author: BARRETT, J.

text:
    Hipolito Dumois et al., App'lts, v. William Hill et al., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 20, 1896.)

    Money had and deceived—Invalid claim.
    An action will not lie for money paid to the defendants not for plaintiff’s use hut for their own use, though the plaintiffs are really entitled to it. as against the defendants.
    Appeal from an interlocutory judgment, sustaining a demurrer to the first cause of action in the amended complaint.
    Plaintiffs’ first cause of action alleges that the defendants leased to the plaintiffs and other parties all their interest in the easterly half of pier 12, Bast river, and in the whole of pier 13, Bast river, together with all their rights of wharfage and cranage, and all other rights connected with the use of said piers, for a period of five years from January 1, 1891; that, previous to the execution of this lease, the city had unlawfully erected and maintained, upon the westerly half of pier 12, a nuisance, namely, a dumping board; that an action, brought by the lessors, was then pending to compel the city to remove this dumping, board; and that the lease contained a covenant that nothing therein should prejudice or affect that suit. The complaint then goes on to state that the plaintiffs are the successors in interest of all the other parties, who were originally lessees; that," since the execution of the lease, to wit, on January 6, 1894, the defendants, without the knowledge of the plaintiffs, commenced an action against the mayor, aldermen, and commonalty of the city of New York to recover damages “ for the use and occupation of the easterly half of said pier 12” by the street-cleaning department for the purpose of a dump, claiming that they were entitled to wharfage accruing from the easterly half of said pier 12, and to one-half of the wharfage accruing from the outermost end of said pier, and charging that the city had erected upon the westerly half of the said pier a dumping board, which diminished the wharfage which would otherwise have accrued to them, etc. It further avers that the complaint in said latter action alleged that the present defendants were entitled to the wharfage for the easterly half of said pier, whereas the present plaintiffs were so entitled from and after January 1, 1891, when their lease began; that this action was settled by a payment of $400 a month from May 1, 1885, to January 1, 1894, with interest on the payments from their respective dates, and on the whole sum from January 1, 1894; and that $14,400 of this amount, or the payments accruing from January 1, 1891, to January 1, 1894, represented damage suffered by the plaintiffs, and was paid to the defendants to and for their, use. What became of the original suit referred to is not stated. .The judgment demanded was $14,400, with interest on $400 from February 1,1891, and from the first of each succeeding month during said period, and on the whole amount, with the interest already accrued, from January 1, 1894. This cause of action was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action.
    Henry W. Goodrich, for app’lts; Thomas G. Shearman, for resp’ts.
   BARRETT, J.

We need add but little to the satisfactory opinion of Pryor, J., upon the demurrer to the originial complaint. 32 N. Y. Supp. 164. The present defendants, in their action against the city, claimed the damages in their own right. The present plaintiffs say that these damages were clearly theirs. But that does not help them. If they were entitled to these damages, their rights were not affected by the payment to the defendants. If they have a just claim against the city, they can still assert it. The payment to the defendants was not to their (plaintiffs’) use, but, as they insist, to the defendants’ sole use, and therefore wrongful, It is well settled, under such circumstances, that an action for the sum paid will not lie by the party really entitled to it against the party who recovered it in his own right. Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 N. Y. 450 ; Rowe v. Bank, 51 N. Y. 674; Decker v. Saltzman, 59 N. Y. 275; Peckham v. Van Wagenen, 83 N. Y. 40; Sergeant v. Stryker, 32 Am. Dec. 404.

The plaintiffs now abandon the contention that this is an action for money had and received to their use. They say that they elect to make the defendants their agents for the collection of their damages, and that they ratify said Collection, although it was wrongl’ul. This they call an “action on the case.” It has none of the elements of such an action. There is such a thing as affirming or disaffirming the unauthorized acts of one’s agent; but there must first be an agency. There is no such thing as creating an agency contrary to the fact by a process of election. The pleader must have been thinking of the equity principle which sometimes converts a party into a trustee ex maleficio. Here, however, there was no trust or agency, and there were no facts upon which any such' relation could reasonably be asserted. As was said by PAEKEE, J., in Patrick v. Metcalf, supra, •“ there is no ground for making the defendants trustees of the money for the plaintiffs"; still less, agents. The defendants claimed -what in their view was their own. That claim was necessarily in hostility to any other claim to the same demand. The rights of the parties run upon different lines. These lines do not converge, either in law or fact.

It may be added that it is by no means certain that the plaintiffs were entitled to these damages. The complaint avers that the recovery against the city was for the use and occupation of the pier for the purpose of a dump, and for the consequential loss of wharfage. Whatever may have been the form of that action, it necessarily proceeded upon the diminution of rental value by reason of the nuisance. The nuisance was upon the property when the present plaintiffs leased it, and they undoubtedly paid less rent in consequence- of its probable continuance. That being the case, the lessors were entitled to recover for such diminution in rental value. Kernochan v. N.Y. E. R. R. Co., 128 N.Y. 559; 41 St. Rep. 110. The action in which the damages.were.recovered was substantially the same as that referred to in the lease. It may have been different in form, but it sought redress for the wrong done by the dumping board. Whether such redress was obtained in one form of action or another is unimportant. However the real damages, namely, the diminution in rental value, may have been asserted and recovered, whether such diminution was called, “'damages for loss of wharfage,” or “ damages for loss of wharfage, rent," the practical result was the same. It follows that, if the claim was asserted and recovered because of the loss really sus-> tained by the lessors, they were acting rightfully in their own behalf. Whether acting rightfully or wrongfully, however, the plaintiffs have lost nothing to which they were legally entitled,, and their present action must fail.

The iudgment appealed from must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ada B. Riggs, Resp't, v. William F. Buckley, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 20, 1896.)

    1. Bill of pabticulabs—Whenbequibed.
    Where a defense is that the consideration recited in an assignment is not the real consideration, and the real consideration is not sufficient and valid in law to support the making or delivery of the assignment, and that it is and was therefore void, the plaintiff is entitled to know what the actual consideration was for the assignment which makes it void.
    2. Same.
    So, where he claims that it was obtained from him by fraudulent representations, plaintiff is entitled to know the representations made which induced defendant to deliver the transfer.
    Appeal from an order requiring defendant to furnish a bill of particulars.
    Francis D. Dowley, for pl’ff; Adrian H. Larkin, for def’t.
   PER CURIAM.

The court was clearly right in ordering a bill of particulars of the consideration referred to in the eighth subdivision of the answer. The assignment, on its face, recited a consideration of one dollar. The defense, as stated in such subdivision of the answer, is that the consideration recited was not the real consideration, and the real consideration was not sufficient and valid in law to support the making or delivery of the instrument, and that such instrument was and is therefore void. The plaintiff is entitled to know what actual consideration there was for the assignment which made it void. The same consideration applies to the second, third, fourth, and fifth clauses of the order requiring particulars of the defense set up in the ninth subdivision of the answer. The plaintiff is entitled to know the representations made by which the defendant was induced to deliver the transfer to Bel den. As to the sixth and seventh clauses of the order, we do not think that they relate to a proper subject or subjects of which particulars should be ordered. So far as proper, they are included within the particulars to be furnished under the prior provisions of the order.

We think, therefore, that the order appealed from should be modified by striking out the sixth and seventh clauses thereof, and that, as modified, the order should be affirmed, with $10 costs and disbursements of the appeal to abide the event of the action. ~ /


author: PATTERSON, J.

text:
    People ex rel. Julius Schultz, Resp't v. Joseph Murray et al., as Commissioners, etc., App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 20, 1896.)

    1. Excise—License—Refusal.
    Commissioners o£ excise may, in their discretion, determine whether or not they will allow a license to issue to sell liquor upon premises, which have acquired a reputation as a place of resort for lewd and disreputable persons.

      2. Same.
    A building, -which has been used for a long time to violate law, is not B suitable place in which to sell liquors.
    .Appeal from an order in effect reversing the action of the commissioners.
    C. L. Hoffman, for relator; J. M. Mayer, for commissioners.
   PATTERSON, J.

This is an appeal from an -order made at a special term of the supreme court of the city of New York, on the 80th day of April, 1895, in a certiorari proceeding against the board of excise of the city of New York, and in which proceeding was brought up for review the action of the commissioners of excise in refusing to grant to the relator a license to sell liquor on the premises No. 319 Bowery, in the city of New York. The order appealed from, in effectj reversed the action of the commissioners, and directed them to grant the application of the relator, and to issue to him a license to sell liquor on the premises in question, in accordance with his application. The refusal of the commissioners to grant the relator's application was based upon the'distinct ground that the premises in question were not a fit place in which to allow the sale of liquor, and that is the only reason appearing in the record as inducing them to withhold a license. The application was made to them on or about the 20th of March, 1895; and on the 9 fch of April, 1895, they announced their determination, embodying their decision in a memorandum in the following words:

“ April 9th, 1895.

The application of Julius Schulz for an hotel license for the premises 319 Bowery is rejected, and a license refused, for the reason that the said place is not a fit and proper place to be licensed, reference being had to the proceedings of the Board on the complaint for the revocation of a license for said premises issued to Joseph Hirschhorn, and to the decision of the board under date of February 9th, 1895, revoking said license, for the reason that the said premises had been permitted to become disorderly and a resort for disorderly persons.”

