman, JJ.

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


text:
    CATHERINE GLENDENING, as Administratrix, &c., of ROBERT GLENDENING, Deceased, Plaintiff, v. THOMAS R. SHARP, as Receiver, &c., of the LONG ISLAND RAILROAD COMPANY, Defendant.

      Negligence — in a/n, action for damages occasioned by, the plaintiff must prove freedom from, any negligence on his parrt contributing to the accident.

    The plaintiff’s intestate, a milkman, was killed in crossing a railroad at about half-past six o’clock in the morning of January 27, 1879, while seated in a covered wagon driving his horse through a street. He was a healthy and temperate man and familiar with the locality. The crossing was on a level with the street, and the track was visible from any point in the street within a space of one hundred and sixty feet of the' crossing. Several witnesses, who had no occasion to look for the train, heard it approach the crossing, and one testified that he saw the lights upon it. .No-evidence as to the conduct of the deceased, at the time of the accident, or as to its cause, was given.
    In an action to recover the damages occasioned by the death of the plaintiff’s intestate, — Held, that there was a failure to prove that the deceased was free from negligence contributing to the accident, and that the plaintiff was properly nonsuited.
    Motion for a new trial upon exceptions ordered, to be beard in tbe first instance at tbe General Term, after a nonsuit ordered at tbe Circuit.
    Tbe action was brought under the statute to recover tbe damages occasioned by tbe death of tbe plaintiff’s intestate, who was alleged to have been killed by tbe negligence of tbe defendant’s servants.
    On January 27, 1879, about 6.30 A. M., tbe deceased, a resident of Long Island City, was driving bis milk wagon along Thomson avenue in that city, in a northerly direction, toward a point where tbe avenue was crossed by three railroad tracks of the'defendant. As tbe deceased reached and attempted to cross the most northerly of the tracks, his wagon was struck by a regular train approacliing; from the east, and the deceased was thrown from his wagon and. killed. There was no flagman present at the time of the accident, though the defendant was accustomed to maintain a flagman at-that crossing during the ordinary hours of public travel. Several witnesses were called by plaintiff to prove that the defendant failed to give the signals required by law. At the conclusion of t-he-plaintiff’s testimony, the court granted the defendant’s motion for a, nonsuit, and ordered the exceptions to be heard in the first instance? at the General Term.

      Herman H. Shook and Biohard O' Gorman, for the plaintiff.

      Edward E. Sprague, for the defendant.
   Gilbert, J.:

Assuming that the defendant’s employees were guilty of negligence, it was incumbent on the plaintiff to prove that the deceased was free from any negligence which, contributed to the accident. No particular form of evidence, however, is requisite. It is enough if from the whole of the testimony given by both parties, the inference can be fairly and justly drawn, that the deceased, at the-time of the accident, did not omit the exercise of that care and caution which the law requires in cases of this kind. But in the-absence of evidence sufficient to establish this fact, a nonsuit should be granted. In the recent case of Cordell v. New York Central & Hudson River R. R. Co. (75 N. Y., 330), the Court of Appeals held, “that when the circumstances point just as much to> the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be nonsuited. The presumption that every person will take care of himself, from regard to his own life and safety, cannot take the place of proof.” The rule thus-declared is merely an assertion of the general principle that the-burden of proving a fact which is essential to maintain the action rests upon the plaintiff, and no amount of difficulty in making such proof will relieve him from that burden.

In the case before us no witness who saw the accident was produced, nor is there any direct evidence which affords the slightest explanation of the conduct of the deceased at the time it occurred. "The deceased, it appears, was a milkman, and was killed while crossing the railroad about half-past six o’clock in the morning of .January 27, 1879. He was seated in his covered wagon driving .his horse. He was a healthy and temperate man, and must have .been quite familiar with the locality of the accident. The railroad -crossing is upon a level with the street, and the railroad track is distinctly visible from any part of the street within a space of one .hundred and sixty feet from the crossing. It was not proved that •.the morning was so dark that an approaching train without a headlight could not be seen, nor that the engine had no head-light. •On the contrary, several of the plaintiff’s witnesses testified that ■they saw and heard the train approaching the crossing at a much greater distance than one hundred and sixty feet therefrom, and -one of them testified that he could see the lights. None of these witnesses had a better opportunity than the deceased of observing the ¡approach of the train, and none of them had occasion to look out for it. The inference from the testimony is certainly very strong that •.the deceased neither listened nor looked for an approaching train. In no point of view does it warrant the conclusion that he did either. There was, therefore, a failure of proof that the deceased .exercised the requisite care or made any effort to avoid the accident.

The exceptions must be overruled, and judgment must be ordered lor the defendant, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Exception overruled, and judgment for the defendant, with costs.


text:
    WILLIAM H. PARSONS, Plaintiff, v. GEORGE R. RHODES, Jr., Defendant.

      1Trust for the benefit of creditors — when a release by the creditors who join in the deed is valid — direction as to the time within which the trustees must sell — when the property does not revert to the grantors on their failure to sell within that time — dwt/y of trustees as to selling at inventoried values.

    One William D. Parsons died, leaving a last will and testament, by which he devised his real estate to his two sons, William H. and Julius D. Parsons, who thereafter, aud prior to the execution of the deed hereinafter referred to, entered into possession and enjoyment of the lands devised to them. The personal estate of the decedent being insufficient to fully satisfy his debts, the creditors of the estate demanded from his devisees payment of their debts, whereupon the said sous, as parties of the first part, the creditors of the estate, together with the individual creditors of the sons, as parties of the second part, and three trustees, as parties of the third part, executed, under their hands aud seals, an instrument whereby the parties of the first part conveyed the land so devised to them, to the trustees, to sell the same, in such lots and on such terms as to them might seem best for the interest of all parties, “provided •always, that the same be sold within eighteen months from the date hereof,” and to apply the proceeds to the payment of the debts as therein provided, and to pay over any balance arising from the sale of the lands devised to Julius D. Parsons, to his assignee, and any balance arising from the sale of the lands devised to William H. Parsons, to him. By the same instrument the creditors released the parties of the first part from all claims and demands whatever.

