text:
    Richard Bishop, as Administrator, etc., of Clara B. Hopkins, Deceased, Appellant and Respondent, v. Helen E. Hendrick, Respondent and Appellant.

      Administrator’s action to recover property — counsel fees not recoverable as damages■ — what constitutes a conversion — ■proceedings in aid of a decree ci/i'e motions — costs of an action not allowable therein.

    An action was brought by the administrator of an estate to compel the defendant therein, wrongfully in the possession of property belonging to the estate, to deliver the possession of the same to the administrator, and to account for and pay over the value of such property as had been lost to the estate, and defenses were interposed by the defendant.

      Seld, that by making such defenses and by resisting, although wrongfully, the efforts of the administrator to get possession of the property, the defendant did not subject herself to the liability of paying all the expenses such administrator might see fit to incur, and that the defendant was not liable for any counsel fees incurred by the administrator in the prosecution of such action other than the amount of the taxable costs nor any extra allowance granted therein.
    There is no rule of law by which a party can recover from his opponent, by way of damages, the counsel fees paid on the argument of an appeal over and above those allowed as costs, except by virtue of an express contract, as for example when a bond or undertaking has been given on procuring an injunction or attachment. In any other case, if the party chooses to pay more than the amount allowed by law as costs, he must do so at his own expense.

      The mere fact that a person claims certain money or notes does not amount to a conversion thereof if neither the money nor the notes ever came into his possession. Any unlawful exercise or claim of dominion over goods by words, if the speaker has the goods in his power, is a tortious taking thereof, but a mere claim without authority or dominion is not a conversion.
    Where a decree entered in an action upon the report of a referee is the final judgment therein, and the proceedings subsequently taken are only in aid of such decree, such subsequent proceedings are in the nature of a motion for which, full costs of an action cannot be imposed.
    Cross-appeals by tbe plaintiff, Richard Bishop, as administrator,, etc., of Clara B. Hopkins, deceased, from portions, and by the-defendant, Helen E. Hendrick, from the whole of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence.on the 12th day of July,. 1894, upon the report of a referee, also an appeal by both parties, from portions of an order of the Supreme Court, entered in said clerk’s office on the 12th day of July, 1894,,modifying the report of the said referee and confirming the same as modified.

      John O. Keeler, for the plaintiff, appellant and respondent.

      Louis LLasbrouek and D. G. Griffin, for the defendant, respondent and appellant.
   Mayham, P. J.:

In March, 1885, Clara B. Hopkins died, being at the time of her death a resident of St. Lawrence county.

Shortly thereafter Louis A. Scott, her nephew, presented to the surrogate of that county, for probate, a paper purporting to be her last will and testament. The probate was contested, and on the 12th of April, 1886, the surrogate decided that the alleged will was not valid, and refused to admit it to probate. From that decree an. appeal was taken to the General Term, where the surrogate’s decree was affirmed, and the same was also affirmed on appeal to the Court of Appeals.

After the will was refused probate, letters of administration were issued to this plaintiff, who qualified and entered upon the discharge-of his duties as such administrator.

After the appointment of the plaintiff as administrator, he commenced an action in the Supreme Court against the defendant to recover the personal property of the decedent, which was in the possession of the defendant, which she claimed to own under and in pursuance of an executed gift which she claimed was made by the deceased shortly before the alleged execution of the will, which had been adjudged invalid.. That action was tried before a referee, who reported in favor of the plaintiff, upon whose report a judgment was entered against the defendant for the delivery of the property to the plaintiff, and restraining the defendant from any further interference with or disposition of the same except to turn it over to the plaintiff, and also that the plaintiff recover a money judgment for the damage sustained by the plaintiff for the withholding of the possession of the property to be ascertained by a reference on an accounting by the defendant, and that the plaintiff recover judgment for costs in the action.

This judgment was appealed to the General Term and Court of Appeals, in both of which courts it was affirmed.