It is apparent from the language of this memorandum that the reason assigned for refusing the license to the relator was that the place sought to be licensed was not a fit and proper one, and the evidence upon which they acted was the record of a prior finding made by them, showing conclusively that on the 9th of February, 1895, it had been determined that the same premises bad been permitted to become disorderly; the meaning of which is amplified in their return by the statement that “ the license of one -Joseph Hirshhorn for said premises was revoked for permitting the premises to become disorderly, and the resort of disorderly and immoral persons, and a place for persons to visit for lewd, obscene, and indecent purposes, and the resort of prostitutes and thieves.”

The relator knew of the bad character of these premsses, for he himself testified that it was at his instigation or procurement that the license of'Hirschhorn had been revoked. The character of the premises was therefore clearly established, and it was entirely within the discretion of the excise commissioners to determine whether or not they would allow allow a license to issue to sell liquor upon premises with such a stima upon them. It is not a fact that the revocation of the license was based upon the character of the tenant, but upon the use to which the premises had been put, by reason of which use they had become of ill repute, and unfit to be licensed. It was the fact that the property had been used for disorderly purposes, by the fault of the tenant, and that the license was revoked; and the refusal to issue a new license is -clearly based upon the character the premises had acquired as a place of resort for lewd and disreputable persons, and that was a sufficient reason for the commissioners’ action. As was said in Michael’s Appeal, 63 Conn. 583, a building which has become the abiding place o£ either lawbreakers or of crime cannot be a suitable place in which to sell liquors. A building which has been used for a long period to violate law is not a suitable place in which to sell liquors.

There was nothing before the commissioners to show that the character of these premises had in any way changed, and no real assurance that they’ would not be resorted to by persons of the same stamp as those who had frequented it previously. The only effort made in that direction by the relator was to show that he was a person of good character, and that he intended to keep a lodging house for men. The commissioners were not bound to act only upon such evidence which, as matter of fact, so far as this record shows, fell far short of what relator the relator claims. The only witness appearing before the commissioners to testify to the character of the relator was not able to testify even that he was acquainted with him, for, when asked whether he knew the relator, the answer of the witness was that he had heard of him. The premises, in the judgment of the commissioners, stood condemned .as an improper place for the sale of liquor. There was no evidence to show that the reputation of such premises had been redeemed. It is idle to say that the action of the commissioners places a perpetual disability upon the premises. It may become a question of fact for them to determine hereafter whether the place has ceased to be a resort for disorderly persons, and they were quite justified in exercising their discresion, and in refusing the license applied for by the relator within six weeks after the premises had been condemned as unfit to be licensed.

The order of the superior court must be reversed, and the writ of certiorari dismissed, with $10 costs and disbursements of appeal, and costs in the court below.

All concur.


author: RUMSEY, J.

text:
    James J. Herbert, Resp't, v. Effie J. Griffith, App'lt.

      (Supreme Court Appellate Division, First Department,

      Filed March 20, 1896.)

    1. Venue—Change—Convenience oe witnesses.
    Where the moving papers show that the case made is sufficient to require the court to change the place of trial, an order refusing to change the place of trial will he reversed and the party given the relief to which, his papers entitle him.
    2. Same.
    The provisions of sections 982-984 of the Code are subject to the right, which,- by section 987 of the Code, is given to the court, in a proper case,, to change the place of trial for convenience of witnesses.
    3. Same.
    For the convenience of witnesses the court may order the place of trials of a transitory action, at least, to be changed to a county other than that) in which either of the parties resides.
    Appeal from an order denying a motion to change the place o® trial on the ground of convenience of witnesses.
    Arthur H. Smith, for app’lt.
   RUMSEY, J.

The action was brought for malicious prosecution, the place of trial named in the summons being the county of New York, in which county it appears that the plaintiff resided. After answer, the defendant moved to change the place of trial to-the county of Albany. Upon the argument, the affidavits of th& defendant only were read, and no papers were presented on the part of the plaintiff. The court denied the motion to change the place of trial to the coutity of Albany, but with leave to the defendant, upon new motion papers, to move to change the place of trial to the county of Rensselaer. The precise grounds upon, which this order was made do not appear, but it may fairly be inferred from the terms of the order that it was made because-neither of the parties resided in the county of Albany.

An examination of the moving papers shows that the case made* by the defendant was sufficient to require the court to change the place of trial, and, where that state of affairs appears, an order refusing to change the place of trial will be reversed, and the defendant will be given the relief to which his papers entitle him. The Code of Civil Procedure prescribes in what counties civil actions must be tried. Actions of a certain kind must be tried in the county where the cause of action arose or where the subject of the action is situated. Code Civ. Proc. §§ 982, 988. Every other action must be tried in the county in which one of the parties resided at the commencement of it. Code Civ. Proc. § 984. But all these provisions are subject to the right which, by section 987-of the Code of Civil Procedure, is given to the court, in a proper case, to change the place of trial for the convenience of the witnesses. Where an application is made to the court to change the place of trial on that ground, the county to be selected for the trial of the action is the-one in which the convenience of the witnesses will be best sub-served, although that county may not be one of those in which-the action must be tried, pursuant to the sections of the Code to-which attention has been called above. The rule is well settled that, for the convenience of witnesses, the court may order the-place of trial of a transitory action, at least, to be changed to a. county other than that in which either of the parties resides. Such has always been the law of this state and the procedure of the-courts, and it has never Uben supposed that the provisions of either the Code of Procedure, or the Code of Civil Procedure, which succeeded it, specifying the counties in which actions must be tried, had any effect upon the power of the. court to direct that the-actions should be fried in another county than one of those specified, when it was made to appear that the convenience of witnesses-required such action to be taken. Flood v. Morris, 3 Law. Bull. 100; Gorman v. Iron Co., 32 Hun, 71. It is quite apparent, from the papers in this case, that the convenience of witnesses and the-ends of justice will be promoted by changing the place of trial from the county of New York to the county of Albany, and that-the court erred in denying the motion.

The order appealed from must be reversed, with $10 costs and disbursements, to be paid by the plaintiff, and the motion to-change the place of trial from the county of New York to the-county of Albany, granted, with $10 costs to abide the event.

All concur.


author: VAN BRUNT, P. J.

text:
    John D. Schmidt, App'lt, v. New York Elevated Railroad Company et al., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 20, 1896.)

    Evidence—Elevated railway.
    In an action by an abutting owner for damages caused against an elevated railway, evidence offered upon the part of the defendant for the-purpose of showing that the building of the elevated railroad tended to increase and add to the value of property situate upon the line of the road, is incompetent and improper.
    Appeal from a judgment in favor of plaintiff for nominal damages.
    C. P. Cowles, for app’lt; J. C. Bushby, for resp’ts.
   VAN BRUNT, P. J.

—This action was brought by an abutting owner to recover damages for the taking of certain easements-appertaining to his premises, and for an injunction. Upon the trial, the court decided that the plaintiff had not established any right to relief, and gave the judgment above indicated.

It will not be necessary to consider the facts of this case at any length," because there are some exceptions which are fatal to the judgment. Witnesses were offered upon the part of the defendants for the purpose of showing that the building of the elevated railroad tehded to increase and add to the value of property situated upon the line of the road. This evidence was to-upon the part of the plaintiff, the objection was overruled, and an •exception was taken. It seems to have been held, at the instiga-' tion of the defendants, in repeated cases in the court of appeals (Roberts v. N. Y. E. Railroad Co., 128 N. Y. 455 ; 40 St. Rep. 454; McGean v. Man. Railway Co., 117 N. Y. 219; 27 St. Rep. 337), that such evidence is incompetent and improper, because itt leaves the witness to determine the only question which the court is called upon to decide upon the evidence. The court said, in the case of Ferguson v. Hubbell, 97 N. Y. 507, that it is generally safer to take the judgment of unskilled jurors than the opinions of hired, and generally biased, experts. In the ease of McGean v. Railway Co., above cited, the question was asked, “ What would have been the rental value of the premises in the years 1878, 1880 .-and 1881, if the railroad had not been built ? " And it was held to be improper, because it was merely speculative, and speculative upon the only question which the court and jury were.called upon to decide, and the question called for an opinion of the witness upon that very subject; the court saying that the case was one where the facts which formed the basis of the action could be specified, and should be stated, and the inference to be drawn from those facts should be drawn by the court and the jury. So, in the case at bar, the witness was asked, in substance, what effect the construction of the elevated road had upon the value of the premises,—the very question which the court was called upon to determine from the evidence of the facts relating to the property. The same rule was laid down in the case of Hunter v. Man. Railway Co., 141 N. Y. 281; 57 St. Rep. 400, where it was held improper to show what is the particular damage caused to the plaintiff by the presence of the railroad, or to show what the premises would be worth, or what their rental value would be without the ■road; the court holding questions of this latter class to be an in-’ vasion of the province of the court and the jury, and that the rule, ■as now laid down, rigidly excludes calling for the judgment of the witness upon the question which is to be submitted and decided. The sole question involved in the investigation in the case at bar was whether the construction of the road had tended to increase ■or decrease the value of the property in question, and this, under the decisions, the court was called upon to decide, and not the witness.