      Held, that the release was founded upon a sufficient consideration, aud operated to dischai’ge the debts and extinguish the liens of those creditors who joined in the execution of the deed.
    That the provision requiring the trustees to sell within eighteen months, was a mere direction to them as to the time within which they should discharge that duty, and did not constitute a condition, and that their failure or neglect to sell within that time did not cause the property to revert to the grantors.
    At the end of the description of each piece of property was a statement as to its value. Held, that the trustees were not bound to sell the property at that value.
    Controversy submitted upon admitted facts, under section 1279 of tbe Code of Civil Procedure.
    The plaintiff, William H. Parsons, and one Julius D. Parsons, are sons and sole devisees of William D. Parsons, deceased, and are .also the sole executors of his will, which was duly admitted to probate oh July 17, 1875. As such devisees they entered into'the possession and full enjoyment of the lands so devised to them. The personal estate of the decedent was insufficient to fully satisfy his debts. The creditors of the estate, and others, to whom William H. Parsons and Julius D. Parsons were jointly, and still others to whom they were severally liable, entered into the following agreement, to which all of the individual creditors of the plaintiff, William H. Parsons, were parties. The two Parsons and their wives, as parties of the first part, conveyed to three trustees, as parties of the third part, all the land devised to them by their father, “ upon trust to sell the several pieces or parcels of land at-such times, and in such lots, and on such terms as to them may seem best for the interests of all parties; provided always that the same be sold within eighteen months from the date hereof, and that the homestead occupied by the said W. H. Parsons, with fifty acres of adjoining land, be the last real estate sold, and possession thereof shall not be given within one year from the date hereof.” Upon the further trust to pay out of the proceeds of the sale the-costs and charges thereof, and of the trust, and secure a part of the residue of the proceeds arising from the sale of the lots devised to Julius .D. Parsons, to pay certain creditors as therein provided, and turn over the balance to his assignee ; and out of the proceeds-arising from the sale of the lots devised to William H. Parsons, to pay certain creditors as therein provided and turn over the balance to him. At the end of the description of each piece of property was a statement as to its value.
    The creditors, for and in consideration of the premises and of one dollar to each of them in hand paid, released and discharged the parties of the first part from all causes of action, claims and demands-whatever. ■ The trustees having failed to sell the land within the eighteen months, the plaintiff claiming that the lands conveyed by him thereby reverted to him, freed and discharged from all claims- and liens on the part of his creditors, agreed to convey the same to-the defendant, who subsequently refused to fulfill the agreement, on the ground that the plaintiff had no title to the land.

      U. B. Kmghorn, for the plaintiff.

      Wm. P. Rhodes, for the defendant.
   Gilbert, J.:

We are of opinion that the release in question was founded upon a sufficient consideration, and that its legal effect was to discharge the debts, and to extinguish the liens of the judgments referred to in the case submitted.

The trust created by the indenture, dated August 22, 1877, was-valid, and vested the legal estate in the lands conveyed thereby in the trustees therein named.

The beneficiaries under the trust acquired only a right in equity to have the same enforced for their benefit, but such right will continue until the trust shall have been fully performed.

The claim of the plaintiff that the lands in controversy have reverted to him, by reason of a breach of a condition subsequent, namely, that the lands conveyed to the' trustees should be sold within eighteen months from the date of the conveyance, cannot, we think, be sustained.

It is true, that a breach of such a condition gives a right of entry to the grantor, and that the possession of the plaintiff would dispense with an action by him to enforce such right. But we think the language of the conveyance, taken as a whole, does not import a condition.

The operative parts thereof are in terms absolute, whereby the lands described therein are conveyed to the trustees, to hold the same and every part thereof, unto them and the survivors and survivor of them, and his heirs forever, upon trust, to sell the lands conveyed at such times and in such lots and on such terms as to them may seem best for the interests of all parties, provided always, that the same be sold within eighteen months, &c.

In construing a deed, we are required to give effect to the intention of the parties to it. ¥e think it quite apparent, that the clause which provides for a sale within eighteen months, was intended as a limitation only* of the discretion of the trustees, as to the time of sale. One of the trusts was, to pay to the plaintiff any surplus which might arise from a sale of a specified part of the lands conveyed. His interests, therefore, might conflict with those of the other cesi/wis que trust, in respect to the time of selling that part of said lands, and it was proper for the protection of all parties that the trustees should not be vested with an unlimited discretion, respecting the time within which the trust should be performed.

The clause referred to, therefore, had no other effect than a direction to the trustees, as to the time within which they should perform the trust.

Before the expiration of eighteen months, the time* of selling rested in their discretion. After the expiration of that period, either of the eestuis que trust were at liberty to seek a compulsory performance of the trust. But the trust itself does not cease in consequence of the failure of the trustees to fulfill such a direction. (Wild v. Bergen, 16 Hun, 128.)

The trustees were not bound to sell the property at the estimated value thereof, stated in the trust deed.

If the views expressed are correct, the defendant should not be compelled to take title, and judgment should be entered in his favor, with costs.

Present — Barnard, P. J., Gilbert and Dykkan, JJ.

Judgment for defendant upon submitted case, with costs.


author: Dykman, J.:

text:
    EMMA DARLING, Appellant, v. RHODA E. ARTHUR and others, Respondents.

      Will — what is a sufficient publication thereof.

    Franklin O. Arthur came, with his will in his pocket, to the house of his brother, Jeremiah, who lived with his daughter Isabel, and said “ Jeremiah, I want you and Bell to witness my will.” He then asked for a pen and ink, put his hand in his pocket, took out the will, and signed it. It was then signed by the brother and daughter under the usual attestation clause, and he then put it in his pocket and carried it away.

      Meld, that there was a sufficient publication of the will. •
    Appeal from a decree of the surrogate of Suffolk county, admitting to probate the last will and testament of Franklin O. Arthur, deceased.

      Roger A. Pryor, for the appellant.

      Thomas Young, for the respondents.
   Dykman, J.:

It is demanded of every testator when he subscribes a will, or makes an acknowledgment of its execution to the witnesses, to declare the instrument so subscribed to be his last will and testament. This declaration is called the publication of the will, and is one of the safeguards which the law has thrown around testators with the view of preventing the execution of wills' under the supposition that they are other instruments. Any communication to the witnesses, either by word or deed, or both, which renders it certain that the testator intends the instrument which he executes to take validity and effect as a last will and testament, will satisfy this requirement of the statute, the solo end and aim being to secure freedom and certainty. In Coffin v. Coffin (23 N. Y., 9), one of the witnesses in the presence of the other said to the testator, “ do you request me to sign this as your will, as a witness,” and the testator said, yes.” The will was lying before them. This 'was the only publication of the will, and it was held sufficient by the Court of Appeals.

