text:
    In the Matter of the Judicial Settlement of the Account of CATHARINE BLAUVELT and Another, as Executrices of the Will of ISAAC I. BLAUVELT, Deceased.

      Will — life estate, with power of sale, and disposition of the remainder.

    The will of a testator gave to his widow the use of his real and personal estate, with full power of sale of the real estate “as toiler shall seem just.” After her death one-half of the estate was to pass to each of two daughters for life, with remainder to their children. The widow was also the executrix named in the will.

      Held, that the power of sale'given to the widow was only for the benefit of the estate, and that she was not entitled to the proceeds of sales made by her thereunder.
    A gift of a life estate, with a power of sale, and a remainder over of all the property, are consistent dispositions.
    Appeal by Catharine Blauvelt and Julia F. Mansfield, executrices of the last will and testament of Isaac I. Blauvelt, deceased, from a decree entered in the office of the Surrogate’s Court of Rockland county, on the 19th day of February, 1891. The said decree, after finally settling and allowing the account of the executrices, and providing for the payment of their commissions and the expenses of the accounting and costs of the contestants, provided as follows:
    “ And it is further ordered, adjudged and decreed that the real estate known as the Homestead, in Nyack; the farm known as the Greenbush farm, in Orangetown, or any other property formerly owned by the said estate and now standing in the individual names, of Catharine Blauvelt and Julia F. Mansfield respectively, belong to the estate of said Isaac I. Blauvelt, deceased.
    “And it is further ordered, adjudged and decreed that said Catharine Blauvelt and Julia F. Mansfield respectively convey to themselves as executrices and trustees of and under the last will and testament of Isaac I. Blauvelt, deceased, said premises so standing in their names.”

      Thaddeus D. Kenneson, for the executrices, appellants.

      A. A. Dema/rest, for Francis A. Canfield and other contestants,, respondents.
   Barnard, P. J.:

Isaac I. Blauvelt died in Rockland county in 1861, leaving a last will. The deceased left a widow and two daughters. By the will the widow was entitled to “ the use of all my real and personal estate ” with full power of sale of the real estate “ as to her shall seem just.”

After the widow’s death a life estate in one-half of the estate was. given to each of the daughters, with remainder to their children. The widow was one of the executors; she had no power to use any portion of the principal for her own purpose, but the entire estate was disposed of after her life estate ceased. The widow has sold certain of the testator’s lands, and claims to be entitled to hold the proceeds as her own. The surrogate properly disallowed this. The meaning and intent of the will is that the widow may sell the lands, for the purposes of the will. She is to have the entire use of the proceeds, but the same must go to the daughters and their children as provided for in the will. The construction claimed'by the widow is inconsistent with the scope and intent of the will, and a gift of a life estate with power of sale and remainder over’, after the life estate, of all the testator’s property is entirely consistent with the power of sale. (Monarque v. Monarque, 80 N. Y., 320.)

The proceeds of the land became personal estate when the land was sold and actually converted into money under this power, and the surrogate had jurisdiction to compel an account therefor. The-appellants make no point as to the propriety of the decree holding the executrices liable for imprudent loans.

The decree seems faultless in this respect. (King v. Talbot, 40 N. Y., 76.)

The decree should be affirmed, with costs.

Pratt, J., concurred.

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J. :

license: Public Domain

text:
    JOHN EYLERS and Another, Respondents, v. MARY COEN, Appellant.

      Note given, to raise money to complete a, contract — consideration, as between t!w malcer and the sureties on the contract.

    A contractor witli a municipal corporation being in default upon his work one of his sureties undertook to complete it. In order to enable the sureties to raise the moneys required for this purpose the wife of the contractor gave to the sureties her notes. These notes never passed from the hands of the sureties. The notes did not purport to bind, nor were they for the benefit of, the wife’s separate estate.
    In an action brought to recover upon said notes by the sureties:

      Held, that, as between them and the wife, there was no consideration therefor.
    That the notes were merely a promise by her to be liable for any money to b,e raised thereby for the purpose of completing the contract.
    Appeal by the defendant, Mary Coen, from a judgment of the City Court of Yonkers, entered in the office of the clerk of said court on the lltli day of March, 1891, in favor of jhaintilfs for $872.40, after a trial before the court without a jury.

      F. X. Donoghue, for the appellalit.

      John O. Donohue, for the respondents.
   Barnard, P. J. :

The defendant’s husband was a contractor to do certain work for the city of Yonkers. The plaintiffs were his sureties for the performance of the work. The contractor failed to complete the work or to continue it, and the city notified the sureties that if the contract was not finished it would be taken out of Coen’s hands. Coen then assigned his interest in the contract to the plaintiff Eylers, who promised to complete the work. In order to raise money Mrs. Coen “ said she would sign a note, and to make up a. note between the three of us, to pay for this labor and materials on her husband’s contract.” This transaction was between the sureties and Mrs. Coen. A note for $500 was given by her to the plaintiffs, to pay for labor and materials to finish the work under her husband’s contract. On the 17th of May, 1891, she gave a note-for $300 for the same purpose, and on December 3, 1890, she-gave the note in full for $800, to include the two .notes of $500 and $300. Hogan, one of the plaintiffs, states the transaction to have been a little different; that the defendant promised, at her giving of the first note, that as long as the contract was in her name the sureties should not lose. The defendant’s statement differs from the plaintiffs, but the judge has found a consideration, and the question must be whether a consideration is established by the-plaintiffs’ testimony. It does not appear that the notes ever passed out of the plaintiffs’ hands; that any money was ever borrowed upon them or either of them. No consideration was made out. As between the parties to this suit the defendant was a surety to-the plaintiffs. She liad no interest in the contract, and only lent her name so that the sureties could raise money to complete the work. In the hands of a bona fide holder for value the note would 'have been upheld. As between the parties it is a mere promise to be security for money to be raised by the surety to enable him to complete the contract of their principal, and is without consideration.

The contract is not finished, and the case shows that the $500 note waá given upon the expressed condition that it was to pay for labor and materials “ to finish Papton street,” under her husband’s contract, where the plaintiffs were sureties for the same contract.”

The subsequent note, $300, was, no doubt, given under the same condition or understanding.

The note was not given for the benefit of the separate estate of' the wife, and does not charge such estate in the note itself.

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

Pratt, J., concurred.

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


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT WALLACE, Respondent, v. THOMAS S. RYAN, Town Clerk of the Town of Westchester, Appellant.

      Elections — ballot reform law — objections made to a nomination — liow decided — duty as to printing ballots — 1890, chap. 262, sec. 13.
    'The Ballot Reform Law, section 13, chapter 262, Laws of 1890, provides that the officer with whom the original certificate of a nomination is filed shall, in the first instance, pass upon the validity of an objection to such nomination, and his decision shall be final unless an order shall be made in the matter by a court of competent jurisdiction or by a justice of the Supreme Court .at Chambers.

      Held, that, upon the making of such an order by such a court or justice, the said officer with whom the nomination is filed is excused from passing upon such objections, and cannot delay action in the printing of a ticket, upon the pretense that he needs time to consider them.
    'Where a ticket has been duly nominated and filed with the proper officer it is his duty to print it, irrespective of the question whether the nomination is that of a regular or that of an irregular body or party.
    Appeal by tbe defendant, Thomas S. Ryan, as town clerk of the town of Westchester, from an order entered in the clerk’s office of Westchester county, directing that a mcmdamius issue commanding him as such clerk to print the ballots of the so-called Republican party in said town of 'Westchester.

      II. O. Henderson, for the appellant.

      David H. Hunt, for the relator.
   Barnard, P. J.:

The papers showed that a convention was held in the town of Westchester on the 20th of March, 1891. There was a call for a primary meeting of Republicans of the town publicly posted on the Tth of March, 1891. A ticket was nominated, duly certified and filed with the town clerk.

Objections were filed to the ticket, and the relator testifies that the town clerk was about to refuse to print the ticket. The town clerk admits the filing of the ticket and that objections were made to it, but that he will not refuse to print the ticket “ if he decides .said objections are not well founded; that he is ready and willing to decide the matter after reasonable opportunity to the parties interested to be heard has been given. That immediately upon the receipt of the said objections, he sent by mail notices of the filing of such objections to all persons whose names appear on said certificate as candidates.” The only objection to the ticket is that it was made by an irregular body and was not a nomination of the regular Republican party. The peremptory writ was properly granted. By section 13 of chapter 262 of the Laws of 1890, the clerk is excused from passing upon the objections if an order shall be made by a court of competent jurisdiction on or before Wednesday preceding the election. The object of the law was not that the town clerk should make the order upon the objection before the court could make an order. This would defeat the law in some instances. The clerk might delay his decision until it was too late to print the ticket. The objection taken was entirely frivolous. No matter what the body of voters may have called themselves, if a ticket was nominated and filed according to law the clerk should print the ticket for the popular vote.

The judgment should be affirmed, with costs.

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

Order granting writ of vncmclmius affirmed, with costs.


author: .Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NICOLA TREZZA, Appellant, v. A. A. BRUSH, as Agent and Warden of the State Prison at Sing Sing, Respondent.