The judgment should be reversed, and a new trial ordered, with «costs to the appellant to abide the event.

All concur.


author: BEEKMAN, J.

text:
    Sacharize Isear, Pl'ff, v. J. G. McMahon et al., Def'ts.

      (Supreme Court, New York Special Term,

      Filed February, 1896.)

    1. Pleading—IDemdrree—Joinder of causes of t cvton.

    In case of demurrer to the complaint on the ground that it appears upon its face that causes of action have been improperly united, a statement on the ground of the demurrer in the language of subdivision 7, section 488 of the Code, is not sufficient.

      3. Same—Joinder—Community oe interests.
    Section 454 of the Code was intended to provide for the settlement in one action of claims which the plaintiff might have against various parties arising out of the same contract.
    ¡3. Same.
    Under such section, a single action will lie against all the underwriters of an insurance policy which, though it does not impose on them any joint liability nor render them severally liable for the whole amount of insurance, shows a community of interest on the part of all the underwriters and contemplates action on their part, both before and after loss, through a common agent.
    Demurrer to the complaint on the ground that causes of action were improperly united.
    Albertus Perry, for pl’ff; Menken Bros, for def’ts.
   BEEKMAN, J.

This action is brought against ten defendants as underwriters of a policy of insurance, under which they undertook to insure the plaintiff against loss or damage by fire to certain property therein mentioned, for the term of one year from the 16th day of October, 1894, to an amount not exceeding in the aggregate the sum of $2,500. While all the underwriters united in the «execution of the policy, they did not assume any joint liability for the amount of the loss, nor are they severally liable for the whole amount of the insurance; but each one, acting separately, and not one for the other or for any of the others,” agrees to insure the plaintiff to the extent of the sum set opposite his name, to wit, $250. The plaintiff sets out the contract of insurance, alleges a loss within the terms of the policy, and its adjustment with the underwriters, and asks judgment against the defendants for the ■amount thereof. One of the defendants demurs to the complaint that the causes of action have been improperly united. The demurrer is bad upon its face, in view of the fact that it fails to comply with section 490 of the Oode of Civil Procedure, which requires that an objection taken by demurrer under subdivision 7 of section 488 must point out specifically the particular defect relied upon. A statement of the ground of the demurrer in the language of the subdivision in question is not sufficient. However, this objection was not raised upon the argument, and as the question is one of considerable importance, involving other litigations than the one now before me, and has been fully argued by counsel on both sides, I have determined to disregard the defect, and to consider the issue intended to be raised as if it had been properly set forth in the demurrer. The claim of the defendant is that the complaint states a separate, distinct', and independent cause of action against each one of the defendants; that none of the defendants is in any way concerned in or affected by a claim against the others, or by the event of the action as to them or any «of them; that each is therefore a stranger to the controversies between the plaintiff and the others; and that consequently, within ■well-established principles, these cause of action are improperly ■¡united in one suit. Upon the other hand, the plaintiff contends that the action is well brought, under section 454 of the Code of Civil Procedure, which provides that:

“ Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument or' by a party thereto to recover against other parties liable over to him, may, all or any of them,’ be included as defendants in the same action, at the option of the plaintiff.”

A question is therefore presented requiring the construction of this section. Is it confined in its operation only to actions where the defendants are severally liable for, or in respect to, the same indebtedness? I do not see any sound reason why such a limitation should be imposed upon this section. It is not within its letter, and, according to the view which I take of it, not within its spirit. The section is highly remedial in its character, and was obviously intended to prevent a multiplicity of actions, and to provide for the settlement in one suit of claims which the plaintiff might have against various parties arising out of the same contract. The convenience of the rule is apparent. Debts so arising, although they may constitute separate-causes of action in respect to the several parties uniting in the execution of the instrument, have a common origin, springing out of the same subject-matter, and, except in a limited class of cases, the defenses which may exist are common to all the parties. The great economy of time and expense which attends the uniting of such causes of action in one suit is apparent, and, as this was the principal motive of the enactment, the section should be construed with great liberality, so as to bring within its scope all cases where several causes of action arise upon the same written instrument. Certainly the case is not one in which the letter of the statute should receive a restricted interpretation. There is nothing in-the other sections of the Code bearing upon the question which1 renders the construction, which I believe to be the correct one, afc all inharmonious. Section 455 provides that the joinder of a person as defendant in an action with another person, as prescribed-in the section in question, “ does not affect his right to any order or other relief to which he would have been entitled if he had been separately sued in the action.” Section 456 authorizes a severance of the action whenever it may be desirable so to do.1 Furthermore, each defendant is at liberty to set up any individual defense that he may have, or any counterclaim. Code Civ. Proc. | § 501. And the power of the court to render an appropriate, judgment in such a case is ample. Sections 1204, 1205. It is? therefore impossible to see how the demurrant in this case can in any way be prejudiced by being sued with his fellow underwriters! in one action. He enjoys every right to which he is legitimately entitled, and which he would have possessed had the action been brought against him alone. There are comparatively few cases, in which the section of the Code in question seems to have undergone examination. The case of Carman v. Plass, 23 N. Y. 286, seems to be the leading one upon the subject. In that case a tripartite indenture was entered into between the plaintiff as lessor,, one of the defendants as lessee, and the other defendant as guarantor of the performance by the lessee of the covenants contained iu the lease. The lessee having made default in the payment of rent, the action was brought against him, and also against the guarantor, to recover the same. A demurrer was interposed by the defendants on the ground that no cause of action against the defendants jointly was set forth in the complaint. Judge DENIO, in the opinion of the court overruling the demurrer, says that the case comes precisely within the language of section 120 of the Oode of Procedure, which was reproduced in section 454 of the .present Code, and that the provisions relates, in terms, to cases where a plurality of persons contract several obligations in the same instrument. The case is distinguished from those in which the guarantor had executed a different instrument, and this distinction emphasizes the view that the statute refers not so much to the nature of the contracts as to the manner and form in which they are expressed and embodied. In other words, where they are evidenced by, and associated together in, a single' instrument, they are within the statute which, authorizes an enforcement of each under a similar association in one action. It is a matter of common knowledge that within a few years this method of insurance, distinctively known as “ Lloyds,” has grown to very large proportions. In many cases the number of underwriters amounts to 100 or more, and it would be a substantial denial of j ustice to require the insured to bring 100 or more actions in order to enforce his rights under the policy. This fact should operate most persuasively upon the court in favor of a construction of the law under which a single action against all may be sustained. An •examination of the policy in question shows a community of interests on the part of all the underwriters in the contract" It contains a large number of conditions on the part of the insured, in the performance of all of whieh they have a common concern. After a loss has occurred, the insured is required to give notice of the same to the attorney in fact of all the underwriters, with whom he is required to deal in all matters affecting the liquidation of the amount. In fact, the whole scheme of the insurance, from its inception down to the liquidation of the amount due upop the loss, contemplates action on the part of the underwriters ■exclusively through a common agent, designated as the general manager or attorney in fact. The community of interest is thus a matter of absolute demonstration, and the only differentiation that arises is in respect to the extent of the individual liability. Instead of each underwriter being liable in solido for the entire amount of the insurance, he is, in terms, responsible only for a proportionate part, but all have a common interest in the steps leading up to the ascertainment of the aggregate amount to which the plaintiff is entitled. In fact, this common interest in respect to the total liability under the contract is shown in one of the conditions of the policy, where it is said:

“ The liability of each of the underwriters in case of any loss, and the amount insured by each underwriter, shall be his .proportionate part of the aggregate amount payable to the insured upon such loss.”

For the reasons which I have given, I am of the opinion that, the case at -bar finds a natural and proper place under the section in question. It is concededly within the letter of the statute, and I think it is equally clear that it is within its true meaning and intent. The demurrer is therefore overruled, with costs, with leave to the defendant to serve an answer within twenty days after the service upon him of a copy of the interlocutory judgment, on payment of costs.'


author: TRUAX, J.

text:
    Scharize Isear, Pl'ff, v. Russell H. Hoadley et al., Def'ts.

      (Supreme Court, New York Special Term,

      Filed February 12, 1896.)

    Demurrer to the complaint.
   TRUAX, J.

The demurrer is overruled, with costs, with leave-to defendants to answer on payment of costs. See decision of Mr. Justice BEEKMAN in Isear v. McMahon, 74 St. Rep. 282.


author: GILDERSLEEVE, J.

text:
    Sigmont Simon, Pl'ff, v. Jennie Simon, Def't.
    (New York Superior Court, Equity Term.
    Filed October, 1895.)
    1. Separation—Decree.
    A decree of separation cannot be awarded unless a legal ground therefor is established by a clear preponderance of creditable testimony.
    2. Same—Abandonment.
    The husband’s interference in the domestic management of the house, and disrespectful treatment of the wife before the servants, justify her in seeking-, for the time, the quiet and peace of her father’s home, and such leaving, with an offer to return if he would desist from such conduct, does not constitute such an abandonment, as entitles him to a divorce from bed and board.
    8. Same—Children.
    Where neither party is entitled to a divorce, the court has jurisdiction over the custody of the children.
    Howe & Hummell (A. H. Hummell and B. Steinhardt, of counsel), for pl’ff; Hays & Greenbaum (Samuel Greenbaum and
    Charles H. Truax, of counsel), for def’t.
   GILDERSLEEVE, J.