In this case, the testator came to the house of his brother Jeremiah, who had a daughter, named Isabel, with this will in his pocket, and said to his brother, “ Jeremiah, I want you and Bell to witness my will.” He then asked for a pen and ink, and put his hand in his pocket, and took out the will, and sat down and signed it with the pen and ink. that was furnished him by the daughter; then the brother and daughter signed the will as witnesses, and he put it in his pocket and carried it away. The will has the usual attestation clause which was signed by the witnesses. The only question raised has respect to the publication, which it is claimed was insufficient. We do not think it was. We have examined all the cases to which reference was made by counsel, and many others, and within them all this publication must be held sufficient. The testator knew that the instrument was his will; no different instrument was imposed upon him. He came to the witnesses and said, “ I want you to witness my will,” and laid it before them at the same time. The words used, coupled with the act, were equivalent to a declaration that the paper produced was his will, and he requested the witnesses to sign it as such. If the testator'had said in words, “ This is my will, and I want you two to sign it as witnesses,” there would be no question; and yet what was said and done amounted to so much and nothing less. When he said, “ I want you to. witness my will,” and produced it, it was the same in effect as saying, I want you to witness my will, and here it is.”

Tbe decree of tbe surrogate, admitting tbe will to probate, should be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Decree of surrogate affirmed, with costs.


text:
    ERNEST L. DERAISMES and AMELIA F. DUNHAM, Respondents, v. ROBERT E. DUNHAM, Appellant, Impleaded, &c.

      Trustee — after removal from office of trustee Tie may still act as- executor — what facts will justify the cowrt in removing a trustee.

    "When a person has been appointed one of the executors of a will, and also one of the trustees thereunder, he may, upon proper cause being shown, be removed from his office as trustee, and still be left to exercise his functions as executor.
    It is sufficient to authorize the removal of a trustee, that it is shown that his relations with his two co-trustees are so unfriendly and hostile as to endanger the execution of the trust, and that the differences between them are irreconcilable, without inquiring into the causes of such hostility and differences.
    Appeal from an order made at a Special Term, removing tbe appellant, Robert E. Dunbam, from bis office as trustee, under tbe will of John F. J. Deraismes, deceased.

      Jackson <& Mamhme, for tbe appellant.

      Wm. JS. Onderdonk, for tbe respondents.
   Dykman, J.:

By section YO (1 R. S., Y30), tbe Court of Chancery was empowered, upon tbe petition or bill of any person interested in tbe execution of a trust,' to remove any trustee wbo bad violated or threatened to violate bis trust, or wbo should be insolvent, or ■whose insolvency should be apprehended, or who for any other cause should be deemed an unsuitable person to execute the trust. The Supreme Court now possesses the same power. By section 72, p. 731, of the same statute, it was provided that this section should extend to cases of express trusts only. By section 55, p. 728, express trusts may be created to receive the rents ■and profits of lands, and apply them to the use of any person during the life of such person, or for any shorter time.

By the last will and testament of John F. J. Deraismes, he bequeathed to his wife, among other things, an annuity of $4,800, ■during her natural life, to be paid to her by his executors in quarter yearly payments of $1,200 each, in each and every year, and charged the rents and profits of his improved real estate with the payment of the annuity. He also bequeathed to his son-in-law, Robert E. Dunham, an annuity of $300 during his natural life, to be paid by his executors in quarter yearly payments of $75 each, ■during that period.

By the sixth clause of his will, the testator devises the residue of his real estate to his sons and daughters, and grandsons, when his son Francis Joseph shall reach the age of twenty-one years, or die, and then to be divided between them as directed. Then comes this clause: and in the meantime I order and direct my executors to take possession, charge and control of all my real estate devised by this clause of this my last will, immediately after my decease, and to receive the rents, issues and profits thereof; and I direct my executors to keep an accurate account thereof, as the same shall from time .to time be received by them; .and after paying out of the same all taxes and assessments imposed upon my said real estate, also the said annuity hereby given to my said wife, also the annuity given to my son-in-law Robert Emmett Dunham, and also all necessary expenses for keeping the ¿stores, houses and buildings thereon in good repair, and for the collection of the rents, issues and profits thereof, I direct my executors to credit each of my said sons and daughters, and my two ¡said grandsons, quarter yearly, with one equal share of the balance, if any at the end of each quarter, in every year during the term.”

It is thus seen, that the executors of this will are constituted trustees of an express trust under the statute already referred to.

The testator’s wife, Martha E. Deraismes, his son, John A. Deraismes, and his son-in-law, Robert E. Dunham, are appointed executors by the will. The testator died in August, 1866, and the will was proved in October of the same year, when all the executors qualified and entered upon the discharge of their duties under the will.

On March 15, 1880, on affidavits of eight of the beneficiaries-under the will, made and presented to the court at Special Term-for that purpose, Robert E. Dunham was removed from his office of trustee under the will, and the case comes to us on appeal from that order.

W e have already seen that these executors are made trustees of an express trust, and may be removed by petition or bill. IS either is there any difficulty in the removal of Dunham as trustee, and leaving him to exercise his functions as executor. (Quackenboss v. Southwick, 41 N. Y., 117.)

It remains to consider whether the power of removal has been-judiciously exercised. It plainly appears that the relation sustained between this trustee and the other two are so unfriendly and hostile as to endanger the execution of the trust. They can-neither consult in harmony, nor' act in concert in relation to the-estate, and it seems to be agreed that their differences are irreconcilable. These facts are sufficient of themselves to justify the-removal of a trustee, without inquiry respecting the outgrowth of hostility. (Story Eq. Jur., ”§ 1288.)

In this case, however, other reasons for the action of the court are found to exist. All the adult beneficiaries under the will join in the request for the removal of this trustee, and have stated-many facts showing that his administration has been unfortunate and improvident. Tie has become inimical to all the beneficiaries-except one who has not been consulted by reason of absence, and one who is a minor. He is in open hostility to his wife, who has-obtained an absolute divorce against him, and ought not to be compelled to endure him as her trustee, or to have any business relation with him respecting the estate. He has no interest in the estate^ except Ms annuity, and the remaining trustees are entirely competent to execute the trust, and they and the beneficiaries are in full harmony. There seems, therefore, to be ample reasons for the-removal of this trustee, and the order appealed from must be; affirmed, with costs.

Barnard, B. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman,. JJ.

Order affirmed, with costs.


text:
    SARAH J. HALLOCK, Respondent, v. FAIRFIELD RUMSEY, Appellant.