      Murder — -solitary confinement during agypeal — stay of execution — form of death sentence— Oode of Oriminal Procedure, seo. 491.
    A prisoner was convicted of murder and was sentenced to death. Pending an appeal he was confined in a State prison in solitary confinement. His conviction having been affirmed, he was resentenced and subjected in said prison to similar confinement. \

      Held, that the second imprisonment was not a violation of section 6, article 1 of the State Constitution, providing that “no person shall be subject to be twice put in jeopardy for the same offense.”
    That his appeal stayed his execution, and not his confinement; and that whether solitary confinement pending appeal was legal or illegal it was not a ground for the discharge of the prisoner.

      That a sentence requiring the warden of a state prison to put one to death “in the mode, manner and way, and at the place by law prescribed and provided ” was proper, such mode having been minutely provided by the Code of Criminal Procedure, section 491.
    Appeal by the People of the State of New York, on the relation of Nicola Trezza, from an order entered in the clerk’s office of Kings comity, on the 8th day of April, 1891, dismissing the writ of habeas corpus granted upon the petition of said Trezza, and denying his application for his discharge from imprisonment in the State prison at Sing Sing, and remanding him to the custody of the agent and warden of said prison.

      A. JI. Dcdley, for the appellant.

      James W. Ridgwa/y, district attorney, for the respondent.
   .Barnard, P. J.:

The appellant was convicted of murder in the first degree in Kings county, and sentenced to be executed within the week beginning 21st of July, 1890. An appeal was taken and the time fixed for the execution of the appellant passed, by the appeal operating as a stay of execution by law. On the 24th of February, 1891, the conviction was affirmed by the Court of Appeals. On the 6th of March, 1891, the convict was resentenced to death during the week beginning on the 20th of April, 1891, “in the mode, manner and way, and at the place by law prescribed aud provided.” The prisoner was, pending the appeal, in the State prison at Sing Sing, and Upon the second sentence was again taken there. A writ of habeas corpus was applied for by him and this application was denied. The prisoner claims that he is entitled to his discharge because he suffers punishment twice in this: that pending the appeal he was kept in solitary confinement, and upon the second sentence he is returned to the same confinement. The point is without foundation even if the solitary confinement pending appeal was improper; it was ended with the second sentence, and no such confinement is legal. The stay of execution in the statute stayed physical death, and it may be that on an application by the convict the solitary confinement might have been ordered to cease as well as the death, penalty; but such confinement was not within the provisions of law that a person cannot be convicted or punished twice for tire same crime. The confinement was entirely right. The prisoner was delivered to the warden of the State prison in accordance with law. The stay by the appeal was only of the execution ” until the determination of the appeal. (Code Grim. Pro., § 528.)

The right to detain a convicted murderer in the State prison was not stayed, but the enforcement of the death penalty only, by this section.

The sentence itself was proper. The mode of inflicting death upon the prisoner is minutely provided for by statute. (Code Grim. Pro., §491; Laws of 1888, chap. 489.)

The sentence was that the execution was to be carried out in the mode, manner and way provided by law for the execution of the sentence. The justification for the death is under the law, and a sentence could not add to the force of the statute so as to protect the warden.

The writ was properly denied, and the order should be affirmed.

Pratt, J., concurred.

Order denying application for writ of habeas corpus affirmed, without costs.


author: Pratt, J.:

text:
    JERUSHA VAUGHN, Respondent, v. THE VILLAGE OF PORT CHESTER, Appellant.

      Taxes — payment under duress — what acts of a town amount to coercion.

    A void assessment was levied by tlie Village of Port Chester upon the land of an owner who had contracted to sell the land and give a good title thereto. A warrant was issued for the collection of the assessment and was delivered to the receiver of taxes of the village, who demanded payment thereof, and sent a constable to inform the owner, who was ill, that her property would be sold unless payment was made. The town officers refused to allow the amount, of the assessment to be deposited as indemnity, or to delay the sale until the validity of the assessment could be tested ; and the board of trustees of the-town passed a resolution directing their treasurer to sell the premises for the assessment. The owner then paid the amount of the assessment under protest.
    In an action brought by the owner to recover such amount:

      Held, that the payment was not voluntary, and that the acts of the .town in the premises amounted to coercion.

      Appeal by the defendant, the Village of Port Chester, from a judgment entered in the clerk’s office of Westchester county, on the 28th day of February, 1891, in favor of the plaintiff, for $1,800.33, after a trial at the Westchester Circuit, before the court without a jury.

      Mcmrioe Dillon, for the appellant.

      Wilson .Brown, Jr., for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a trial at Special Term, which declared certain assessments upon the plaintiff’s ¡property to be illegal and void, and for a return of the money paid, with interest upon such assessments, by the plaintiff, upon the ground that such payment was made involuntarily and under threats and coercion, which amounted to duress.

It will be seen, therefore, that the only question in the case is whether the proofs warranted the finding of fact below: “That such payment by plaintiff was against her will and was not a voluntary payment on her part, and plaintiff was obliged and compelled to pay the same by reason of the coercive action and threats and statements of the defendant, its officers and agents, to deprive her of her property, if she did not pay the said assessments,” it being conceded that the said assessments were illegal and void.

At the time of such payment the plaintiff was under a contract • to sell her lands upon which such assessments had been levied, and give a good title thereto.

The defendant refused to accept a deposit of the amount of the ■•assessment as indemnity, or delay the sale until the validity of the assessment could be determined, and passed a resolution directing its treasurer to advertise her property for sale under a warrant then in the hands of the receiver of taxes of said village.

At this time the receiver of taxes had published notice and ■demanded of plaintiff payment of these assessments, and sent a constable to notify plaintiff that her property would be sold unless said assessments were paid.

The plaintiff, at the time of the payment, was prostrated with a .serious illness, and was in no state of mind to contend with public officers armed with, a warrant valid upon its face, but naturally thought, and had a right to think, they would make their threats good and deprive her of her property.

That the assessment was not paid voluntarily may be inferred from the fact that it was paid under protest and after various efforts to avoid payment or put off the sale.

We think the case may fairly fall within the principles laid down in the case of Bowns v. May (120 N. V., 357); and People ex rel. Warren v. Carter (119 id., 557).

We think, taking into view ail the facts and circumstances of the case, that they fully sustain the finding that the assessment was paid under coercion and duress.

The facts seem to bring the case within the definition of an involuntary payment as laid down by Dillon on Municipal Corporations (vol. 2, § 943), to wit: “ The coercion or duress which will render a payment of taxes involuntary must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means or reasonable means of immediate relief except by making payment.”

The defendant had the physical power to sell plaintiff’s property, and threatened to do so, and made their authority seem legal and absolute by exhibiting the warrant. It is like the case of threatening to turn off water by city authorities if an illegal license fee is not paid, which has been held to be compulsion.

We think the proofs sustain the findings, and that the conclusions of law are the logical result of such findings.

Judgment affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    CORNELIA WHEELER, Respondent, v. EDWARD W. SIMMONS, Appellant.

      Discharge in bankruptcy — a new promise to pay a debt will not be implied from a-partial payment.

    A payment upon a note where the payment is made by the maker, subsequent to his discharge in bankruptcy, will not revive the debt existing prior to such discharge; the new promise which will have that effect must be express and distinct, and cannot be implied from partial payments.
    Appeal by tbe defendant, Edward W. Simmons, from a judgment entered in the clerk’s office of Dutchess county, on the 31st day of October, 1890, in favor of plaintiff, after a trial before the court at the Dutchess Circuit, at which a vei’dict was rendered in favor of the plaintiff for $3,323.

      W. Fa/rrington, for the appellant.

      8. H. Brown and John Haókett, for the respondent.
   Pratt, J.:

This action was commenced July 5,1890, upon a promissory note for $2,000, dated September 22, 1874.

The answer set up the statute of limitations and a discharge in bankruptcy, dated the 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877.

Several payments had been made upon the note, from January 9, 1879, up to 1886. These payments were relied on to take the case out of the statute of limitations, and the court found as a fact that these having been made prior to the statute of this State (chap. 324), passed June 8, 1882, constituted a new promise, and, as matter of law, that the claim was not barred.

There is no evidence to sustain a new promise except the payments, and, therefore, the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt.

This question has been recently passed upon by the Court of Appeals in the case of Lawrence v. Harrington (122 N. Y., 408), where it was held that a promise, by which a debt discharged in bankruptcy can be renewed, must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments.

The finding of fact in the present case has no evidence to support it except the payments.

It follows that the judgment must be reversed and a new trial granted, costs to abide the event.

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

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


text:
    ANNIE MARY VELIE, Appellant, v. SAMUEL TITUS, as Executor of JOHN H. TITUS, Deceased, Respondent.

      Bills and notes — consideration — what is a sufficient consideration where thepa/yee of a note is a member of the family.

    A cliild, wlio was ten years of age, went to live in the same family with her grandfather, and during a period of several years rendered slight services to him. The grandfather executed and delivered, at a time prior to that at which some of such services were rendered, his promissory note to his grandchild in the sum of $1,000.