The parties to this action are husband and wife. The husband brings the action for the purpose of securing a separation, upon the ground of abandonment. The wife denies that she ever deserted her husband, alleges that he deserted her, and demands judgment that the complaint be dis-' missed, and that a separation from bed and hoard forever be decreed to her. They have now lived apart for about one year and .eight months. During this time the children of the marriage, of whom there are two,—i. e. a girl, of about ten years, and a boy, of about seven years,—have been in the custody of the mother, with the privilge to the father of visiting them from time to time, and for a portion of this period he has had them with him certain hours during the day. The parties have been married for upwards of ten years. The testimony certainly discloses no desire-on the part of the wife to again consort with her husband. The husband asserts, somewhat feebly, we think, and with an absence of spirit bom of devotion to the wife, that she is still welcome to his home, and that it is his wish that their marital relations should be resumed. We think, however, it may be truthfully said that one is as anxious for a separation as the other. It. is manifest from the record that each has shown a desire, evinced by acts and by the nature of the correspondence between them, to keep within the mies of law favorable to his or her side. The-correspondence between the parties and the manner in which it Was conducted seem to indicate a disposition on the part of each to find or to establish in the acts or statements of the other some ground that would warrant a separation. It is clearly a case of an eruption in a home that for many years was well regulated and peaceful. The testimony discloses no acts of violence on the part of either, and nothing occurred between the parties that ,may justly be characterized as cruel and outrageous. The great trouble with the case arises from the fact that the conduct of the parties while not beyond reproach, has been so decent and amiable that the facts seem too trivial and insignificant for judicial consideration. By degrees, however, their relations became stained, and they no longer lived happily together, and the acts followed which we are now called upon to characterize and construe. It. is really a contest for the custody of the children, and each parent, seeks a preference over the other in their care and management. Indeed, the learned counsel for the wife state in their brief that the only question in the case that concerns the wife is the custody of the children. It is not only our duty, nor is it our privilge, to consult the wishes of the parties to this disagreeable controversy, nor must we be influenced in reaching a conclusion by the consequences thereof. In approaching the consideration of this case, we must bear in mind the policy of the law, as well as the specific rules of law applicable.

The family is the origin of all society and of all government. The happy family, well organized and successfully discharging its functions, by strengthening the parents for the proper discharge of life’s duties, while it fits the children to succeed to those duties, is the highest type of human goodness, and the surest source of human happiness. The whole framework of government and laws has been said to exist only to protect and support the family, so that it may develop and proect the character of its members. The dearest interests of the whole community require that it should he made as far as possible inviolable. People v. Olmstead, 27 Barb. 9.

It has been well said by Bishop, in writing upon the claims for a severance of the matrimonial contract, upon the ground of incompatibility of temperament (see 1 Bish. Mar. & Div. § 743), that:

“The causes of complaint must be grave and weighty. Mere turbulence of temper, petulence of manner, infirmity of body or •mind, are. not numbered amongst those causes. When they occur, their effects are to" be subdued by management, if possible,' •or submitted to with patience, for the engagement was to take for better, or worse; and, painful as the performance of this duty may be, painful as it certainly is in many instances which exhibit -a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, •and a duty of the very first class and importance.”

Again, it is said in McBride v. McBride, 31 St. Rep. 631, that:

“¡Necessity to endure is one of the evils attending the marriage state, and parties should not for trivial reasons be put asunder by judicial decree.”

A decree of separation cannot be awarded unless a legal ground therefor is established by a fair preponderance of credible testimony. The first question for determination under the issues raised by the pleadings is this: Did the defendant'abandon the plaintiff, as alleged in the complaint without justifiable cause ? If the testimony calls for an answer to this question in the affirmative, a separation must be granted.

Professor Dwight, in Uhlman v. Uhlman, 17 Abb. N. C. 236, defined an “abandonment” as follows:

“It seems to me that to constitute an abandonment, under the statute, two elements are necessary. One is a final departure with an intention of not returning. * * * The essential fact, I1 think, is that there should be no sufficient reason for leaving.”

In Sergent v. Sergent, 33 N. J. Eq. 204, it was held that three things are necessary to the act of desertion:

“First, cessation of cohabitation; second, the intent to desert in; the mind of the defendant; third, that there is not consent on the part of the complainant.” '

It is well established that there are three grounds upon which' a justifiable separation may be based: First, by consent; second, by such conduct on the part of the other as is, as against such other, a cause for divorce; third, by such conduct on the part off the other as is cruel and outrageous, though not amounting to a •cause for divorce. 5 Am. & Eng. Enc. Law, p. 805. The first two grounds must be dismisssed in the case at bar, for the reason that the evidence will not support either. Can it be said that the testimony before us brings the case within the third ground? HI treatment or misconduct may be of such a character as to furnish justification for desertion, and still be insufficient in law to support a decree of separation. See Gillinwaters v. Gillinwaters, 28 Mo. 60; Pidge v. Pidge, 3 Metc. (Mass).) 257. Does the evidence disclose anything more than a temporary separation of the parties because of a disagreement? The defendant did leave the home long occupied by the parties as husband and wife, taking with her their two children. Was her leaving willful and wrongful and with the intention not to return? Good and substantial reasons are required to be given by the deserting party as a justification for an abandonment. Are the reasons that defendant gives for leaving her home such as may be regarded in law as sufficient to, justify her action? This is the vital point in the case.

In addition to the foregong, as embodying the principles of? law that we consider applicable here, we may state that we take ' the definition of “abandonment” as given by the coqrt of appeals in Williams v. Williams, 130 N. Y. 197; 41 St. Rep. 280, to wit:

“That term, as used in the law of divorce, contemplates a voluntary separation of one party from the other, without jutification, and with the intention of not returning.”

We are able to gather from the testimony a very clear concepition of what the defendant’s intention was at the time of leaving. Her wishes and intention, as subsequently expressed in her letter of May 4, 1894, to her husband, fully coincide with the conclusions that must, be reached from the testimony as to what occurred and as to what she said. The language of the latter, pertinent to the question we are now considering, is as follows:

“If you really wish to live with me, you will have to recognize that a wife has some rights which a husband is bound to respect.. I shall certainly insist on the entire management of the servants, and, if there are any complaints to be made or orders given, it should be through me. I shall expect to be treated with proper respect before the children and servants, and I will not have your brother and sister come to the house to insult me again. If they wish to visit you, they can do so; but I must know of it, so that 1 may be absent. If you are willing to concede to these reasonable demands, you can call for the children and me, and we can .stop at some hotel here in Hew York, or the vicinity, as I have closed up the house for the summer.

Mr. Myers had an interview with the defendant, with the object of bringing about a reconciliation. The defendant testified as follows:

“I told Mr. Myers I had stood a great deal with Mr. Simon, and had gone through a great deal, and that only under certain conditions would I live with him.”

This was on cross-examination. On her direct examination, she made the following statement:

_ “I told him (Mr. Myers) I had stood a great deal from Mr. Simon, and things had gone so far now that he would have either *o apoligize— Well, I told him, I believe, that night, I bad made up my mind that Mr. Simon would have to give up the management of the house, and that I must not be insulted before the children and servants, and that he would have to keep his relatives away from the house while I was there.”

These conditions seem to be substantially the same as those sefc forth in her letter of May 4th. She again testifies that:

“The cook said that, if I were going to leave the house, she wanted to go with me; and, again, I told him (plaintiff’s brother) I wanted his folks (plaintiff’s) put out of the house; it would save me the trouble of leaving.”

From the foregoing, when considered in connection with all the other testimony in the case,' it is quite as clear as that the parties are now living apart that, when defendant left, it was with the intention of returning if plaintiff complied with the conditions she named. Those conditions consist of acts on the part of the plaintiff, of failures to act, or to assent to her wishes, and are practically all that’ constitute the grounds upon which the defendant’s justification for deserting her husband rests. We think they call for such conduct on the part of the husband as the wife had a right to exact. They impose a duty which the husband should have recognized. The failure to assent to these reasonable requests* justified the wife in going to her father’s house.

From a careful consideration of the entire case, it must be held that the evidence discloses nothing more than a temporary separation of the parties because of a disagreement. . The husband takes his wife “for better, or worse.” He promises to love, honor, and comfort her. It is his duty to treat her with tenderness and affection. When she is assailed, he should always come forward as her champion and protector. He should palliate all her faults, and do all in his power to enable her to carry the burdens of life-lightly and cheerfully. When he ignores her presence, and does, not speak to her for days at a time, as the plaintiff in this case did, he is clearly at fault. The conduct of the plaintiff, during' this week in April, which seems to have proved the crucial week in their married life, and at times prior thereto, was such as was-calculated to disturb the peace of the home and the comfort of the wife. Without urgent need or good reason he discharged the governess at night, thereby imposing upon his wife the duty of caring for the children. He humiliated her in the presence of the servants and children, telling her to “shut up; to keep her mouth shut.” He called his relatives about him knowing that their presence was offensive to his wife, and they were present at the house at the time- the wife left the house of her husband and went to her father’s. We think the circumstances were such as justified her in seeking, for the time, the quiet and peace that her father’s home afforded.