The plaintiff demanded of the defendant the money and property adjudged in this action to belong to him as administrator, which demand the defendant refused to comply with, and for such refusal the plaintiff instituted proceedings against the defendant for contempt, on which proceedings the defendant was adjudged guilty of a contempt of court, and an order was made that an attachment issue against -her to bring her into court for punishment for such contempt, but before such attachment was served the defendant left the State and passed out of the jurisdiction of the court issuing the same. Some of the property belonging to the estate of Clara B. Hopkins, deceased, was in the possession of Louis A. Scott, and was claimed both by the plaintiff as administrator and the defendant as donee of the deceased.

In an interpleader brought by Scott against the plaintiff and defends ant such property was, by a judgment of the Supreme Court entered on the 3d day of May, 1893, adjudged to belong to the administrator as such. There was also money belonging to the estate in the Bank of Gouverneur, which was claimed in like manner by the plaintiff and defendant, for which the bank prosecuted an action of interpleader against the plaintiff and defendant, in which action it was adjudged that the same belonged to the plaintiff and for which the plaintiff recovered judgment against the defendant for damages and costs, the judgment for which was entered in the Lewis county clerk’s office on the 3d day of May, 1893. The case shows that the recovery and taxable costs in these interpleader actions were paid over to the plaintiff.

The balance of the estate of the deceased still remained in the possession of the defendant, or the executor of Phelps, the surety on the defendant’s bond, on appeal, and the defendant having left ‘ the State the .plaintiff brought an action in equity to reach the estate in the hands of the executor of Phelps, making the defendant a defendant therein, on whom a substituted service was made. Pending that action and a motion for the appointment of a receiver, the executor of ■ Phelps consented to surrender to the plaintiff the securities held by him and the defendant in this action, and the equity action seems to have been abandoned on an order therein being entered on stipulation, which order provided as follows:

First. That the injunction herein be continued, with liberty to either party to apply for its vacation upon the fulfilling of the conditions of this order.
“ Second. That the application for a receiver be postponed, with liberty to renew in case the conditions of this order are not complied with.
Tlvvrd. That the defendant Miller and his co-executors, Spencer and Phelps, forthwith deliver to John 0. Keeler, attorney, for the plaintiff, the tin box of securities held by Mr. Miller and received from Mrs. Hendrick by him.
“Fourth. That Joseph McNaughton, Esq., of Ogdensburg, be appointed in proper proceedings under the judgment in action No. two of Richard Bishop, administrator, against Helen E. Hendrick, to take the accounting provided for by that judgment.
Fifth. Upon such reference either party, after thirty days, may notice the hearing before the referee, and such hearing shall proceed with reasonable diligence.
Sixth. The delivery of the tin box of securities is a condition precedent to the reference taking effect.”

Pursuant to such order of reference, the referee, after taking the testimony offered by the respective parties, on the 17th day of January, 1894, made and filed his report stating in detail the various items found by him belonging to the estate of Clara B. Hopkins at the time of her death, and their reception by this defendant, Helen E. Hendrick, and the disposition of the same by her, and also the sum which she should pay as damages on account of the use and disposition thereof as directed by the judgment referred to in the order of reference.

The referee recited in his report the various actions and proceedings between the plaintiff, as administrator, and the defendant, Helen E. Hendrick, in relation to. the .personal property of the deceased, and somewhat in detail the services rendered by several attorneys employed by the plaintiff in the prosecution of the various actions and proceedings between the parties to that action in reference to the property of the deceased, and summarized and reported the damages as follows:

“ I find that the defendant should pay to the plaintiff for damages on account of her use and disposition of the personal property of Clara B. Hopkins, which came to her possession as aforesaid, the following sums:
The value of said schedule property............... $1,658 15
Interest since March 26, 1881, to this date.......... 876 13
The principal of said Hurd note.................. 100 00
Interest from March 26, 1881, to date of this -report., .58 82
The principal of said Godard notes................ 500 00
Interest from January 27,1885, to date of this report, on $300 ..............................•......-.- • 161 50
Interest from January 20, 1885, on $200, to date of this report..................................'• 107 90
“The sums adjudged in said interpleader action,
Scott, plaintiff, as follows:
To Scott, plaintiff............................... 197 75
To Bishop, defendant............................ 109 30
The sum paid to John McCartin.................... 118 62
And interest from date of this report.
“The sums adjudged in said interpleader action,
Bank of Gouverneur, plaintiff, as follows :
To Bishop, defendant, as damages................ 212 28
To Bishop, defendant, for costs and disbursements.. 101 17
Interest ($316.75) from the 1st day of June, 1893, to date of this report............................ 11 96
Services and disbursements of Attorney Joseph George in said action................................ $311 00
Services of John C. Keeler, as counsel............ 50 00
And interest from the date hereof.
The value of the services of Leslie W. Russell, as counsel in this action.......................... 1,250 00
Disbursements made by him and interest from date hereof..................'.................... 14 00
“The value of the services of John O. Keeler, as attorney for the plaintiff, besides taxable costs, as follows:
Up to the entry of judgment on the report of the referee, A. X. Parker......................... 500 00
For entry of such judgment to the time of perfecting the order of the Court of Appeals.............. 700 00
For the perfecting of said order to the time of the order of reference for this accounting........... 250 00
In preparing for this accounting and conducting the same to August 24, 1893 ...................... 350 00
The disbursements made by John C. Keeler, as aforesaid..................................... 196 16
With interest from the date hereof.
The value of the services of Lawrence Russell, as aforesaid..................................... 133 00
Disbursements made by and interest from date hereof. 46 64
The value of the services of Joseph George, as attorney as aforesaid, as his disbursements in this action, 219 10
With interest from date hereof.
The value of the services of P. R. McMonagle, stenographer, as aforesaid......................... 12 00
With interest from the date hereof.
The amount of disbursements made as aforesaid by
Paul B. Clark, with interest from the date hereof, 217 36
January 17, 1894.
“ J. W. IVIcNAUGHT ON,
“Fees, $228. . RefereeP

The plaintiff excepted as follows to the referee’s refusal to find as requested by plaintiff’s attorney:

“ Take notice: That the plaintiff hereby excepts to the omission of the referee, McNaughton, to find and report that plaintiff recover of defendant interest on the items of money collected on Texas notes and remaining in the Black River Bank at Lowville, during the pendency of the interpleader action instituted against defendant and plaintiff by Scott, to wit: On $1,255.64 from May 29th, 1889, to January 17th, 1894; on $445.00 from June 28th, 1889, to January 17th, 1894; on $1,344.08 from August 5th, 1890, to January 17th, 1894; on $964.27 from November 8th, 1890, to January 17th, 1894; on $1,340.60 from August 11th, 1891, to January 17th, 1894, and oil $199.00 from July 19th, 1892, to January 17th, 1894.
“Also, to the omission.of said referee to find and report that plaintiff recover $5,095.78 on account of moneys a’eceived by Scott for sale of Texas lands and interest thereon from March 26,1884, to January 17th, 1894.
“ Also, to the omission to find the sum of $96.00 for services of Joseph George, rendered upon said trial before said referee, and report that plaintiff recover such sum.
“ Also, to the omission of said referee to find and report in favor of plaintiff a recovery of $350.00 for services of said Keeler, from August 4th, 1894, and $25.00 for disbursements.
“ Also, to the omission to report that plaintiff recover the referee’s fees, $228.00, and stenographer’s fees, $193.63.
“ Also, the disbursements of plaintiff for expert testimony of witnesses Safford, Gilmore and Lawrence, and disbursements.”
The defendant excepted to the finding of the referee as follows:
“ Take notice: That the defendant, Helen E. Hendrick, hereby excepts to so much of the report of the referee herein, Joseph McNaughton, Esq., dated January 17, 1894, and with a copy of which the defendant’s attorney has been duly served the 8th day of Eebruai-y, 1894, and is embraced in the following reference to said report, to wit:
“ I find that the defendant should pay to the plaintiff for damages, on account of the use and disposition of the personal property of Clara B. Hopkins, which came to her possession as aforesaid, the following sums:
“ 1st. The sums adjudged in said interpleader'action, Scott, plaintiff, as follows: To Scott, plaintiff, $197.75; to Bishop, defendant, $109.30; the sum paid to John IVIcCartin and interest from the date of this report, $148.62.
“ 2nd. The sums adjudged in said interpleader action, Bank of Gouverneur, plaintiff, as follows: To Bishop, defendant, as damages, $212.28; to Bishop, defendant, for costs and disbursements, $104.47interest ($316.75) from the first day of June, 1893, to date of this report, $11.96.
“ 3rd. To services and disbursements of attorney, J oseph George, in said action, $311.00; services of John C. Keeler as counsel and interest from the date hereof, $50.00.
“ 4th. The value of the services of Leslie W. Russell, as counsel in this action, $1,250.00; disbursements by him and interest from the date hereof, $14.00.
“ 5th. The value of the services of John C. Keeler, as attorney for the plaintiff, besides taxable costs, as follows: Up to the entry of judgment on the report of the referee, A. X. Parker, $500 ; from entry of such judgment to the time of perfecting the order of the Court of Appeals, $700.00; for the perfecting of said order to the time of the order of reference for this accounting, $250.00in preparing for this accounting and in conducting the same to August 24th, 1893, $350.
“6th. The disbursements made by John C. Keeler, as aforesaid, with interest from the date hereof, $196.16.
“7th. The value of the services of Lawrence Russell, as aforesaid, $133.00; disbursements made by him and interest from the date hereof, $46.64.
“ 8th. The value of the services of Joseph George, as attorney as aforesaid, and his disbursements in this action, with interest from the date hereof, $219.10.
“ 9th. The value of the services of P. R. McMonagle, with interest from the date hereof, $12.00.
“ 10th. The amount of disbursements made as aforesaid by Paul B. Clark, with interest from the date hereof, $217.36.”