      Held, that a sufficient consideration was shown for the note, and that it was a valid claim against the grandfather’s estate.
    Appeal by the plaintiff, Annie Mary Yelie, from an order entered in the office of the clerk of Dutchess county, on the 4th day of April, 1891, confirming the report of a referee in favor of the plaintiff in the sum of five dollars.
    The reference was one of a disputed claim against the estate of a decedent, and was made under the statute relating to such claims. The claim was for $1,000. Two notes, each for $1,000, had been given by the testator to the plaintiff, the second having been executed because the first was regarded as invalid. The notes in question were as follows:
    “ $1 000 “ ^o:F1,'INS Summit, N. Y., December 24, 1886.
    “ Eor value received in services rendered and performed for, and kindness and attention shown me by my grand-daughter Anna Mary Yelie, I promise to pay her or her order the sum of one thousand dollars without interest; payable at my decease.
    (Signed) “JOHN H. TITUS.”

      “ $1,000.
    “ On demand, I promise to pay to Anna Mary Yelie (my granddaughter) one thousand dollars in consideration of five dollars in hand paid and for services rendered me and for other good and valuable consideration ecpiivalent to the above-named sum, which sum when paid shall be in full of all demands for services or otherwise which she has against me.
    “ Dated, Coffins Summit, February 14, 188Y.
    (Signed.) “JOHN H. TITUS.”
    The claim of the plaintiff was allowed by the referee to the extent of five dollars on the second note.

      Daniel W. Guernsey, for the appellant.

      Milton A. Fowler, for the respondent.
   Pratt, J.:

It appears that the plaintiff rendered services to some extent to her grandfather, for which he executed and delivered to her his promissory note. That the sum was large for the amount of services shown must be conceded, but the amount was fixed by the maker himself, and he had a right to make his own estimate.

It may well be, as held by the referee, that on account of the relationship between the plaintiff' and her grandfather no promise would be implied to remunerate her for services. But it cannot be said that a claim for such remuneration would be so clearly unfounded that its extinguishment would be no consideration for a promise. The services continued after the note was made, and the circumstances indicate that the continuance of the services may have been to some extent a moving cause.

The reiterated expressions of Mr. Titus that he wished the note paid, his employing counsel to insure its validity, have weight towards proving a consideration, and it must be remembered that a consideration is implied by law.

It was for the defendant to prove affirmatively that no consideration existed. Ve think not only that he failed to do so, but that a sufficient consideration is affirmatively made out.

It follows that the order appealed from should be reversed and tlie motion to vacate the referee’s report should be granted, with costs to plaintiff of the General and Special Terms.

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

Judgment reversed, with costs of Special and General Terms.


author: Dykman, J.:

text:
    RICHARD R. LA BAU and Others, Infants, by ALVIN GRAFF, their Guardian, Respondents, v. FRANK HUETWOHL, Appellant, and Others.

      Receiver — not appointed in ejectment.

    Where one is personally in possession of premises under a contract for tlie sale thereof, the court will not, in an action to recover possession of said premises, appoint a receiver pendente lite.

    Appeal by the defendant, Frank Huetwohl, from an order entered in the clerk’s office of Kings county on the 3d day of April, 1891, appointing William Hughes a receiver of the rents, issues and profits of the premises described in the complaint during the pendency of the action.

      Carpenter db Roderick, for the appellant.

      Peck db Field, for the respondents.
   Dykman, J.:

This is an action of ejectment, and the defendant is in possession of the premises, under a contract to purchase the same. He occupies a portion of the dwelling-house, and has rented other portions thereof to two tenants. He has expended money in repairs and improvements upon the premises.

After this action was commenced the plaintiffs made an application to the court for the appointment of a receiver of the rents of the property, and the motion was granted and the defendant appealed from the order.

So far as the ecpiities between the parties are involved the defendant occupies the position of advantage. He made an honest contract for the purchase of the premises, and paid some money in the full belief that he could obtain a perfect title, and went into possession and made improvements under the influence of the same belief.

If, therefore, he can now reimburse himself for his outlay, it is equitable and just that he should be permitted to do so by the use of the property, pending the suit for its recovery. Our decision, however, is placed upon other grounds.

The case of Thompson v. Sherrard (35 Barb., 593), was very similar to this. The action was ejectment for the recovery of real property. The defendant Robert Sherrard was in the occupation of a certain portion of the house, and the other defendants occupied other portions of the house and paid rent to Sherrard.

A receiver of the rents was appointed at the Special Term in that case as in this, and, upon appeal to the General Term, the order was there reversed and the court held the appointment of a receiver to be improper and inconsistent with the nature of the action and the relief sought. That decision was followed in the subsequent cases of Guernsey v. Powers (9 Hun, 78), and Burdell v. Burdell (54 How., 91).

The law will not take the property of a defendant from him pending an action for its recovery; and that -wise and salutary rule would be violated if a receiver could be appointed to take the rents. Even in an action to foreclose a mortgage on land a receiver is not appointed where the defendant is personally in the occupation of the premises.

Our conclusion is that the order should be reverséd, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order reversed, with costs and disbursements.


text:
    BENJAMIN TOUB, Respondent, v. ADAM SCHMIDT, Appellant.

      hvrikeep&r —• liability of— who is not a guest.

    A peddler went to an inn and, "by consent of the innkeeper, left liis pack there. He did not engage a room or eat or drink there. The next day he returned and demanded his property, which had in the meantime been lost.

      .Held, that the relation of innkeeper and guest was not created, and that the peddler could not recover from the innkeeper because of the loss of the goods.
    Appeal by the defendant, Adam Schmidt, from a judgment •entered in the office of the clerk of Orange county, on the 13th day of December, 1890, in favor of the plaintiff, after a trial had in the Orange County Court, before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $100; also from an order denying the defendant’s motion for a new trial, made on the 6th day of January, 1891.

      Wilton Brnnet, for the appellant.

      B. E. Buddebaoh, for the resjiondent.
   Dykman, J.:

This is an appeal from a judgment and order denying a motion for a new Dial on the minutes of the court. The cause was tried first in a court of a justice-of the peace, and then upon appeal to the County Court a new trial was had there; resulting as the first had in a verdict for the plaintiff for $100.

The facts are these: The plaintiff is a pack peddler and the defendant is an innkeeper at Port Jervis, in Orange county. On the 6th day of February, 1890, the plaintiff went to the inn of the defendant with his pack and the defendant asked him where he was going, and the plaintiff said he was going to New York; the defendant asked him if he was going to take his pack with him, and the plaintiff said “ No; I will leave it here,” and then the defendant took the key to the storage-room and opened the door, and the plaintiff placed his pack and a small valise in the room and the defendant locked the door. That was about six o’clock in the evening, and the plaintiff left the house about eight o’clock and went to New York. He neither engaged a room, nor eat nor drank at the house. According to his expressed intention he returned to the inn on the Monday evening following, and his pack and valise could not be found, and this action was brought to recover the value of the property so left with the defendant, based upon his liability as the keeper of an inn.

There is no substantial dispute in relation to the facts, and at the close of the plaintiff’s testimony upon the trial the counsel for the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish the relation of landlord and guest between himself and the defendant.

The motion was denied and the counsel for the defendant excepted, and then, after the examination of the defendant and some other witnesses without the development of any material fact,, the case was sent to the jury under a charge which permitted the jury to find whether the relation of innkeeper and guest existed between the plaintiff and defendant, and made the case to turn upon that question. The jury rendered a verdict for the plaintiff,, and the defendant has appealed as we have stated.

The testimony being undisputed, the verdict of the jury cannot be taken as conclusive unless the proof was sufficient for its justification. If the evidence failed to disclose facts sufficient to constitute the plaintiff a guest of the defendant, then the verdict was destitute of support, because the technical relation of innkeeper and guest must be established in order to enforce the liability of the latter. This proposition is now so rudimental that the citation of authorities for its support is unnecessary.

So the question for determination is whether the plaintiff was a. guest of the defendant when the property was lost. He was not at. the defendant’s house for refreshment or rest, or with an intention to remain. He asked for nothing for himself and received nothing; and although it is not easy to determine, either from principle or authority, precisely what conduct will be sufficient to make a guest, yet it seems plain that one who is not to be entertained, and who has not adopted the inn as a temporary home, is not a guest, within the meaning of the law, so as to entitle him to the severe remedies enforced against innkeepers.

Tlieir common-lfiw liability was based upon public policy for the protection of travelers. It was found that loss and damage frequently resulted to wayfarers from the negligence of innkeepers and their servants, and a rigorous rule of liability was adopted for the redress of such wrongs.

As a compensation for their extraordinary liability, and because they are under obligations to receive and entertain travelers, the law gives to the innkeeper a lien upon the property of his guest for the satisfaction of his charges. But he has no lien unless he is bound to receive the goods, and in this case, as the defendant was not bound to receive the property left with him, he acquired no lien ; and it has been said that the lien and liability are correlative and must stand or fall together. (Grinnell v. Cook, 3 Hill, 488.)