We might continue the discussion, but, having reached the conclusion already announced, it becomes unnecessary to do so. It is sufficient to add that, while the conduct of the husband has been such as to warrant the wife in temporarily leaving him, the evidence falls far short of establishing valid grounds for granting to the defendant the affirmative relief she demands. Both the complaint and the claim for affirmative relief in the answer should be dismissed, without costs.

We must leave the case here without disposing of the vital issues sought to be litigated iu this action, namely, the custody of the children. We are not disposed to shirk or avoid that issue, 'but consider that it arises only as incidental to a decree of separation, and that, in view of the conclusion reached, we are without jurisdiction in the matter. We have given the case a most ¡thorough, honest and earnest consideration, and deeply regret that we are unable so to dispose of it as to settle the differences between this married couple. We doubt that, even after the experience of this long and painful litigation, they can agree to live bappily together. If they cannot, they should meet with a view of making reasonable concessions each to the other, and agree .upon an equitable and proper separation. As we interpret and construe the evidence, the law cannot, at present, separate them.

Defendant’s counsel will prepare a decision and judgment, and notice same for settlement.


author: ARNOLD, J.

text:
    In the Matter of the Application by the Surviving Executors of Abbey E. Laytin, Deceased.
    (Surrogate’s Court, New York County,
    Filed January, 1896.)
    1. Will—Revoking Probate.
    _ Where the petition for revocation of probate is filed within the time limited by law, the contest is then instituted and citations may issue at any time, or from time to time thereafter, to the necessary parties; and it is the duty of the surrogate to issue the same and, before proceeding upon the petition, to adjourn the hearing until all necessary parties are cited, notified or appear.
    2. Same.
    The mere, failure, in a proceeding to revoke the probate of a will to proceed further after filing the petition does not make petition of no effect or afford any ground for its dismissal. .. ,,
    Application by the surviving executor of the estate of Abbey E, Laytin, deceased, to dismiss a proceeding for the revocation of the probate of the will.
    S. M. & D. E. Meeker, for executor; Thos. W. Fitzgerald, for petitioners.
   ARNOLD, J.

This is an application on the part of the surviving executor of the will to dismiss a proceeding for revocation of the probate thereof. The petitioners in the latter proceeding filed their petition on the last day allowed for that purpose by section 2648 of the Code, and certain persons and corporations were therein stated to be legatees named in the will, and a citation to such parties and to the surviving executor of the deceased, as required by section 2649 of the Code, was accordingly issued, and served upon several of them. Three of the persons so named in the citation had, however, died prior to the filing of the petition, and their personal representatives were not, as such, cited, as provided in the last mentioned section. One other party named in the citation was not served with the same, she having removed from the state. On the return of the citation, a motion was made on thp part of the executor of the will to dismiss the proceeding, upon the ground that the petition was filed too late; that the citation should have been served upon all paries required bylaw to be cited within sixty days after the petition was filed; and that this had not been done. This motion was denied, upon the authority of In re Gourard, 95 N. Y. 256; but the petitioners were admonished to proceed diligently to bring in the omitted parties. No order was entered on this decision; but, four weeks after it was announced, the petitioners obtained an order for a supplemental citation directed to such persons, but no such citation was then or has since been taken out, and those parties have not been brought into this proceeding. The present motion to dismiss the proceeding was made after two months had elapsed from the time this supplemental citation was ordered, apd upon the ground of laches on the part of the petitioners in not bringing in these additional parties. Supplemental citations are alleged by such petitioners to have been issued to two other persons not served with the original citation, or not named therein; but such citations have not been returned to this office, nor have any proofs of service of same been filed. The petitioners have failed to bring all necessary parties before the court, and, if that fact could afford sufficient ground for granting this application, I should be disposed to grant it; but the language of the court of appeals in Re Gourard, supra, seems clearly to hold that, if the petition for revocation of probate is filed within the time limited by law, the contest is then-instituted, and that citations may issue at any time, or from time. to time thereafter, to the necessary parties; and it is the duty of the surrogate to issue the same (Code, § 2481, subd. 2), and, before proceeding .upon the petition, to adjourn the hearing until all necessary parties are cited, notified, or appear. If the petitioner does not make the necessary application, the executor, if he desires the allegations of the' petition to be disposed of, can have the proper citations issued. In effect the mere failure of the petitioner to proceed further after filing the petition does not make the petition of no effect, or afford ground for its dismissal. I am therefore constrained to hold that I cannot dismiss the proceeding in its present stage.

Application denied.


author: CONLAN, J.

text:
    Edward R. Mawson, App'lt, v. Michael Leavitt, Resp't.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    Damages—Liquidated.
    Where a contract imposes reciprocal obligation and fixes the .amount of damages to be paid in case of a breach by either party, and the amount so fixed is not disoroportionate to the amount of damages that may reasonably be within the contemplation of the parties at the time, the covenant is one of liquidated damages.

      Appeal from a judgment in favor of defendant.
    Mitchell L. Erlanger, for app’lt; Dittenhoefer, Gerber & James, for resp’t.
   CONLAN, J.

This is an appeal from a judgment entered after trial had before the court, without a jury. The action was brought to recover liquidated damages provided for in a reciprocal contract entered into between the parties, substantially as follows: The contract provided that the defendant should furnish his theater in Denver, Colorado, for one week, commencing February 27,1893, and the plaintiff should furnish his theatrical company and play in said theater for said week; the proceeds to be divided. The contract or agreement concluded with the íoIIoaving clause:

It is further agreed and understood by the parties hereto that, for any violation of the above mentioned covenants by either .party (acts of Providence excepted), he or they shall forfeit or pay over to the other party the sum of five hundred dollars on demand, as liquidated damages.”

The court, after hearing all the evidence, made the following findings of fact and conclusions of law:

“(7) That the said defendant, during the week contracted for, ¡permitted an attraction other than that of the plaintiff to play at his said theater. (8) That no fire, national or local calamity, or any other unforeseen accident or obstacle, arose which rendered the fulfillment of the contract impossible upon the part of the defendant. (9) That the said defendant broke the said agreement vrithout just cause or excuse. (10) That the defendant did not furnish his theater to the plaintiff for the term and as specified in the contract, but notified the plaintiff that he could not 'do so. * * * (12) That the clause specified in the contract .providing that, for any violation of the covenants therein contained, either party will forfeit and pay over to the other the sum of five hundred dollars on demand, was intended to be, and was, a penalty, and not liquidated damages.”

Counsel for the plaintiff asked the court to find as follows:

“(11) That the clause in said contract specified in the above finding 6 of fact provides, in the event of a breach by either party, for liquidated damages, and not for a penalty. (12) That, the damages under the agreement being liquidated, plaintiff is entitled to recoved the stipulated amount without further proof of loss.”

The court refused to so find, to which refusal the plaintiff excepted. The court thereupon ordered judgment for the plaintiff for six cents. We think this was error. The contract imposed reciprocal obligation, and fixed the amount of damages to be paid in case of a breach by either party. The amount so fixed was not disproportionate to the amount of damages that might reasonably be Avithin the contemplation of the parties at the time, and they had a perfect right to fix and limit that liability. The covenant was one of liquidated damages, and, on the facts as found by the court, the plaintiff was entitled to judgment for the amount stipulated.

Judgment appealed from reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    Garfield National Bank, Resp't, v. George W. Kirchway.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    Appeal—Appealable order.
    An order, requiring a pleading to be made more definite and certain, so as to show whether matter pleaded was intended as ,a defense only or as a counter-claim requiring a reply, rests in discretion and is not appealable.
    Appeal from an order requiring a pleading to be made more definite and certain.
    Hector M. Hitchings, for app’lt; John J. Adams, for resp't.
   CONLAN, J.

Appeal from an order of special term requiring a pleading to be made more definite and certain in,particulars referred to in the order appealed from. The action was brought to recover the amount of a certain promissory note made by the defendant. The answer, as originally served, admitted all the allegations of the complaint, and then proceeded to further answer and allege certain things by way of defense, set-off, recoupment, cause of action, and counterclaim. -To this form -of pleading the plaintiff objected, and an order was made upon motion at special term requiring the pleading to be made more definite and certain by separately stating each and every defense or counterclaim, so as to show whether the pleading intended the allegations as matters of defense or counterclaim. An amended answer was served pursuant to this order, and the plaintiff, being of the opinion that the terms of the order had not been complied with by the service of this amended pleading, made second application to the court for relief, which resulted in the order appealed from. In the-second paragraph of the amended answer the pleader says: “And, by way of defense to the matters therein alleged, avers and says.” And he then proceeds substantially as in his original answer, until he reaches paragraph 4 of the amended pleading, and therein he asks tó be allowed to recover on his counterclaim.