      Tax — the collector is not protected when the warrant is void — when property seized by a collector may be replevied by its owner.

    The defendant, while acting as a collector of school taxes, levied upon a cow,., belonging to the plaintiff, under a warrant for a school tax assessed against’ the plaintiff’s husband for a farm. It appeared that the farm belonged to the plaintiff, and that her husband resided with her upon it.
    In this action, brought by the plaintiff to replevy the cow,

      Held, that, as the farm was improperly assessed to the husband, the warrant-under which the defendant acted was void, and furnished no justification for’ his acts.
    That the statute, providing that property taken by virtue of a warrant for the-collection of any tax, should not be replevied, -was not applicable where-property owned by, and in the possession of, one person, was seized for the tax of another, and that it did not prevent the plaintiff from maintaining this action.
    Appeal from a judgment of the County Court of Orange county,, affirming a judgment of a justice of the peace in favor of the-plaintiff:.

      Henry Bacon, for the appellant.

      Geo. W. Mill&pcmgh, for the respondent.
   Dykman, J.:

This action is for the recovery of a cow belonging to the plaintiff, wbo is the wife of James J. Hallock, which was seized by the ■defendant while acting as collector of school district No. 11, in the town of Warwick in Orange county, for a school tax .assessed against the husband for the farm on which both reside. The uncontradicted testimony of the plaintiff is that the farm and the cow both belong to her, and that the husband resides there with her. This is all the testimony in the case respecting the possession ■ of the farm, and it is plain that the jury was justified in finding -from it that both the farm and the cow were in possession of the plaintiff at the time of the seizure. This being so, it is obvious -the farm was improperly assessed to the husband, for the statute ■requires that land must be assessed to the resident owner unless it is occupied by another, and then it may be assessed either to the •owner or occupant. (1 R. S., 6 ed., 934) These statutory provisions are imperative and must be pursued with strictness. In them the assessors find their only authority, and beyond them they have no jurisdiction; unless, therefore, they assess as the statute prescribes, their assessment is void. (Whitney v. Thomas, 23 N. Y., 281.)

The foundation upon which the defendant attempted to build .his justification being thus swept away, he is left a naked trespasser, with no justification from his warrant as collector for the -school district.

It is claimed, however, that the action cannot be maintained because the property in question was taken for a tax, and the •statute providing that no replevin shall lie for any property taken hy virtue of any warrant for the collection of any tax, assessment or ■fine in pursuance of any statute of this State is invoked in favor of this position. This statute, like all others, must receive a reason.able construction by the courts, and not be permitted to accomplish unjust results. If personal property is found in the possession of .a person named in a tax warrant there may be reasons for prohibiting replevin against a collector for its seizure. In the interest -of society, and to facilitate the collection of taxes, such statutory provisions may work salutary results. But it is not the intention •of the law to allow the property of one person to be seized for the fax of another. Such seizure would be beyond the command of -the -warrant, and illegal, and the owner should have replevin for its recovery. (L. S. & M. S. R. R. Co. v. Roach, 21 Alb. L. J., 258.)

Under the circumstances of this case the plaintiff should have her action and the statute is no. bar. The property seized did not belong to the person assessed, and was not in his possession. Another fact disclosed by the case divests the defendant of all justification and leaves him- liable as a trespasser for the seizure of the property of the plaintiff. But two of the school trustees were present when the tax was levied and assessed and the warrant made out, and no notice to the other to attend any meeting for that purpose is shown. This assessment and tax warrant were therefore void and gave no protection to the defendant. (Lamoreaux v. O'Rourk, 3 Abb. Ct. App. Dec., 15.)

Questions of regularity iu tbe election of the school trustees and the appointment of the defendant as collector are involved in the case, but as the judgment must be affirmed there exists no necessity for their examination.

Judgment affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment of County Court affirmed, with costs.


author: Dtkman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CHROME STEEL COMPANY, v. JAMES N. PAULDING, Individually and as Trustee, &c., and others, Respondents.

      Summary proceedings — the holding over of a tenant after the expiration of his term t/i’eated as an enlargement of it.

    The respondent demised certain premises to the relator, for the term of five years, from November 15, 1870, by a written lease, and thereafter extended the said term to November 15, 1877. After the latter date the relator continued to use and occupy the premises as before, until summary proceedings to remove it for the non-payment of rent were instituted, no rent having been paid since 1876.

      Held, that the entire period during which the relator held over was to be treated as an enlargement of the original term, and that the proceedings were properly instituted for the non-payment of the whole rent unpaid.
    That the tenancy from year to year did not cease at the end of each year, so> that a new term for the succeeding year began thereafter.
    That the payment of all the rent falling due subsequent to the loth of November next preceding the commencement of the summary proceedings, rent due prior to that time being still unpaid, was not sufficient to stay the proceedings.
    Ceetioeaei to review summary proceedings instituted, before a. justice of tbe jjeace iu tbe city of Brooklyn, for tbe removal of the relator from certain premises occupied by it.
    The tenant, the Chrome Steel Company, entered into the possession of the premises, from which they are sought by this proceeding to be summarily ejected for the non-payment of the rent, under a lease for the term of five years, commencing on November 15, 1870, the rent being payable quarterly on the first days of February, May, August and November in each year. The term of this lease was extended by an agreement indorsed thereon for one year, and again by another agreement also indorsed thereon for a second year, the term finally expiring on November 15, 1877. After the expiration of the lease on that day the tenant continued in the possession and occupation of the premises up to the time of the commencement of these proceedings. Rent for a part of the year 1876, and for the whole period since that time, except for the time between November 15, 1879, and February 1, 1880, which was paid after these proceedings were instituted, remained unpaid, and each installment thereof was duly demanded.
    The tenant contended that each year since the expiration of the term of the lease constituted a distinct and independent tenancy, and especially that each year of the holding over constituted a disi tinct tenancy, each tenancy ending on November 15, in each of said years, and that these proceedings could be brought only for the non-payment of the rent which had become due since November 15, 1879, that is, for the current year’s tenancy, and such having been paid, that no warrant could issue.
    The landlords, on the other hand, claimed that a tenancy from year to year is a continuing one, and does not cease at the end of any year of the tenancy unless a notice to quit has been served, which las never been done in this case, and that therefore there had been a continuing tenancy, at least since November 15, 1877, and that these proceedings could be founded on the non-payment of any rent which has become due since November 15, 1877, when the tenancy from year to year commenced.
    The justice held with the landlords, and under a stipulation the issue of the warrant was stayed, pending the decision by this court •of the questions involved.