So it was said in the same case, if a traveler leave a horse at an inn and leave for another town to be absent a few days, the liability continues, because the host will receive compensation for care and keep, but it is otherwise respecting inanimate property from which the host derives no benefit. (Grinnell v. Cook, 3 Hill, 489.)

As a person does not become a guest by a simple visit to an inn, so he cannot invest himself with that character by simply leaving goods at the inn ; and while one may continue to be constructively a guest while he is temporarily absent from an inn, yet he cannot continue a character he never assumed.

The testimony in this case discloses no act of the plaintiff indicative of an intention to become a guest of the inn; and the defendant was not bound to receive his goods, and had no lien upon the same, for their keeping, and these three reasons are sufficient to defeat a-recovery in the action.

The judgment and order denying a motion for a new trial should be reversed, and a new trial should be granted in the County Court,, with costs to abide the event.

Pratt, J., concurred.

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


text:
    JOSEPH HEGEMAN, Respondent, v. CHRISTINA S. MOON and Another, Executors of CORNELIA W. HEGEMAN, Deceased, Appellants.

      Sills and notes — payable after death —when a liability is created.

    A complaint alleged that tlie defendants’ testatrix in lier lifetime executed and delivered to tlie plaintiff an instrument in tlie following form ; ‘ ‘ One year after my deatli I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day, without interest.”
    'To this complaint a demurrer was interposed.

      STeld, that the instrument, although it contained no promissory words, created a valid liability against the estate of the testatrix.
    Appeal by the defendants Christina S. Moon and Morse Bnrtis, executors of the last will and testament of Cornelia IV. Hegeman, deceased, from an interlocutory judgment entered in the clerk’s office of Kings county, on the 8th day of January, 1891, overruling the demurrer interposed by said defendants to the plaintiff’s complaint, and, also, from an order directing the entry of said interlocutory judgment.

      Bmjmrdn G. Hitclvi/ngs, for the appellants.

      Woodward c& Buckley, for the respondent.
   Dykman, J.:

The complaint m this action states that at various times between the 1st day of November, 1863, and the .1st day of May, 1867, the plaintiff lent and advanced to his nephew, Adrian Hegeman, for his own account and the account of his mother, Cornelia IV. Hegeman, various sums of money, amounting in all to about $3,075, which Adrian Hegeman promised to repay to the plaintiff. That on or about the 1st day of January, 1869, there was due and owing by Adrian Hegeman to the plaintiff for such money loaned and interest, about $3,363.41, for which Adrian Hegeman madey his promissory note to the plaintiff whereby he promised to pay to the ■plaintiff the sum of $3,363.41 on demand, with interest.

That on the 8th day of February, 1871, Cornelia W. Hegeman paid to the plaintiff a bond of the Wabash Bailroad Company of the par value of $1,000 on account of such indebtedness, and on the same day the plaintiff surrendered and delivered to her the said note of Adrian Hegeman and extended the time for the payment of the money, and thereupon, in consideration thereof and of the plaintiff’s agreement to accept the principal of the amount due without interest, and of other sufficient considerations, the said Cornelia W. Hegeman made and delivered to the plaintiff her certain draft or order in writing, of which the following is a copy:

“ $1,976^^/^ ' “ Brooklyn, February 8, 1871.

“ One year after my death I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others as per statement rendered by him this day, without interest.

“ CORNELIA W. I-IEGE1VIAN.”

Then the complaint states further that Cornelia W. Hegeman died about the 3d day of December, 1888, leaving a last will and testament, which has been duly proved; that the defendants Moon and Burtis are the executors named in the will, and that they have qualified and now are such executors, and the whole amount is due and owing.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The demurrer was overruled by the trial court, and the defendants have appealed from the judgment entered upon that decision, and the question presented is whether the instrument set out in the complaint constituted a valid claim against the estate of the deceased which the executors were bound to pay.

It is easily gathered from an examination of the paper that the plaintiff rendered a statement to the testatrix of the amount due him for money advanced to her son, and that she undertook to pay the same without interest, and executed the paper for that purpose; and while she inserted in the instrument no promissory words, yet the language employed was intended to raise a legal obligation to pay the money, and that is sufficient to create a liability. (Barney v. Worthington, 31 N. Y., 112.)

The instrument was not of a testamentary character, but was negotiable or assignable. It was payable one year after the death of the maker, and that was sufficiently definite because it was certain to come, and there is no time limited beyond which obligations may not be made payable

It is true the obligation matured after the death of the testatrix, but considered as a liability upon contract, which we think is a justifiable conclusion, the fact constitutes no objection to the claim, for all instruments imposing liability are as valid against the estates •of the makers as they were against the makers during their lives.

Our conclusion is that the judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Order overruling demurrer to complaint, affirmed, with costs.


text:
    PATRICK CUDAHY and Another, Appellants and Respondents, v. CLARKE D. RHINEHART, as Sheriff of Kings County, Appellant.

      Attachment — dispute as to the title to the property attached — ■only those attaching creditors who indemnify the sheriff can share in its avails — action for false return of execution — what plaintiff must show.

    Where there are several attaching creditors, under whose attachments levies might be made upon certain property, the title to which is in dispute, and some indemnify the sheriff while others refuse to do so, the latter, although their attachments may be prior in time, will be precluded from claiming the avails of said property as against those who have given indemnity.
    But where an indemnitor has coupled his bond with specific instructions as to the property to be attached, and such property is not found, it is error to permit him to share in the proceeds of other property which a junior attaching creditor has indemnified the sheriff in seizing.
    In an action brought by an attaching creditor to recover damages because of the alleged false return of an execution, the burden is upon the plaintiff to show that the title to goods attached and sold by the sheriff, for the benefit of junior, indemnifying attachment creditors, was vested, at the time, in the defendants in the attachment suits, and the sheriff is not estopped from objecting that no such proof was given upon the trial.

      Appeals by the plaintiffs, Patrick Cudahy and John Cudahy, from so much of a judgment, entered in the office of the clerk of Kings county on the 30th day of August, 1890, as disallowed the plaintiffs’ claim in excess of the sum of $520, and interest from December 18, 1889; and by the defendant, Clarke D. Rhinehart, as sheriff of Kings county, from the whole of said judgment.
    The action was tried at the Kings County Circuit before the court without a jury. It was brought to recover damages for an alleged false return of an execution in an action brought by the plaintiffs against John IT. Bain and Patrick JET. Turner. Attachments were issued on August 14, 1889, against the property of said John H. Bain and Patrick H. Turner by several creditors; the first was one •on behalf of the Chicago Packing Company, the second on behalf •of the plaintiffs, and the third on behalf of Bechstein & Co.
    On August 16, 1889, C. B. Lockwood & Co., warehousemen, certified to the sheriff that the property in question, which was under their control, did not belong to said Bain & Turner. Thereupon the sheriff, the defendant in the present action, demanded indemnity, whieli was furnished by the Chicago Packing Company and by Bechstein & Co.; subsequently the plaintiffs also gave a bond to the sheriff, general in form, but accompanied by a letter restricting his action to a certain 100 tierces of tallow. The sheriff did find these tierces of tallow. He, however, upon the faith of the indemnity furnished by the Chicago Packing Company and Bechstein & Co., made sales of other property found. From the proceeds of such sales the sheriff paid the Chicago Packing Company, the first attaching creditor, and Beckstein & Co., the third attaching creditor, as indemnitors, $520, which amount was recovered from the sheriff by the plaintiffs in the present action.

      John J. Maoldi/n, for the plaintiffs.

      Hobbs & Gifford and Charles Putzel, for the defendant.
   Pratt, J.:

The coui’t at Special Term correctly held that where there are several attaching creditors of the same property, the title to which is in dispute, and some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachments may be prior in time to those who give indemnity. (Smith v. Osgood, 46 N. H., 178; Parker v. Smith, 2 Liv. Law Mag., 770.)

The case last cited seems exactly in point. Here, as there, the title to the attached property being ambiguous, the sheriff refused to sell without indemnity, which the senior attaching creditor refused to give. There would be ño propriety in giving the fund thus produced to the creditor who refused to act. The refusal to indemnify must be held to work an abandonment of the attachment as to the property in question in favor of the junior creditor, who was willing to take the risk.

We think, however, that the court below should have given a more extended application to the doctrine than was done. It appears that the dlaintiffs, being informed that 100 tierces of tallow might be found, instructed the sheriff to seek for them and gave him indemnity to make the seizure. His instructions being in writing admit of no dispute; the}*' were limited to the 100 tierces, which were not found. Later certain other property was found, and, on the indemnity of a creditor junior to the plaintiff, was sold. The sheriff having paid the proceeds to the indemnitor, the plaintiff now claims to recover from the sheriff $520, the amount thus paid, and in the court below prevailed.

We have carefully examined the testimony and are not able to-find that it affords any support to the claim now made that the indemnity given by the plaintiff could have been applied to any other property than the 100 tierces. The indemnity bond was general in .its terms and did not specify the particular property intended to be taken in reliance upon it. But the written instructions by which it was accompanied are explicit and are limited to the 100 tierces. It follows that plaintiffs were erroneously allowed to recover the $520, proceeds of property attached upon the indemnity of the junior creditor.