On the report of the referee, and the exceptions of the respective parties taken thereto, and' the affidavits and claims referred to in the notice of motion, the plaintiff moved at Special Term on the following notice for confirmation of the report and for judgment:

“ Take notice: That upon the annexed affidavit of John 0. Keeler, sworn to February 5th, 1894, the affidavit of Paul B. Clark, sworn to Jan. 31st, 1894, the plaintiff’s exception to the report of Joseph McNaughton, referee, the report of said referee, dated January 17th, 1894, copies of which are herewith served upon you, and upon. the evidence taken by and before said referee on the hearing had before him, as referee, and upon the order of reference to said referee, and upon all the papers and proceedings had on such reference and in this action by and before said referee, the plaintiff will move this court, at a Special Term thereof to be held at the Court House, in Schenectady, N. Y., on the 27th day of February, 1894, at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order confirming said referee’s report as to the items of damages therein found, and for an order allowing to plaintiff interest on the various sums of money collected on said Texas notes and deposited in the Black River Bank at Lowville, as in said exceptions stated; also allowing to said plaintiff the sum of $96.00 for services and disbursements of Joseph George, as in such ■exceptions stated; for the allowance to said plaintiff of the sum of $375.00 for further services and disbursements of John C. Keeler on said reference, in addition to the items reported by said referee; also for the allowance of $228.00 for the fees of said referee upon such reference, and the sum of $193.68 for stenographer’s fees, and $130.92 for witnesses’ fees, on such reference; also that the evidence of Louis A. Scott be stricken out of the evidence taken before said referee, according to the motion made by plaintiff at the hearing before said referee November 8th, 1893, at Ogdensburg, and that there be allowed to plaintiff the sum of $5,095.78, and interest thereon from March 26th, 1885, on said sum on account of moneys collected by said Scott on account of lands in Texas sold pursuant to the contract, Exhibit 6 in evidence as such on said reference, dated November 30,1881, executed by said deceased and Louis A. & Warren L. Scott, and that a judgment awarding in favor of plaintiff, and against said defendant, the before-mentioned sums, together with the items reported by said referee, and interest thereon from January 17, 1894, be entered in this action at the foot of the judgment entered herein March 21st, 1891, as the damages which defendant should pay the plaintiff on account of the reception, use and disposition of the personal estate of deceased by plaintiff, and that plaintiff have such other and further relief in the premises as shall be just.”