      Winchester Britton, for the relator.

      8. B. Morris, for the respondents.
   Dtkman, J.:

This is a proceeding by a landlord under the statute to remove a tenant for the non-payment of rent. The tenant entered first into the possession of the premises under a written lease, for the term •of five years, commencing on November 15, 1870, and providing for quarterly payment of rent. Occupation was had under this lease until its termination, and then the term was extended for two years by a written indorsement. These two years expired on November 15, 1877, but the tenant continued to possess and occupy the premises from that time to the present. When these proceedings were instituted the rent for part of the year 1876, and the whole period since, remained unpaid, and the defense interposed is that these proceedings can be maintained only for the rent accruing since November 15, 1879, the current year’s tenancy, for the reason that each year since the expiration of the lease has constituted a distinct and independent tenancy. .

We cannot yield assent to this proposition. With the assent of the landlord the tenant continued to occupy the premises after the expiration of the written lease, and a reasonable inference is that both parties intended a tenancy thereafter, on the terms therein provided. The possession of the tenant was rightful, but it was •under the original demise. He held over after the expiration of the term, and thus became a tenant from year to year. Such tenancy might have been terminated by a notice by either party, but ■until such notice was given it was continuous. Both parties had the election to continue the tenancy or terminate the same by notice. (Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 Id., 205).

When distress for rent was a remedy in the hands of the LukL lord in this State, it was held, where a tenant entered under a demise for two years and continued in possession nine years, the landlord might by one distress distrain for the rent accruing during the whole time. (Sherwood v. Phillips, 13 Wend., 479.) In that case the great question was whether the landlord could distrain for the whole nine years as one-term, and it was held he could. After an examination of some of the cases, Chief Justice Savage-says: Applying these principles to the pleadings in this case it follows that the occupancy in this case is to be considered as resting upon a valid lease for nine years. The right of the landlord to distrain is just as perfect as if there had been in the first instance a written lease for nine years.” The same doctrine was. held in Webber v. Shearman (3 Hill, 547), and Judge Cowen there said, Holding over after the expiration of a sealed lease is-a continuation of the same tenancy and an enlargment of the same term.” This rule comports with both reason and justice, and nothing in this case calls for the adoption of another. After the expiration of the written lease the tenant remained silent but continued his possession, and the landlord acquiesced in the continuance. Plainly, both parties understood the after occupation to be on the terms specified in the lease:- The appropriate mode of terminating this tenancy was by notice, and neither party gave it, and the tenancy yet continues.

Our conclusion is that these proceedings were properly instituted, for the non-payment of the whole rent, and the judgment must be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE NEW YORK & MANHATTAN BEACH RAILWAY COMPANY and others, Appellants.

      Action by the people to recover land wrongfully obtained from a town — when it' cannot be brought — Chapter 49 of 1875 — constitutionality of — who a/re necessary parties to an action brought under it — A town cannot disaffirm a deed ’procured through fraud without restoring what it received under it.

    Chapter 49 of 1875, — providing that where money or property, held or owned officially or otherwise for any.public or governmental interest, by any public corporation, board, officer, custodian, or agent of any portion or subdivision of the State, shall, without right, be received, convertedor disposed: of, the people of the State shall have a right of action to recover the same,. —does not authorize the people to bring an action to set aside a convey anceof certain land from a town to a corporation, made in pursuance of a resolution adopted at a town meeting, which resolution directed the said land, to be so conveyed on payment by the said corporation of asum to be fixed by appraisers, on the ground that the corporation packed the town meeting-with spurious and fraudulent voters, and thereby procured the adoption, of a resolution detrimental to the interest of the town.
    If such an action could in any event be maintained, the town would be a necessary party thereto, as it, being the party defrauded, would be entitled to-decide whether to repudiate or affirm the sale, and also to be heard as to the disposition to be made of the land in case the conveyance should be set. aside.
    ■To authorize either the people or the town to disaffirm or set aside such a deed,. all that had been received under it would first have to be restored.

      Qucere, as to the constitutionality of those provisions of the act of 1875, vesting the title to the property or money, the subject-matter of the action* brought thereunder, in the people of the State.
    Appeal from an interlocutory judgment entered upon a decision; overruling a demurrer interposed to tbe complaint.
    Tbe complaint alleged that Coney Island, except such parts as-have been rightfully alienated, belongs to the town of Gravesend,, and is vested in the town .or the present freeholders and inhabitants-for the use of the town; that prior to April 1,1878, the New Yorlc & Manhattan Beach Railway Company took, and has retained,, possession of a tract of land upon Coney Island, extending about two and one-half miles, and containing about five hundred acres,, and alleges that such possession was wrongful, as against the town ■of Gravesend; that a portion of it, about three thousand feet in “•extent upon the ocean, was held by lessees under leases from the -town, and the defendant railway company got possession of it by -purchasing the rights of the lessees. That the rest of it was taken •possession of by the railway company, claiming title under deeds •or grants of salt meadow lands from individuals claiming some title thereto, and that the railway company claimed that the deeds ran to the ocean and included the beach, which is the valuable portion -of it, and of which they had taken, and still held possession. That being, desirous of acquiring the title of the town of Gravesend to the property so taken possession of, the railway company sent a .large, number of men with one Sully, a director of the company, to lead and direct them, to the town meeting held on the first Tuesday ;of April, 1878, in order wrongfully and illegally to control the votes ;and determinations of the town meeting. ' That a resolution was presented at the town meeting by the railway company or by their procurement, reciting that there was a dispute between the town •of Gravesend and the railway company, as to the title of the land ■occupied by them, and resolving that the town should relinquish their title to the property in possession of the railway company, for .a consideration, to be fixed as follows : An appraiser on the part of the town was to be appointed at that meeting, the railway company was to choose another ; if the two should disagree they were to appoint another, whose decision should be final. Upon payment of •the amount so fixed the commissioners of common lands of the -town were authorized and directed to give a deed of all the right ,and interest of the town in the said land :
    That the said resolution was voted for principally by the cries .and acclamations of a large number of persons in the employment •of the said company: that a ballot was called for and voted down by the same persons; that a count or division of the house was •called for and refused; that it was impossible to tell whether there was a majority voting for or against the measure, and especially impossible to tell how many, and which of the votes were legal; that a large number of the persons present, who were shouting and voting ’ -for the resolution, were not legal voters. That during all the time ¡Sully was actively engaged leading these persons, and by cries and vociferations voting with them ; that Sully was not a resident of the town or entitled to vote; that Stephen I. Yoorhies was appointed .■appraiser on the part of the town, and that he was voted for in the same way and by the same parties.
    That the resolution and appointment were carried through by a mob of transient persons sent there for the purpose by the railway ■company, with the connivance of Yoorhies, the chairman ; that the •said Yoorhies agreed to $1,500 as the compensation to be paid to the town for their title and interest; that the said appraisal was ■fraudulent, and was procured from Yoorhies by the railway company by undue influence, and that it was grossly inadequate in ■•amount and was .known to be so by Yoorhies himself, and by the railway company; that the railway company paid the $1,500- and received the deed, which was recorded; that several town meetings were afterwards called and holden, upon the application of the inhabitants, to institute a suit to set aside the said deed and have the rights of the town adjudicated, but that upon each occasion the meetings were packed and controlled by the employees of the railway company, led by Sully as before; that the railway company have conveyed to the improvement company, the other defendant ; that the property so owned by the town has been obtained by the defendants without right, and is still so held, and has mot been recovered back or restored.
    The judgment demanded was, that the deed be set aside; that the rights of the town in and to the land be ascertained and. determined. That if the defendants own any part of it, the boundaries between, them and the property of the town may be ascertained and declared. That the defendants be adjudged to give up possession of the premises, and that they be enjoined from selling or disposing of the property, and for such other or further relief as might be given.
    A demurrer was interposed upon the grounds : That the plaintiff had no legal capacity to sue ; that the complaint did not state facts sufficient to constitute a cause of action; that there was a defect of parties in omitting the town of Gravesend, and in omitting Stephen I. Yoorhies ; that there was a misjoinder of causes of action — one being against the New York & Manhattan Beach Railway Company, and tlie other against the Manhattan Beach Improvement' Company; that several causes of action were improperly united r 1st, for obtaining and holding wrongful possession of land; 2d, to ascertain the boundaries thereof; that several causes of action were-improperly united : 1st, to ascertain title; 2d, to obtain possession : that several causes of action were improperly united, viz.; 1st, to-vacate and set aside a deed ; 2d, to determine the title and boundaries t that several causes of action were improperly united; 1st, to set-aside a deed; 2d, to declare the rights of the town.