Another point should not be overlooked: The plaintiffs introduce no proof that the goods which produced the $520 were the property of the judgment debtors. The sheriff is not estopped from objecting to the lack of proof. As against the creditor for whom and by whose instructions he acted, and whose indemnity he received, he could not raise that question. The plaintiffs do not occupy that position.

The judgment appealed from must be reversed upon the facts and new trial ordered, with costs to appellants to abide event.

Barnard, P. J., and Dtkman, J., concurred.

Judgment upon the appeal of defendant reversed and new trial granted, costs to abide event. Judgment upon plaintiffs’ appeal, reversed and new trial granted, costs to abide event.


text:
    In the Matter of the Petition of ANNA M. TIENKEN to Require ANNA TIENKEN and Another, as Executors of HENRY TIENKEN, Deceased, to Render an Account, and for A Decree Requiring them to Pay the Petitioner her Share in the Estate of said HENRY TIENKEN. In the Matter of the Final Judicial Settlement of the Account of ANNA TIENKEN and Another, as Executors and Trustees of HENRY TIENKEN, Deceased. ANNA M. TIENKEN, Appellant.

      Will — vested remainder subject to life estate — by what provisions mated — such an-interest is devisable during the life estate.

    A testator, by his will, gave to his wife a life estate in certain land ; the rest of his land was to be managed by his executors, who were to pay his wife, from the income thereof, a certain sum and divide the remainder among his children. He permitted certain real estate to be sold, and if sold one-third of the proceeds was to be invested for the widow for life, and the remainder was to be divided equally among his children. If any child died leaving issue, such issue was to take the father’s share. At the death of the widow the remaining land was to be sold, and its proceeds were to be divided equally among his children.
    Held, that it was the testator’s intention to vest in each child living at the time of his death an equal share of his estate, subject to the widow’s life estate.
    That such vested interest would pass by the will of a child who died before the widow.
    Appeals by Anna M. Tienken from a decree entered in the Surrogate’s Court of Kings county, on the 17th day of February, 1891, adjudging that she had no interest or share m the estate of Henry Tienten, deceased; also from an order entered in said office •on the 19th day of January, 1891, consolidating the two above •entitled proceedings.

      Theo. IF. Mel/ovn, for Anna M. Tienten, appellant.

      George F. Martens, for John H. Tienten, respondent.

      J. F. Bullwinkel, for the executors and trustees.
   Barnard, P. J.:

Henry Tienten died in Kings county in October, 1884, leaving a last will and testament and codicil thereto, which have been admitted to probate. The testator left a widow, Anna Tienten, and four children. One of the testator’s sons, Henry M. Tienten, died in October, 1889, leaving a will, and leaving a widow and no children. By his will he gave all his property to his wife. The question presented is whether the deceased son had any estate under his father’s will which he could transmit by a will of his own. The life estate of the widow is not yet terminated. By the will of the elder Tienten a life estate is given to his wife in certain land. The rest of his lauds were to be managed by his executors, and out of the proceeds $2,000 a year was to be paid to his wife and the balance yearly to be divided among his children. Certain real estate might be sold during the existence of the life estate and one-third of the proceeds invested for the widow for life and the balance divided among the children equally.

The will provided that if any child be dead, leaving issue, the issue should take the father’s share. Certain sums were ‘to be set apart out of the personal property for legacies to certain named grandchildren, payable upon arriving at twenty-one years of age. If any grandchild should die before that time, the legacy to be divided among the children.

The will provided that after the expiration of the life estate the remaining land should be sold and the proceeds divided among the testator’s children. The clause which gives a child’s share in case, •of his death with issue means a child who dies during the testator’s life. (Embury v. Sheldon, 68 N. Y., 227.)

A gift of a life estate, with remainder “ upon ” and “ at and after ” the termination thereof to children of testator, gives a vested remainder at the death of testator with time of payment only postponed. (Livingston v. Greene, 52 N. Y., 124; Stevenson v. Lesley, 70 id., 515.)

The will disposes of the whole estate.

Applying these rules to the will, it is quite clear that it was the intention of the testator at his death to vest in each child then living an equal share of his estate subject to the life estate. Where ;a gift is only found, in a direction to divide at a future time, the gift is contingent, but this rule must yield to the intent of the testator. The point presented is covered by the case of Goebel v. Wolf (113 N. Y., 405).

There was no immediate gift to the children. There was nothing-on the face of the will that any child should not take his share in the final division. The distribution was not limited to children “ then ” living or to those of his children who survived the life estate. The Court of Appeals also gave great weight to the fact that before the life estate ended certain of the personal property passed at once to the children who survived testator.

We, therefore, conclude that the interest of Henry Tienken became vested under his father’s will.

The decree of the surrogate should be modified accordingly.

The decree is reversed, with costs to appellant out of the estate, .and the proceedings remitted to the surrogate for further action.

Pratt, J., concurred.

Decree reversed, with costs to appellant out of the estate, and proceedings remitted to surrogate.


text:
    In the Matter of the Judicial Settlement of the Account of HYMAN B. ROSA, as Executor of AMELIA CAROLINE GRIFFIN, Deceased.

      Will, withoiit a residuary clause — direction in a codicil that an additional sum be distributed in conformity with the will.

    In 1845 a testatrix made her will, containing no residuary clause, by which she disposed of certain specific articles of personal property, and gave certain specified sums of money to charitable and religious societies. In 1868 she executed a codicil by which she devised the income of $2,000 to a cousin for life. No disposition was made in the codicil of the principal of this sum of $2,000, except by the words “at her death such principal sum shall be disposed of in conformity with my said will.”

      Held, that these words did not enlarge the gifts made by the will to the charitable and religious societies, and that the next of kin of the testatrix were entitled, on the death of the cousin, to the principal sum of $2,000.
    Appeal by Mary R. Yarian and Charles E. Thomson, as administrators of Thomas Thomson, deceased; "Walter Yan Loan, as administrator of Charlotte S. Thomson, deceased, and Adelia Yan Wyck, as executrix of Delia Yan Wyck, deceased, from a decree entered in the surrogate’s office of Dutchess county on the 6th day of May, 1891, settling the account of Hyman B. Rosa, as executor of Amelia Caroline Griffin, deceased, and directing the distribution of a fund to certain corporations, legatees named in her will, fro rata.

      W. Farrington and Henry M. Taylor, for the appellants.

      J. 8. Van Glief\ for the Board of Foreign and Domestic Missions of the Reformed Dutch Church, .respondent.

      G. F. Tracy, for the American Bible Society, respondent.
   Barnard, P. J.:

There is nothing in the will and codicil which deprives the next of kin of their right to distribution. The deceased in the year 18é5 made her will. By it she gave $2,000 to the American Bible Society; $300 to the Domestic Mission of the Dutch Church, and $300 to the Foreign Mission of the same church. She gave $300 to the American Tract Society, and a deposit in a New York savings bank to a society for the relief of aged, indigent females. There was a specific bequest of books to one person, and of specific articles of personal property to others. There was no residuary clause and the will contained this clause:

“ In thus willing my property I wish it to be understood, that I dispose of it for religious and benevolent purposes, not as undervaluing my own relatives, for whom I entertain the kindest feelings, but having received my property of the Lord I feel it my duty to devote to the Lord, that which if divided among my numerous relatives would be to each an inconsiderable sum.”

In 1868 the deceased made a codicil. By it she gave to a cousin $600, and the income on $2,000 for the life of the cousin, and “ at her death such principal sum shall be disposed of in conformity with my said will.”

The testatrix died in 1881. No savings bank deposit was ever found. The $2,000 was undisposed of by the will. There is no gift to the charitable societies beyond that specified in the will. There is nothing in the words expressing a motive for the will which enlarged the gifts to the societies named in the will. An intention to give to charity is not enough. There must be a beneficiary named or the intent of the testatrix fails.

The decree of the surrogate should be reversed, and the proceedings remitted, to the end that distribution may be made to the next of kin, with costs to appellants out of the estate.

Pratt, J., concurred.

Part of decree appealed from reversed, with costs to appellants out of estate and proceedings remitted.


text:
    FRANK W. MALLOY and Another, Appellants, v. THE BOARD OF HEALTH OF THE TOWN OF MAMARONECK, Respondent.

      Public health, — work directed by a town boa/rd of health is a town change — Lanes of 1885, clwp. 270, sec. 5.
    Under the general act for the preservation of the public health (Laws of 1885, chap. 270, § 5), a drain, built under a contract with a town board of health, and designed to abate a nuisance, is a town charge, and a claim therefor must be presented to the town auditors for audit. There exists no liability to pay the cost of its construction on the part of the members of a town board of health as such.
    Appeal by tbe plaintiffs, Frank W. Malloy and William Y. Malloy, from a judgment entered in the office of the clerk of Westchester county on the 4th day of April, 1891, in favor of the defendant, for costs, after a trial at the Westchester Circuit before the court and a jury.
    The defendant accepted the plaintiffs’ bid to build a sewer in the town of Mamaroneck for $445, which sewer was to drain certain cellars which had been declared by defendant to be a nuisance. This action was brought to recover the amount of said bid, less certain payments which had been made thereon.