It appears to us that the only question to be decided on this appeal is whether or not the order appealed from is one resting in discretion, and not affecting a substantial right; for, if it did, then the plaintiff concedes that an appeal will lie. It' has been over and again decided that an order requiring a pleading to be made more definite and certain is one of discretion, and authorities need not be cited to sustain this view of the case. A proper scale in which to weigh the order appealed from is, did it deprive the -defendant of any right to which he was entitled, or of the privilege of alleging anything which he deemed material to the issue? Or, did it compel him to abandon anything which he had set up in his answer, no matter in what form pleaded? Or, did it order stricken out any material allegation in the peading, the employment whereof would result in any advantage to him upon the trial of the action? If it did none of these things, it did not then affect a substantial right.

Under the Code a party is entitled to know whether matter contained in an answer is pleaded as a defense or as a counterclaim, and one may not set up as matters of defense even something amounting to an indebtedness in favor of the defendant over and above the amount for which the plaintiff demands judgment for the balance, even if he prove it, unless he has pleaded the same as a counterclaim; and, although section 507 of the Code allows many defenses or counterclaims, or both, each defense or counterclaim must be separately stated and numbered. Pleading a matter as a defense, therefore, is not pleading it as a counterclaim. The plaintiff had a right to lmow whether the matter pleaded was intended as a defense only, or as a counterclaim requiring a reply; and we are not prepared to say that he was not wholly justified in his opinion as to the doubt or uncertainty. of the meaning of the answer in question. We are of the opinion that the order made was one resting in discretion, and did not affect a substantial right, and, as the defendant was not prejudiced thereby, that the same was not appealable, and its terms should be complied with.

Appeal dismissed, with costs and disbursements.


text:
    Marietta Ludington, Resp't, v. Hartwell B. Kirk et al., App'lts.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    Usury—Defense.
    The defense of usury is not, in an action on the note of a domestic corporation, available to the indorsers.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    George Putnam Smith, for app’lts; Lyman W. Redington, for resp’t.
   CONLAN, J.

Appeal from a judgment entered upon a verdict directed by the court at trial term, and from an order denying a motion for a new trial. The action is bought on a promissory note made by a domestic corporation, and indorsed by the defendants, and delivered to the plaintiff before maturity. The defense is usury. Brieflv, the facts are as folllows: One George Breck was a member of the defendant’s firm of H. B. Kirk & Co., and brought to the plaintiff’s husband for discount a note madé by the corporation of E. D. Braekeleer & Co., to the order of H. B. Kirk & Co., and indorsed by them. The note was for $1,000, and he received from the plaintiff’s husband, as her agent therefor, the sum of $937.78. When this note became due, Bréele procured another note, for a like amount, by the same maker, indorsed by the defendants’ firm, and delivered the same to the plaintiff’s agent, in renewal of the first note, and at the same paid $20 discount and $45 for commissions, on the transaction. The proceeds of the first note were deposited in bank to the credit of the defendants firm. George Break was sued as one of the defendants, but did not answer. He was produced as a witness upon the trial, for the defendants, and identified the defendants’ artieles of copartnership, which were put in evidence for the purpose of showing that neither partner had the right to sign, indorse, or use the firm name except for the firm’s business; but there was no proof that knowledge of this circumstance was brought home to the plaintiff, nor yet to her agent, and the witness testifies, upon the cross-examination, that the proceeds' of the note were deposited in the Second National Bank to the credit of H. B. Kirk & Co. It went right into the funds of the firm in the bank. There was no evidence whatever that the defendants did not get the proceeds of the note, and no imputing knowledge to the plaintiff that there was any usury in the transaction, or disputing the ownership of the note for value, by transfer, before maturity. Even if the plaintiff knew of the usurious nature of the transaction, as alleged by the defendants, still the note was the obligation of a creature prohibited hv statute "from pleading usury, and that defense would not he available to the defendants as indorsers. Eor these reasons, we think the judgment appealed from should be affirmed.,

Judgment affirmed, with costs.


author: DAVIE, S.

text:
    In the Matter of a Proceeding in the Estate of Calvin S. Stowell, Deceased, for Sale of Decedent’s Real Estate for Payment of Debts.
    (Surrogate’s Court, Cattaraugus County,
    Filed January, 1896.)
    1. Executors—Sale oe decedent’s real estate.
    Where the real estate of deceased persons can only he sold, under section 3756, for the purpose of paying debts, tlie costs of action broug-ht against the executor or administrator to recover them, are no part of such debts.
    2. Same.
    Costs recovered in an action against the surviving partner of the decedent cannot be allowed in such proceeding.
    Proceedings in the matter of the estate of Galvin S. Stowell, deceased, for disposition of decedent’s real estate for payment of debts.

      Carey, Rumsey & Hastings, for petitioner; John J. Inmann, for Frank Holdridge, creditor; John C. Leggett, for Ackley and Others, creditors.
   DAVIE, S.

The decedent died, intestate, August 4, 1892. On the 22d day of the same month, letters of administration upon his estate were granted to the petitioner, who filed his petition in this proceeding on the 22d day of June, 1895. The facts required by section 2759 of the Code of Civil Procedure to be shown preliminary to the making of a decree have been satisfactorily established. The only -controversy which arises relates simply to the demands of the creditors who appear, and necessitates the determination of a single proposition.

The decedent at the time of his death, was a copartner with one Corbin. On the 16th day of October, 1894, the creditors Ackley,. Sill & Co. recovered a judgment in the supreme court against Cor-bin, as surviving partner, for the sum of $198.36 damages and $70.60 costs. On the 31st day of December, 1895, the creditor Holdridge recovered a judgment in the same court against Corbin as such surviving partner, for the sum of $226.52 damages- and $349.11 costs; and the execution issued thereon was returned wholly unsatisfied. It is conceded that the damages established ¡by each of these judgments are proper claims to be allowed in ¡tin's proceeding; but it is urged on the part of the' petitioner ¡that the costs of such actions, having accrued since the death of' ;decedent, cannot be satisfied from the moneys derived through the instrumentality of this proceeding.

The suggestion is made on behalf of these creditors that in consequence of the -insolvency of the surviving partner and the insufficiency of personal assets of the estate, if the costs, which have-!evidently been incurred in the enforcement of valid claims; against the firm- of Corbin & Stowell, are not to be adjusted in this proceeding, the claimants are left entirely remediless so far as such costs are concerned. This suggestion would not be-¡without force if the determination of the rights of these creditors was a matter addressed to any- extent to the discretion of the court; but such is not the case. Under the provisions of the statute authorizing the disposition of decedent’s real estate for payment of debts and the construction placed thereon by the courts, no part of these costs can be allowed. The title to real estate upon the death of the owner intestate vests immediately in the heir. It can be taken for the payment of debts only by virtue of the statute, and the statutory provisions must be strictly pursued. Kingsland v. Murray, 133 N. Y. 170; 44 St. Rep. 515. At common law, lands descended were not chargeable with the •simple contract debts of the ancestor, nor was the heir liable upon specialty unless he was expressly named. 3 Bl. Comm. 430. But by laws 1786, chapter 27, such real estate was made liable-to some extent for the payment of debts in case of insufficiency of personal assets; and probate courts were given authority to direct, sale of such real estate upon certain conditions for that purpose. In 1801 and 1813 this liability was further extended and defined. Various provisions for the enforcement of this liability were incorporated in the Revised Statutes and the Code. Read v. Patterson, 134 N. Y. 131; 45 St. Rep. 793. By the terms of the original statute, the disposition of. real estate was authorized through proceedings in probate courts solely for the payment of the debts of decedents. By a subsequent provision, this remedy was extended to funeral expenses; and, by the amendment of 1894, it was so extended as to authorize the proceedings for the payment of judgment liens existing at the time of the decedent’s death. Code Civ. Proc. § 2749. So it may be asserted with some degree of reason that, inasmuch as these various statutory provisions are to some extent in derogation of the rights of the heir at common law, the creditor seeking to avail himself of the Benefits conferred should clearly show that his application conies within the intent and purview of the statute. The demands of these creditors not bing for “funeral expenses,” nor for a “judgment lien existing at the death of the decedent,” it only remains to be determined whether the costs in the action against the surviving partner can be regarded as the debt of the decedent, within "the meaning of the statute.

In Wood v. Byington, 2 Barb. Ch. 387, the chancellor, in his opinion, says:

“The act of April, 1843, does not charge the real estate with the -costs of the suit in which the judgment or decree against the personal representatives is obtained, but merely makes the judgment ■or decree presumptive evidence of the existence and the amount of the debt due from the testator.”

Under the provisions of 3 Revised Statutes (6th Ed.), p. 108, authorizing the disposition of decedent’s real estate “to pay his •debts and funeral expenses,” it was held that-the effect of the ■statute was to limit such authority to cases of debts existing against the decedent in his lifetime, exclusive of costs incurred subsequent to his death in proceedings to enforce collection of such debts. Wood v. Byington, supra; Sanford v. Granger, 12 Barb. 392; Ball v. Miller, 17 How. Prac. 300.