      B. F. Tracy and Alfred C. Chapin, for the appellants.

      Benjamm G. JTitchmgs, for the respondent.
   Dykman, J.:

The obstacles in the way of the plaintiff in this action are numerous and insurmountable. In the first place there is nothing in the-history or language of the law of 1815 (ch. 49), under which it is instituted, which makes that statute applicable thereto. Frauds of stupendous magnitude and enormity had been perpetrated by certain municipal officers and their confederates in the city of New York,, and a civil action for the recovery of the money and funds fraudulently diverted, set on foot in the name of the people of the State-of New York, was defeated by a decision of our highest appellate tribunal against its maintenance. Then,' for the purpose of enabling the people to sustain a civil action against State,, county, town and municipal officers for malfeasance, to reclaim, money and property tortiously and fraudulently appropriated, the-law of 18Y5 was enacted, providing that where any money, funds, credit or property, held or owned by this State, or held or owned! officially, or otherwise, for or on behalf of any public or government interest, by any municipal or other public corporation, board, officer, custodian, agency or agent of any city, county, village or other division, subdivision, department or portion of this State, has heretofore, without right been obtained, recovered, converted or disposed of, and not actually recovered back and restored prior to the passage of this act, unto-the proper and lawful official, receiver, depositary or custodian thereof, either in specie or by full and lawful compensation for the same duly made, or where such money, funds, credit or property shall be hereafter without right obtained, received, converted or disposed of, the people of this State have in every such case and shall have a right of action for the same and for any damages, or other compensation due recoverable or that might be had on account or by reason of such obtaining receipt, conversion or disposition, notwithstanding a right of action may exist by law, for the same^ cause in some public authority other than the State, and although an action therefor may be pending.

This is sufficient for a comprehension of the scope and intention of the law, so far as concerns actions under it. Without verbiage or repetition the plain provision is that, where money or property held or owned officially or otherwise, for any public or governmental interest by any public corporation, board, officer, custodian or agent of any portion or subdivision of the State shall, without fight, be received, converted or disposed of, the people of the State shall have a right of action for the same and for damages.

Here was no property held by an officer, custodian or agent, and no conversion thereof by any person sustaining that relation. The allegations of the complaint are that the land in question was the property of the town of Gravesend, that the defendant first obtained possession of it and then improperly procured the passage of a resolution by the annual town meeting of the town, for a valuation of the property and a sale and conveyance thereof to the defendant, which resolution was carried into execution by a conveyance to the-defendant and the payment of the appraised valuation.

The specific wrong complained of is the packing of the town-meeting with spurious and fraudulent voters, and thus giving a false direction to the action of that, body, detrimental to the interests of the town. This was clearly ill and wrong, but not the kind of evil intended to be redressed-under the statute of 1875. It is the case-of an improvident disposition by a town of its real property through, the instrumentality of a town meeting controlled by unjustifiable influences. There may be redress for such a wrong, but it does nofe lie in the remedy the plaintiff has pursued.

It is quite true that under our political system a town has many of the attributes of a corporation, but it does not follow that because such a bod), makes an improvident disposition of its property, even though the same is induced by fraud or wrong, a restoration can be procured by an action in the name of the people, under this statute. The -statute has relation to wrong, frauds and conversions perpetrated by a corporation or natural person sustaining some fiduciary relation to the true owner, not to dispositions of property by the owner, even though influenced and obtained by fraud.

In the next place, the town of Gravesend is a necessary party to this action. The statute of 1875 provides, beyond what has already been quoted, that on the commencement of any action or judicial proceeding under it for the recovery of money or property by the State, all such money and property, if not so previously vested, shall then forthwith be vested in the people of the State of New York, and are by force of such suit, action or judicial proceeding, and of this act, transferred to and vested in the people of the State. This portion of the statute proposes to take private property either of an individual or a corporation and transfer it to the State without compensation, in violation of the provisions of the Constitution in that behalf. If given any operation in this case, it would transfer the property in question to the State and vest the title thereof in the people.

If made a party to this action, the town may raise objection to this disposition of the property, or it may acquiesce therein, as any party may waive a constitutional provision existing for his benefit. Not being a party to the action, none of the proceedings therein will have any binding force against the town.