      G. II. c& J. A. Young, for the appellants.

      Arthur T. Hoffman, for the respondent.
   Barnard, P. J.:

The plaintiffs performed work under a contract with the defendant. The expense was a town charge. (Laws of 1885, chap. 270.) The Board of Health has no place as a defendant. It is a town agency only. The claim must be presented to the town auditors for audit. (Myers v. Barnes, 114 N. Y., 324; People ex rel. Board of Health, etc., v. Board of Supervisors of Monroe County, 18 Barb., 567; Bell v. Town of Esopus, 49 id., 506.)

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

Pratt, J., concurred; Dticman, J., not sitting.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, v. HOPPER S. MOTT and Others, Respondents.

      Adverse possession — there must be no recognition by one claiming title by adverse possession of any superior title — what is such recognition.

    In order to constitute a possession of real property, which shall be adverse, there must be no recognition, by the occupant or his predecessor in occupancy, of the real title.
    An adverse possession was claimed of premises lying, outside of high-water mark, in the Hudson river at the city of New York, and it appeared that two persons, each at the time holding the legal title to the upland adjacent to such land under water, had severally applied to the commissioners of the sinking fund of said city for a water grant of the premises in question.

      Held, that although no grant was made to either of them the application was a recognition of the superior title oí the city, and precluded their successors from making a claim of title, by adverse possession, to the land under water.
    Appeal by tbe plaintiff, tbe Mayor, Aldermen and Commonalty of tbe City of New York, from a judgment entered in tbe office of tbe clerk of tbe county of New York, on tbe 1st day of December, 1890, in favor of tbe defendants, also from a judgment entered in said office on May 28, 1890, being a judgment rendered in favor of defendants upon a former trial of tbis action of ejectment; also from an order entered in said office on the 10th day of December, 1890, denying the motion of plaintiff for a new trial. Both trials were had before the court and a jury at the New York Circuit.

      C. Blandy, for the appellant.

      Cecil Campbell Higgins, for the respondents.
   Van Brunt, P. J.:

This is an action in ejectment brought by the city to recover possession of certain premises lying outside of the high-water mark ■of the Hudson river, between Fifty-fourth and Fifty-fifth streets in this city. The defendants denied the ownership of the plaintiffs in the lands in question and alleged an adverse possession.

Upon the trial the defendants attempted to establish title through ■a so-called Dutch grant, bearing date in 1642, and also by adverse possession. The jury having found a verdict in favor of the defendants, from the judgment thereujion entered, and from an order denying a motion for a new trial, this appeal is taken. So far as the defendants attempted to establish any title under the so-called Dutch grant, we think there was an utter failure of proof. There was no evidence whatever, even of the existence of a Dutch paper, much less that it was a grant, or that it included the premises in question. There was considerable testimony of a legendary character in respect to some Dutch paper, and to a paper which had the figures 1642 upon it, but we have been unable to find in the record in this case any legal proof of the existence of any grant. The defendants, however, claim to sustain their title by proof of adverse possession, and the question to be considered upon this appeal is whether that defense is made out by the evidence.

It was established that about 1853 the ancestors of the defendant Mott filled out the premises in question, and occupied the same down to the time of the commencement of this action, and this would probably have been sufficient to establish a title by adverse possession had there been no recognition of the superior title of the plaintiff to the land in question.

It is familiar history that the city of New York acquired by grant from the State the absolute title of the land.in the tide-way lying between high and low-water mark, and that in respect to lands under water outside of the tide-way, granted by the State to the city, the title vesting in the city was subject to a pre-emption right in the proprietors of the grants of adjacent lands in the tideway or in the owner of the uplands in front of the lands in the tide-way. (Mayor v. Hart, 95 N. Y., 452.)

We find, however, that on two occasions the holder of the legal title of the lands in question has recognized the superior title of the land now claimed by the defendants.

In 1853 a trustee holding the legal title to the premises in question made an application to the commissioners of the sinking fund for a water grant on the North river, between Fifty-third and Fifty-fifth streets. It is true that no conveyance was taken from the city on this application, but that in no way affects the recognition of the title to the premises in question in the plaintiff. Again, in 1870, one Jordan Mott, being the owner of the premises, made an •application to the commissioners of the sinking fund for a water grant extending out to the permanent exterior line as then established in front of the premises, shown upon a diagram annexed to the application, of which he claimed to be the owner.

It is urged that this diagram shows that the application for a water grant was for land extending outside of that which was then occupied by Jordan Mott, and which was beyond the low-water mark in front of the uplands held by him. We think, however, that this construction cannot prevail. The diagram shows distinctly that it was intended to represent the uplands belonging to Jordan Mott because of the ownership of which he claimed a pre-emptive right to a grant of the lands under water. To the lands under water outside of the low-water mark this pre-emptive right was •explicitly given by statute; whereas his pre-emptive right to the land between high and low-water mark was merely hy implication. (Mayor v. Hart, supra.)

Upon the diagram the high and low-water mark is attempted to be shown, and the upland owned by Jordan Mott is also delineated, and the only possible object in placing these lines upon the diagram was to show from where the grant was to commence. If no application was made for land except beyond that which was already occupied by him, the existence of the high-water mark lines would have been entirely immaterial. He made this application simply because he was the owner of the upland, There was nothing upon the diagram to show that there was any land beyond the high-water mark, or that any claim to ownership of land beyond high-water mark was made. Having made this application in that form as the owner of the upland, it cannot now be said that such application was. no recognition of title to the land under water which he was then occupying, and to fortify the title to which the application for a-grant ivas made. The land which was filled in was in no sense of the word upland. The provisions of the statute when they give a right of pre-emption to the grantee of land which had been under water, distinctly mention an owner of that description. In all other cases where adjacent owners are spoken of it is apparent that those who own the land above high-water mark are meant. Under these circumstances, this application for a water grant upon the part of Jordan Mott was a clear recognition of the superior title to the' land in question in the plaintiff.

But it is said that there was proof from which the jury had a right, to find that at the time of this application Jordan Mott was an imbecile and incapable of doing any act which would have any binding force. That he was a drunkard and that his habits were-bad was established beyond question. But there was no evidence from which it could be inferred that he was unable to transact business in 1870. In fact, we find, at and about this time and subsequent thereto, that he was transacting his own business, executing deeds and leases, and, in 1869, over a year .after the medical testimony showing him to be an imbecile, making a will which was admitted to probate and never questioned. He seems to have been considered, by those around him, sufficiently intelligent to transact any and all business except to make an application to the commissioners of the sinking fund for a grant of land upon which his ancestors had squatted. But it is urged that Mott never accepted a grant from the city; and that even if he had there was no rule which prevented him from fortifying his title.

This position, however, seems to be in conflict with the authorities-in this State. It has been distinctly held that an offer to purchase land by a party bars the defense of adverse possession in regard to the land by that party. (Jackson v. Croy, 12 Johns., 427; Jackson v. Britton, 4 Wend., 507.) In the latter case it was held that where a person has the title, such title cannot be affected or impaired by any negotiation had by him with parties claiming to be the owners of the premises; but such negotiation would be conclusive against any claim founded upon adverse possession.- A similar rule was laid down in the case of Calkins v. Isbell (20 N. Y., 147), in which it was held that proceedings to foreclose a mortgage by advertisement is such an acknowledgment of the right of the mortgagor to redeem as to repel the presumption otherwise arising from more than twenty years’ possession by the mortgagee. In order that a. possession shall be adverse to the real title there can be no recognition thereof. As is seen in the cases cited, the moment that an outstanding title is recognized, even by negotiation for its purchase, it is an admission of the right of the real owner to possession, and the possession of the party in possession ceases to be adverse.

This being the rule, even though the jury had a right to find that-Jordan Mott had not sufficient mental capacity to understand the nature of the act when he executed the application to the sinking fund in 1870, a fatal error was committed by the learned court in refusing to charge, as requested by the plaintiff, that if the jury found that Jordan Mott did possess sufficient mental capacity to understand the nature of the act when he executed that application, then the jury must find for the city.

It is true that the court did charge, at the request of the plaintiff, that nothing short of' an entire want of mental capacity to understand the nature of the act on the part of Jordan Mott would defeat the legal effect of his application to the sinking fund in 1870. But. this did not meet the claim which the plaintiff had presented in the previous request, that if he had the mental capacity, then the city was entitled to recover. What the legal effect of his application to the sinking fund commissioners in 1870 had been was omitted.

Thus the jury were left not only to consider the application itself, which was not ambiguous as to its extent, but also to determine what, the legal effect of -this application to the sinking fund commissioners in 1870 had been. We think this was a fatal error. As has already been shown, the legal effect of that application was to waive the claim of adverse possession, being a recognition of the superior title of the city to the lands in question. It was a recognition that his only right to lands under water was by reason of his being the owner of the uplands; and having thus recognized title in the city, he could not claim to be at that time holding adversely to the city.