In Hurd v. Callahan, 9 Abb. N. C. 374, Surrogate Coffin says:

“It has been repeatedly decided that the real estate of deceased persons can only be sold in a proceeding like this to pay their debts, and that the costs of actions brought against the executor or administrator to recover them are no part of such debts. This is undoubtedly the law.”

The same conclusion was reached in Re Peck, 3 Redf. 345.

The present statute provides that:

“Where a judgment Or decree has been rendered against an executor or administrator for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent to the same •extent, and to be established in the same manner, and, except as prescribed in the next section, subject to the same defenses, as if an action had not been brought.” Code Civ. Proc. § 2756.,

The exception referred to in the section quoted is as follows:

“The debt for which the judgment was rendered cannot be allowed as against the property in question at any greater sum than the amount recovered, exclusive of costs.” Code Civ. Proc. § 2151, subd. 1.

If costs duly recovered against a personal representative upon a claim due from the decedent are not to be regarded as a debt of the decedent, within the meaning of the statute, then much less can costs recovered in an action against the surviving partner of such decedent be allowed in proceedings like this. "While none of the decisions above cited are directly in point, they all indicate a disposition on the part of the courts to limit the recovery, in such proceedings to the amount actually owed by. the decedent at the time of his death.

Ordered accordingly.


author: WOODBURY, S.

text:
    In the Matter of a Proceeding to Compel Harvey S. Elkins, as Surviving Administrator, etc., of John Miller, Deceased, to Account and Make Distribution of the Estate.
    (Surrogate’s Court, Chautauqua County.
    Filed January, 1896.)
    1. Limitation—Accounting by administrator.
    Special proceedings in the surrogate’s court against an executor or administrator to enforce an accounting are barred by the statute of limitations, if not commenced within six years from the time when the right accrued to compel such accounting.
    2. Same.
    Such right accrues at the expiration of one year from the granting of letters or, at the outside, at the expiration of eighteen months therefrom.
    3. Same.
    The rule of limitation applied by section 1819 of the Code does not affect the rule of limitation applied to a special proceeding in surrogate’s court, and the six years’ statute is still a bar to such proceeding's.
    4. Same—Payment.
    And payment by an administrator to another than the petitioner will not take out of the statute of limitations a proceeding to obtain ' a distributive share.
    5. Same.
    Nor will the fact that the administrator credited himself with disbursements incurred within six years, in an account furnished by him to each of the next of kin.
    Proceedings in the matter of the estate of John Miller, deceased, on petition of Frank A. Crandall, to compel Harvey S. Elkins, the surviving administrator, to account and make distribution of the remainder of the'estate.
    Bootey, Fowler & Weeks, for petitioner; V. E. Peckham and J. B. Fisher, for administrator.
   WOODBURY, S.

Letters of administration upon the estate were surrogate unto Elizabeth Hiller and Harvey S. Elkins on the 13th day of November, 1875, who caused an inventory of the decedent’s estate to be made and filed as required by law. Subsequent to their appointment, Elizabeth Hiller died, and thereafter-Hr. Elkins continued the administration of the estate. The administrator has never settled his accounts, and no account of his proceedings has ever been rendered to any court.

On the 21st day of March, 1895, Frank A. Crandall presented to this court his duly verified petition, alleging, in substance, the facts to which we have referred, and, further, that he is one of the next of kin of the deceased; that the personal property of the-decedent amounted to $18,144.44, as appears from the inventory filed by the administrators; that said property was amply sufficient to pay all debts, funeral charges, and expenses of administration, and leave a large amount to be distributed among the next of kin; that, since the expiration of one year from the granting of' letters, the petitioner has applied to the administrator to render an acccount of his proceedings, and distribute the moneys in his hands to the next of kin, which he alleges the administrator has neglected and refused to do,—and praying that the administrator be cited to show cause why he should not render an account of his proceedings and make such distribution. Upon the return' of the citation issued upon the petition, requiring the administrator to show cause why he should not render an account of his proceedings and distribute the remainder of the estate in his hands to the next of kin of the deceased, the administrator appeared, and by written answer pleaded the statute of limitations as a defense and bar to the proceeding. A motion was then made by the administrator for a dismissal of the proceeding. This motion was denied, and proofs were offered and received as bearing upon the question of the applicableness of the statute to the proceeding, and of facts and circumstances relied upon by the petitioner to take the proceedings out of the operation of the statute.

The only question which we are called upon to consider is* therefore, whether the remedy of the petitioner in this proceeding is barred by the statute of limitations. Prior to the adoption of the Revised Statutes, the rule was well established in the court of chancery that, in cases where the jurisdiction at law and in equity were concurrent, a suit in equity must be commenced within the time limited for the commencement of ah action at law; in other-words, the equitable remedy in a case of concurrent jurisdiction is subject to the same limitation as the legal. Humbert v. Trinity Church, 7 Paige, 195; 24 Wend. 587; Story, Eq. Jur. § 529:; Souza v. De Mayer, 2 Paige, 574; Kane v. Bloodgood, 7 Johns. Ch. 89; Murry v. Coster, 20 Johns. 576; Borst v. Corey, 15 N. Y. 505. A right of action was given by the Revised Statutes (section 9, tit. 5, chap. 6, pt. 2) to a legatee or next of Idn, against the executor or administrator, to recover a legacy or distributive share. Section 1819 of the Code of Civil Pocedure gives the same right ¡of action, and is a substitute for the provisions of the Revsed Ptatutes. Section 382 of the Code of Civil Procedure provides íat an action upon a contract obligation of liability, express or ■Implied, except a judgment or sealed instrument, must be commenced within six years after the cause of action accures. This ¡section acts as a substitute for section 18,. title 2, chapter 4, part 3, of the Revised Statutes.

All the proceedings in surrogate’s court are regarded as special .proceedings within the meaning of the Code of Civil Procedure, and the rule of limitation prescribed by section 382 is, by force iof the provisions of section 414, made applicable to such proceed|ings. The provisions of the Revised Statutes do not alter or ¡¿hange the rule established in equity, but, on the contrary, make ¡that rule apply with greater force by expressly giving a right of action to recover a legacy or distributive share. It was not, however, until the adoption of the Code of Civil Procedure that there ■was a fixed statutory provision limiting the time of the commencement of a special proceeding to recover a legacy or distributive share.

! Several of the cases to which we shall presently refer expressly, and others by necessary implication, hold that a special proceeding in surrogate’s court, against an executor or administrator, to compel an accounting and'payment of a legacy or distributive .share is a proceeding to enforce an obligation or liability not arising on a judgment or sealed instrument; and, as section 414 of the Code applies to such proceeding, it would seem that the same rule of limitation must govern with respect thereto as would govern a right of action upon an obligation or liability as prescribed by section 382 of the Code. It was accordingly held, under the provisions of the Revised Statutes, in accordance with the rule estabilished in equity, and has since been held under th provisions of [the Code of Civil Procedure, to which we have referrd, that special proceedings in surrogate’s court against an executor or administrator to enforce the payment of a legacy or distributive share, or an accounting, are barred by the statute of limitations if not commenced within six years from the time when the right accrued to compel such accounting or payment. McCartee v. Camel, 1 Barb. Ch. 455; Clark v. Ford, 1 Abb. Dec. 359; Smith v. Remington, 42 Barb. 75; Clock v. Chadeagne, 10 Hun, 97; Cole v. Terpenning, 25 id. 482; In re Van Dyke, 44 id. 394; 9 St. Rep. 137; In re Dunham’s Estate, 6 N. Y. Supp. 563; In re Underhill’s Estate, 9 id. 455; In re Perry’s Estate, 37 St. Rep. 576. The same doctrine has been recognized and reiterated in many other cases. Society v. Hebard, 51 Barb. 552; Id., 41 N. Y. 619; Roup v. Bradner, 19 Hun, 513; Drake v. Wilkie, 30 id. 537; In re Latz, 33 id. 618; In re Miller, 70 id. 61; 53 St. Rep. 508; Zweigle v. Hohman, 75 Hun, 378; 58 St. Rep. 660; Loder v. Hatfield, 71 N. Y. 92; Butler v. Johnson, 111 id. 204; 19 St. Rep. 85; In re Gregory’s Estate, 21 St. Rep. 871; In re Clayton’s Estat, 22 id. 886; In re Nichols, 27 id. 37; In re May, 31 id. 50; In re Post’s Estate, 30 id. 217; In re Hodgman’s Estate, 31 id. 479; Pitkin v. Wilcox, 34 id. 441; In re Stagg, 6 N. Y. Civ. Proc. R. 88; In re Van Wert’s Estate, 3 Misc. Rep. 563.