True it is, that section 3 of the act gives power to the court to make such order and judgment as may be just and equitable for the disposition of the proceeds of any recovery in the action, so as to reinstate the lawful custody which was disturbed by the wrong complained of, whether the true owner was a party to the action or not, and it has been contended that it was not the intention of the law of 1875 to deprive the owner of any property, but to devise a .remedy for its recovery.

This latter view seems to give but small force to the intention of section 1 of the law, as expressed in plain language, but it is not essential to examine it further now.

Another plain reason why the town should be made a party to this action, is this. The sale of this property, though induced by fraud, was not absolutely void, but voidable only, at the option of the town, the defrauded party. It may be that the town elects to affirm the transaction, and that can only be determined in this action by making the town a party thereto and thus presenting the opportunity to repudiate or affirm the sale and conveyance. (Matteawan Company v. Bentley, 13 Barb., 641; Baker v. Robins, 2 Denio, 138; Cobb v. Hatfield, 46 N. Y., 533.)

Another reason why this action cannot be sustained, is that if the town elects to disaffirm the sale, before any measures can be adopted in that direction, whatever has been received in pursuance of it must first be restored. There is no rule of law or justice that will permit the State to take the property in question from the defendants, while the town holds on to the money which they paid for it. The sale and conveyance remained in full force and operation until disaffirmance and restoration by the town. (See cases last cited.)

The judgment must be reversed, with costs and disbursements.

Barnard, P. I., concurred; Gilbert, J., not sitting.

Judgment reversed, and judgment for defendant, with costs, unless the plaintiff amend in twenty days, on payment of costs.


author: Dykman, J. :

text:
    GEORGE D. CRAGIN, Appellant, v. ELIZA A. QUITMAN, Individually, and as Executrix, &c., of LOUISE S. QUITMAN, Deceased, Respondent.

      Demurrer — will not Me unless the defect appears on the face of the pleading demurred to.

    Where, in an action brought to recover damages for a failure of the defendant to perform an agreement as to the sale of a plantation, alleged in the complaint to be situated in the State of Louisiana, the defendant, in her answer, set up as a counter-claim that the plaintiff, while in possession of “Live Oaks,” “the said plantation,” unnecessarily injured, wasted and damaged it to the amount of not less than $10,000, it nowhere appearing from the said answer, except by reference to the complaint, that the plantation was situated in another State, a demurrer to the counter-claim on the ground that the court had no jurisdiction of the subject thereof — as being founded upon an injury to real property situated in another State — cannot foe sustained.
    Appeal from an interlocutory judgment in favor of the defendant, entered upon a decision overruling a demurrer interposed by the plaintiff to a counter-claim set up in the defendant’s answer.
    The complaint alleged an agreement made by the defendant and Jier testatrix, her sister, that the plaintiff should be allowed to gain title to a certain plantation in Louisiana, known as “ Live Oaks,” ■upon payment of certain mortgage notes held by the said defendant and her testatrix, the part performance of the agreement by the plaintiff, his willingness to perform the remainder, and the breach of the agreement by the defendant and her testatrix, and •demanded judgment for $10,000 damages for the breach of the said contract.
    The defendant answered, denying the making of the said agreement, and setting up a counter-claim in the following language:
    “ Fourth. — For a fourth and further answer, defendant alleges, upon information and belief, that during the time while plaintiff was in possession of the said “ Live Oaks,” claiming to be owner, and at the time the improvements on the said premises are alleged to have been made by him, and while recognizing the validity of defendant’s lien, and as part of the same transaction out of which the alleged cause of action arises, this plaintiff unnecessarily broke, destroyed, injured and wasted the said plantation and the fences, buildings, out-buildings, fixtures, appurtenances and improvements to the property, and so carried on the business of the plantation .and conducted the tillage and cultivation thereof, that the same was greatly damaged, in the amount of at least $6,000, for which sum defendant asks judgment, and which amount she counter-claims in this action.”

      To this counter-claim the plaintiff demurred on the ground that it appeared that the court' had not jurisdiction of the subject thereof.

      E&wcvrd B. Gow'les, for the appellant.

      J. Newton Fiero, for the respondent.
   Dykman, J. :

An action for the recovery of damages for injury to real property cannot be sustained out of the territory where the injury was •committed. ’When the cause of action is necessarily local the territorial jurisdiction is exclusive. It has accordingly been long settled that an action for damages done to real property in one of the ■other States of this Union cannot be maintained in the courts of this State. (Watts v. Kinney, 6 Hill, 82; American Union Telegraph Co. v. Middleton, Court of Appeals, March 10, 1880, not reported.)

It seems to have been assumed that the counter-claim set up in the amended answer of the defendant in this action, to which the plaintiff interposed a demurrer, is for injury to real property ■outside of the State of New York, but the difficulty is that the fact does not appear on the face of the answer. The only fact .•stated is, that the injury and waste complained of were done on the plantation called the Live Oaks, but where the land is situated is nowhere alleged in the answer. The answer refers to the Live ■Oaks mentioned in the complaint, and if we were at liberty to turn to the complaint it would be found, there alleged, that the plantation mentioned is located in the State of Louisiana. This will not .suffice. The plaintiff can only demur to a counter-claim, or a defense consisting of new matter contained in an answer, on- the ground that it is insufficient in law on the face thereof. (Code Civ. Pro., § 494.) As, therefore, the insufficiency of the answer -does not appear on its face, the objection to it cannot be raised by ■demurrer. It can only be raised on the trial after the facts are •disclosed by the testimony.

The judgment appealed from must be affirmed, with costs.

Gilbert, J., concurred ; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    NICHOLAS G. VERPLANCK by ODLE CLOSE, his Committee, v. CORNELIA J. VERPLANCK.

      Receiver of rents pending an action of pa/i'tition — a judgment creditor of apcurf/y to it cannot procure payment of his judgment from such receiver — remedy of the judgment creditor.

    In this action, brought to obtain a partition of certain real estate, a receiverpendente lite was appointed, with direction to collect the rents and divide the net proceeds thereof between the plaintiff and the defendant. Thereafter one Man, having recovered a judgment against the defendant upon-which an execution had been issued and returned unsatisfied, applied for an order, directing the receiver to pay the amount due on the judgment to-him, from the defendant’s share of the rents.

      Held, that the application was properly denied.