"We think, therefore, that the judgment and order appealed from .should be reversed, and q, new trial ordered, with costs to appellant to abide event.

Daniels, J., concurred.

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


author: V an Brunt, P. J.:

text:
    THE HANOVER NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiff, v. FREDERICK D. BLAKE and Another, Defendants.

      Composition agreement — exaction of security, by indorsement, beyond, its terms — the indorser not bound— the original debtor not discharged.

    A firm made an assignment for tlie "benefit of its creditors, and tlie latter subsequently entered into a sealed composition agreement, by which they agreed to accept certain notes of the firm in settlement of their claims. A bank, one of the creditors, refused to accept a note for the amount due to it under said agreement unless the note was indorsed by a third person. The indorsement was given. In an action by the bank upon the note :

      Held, that the exaction of further security was in fraud of the composition agreement, and of the rights of the other creditors, and that as to the indorser the bank was not a holder of the note for value.
    That the makers of the note were not discharged, by reason of tlie exaction of further security, from the payment of the original debt, since whatever fraud was perpetrated took place after the composition agreement had become a valid instrument.
    Exceptions of the defendant, Frederick D. Blake, taken upon a trial before the court and a jury at the New York Circuit, on the 4th day of May, 1891, at which the court directed a verdict for $2,396.11 against the defendants, Frederick D. Blake and Charles "Waterman, and dismissed the complaint as to the defendant, Sarah F. Blake; and further directed that the exceptions taken on- the trial be heard in the first instance at General Term, judgment upon the verdict being suspended.

      T. S. Moore, for the plaintiff.

      C. B. Smith, for the defendants.
   V an Brunt, P. J.:

This action was brought to recover against the defendants Frederick I). Blake and Charles Waterman, copartners under the firm name of F. D. Blake & Co., upon a certain promissory note made by said firm, and indorsed by the defendant Sarah F. Blake.

The defendants by their answer alleged that the plaintiff was a. creditor of the firm of F. D. Blake & Co.; and that said last mentioned firm being in a failing condition, they executed and delivered an assignment of their property for the benefit of creditors; that, subsequently the said F. D. Blake & Co.’s creditors entered into a. sealed agreement by which they agreed to compromise their debts and to accept from said firm certain promissory notes made by them, and that thereafter the plaintiff refused to accept a promissory note of the character called for by the aforesaid composition agreement, but exacted the indorsement upon said note of Sarah F. Blake, all of which was in fraud of the rights of the other creditors and without their privity, knowledge and consent. Upon the trial the truth of the facts set forth in the defendants’ answer was admitted, and thereupon the court dismissed the complaint as to the defendant Sarah F. Blake, the indorser of the note, and directed a verdict against the defendants Frederick D. Blake and Charles Waterman, the makers of the note in question, to which exception was duly taken.

Upon this appeal it is claimed that the taking of the indorsed note being in fraud of the other creditors of F. D. Blake & Go., no recovery whatever could be had. There is nothing in the answer which affects the integrity of the composition agreement. Whatever fraud was perpetrated was perpetrated after the agreement liad been duly executed and become a valid instrument. It is clear, upon the facts admitted, that the plaintiff was bound to accept the note of F. I). Blake & Co. unindorsed. It refused, however, to accept it and Sarah F. Blake indorsed the note. As to this indorsement it is apparent that the plaintiff was not a holder of this note for value.

It could liave been compelled to take the note, or if it refused and had sued F. D. Blake & Co. for the original debt, or for the amount due upon the composition agreement, it could not have recovered; except, perhaps, after the expiration of the’ time covered by the note, it might have recovered under the composition agreement the amount which would have been represented by the note, had it been received by it. There was nothing which in any way affected the validity of the composition ■agreement. It was binding upon all the creditors. It is only frauds which enter into the composition agreement itself that can affect its validity or its operative force. In the case at bar there is no allegation .of any such fraud; the only allegation being that after the composition agreement had become effectual it demanded additional security.

It is clear that this was entirely without consideration. The plaintiff had no right to exact this security; and it was void as far as the additional security itself was concerned; but it in no way affected the original debt arising under the composition agreement. By exacting this additional security certainly the plaintiff did not release the defendants from the obligation to pay anything, which would be the result were the claim of the defendants to be sustained.

"We think, therefore, that the direction was right and the exceptions should be overruled, and the plaintiff have judgment upon the verdict.

Barrett and Patterson, JJ., concurred.

Exceptions overruled and judgment ordered for plaintiff upon the verdict, with costs.


author: Yan Brunt, P. J.:

text:
    AUGUST C. NANZ, Plaintiff, v. JESSE OAKLEY, Defendant.

      Inability upon an administrator’s bond — jurisdiction and. the proceedings leading to a surrogate’s decree must be shown — an execution issued before the docketing' of the decree not sufficient.

    The basis of an action upon an administrator’s bond was a decree of a Surrogate’s Court against such administrator and in favor of plaintiff. The plaintiff produced only the decree, to which objection was made, but no jurisdiction of the parties was shown, nor was any proof given of any proceedings in the Surrogate’s Court preliminary to the making of the decree.

      Held, that in the absence of the record showing service upon the parties, and that due proceedings were taken, the decree was inadmissible.
    That it was also error to admit in evidence an execution against the property of said administrator, it appearing upon its face that it was issued twenty-six days before the decree was docketed in the county to which said execution was issued.
    Exceptions of the defendant, Jesse Oakley, ordered to be heard in the first instance at General Term (judgment being in the meantime suspended), after a trial at the New York Circuit, on the 17th day of November, 1890, at which the court directed the jury to find a verdict for the plaintiff for $5,698.25.

      David Thornton, for the motion.

      W. II. Munch/, opposed.
   Yan Brunt, P. J.:

This action was brought to recover upon an administrator’s bond. It has been previously tried and the complaint dismissed; and upon appeal taken to the Court of Appeals the judgment was reversed and a new trial ordered; and upon such new trial the court directed a verdict in favor of the plaintiff. Certain exceptions having been taken, they were ordered to be heard in the first instance at the General Term.

The foundation of the action was a decree entered in the Surrogate’s Coui’t against the administrator, upon whose behalf the bond had- been given, in favor of the plaintiff, which decree had not been complied with. Upon the trial of the action such decree was offered in evidence without any proof of the proceedings showing that the surrogate had acquired jurisdiction to render such a decree. Objection was taken that the decree was simply a postea, and that there was no jurisdiction shown for making the decree and no foundation for it. This objection was overruled and an exception taken. We think that this was error. In order to make the adjudication of the Surrogate’s Oourt binding, it ivas necessary to show by the record that the court had acquired jurisdiction of the parties in the manner prescribed by law. The simple production of a decree proves nothing where the objection is taken that the judgment-roll must be produced, or that the proceedings which resulted in the decree must be produced; it is error to overrule such objection, because, as already stated, the record must show that the court has jurisdiction of the parties. In the case at bar there is nothing but a decree upon a final accounting. None of the proceedings are offered in evidence going to show that the surrogate had acquired jurisdiction either of the persons against whom he was adjudicating or of the subject-matter. This was necessary, because, if it appeared from thé record that the proper proceedings had not been taken so as to confer jurisdiction upon the surrogate to render the decree which he assumed to render, of course the decree could not be admitted in evidence.

Another objection was taken to the admission of an execution against the property of the administrator who had been directed to pay over the money to the plaintiff’s assignor. It appeared that such execution had been issued twenty-six days prior to the docketing of the judgment in the county to which it was issued. This was clearly an irregularity, and conferred no power upon the sheriff to execute the same. Neither could the requirements of the Code be complied with, because such execution could not truthfully contain the recital that the judgment had been docketed in the county to which the execution was issued. Another execution was offered in evidence, which was subsequently issued. But that execution was fatally defective in not containing the recital required by the Code, that the judgment referred to had been docketed in the county to which the execution was issued.

The objections as to the defects of the assignment which forms the plaintiff’s title cannot be considered, because they seem to have been disposed of upon the prior appeal. None of the other exeeptions need consideration in view of tbe fact that the exception to the admission of the surrogate’s decree, without proof of any other papers, is fatal to the verdict which has been rendered.

We are of opinion, therefore, that the exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to defendant to abide event.

Daniels, J., concurred.

Exceptions sustained,' verdict set aside and new trial ordered., with costs to defendant to abide event.


author: Van Bjrunt, P. J.:

text:
    HERMAN PASSAVANT and Others, Respondents, v. GEORGE S. BOWDOIN, Appellant, Impleaded with Others, Defendants.

      Assignment — parties to an action to set it aside — appointment of a receiver — bars further action by the creditors.