This right accrued at the expiration of one year from the granting of letters (Code Civ. Proc. § 2726), or, at the outside, at the expiration of eighteen months therefrom (id. § 2727); and,, inasmuch as upwards of nineteen years had elapsed from the time-letters were issued to the administrator to the time of filing of the petition, it follows that the statute of limitations is a bar to this proceeding, unless, by some act on the part of the administrator,, the case is taken out of the statute, or the provisions of the statute have been waived, or unless the rule established by the cases cited has been modified or changed by more recent and controlling; decisions, or by the enactment of section 1819 of the Code o£ Civil Procedure. The case of In re Camp, 126 N. Y. 377; 37: St. Rep. 767, is cited as authority for the proposition that the rule of limitations as laid down in the cases cited has been changed, or, at least, thereby rendered inapplicable to proceedings of this, nature against an administrator, and that the rule to be applied in. this proceeding should be the one applied in equity to trustees,, viz. that th statute of limitations does not commence to run. against the beneficiary until the trustee has openly, to the knowledge of the benficiary, .renounced, disclaimed, or repudiated the' trust. In that case a fund had come to the hands of a guardian,, in which he held a life estate, and he had receipted therefor as-guardian. Sixteen years after the ward became of age, but within one year after he became cognizant of the receipt of the money by .the guardian, he instituted a proceeding to compel the limitations as a defense. The court, in deciding the question(Peckham, J., writing the opinion), says:

“The guardian has obtained possession of the fund as guardian,, and he deals with it not alone in his own right as life tenant in this case, but he also deals with it as the property of others confided; to his care. In this sense he occupies the position of a trustee,\ so far as to prevent the running of any statute of limitation in hisj favor regarding the property intusted to him. Although he may: cease to be guardian upon the ward coming of age, yet, as longj as the property remains in his possession as guardian and unaccounted for, he must remain liable to account.”

It will be seen by a careful study of this case that the broad and'1 sweeping language employed, carried to its logical conclusion, would bring every guardian within the rule, applicable to trustees, to which we have called attention. Whether the court intended this result, or whether it employed this language with respect to the peculiar circumstances of the case under consideration, it is not necessary for us to determine in disposing of the proceeding before us. While the duties pertaining to the office-of a guardian of property, and that of an executor or administrator, may not be materially different respecting matters of accounting and liability to account, and it may, with much plausibility of argument, be contended that the rule of limitation ap- ' plicable to one is alike applicable to the other, and that such rule should be the one applied in equity to trustees, seemingly laid down in Ee Camp, yet we are of the opinion that the court in that ease did not intend to alter, modify, or change the rule of ■limitation made applicable to proceedings to compel payment of a distributive share on an accounting by an executor or an administrator, established by a long and almost uniform line of decisions which we have cited. There nothing in the language of the opinion which imports any such purpose, and no such intention should be presumed. This view of the case is strengthened by the fact that, in the case of Butler v. Johnson, 111 N. Y. 204; 19 St. Rep. 85, the court of appeals (in an opinion also written by Peckham, J.) recognized and reiterated the rule that the six years’ statute of ’limitations would bar a proceeding in surrogate’s court against ¡an execuetrix to compel the payment of a legacy; and it seems-to us that we would not be warranted in presuming that the court intended to overrule the doctrine there recognized, with'out even referring to it. A careful study of the cases leads us to .the conclusion that, while executors and administrators act in a fiduciary capacity, and are, in a general sense, trustees, as they deal with the property' of others, they are not to be regarded as fallitig within that class of trustees to which the rule of limitation contended for applies. It would seem that such a rule was ¡intended to apply to an actual, express, and subsisting trust. Lammer v. Stoddard, 103 N. Y. 672; 4 St. Rep. 225. The-dicta in the cases of Wood v. Brown, 34 N. Y. 342, and In re Hawley, 104 N. Y. 261; 5 St. Rep. 620, support this view.

It has several times been urged in our appellate courts that •the provisions incorporated into the statute by the adoption of ¡section 1819 of the Code of Civil Procedure, which provides that, ■fifor the purpose of computing the time within which such an '■action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially-settled and not before,” has changed the rule of limitation governing special proceedings in surrogate’s court of this nature. The opinions expressed by our judges upon the question have not been entirely harmonious. The section referred to relates exclusively to actions, and makes no reference to special proceedings instituted for the purposes mentioned. It will be observed, also, that this section does not change or alter the period of limitation, but only prescribes the time from whence it is to be computed. The Aveight of authority seems to be to the effectthat the rule of limitation applied by that section to an action does not affect the rule of limitation applied to a special proceedng in surrogate’s court, and that the six years’ statute is still a bar to such proceedings. Tn re Van Dyke, supra; In re Eicholls, supra; In re Dunham’s Estate, supra; In re Underhill’s Estate, supra; In re Perry’s Estate, supra.

It only remains for us to consider those acts of the administrator which are relied upon by the petitioner to prevent the operation of the statute. On the 4th day of February, 1891, the administrator paid to Abbey Correll, one of the next of kin, $100* but no evidence was offered showing the circumstances under which the payment was made. This was but one of a series of payments by the administrator to the various next of kin, covering a period from the time of his appointment to the time of the payment of the $100, aggregating nearly $17,000; but none of the other payments were made within six years of the time of the filing of the petition. It is contended by counsel for the petitioner that this payment operated as an acknowledgment by the-administrator of a liability which, takes the proceeding out of the' statute. We question very much whether such a payment, in a matter of this nature, can have that effect, in the absence of any evidence of the circumstances under which it was made. It is, however, in our opinion, a sufficient answer to the proposition that the payment was not made to the petitioner, nor is there-any evidence showing that he was in any manner connected with-it, or that it was intended to influence his action; neither was it’ made to his agent, nor to any one acting for him or in his interest, who might be expected to commimicate it to him, so as to affect his' conduct. It was made to a third party who is a stranger to this proceeding. Payments under such' circumstances cannot be held to relieve the operation of the statute. De Freest v. Warner, 98 N. Y. 217; In re Kendrick, 107 N. Y. 104; 11 St. Rep. 346.

In 1893 the administrator prepared and furnished to each of the next of kin a typewritten statement of account of his proceedings. It is claimed that this amounts to a written acknowledgment, - from which a promise to pay will be presumed, so as to prevent the operation of the statute. We hold otherwise. This proceeding is to be regarded as one to enforce the payment of a: distributive share; and the statement of account, which is un~' signed, neither acknowledges a liability nor does it contain any promise to pay, but, on the contrary, it shows an indebtedness to the administrator. This account cannot, certainly, have any; greater force and effect as an acknowldgment or promise than1 its contents and-terms import. Again, it is contended that, inasmuch as the administrator has, in such account credited himself rvith several items of expenditures and disbursements incurred! within the six years next preceding the filing of the petition, the operation of the statute is thereby prevented. We do not agree vrith this proposition. Such payments are neither acknoAvledgments, promises, nor párt payments, vtithin the meaning of the statute, to take the case out of its operation.

During the six years immediately preceding the commencement of this proceding, the administrator performed certain acts " in his official capacity, and this fact is relied upon by counsel for petitioner to take the case out of the operation of the statute. It seems that one of these acts was the foreclosure of a mortgage - upon real property, and that, upon the sale, the administrator became the purchaser of the property for $150, and still holds it.. - It does not appear to whom the mortgage was given, or who gave it, or when or how it came to the hands of the administrator. The only evidence as to whom the mortgage was given was by the witness Colburn, who owned the equity ,of redemption in the land when the foreclosure took place. He testified that he thought it ran to the heirs of John Miller. If this is to be regarded as .true, and we do not see how we can otherwise treat it under the evidence, it is difficult to understand what the administrator, as.' such, had to do with it. The fact that he foreclosed i-t as admin-’ istrator could not affect the rights of the heirs as mortgagees, or. their remedy against the land. Again, if he acted for them, and. at their request, in the foreclosure of a mortgage owned by them, ' a remedy is doubtless open to them for such relief as they are entitled to; but, in the absence of any evidence, unless by strained .presumption, showing that the mortgage was a part of the trust [estate, we do not see why or how it can prevent the running of ¡the statute.

, We desire, however, to place our decision respecting this proposition squarely upon the ground that the acts of the administrator, performed within the six years preceding the commencement of this proceeding, do not operate to prevent the running of the statute. The evidence does not show that the petitioner [has been under any disability, or that he has acted in ignorance of, or been misled with respect to, his rights in the premises, nor that he has remained in repose, or been inactive, by reason of any promises, statements, or representations made by the administrator. We are not aware that this precise question has been passed upon, and the decisions gave but little light upon the subject as to ¡what acts on the part of the administrator may be relied upon to .prevent the operation of the statute. The provisions of the Code of Civil Procdure to which we have referred furnish the rules upon this-subject for our guidance, and point out the only acts upon which we may rely to prevent the running of the statute or take a case out of its operation.

We must concede that there is much force in the argument advanced, that an executor or administrator should not be permitted to come into court, in his representative capacity, and enforce an obligation or liability, and immediately thereafter he permitted to successfully interpose the statute of limitations as a bar to a proceeding against him to account and make distribution. The provisions of the Code do not recognize these acts as sufficient to take the case out of the statute, and, as the rule in equity applicable to trustees does not seem to apply to this proceeding, we are contained to hold as already indicated. The remedy of the petitioner may yet be open by an action at law under section 1819 of the Code of Civil Procdure, but it is barred in this proceeding, as we believe, and accordingly hold. An order will enter dismissing the proceeding.

Proceeding dismissed,