      Berrible, that the remedy of the judgment creditor was to come into the action-, and press it to a judgment, after which his claim might be paid from the-proceeds of a sale of the premises, or if an actual partition was decreed-the share set off to the judgment debtor might be sold.
    Appeal from an order made at Special Term, denying the petition of Messrs. Man & Parsons, for an order directing tbat a debt,, due to them by the defendant, might be paid by the receiver appointed to collect the rents of certain real estate which this action, was brought to partition.

      J. Ilcmnpden Dougherty, for the petitioners, Albon P. Man and. others, appellants.

      Braméis 0. Ba/rlow, for the defendant, respondent.
   Dykman, J.:

This action was commenced several years ago to partition lan daowned by the plaintiff and defendant in common. In June, 18J5r this court appointed a receiver, pendente lite, of the rents, and -ordered the receiver to divide monthly the net proceeds coming to his hands, between the plaintiff and defendant. This limited sphere was all the court could rightly create for its officer. Such an appointment disregards, and is against, the legal title of one party,, and is justified only by protection necessarily extended to one of’ the two rights, to which protection the other’s invasion is unavoidably incident. (Vincent v. Parker, 7 Paige, 65.)

So, where one of two tenants in common refuses to rent, and unnecessary loss will result to the other, a receiver will be appointed^ (Pignolet v. Bushe, 28 How. Pr., 9.)

In February, 1876, Man and others'recovered judgment against-the defendant, ‘tad execution having been returned unsatisfied,, moved the court below to direct this receiver to pay their judgment from the defendant’s share of rents. They plead to equity' that the lien of the Us pendens in this action is prior to their judgment, and that they cannot sell under execution because the receiver is in possession.

Their legal remedy is to come into this action and press it t© judgment. Actual partition or a sale will be decreed, and they may sell their debtors’ several share, or will be paid from the proceeds of the sale decreed.

The docket of a j udgment gives no lien on rents, nor does a sal© of lands under a judgment and execution.

An actual partition may be decreed. In that case these applicants need not be parties.

It is deemed a perfect answer to repeat that the appointment is-an invasion of the legal title of one party on the application of the other. We have not the papers before us to be certain, but the invasion may be of the defendant’s title. A justification there doubtless was, but the necessity is the limit beyond which equity will not carry its interference with the legal title.

Order affirmed, with costs and disbursements.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    JACOB CARPENTER, Appellant, v. WILLIAM LE COUNT, Respondent.

      „Agreement — when it inures to the benefit of a stranger to it — what will'authorize an auctioneer to charge commissions at more than the statutory rate — when he can recover for labor in cataloguing property not sold.

    'The plaintiff, who had given to one Ackerman a chattel mortgage, as security for a promissory note, payable on demand, subsequently entered into a written agreement with him, by which it was provided that the note and mortgage should be deemed due, without any demand being made, and that the property should be placed in the hands of the defendant, an auctioneer, who should sell the same and pay from the proceeds thereof, after deducting the expenses incurred, and his commission at five per cent., the amount due to Ackerman, and turn over the balance to the plaintiff. Held, that though the defendant was not a party to the contract, yet it furnished the authority under which he sold the property and gave him the right to retain commissions at the rate of five per cent., and relieved him from the penalty imposed upon auctioneers who charge commissions in excess of the statutory rate.
    After enough of the property had been sold to pay the amount due to Ackerman and the expenses of the sale, the plaintiff directed the auctioneer to stop the sale, leaving unsold about $600 worth of property.
    Held, that the. defendant was entitled to a reasonable compensation for his labor in including this unsold property in the catalogue which he had made for the sale.
    Appeal from a judgment in favor of tbe defendant, entered upon the verdict of a jury, and from an order denying a motion for^ 3. new trial, made upon the minutes of the justice before whom rthe action was tried.

      Mills c& Wood, for the appellant.

      Martim, J. Keogh, for the respondent.
   Dykman, J.:

In April, 1876, the plaintiff executed to George B. Ackerman a ■chattel mortgage as security for a promissory note, payable on de mand, and in the latter part of the same year they entered into a •contract, in writing, by which they agreed that the note and chattel mortgage should both be deemed due without the formalities of -demand and seizure, and that all the property be. placed in the hands of the defendant, who was an auctioneer, for sale, and he was "thereby authorized to sell the same. He was also authorized to collect the money for which the property should sell, and out of the proceeds to pay his commissions of live per cent., the expenses of the sale, the amount due to Ackerman on the note and mortgage, and the balance to the plaintiff. The sale was made by the defendant, and the proceeds disposed of by him in pursuance of the written agreement under which he made the sale, and a balance was left in his hands for the plaintiff, of $149.04.

This action is now brought against the defendant for the recovery, not only of this $149.04, which the defendant has .been at all times ready to pay, but also the excess of his commissions above the statutory rate of two and a half per cent., and a penalty of $250 for a violation of the statute in charging above that rate.

No recovery can be had for the last two items, for the reason that the written agreement under which he made the sale gave him the right to the five per cent.which he charged for his commissions. The same authority which empowered him to make the sale justifies and protects him in his charge for commissions. The argument of the appellant is, that the agreement was not with him, and does not, therefore, justify his charge above the statutory rate. But the same argument would make him a trespasser in taking and selling the goods. His sole and only authority and justification was the written agreement of the plaintiff and Ackerman, and that was ample. It matters not that the agreement was not signed by the defendants. The plaintiff signed it, and is bound by all its provisions, and its whole scope and object was to empower the defendant to make the sale in pursuance of its provisions.

There is another charge of $30 by the defendant, which involves a more serious question arising out of the following facts. After the -defendant had sold sufficient property to pay his expenses and commissions and the chattel mortgage, the plaintiff directed him to stop the sale, and he did so when there remained about $600 in value of the mortgaged property unsold. Upon this the defendant has charged $30 as his compensation for the failure of the plaintiff to carry out the agreement to allow him to sell all the property. This charge is intended to cover the labor of the defendant in including this unsold property in the catalogue which he made of the property. The trial judge directed the jury to allow him a reasonable compensation in that view, and the jury allowed the $30. This, certainly, was a just view, and the verdict accomplishes a just result.

There were several exceptions to the charge of the judge as made, and several requests to charge, which were refused, but the charge and refusal were harmonious with the views above expressed, and there was no error in either.

All of the numerous points made by the appellant have been fully-considered,- and we find nothing calling for our interference.

The judgment is affirmed, with costs to the defendant on this appeal.

Barnard, P. J., concurred.

Present—Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.