    A complaint alleged that plaintiffs were several judgment creditors of the firm of Halstead, Haines & Co.; that in July, 1884, the firm made an assignment to one Lewis May, in whose place one Goldberg was substituted in May, 1888; that the assignment directed a preferred payment to be made to the defendants, Drexel, Morgan & Co., which was made by May ; that the said assignment was intended to defraud creditors ; that the plaintiffs brought actions in which, in December, 1888, the assignment was adjudged to be fraudulent and was set aside, a receiver was appointed and plaintiffs’ judgments were ordered to be paid ; that the receiver had not funds with which to pay; that the preference to Drexel, Morgan & Co. was in excess of the real indebtedness to them, and that the assignors, in collusion with them, intended to reserve the excess for their own benefit.
    Judgment was demanded that the assignment be declared void as to plaintiffs ; that the preference to Drexel, Morgan & Co. be declared void as well as their judgment by confession upon which it was based ; that the plaintiffs have a personal judgment against Drexel, Morgan & Co. for the amount of the preference, and that the same be paid to plaintiffs
    To this complaint a demurrer was interposed by one of the firm of Drexel, Morgan & Co., upon the ground, among others, that Goldberg had not been made a party.

      Held, that Goldberg, the substituted assignee, was a necessary party.

      •That if, as alleged, the assignment had once been set aside at the instance of plaintiffs and a receiver had been appointed, their present complaint seeking the same relief presented no cause of action.
    That the appointment ol' the receiver vested in him the legal title to the property, and that the plaintiffs could not thereafter bring an action to set aside the assignment and to compel the preferred creditors to account for the money received by them under the assignment.
    Appeal by the defendant, George S. Bowdoin, impleaded with others (the firm of Halstead, Haines & Co., and the firm of Drexel, Morgan & Go.), from an order overruling his demurrer and from an interlocutory judgment, entered thereon in the clerk’s office of the county of New York, on the 3d day of March, 1891.

      G. E. Tracy, for the appellant.

      J. J. Adams, for the respondents.
   Van Bjrunt, P. J.:

The complaint alleges the recovery of separate judgments against the late firm of Halstead, Haines & Go., and the issuance and return of executions unsatisfied; and that the debts for which the judgments were recovered existed prior to the 12th of July, 1884, upon which day the said firm of Halstead, Haines & Go. made an assignment for the benefit of their creditors to one Lewis May, who accepted the trust, and that in May, 1888, one Samuel Goldberg was duly substituted as assignee in plüce of Lewis May; that by the terms of the general assignment said assignee was directed to y a large number of preferred debts, amongst which was a large claim of the defendants composing the firm of Drexel, Morgan & Go., amounting to the sum of $32,500; that said assignee, May, under -and by virtue of the assignment, paid to the defendants said sum of $32,500, directed by the assignment, out of the proceeds of the property.

The complaint further alleged that the said assignment was made by the firm of Halstead, Haines & Go. with intent to hinder, delay and defraud creditors; and that after the return of the plaintiffs’ executions unsatisfied, as aforesaid, actions were immediately thereafter commenced by them in .the Supreme Court against the said firm of Halstead, Haines & Go. and their assignee, May, to set aside the said general assignment, and that in said actions, which were duly tried, decrees were drdy recovered and entered by tbe plaintiffs in December, 1888, setting aside the said general assignment as having been made with intent to hinder, delay and defraud said creditors; and that in and by said decree a receiver was appointed and it was decreed that out of the moneys and property belonging to said firm of Halstead, Haines & Co., which came into the hands of said receiver, the plaintiffs’ judgments, with interest and costs, was to be paid; that said decree is in full force and effect; but, by reason of other and prior liens created by the filing of other bills of complaint to set aside said assignment by other creditors and decrees rendered thereon in favor of the plaintiffs, there are not sufficient funds in the hands of such receiver with which to pay the plaintiffs’ judgments.

And the complaint further alleges that the plaintiffs, by virtue of said decree, are entitled to recover from the defendants, the firm of Drexel, Morgan & Co., the amount received by them under the preference in said assignment, and to have such money applied in satisfaction of the plaintiffs’ judgments set forth herein and mentioned in said decree.

The complaint further alleges that Halstead, Haines & Go. colluded with the preferred creditors, including the firm of Drexel, Morgan & Go., whereby said preferred creditors obtained judgment for their alleged claim; and that said Halstead, Haines & Co. were not at any time indebted to Drexel, Morgan & Co. in the sum of $32,500; that the actual amount due was about $25,000 ; and that the object and design of the defendant assignors in preferring ip said assignment the said Drexel, Morgan & Co for the sum of $32,500, and of the defendants in receiving payment of the same, was to reserve for the use and benefit of the assignors out of said assigned estate the excess over and above what was justly due to the said defendants in fraud of the non-preferred creditors, including these plaintiffs. And judgment was demanded, first, that the assignment be declared fraudulent and void as ^gainst these plaintiffs ; and that the payment of such preference to the defendants Drexel, Morgan & Co. be adjudged null and void; and that the judgment of said Drexel, Morgan & Co. be adjudged null and void; and that plaintiffs have a personal judgment against them for the amount of said judgment; and that Drexel, Morgan & Co. be directed to pay over to tlie plaintiffs, or to their attorney, the amount of their preference, together with interest thereon to the date of the commencement of this action.

The defendants demurred to the complaint upon the ground that the plaintiffs have no legal capacity to sue, in that it appears that one Samuel G-oldberg was, before the commencement of this action, duly appointed assignee and had duly qualified and taken possession of said property as such assignee; and that the plaintiffs had no legal capacity because of the appointment of the receiver; and upon the ground of the misjoinder of parties plaintiff in that all the plaint-tiffs have not a united interest; on the ground of defect of parties in that neither the plaintiff nor the receiver are made parties, and on the ground of misjoinder of causes of action and that the complaint does not state facts sufficient to constitute a cause of action. It seems to be clear that there is a defect of parties. The plaintiffs seek to have a decree- declaring the assignment void. The assignee or substituted assignee are necessary parties to such an action. It is claimed, however, that neither the assignee nor the substituted assignee are necessary parties, because they have already a judgment declaring the assignment void. But even if that is the fact, the substituted assignee has the right to contradict that allegation, and it is possible he may be able to prove that they have no such judgment.

But if the plaintiffs have such a judgment, then they cannot bring this action based upon the same judgments which formed the basis of that decree to again have the assignment set aside. And as far as their complaint is concerned, seeking to get a decree setting aside this assignment, upon its face it establishes no cause of action, it appearing that they have thereby obtained such relief on behalf of the-very judgments upon which this action is based. It further appears, that for the protection of this very judgment, in the action in which the decree was entered, declaring this assignment to be null and void, they have had a receiver appointed of all the assigned estate.

Our attention has not been called to any principle by which a judgment creditor, after having set aside an assignment upon the ground of fraud, can maintain an action as such judgment creditor for the purpose of collecting the assets belonging to the estate, a receiver thereof upon behalf of such judgment creditor having been appointed. It is claimed that the receiver appointed in the plaintiffs’ former action was appointed simply for the purpose of securing satisfaction of the plaintiffs’ judgment out of such funds as remained in his hands as receiver in former suits.

We fail to find any allegation in the complaint limiting the appointment of the receiver in the manner stated. Such receiver was undoubtedly appointed of the assigned estate, not only of the money in hand, but of the assets of the estate which he might reduce to possession. Many authorities are cited by the learned counsel for the respondents to show that a receiver does not take the legal title to the property of which he is appointed receiver, but it will be found, upon examination, that all those eases are adjudications respecting the powers of receivers appointed jpendente lite, mere custodians of the estate until the decree, and not receivers appointed by a final decree who are to collect the estate, reduce the same to possession and out of the funds thus received pay the judgment in the action in which the receiver was appointed.

Attention is called also to the case of Gere v. Dibble (17 How., 31); Porter v. Williams (9 N. Y., 142); and Bennett v. McGuire (5 Lans., 187), which established the proposition that it had not up to that time been held that a judgment creditor could not maintain an action to set aside a fraudulent assignment after the appointment of a receiver in another action. These eases have no application to the case at bar. The receiver in question has been appointed for the protection of the very judgment which forms the basis of this suit. As has already been shown, these plaintiffs cannot maintain this action to set aside the assignment, because they have already a decree to that effect, and a receiver appointed in that action.

While it may be true that in an action to set aside an assignment judgment may be included against fraudulent preference creditors for the recoupment of the amount collected upon their preference, yet after a receiver has been appointed in an action to set aside the assignment, who has been clothed with the title to all the assets of the estate, and with the authority to collect such assets by the very nature of his appointment, it is difficult to see how the creditor upon whose behalf the receiver has been appointed can intervene and seize upon some part of the estate. As already stated, he cannot maintain an action to set aside the assignment, because that is already done, and under the guise of an action to set aside the assignment he is seeking to seize upon the assets of the firm of which.a receiver has been appointed.

I think, therefore, that the demurrer was well taken and that the: judgment should be reversed, with costs in this court and in the court below, with leave to the plaintiffs to amend upon payment of the costs of appeal and of demurrer.

.Daniels, J., concurred.

Judgment reversed, with costs in this' court and in the court below, with leave to the plaintiffs to amend upon payment of the. costs of appeal and of demurrer.