On the hearing of such motion the Special Term made the follow* ing order:

“ It having been referred to J". McNaughton, Esq., as referee herein, to take the accounting of the defendant Hendrick as to the personalty of the }:>laintiff’s intestate, Clara B. Hopkins, and to estimate and report the damages sustained by the plaintiff herein, and the referee having made his report dated the' 17th day of January, 1891, and the plaintiff and defendant having severally duly filed exceptions thereto, and said matter coming on to be heard at this above-entitled term:
“Now, upon the report of said referee, the exceptions filed thereto, the affidavit of John C. Keeler, verified February 1st, 1891, the affidavit of P. B. Clark, verified January 31st, 1891, with schedule annexed, and upon the pleadings and! judgment herein, and the testimony taken before said referee, and after hearing Mr. Keeler for the jfiaintiff and Mr. Griffin for the defendant, and it being conceded that the plaintiff may recover the stenographer’s and referee’s fees herein:
“ It is ordered that the first, second and third exceptions of the defendant to the said report be and the same are hereby overruled and not allowed, being the exceptions to so much of said report as awards the several sums as adjudicated by the interpleader actions ánd the services and disbursements of Joseph George on said action and to counsel therein.
“ That the fourth, fifth, sixth, seventh and eighth exceptions of the defendant to said report, being to such portions as allow counsel fees and disbursements in this action, other than such as are taxable herein to the plaintiff herein, be and the same are hereby sustained, as well as the tenth exception for the disbursements of Paul B. Clark.
“ And it is further ordered that the first exception of the plaintiff herein, being to so much of said report as refuses to allow interest upon the sums paid into the bank, and before they were paid to the plaintiff under the interpleader judgment, be and the said exception is allowed and sustained, as well as the exception of the plaintiff to the recovery of the referee’s and stenographer’s fees herein.
“ And it is ordered that the said report be and the same is modified in accordance with this order, and as so modified hereby confirmed, with $10 costs.
The fourth, fifth, sixth, seventh and eighth exceptions of the defendant, being such as and all said exceptions that relate to the allowance of counsel fees and disbursements in this action as are not taxable, are disallowed upon the sole ground that the court has not power to award or allow counsel fees and disbursements in this action, except such as are properly taxable under the statute; and judgment is directed accordingly in favor of the plaintiff, with costs to be taxed, together with an extra allowance of 5 per cent upon the amount recovered.
“ Enter in St. L. . ' M. L. S

Erom this order, and the judgment entered thereon, both parties appeal, and each asks to modify or reverse the same so far as it sustains that part of the report of the referee, as to which they respectively excepted.

The first and principal ground of appeal urged by the counsel for the plaintiff, appellant, is that the learned judge at Special Term sustained the exception of the defendant to that part of the referee’s report which allows the plaintiff to recover as damages counsel and attorneys’ fees for services of eminent counsel engaged on behalf of the plaintiff in the prosecution of the various matters of controversy between the plaintiff and defendant, Helen E. Hendrick, relating to the personal estate of the deceased, over and above the taxable costs and disbursements in such actions and proceedings, and excluded such claims from the plaintiff’s recovery in the action.

The reference in this proceeding on an accounting by the defendant was in pursuance of a provision in the judgment in favor of plaintiff against the defendant in this action, which provided that the plaintiff might apply to the court for a reference to compel an accounting. The judgment authorizes a reference to take an account as to said personalty, and its reception by the defendant, and what she did with it, and also what sum she should pay for damages on account of her use or disposition thereof.”

It is insisted that this order conferred no power on the referee to take into account any other damages than such as would be allowed against a person for an ordinary conversion of personal property.

It is quite apparent that the defendant, in seeking to retain this property, the title to which has been adjudged in the plaintiff as administrator, has subjected him, or the estate which he represents, to a large amount of trouble and expense, but the law provides indemnity in the way of costs to be taxed in an action, and in a proper case, to an additional allowance to be recovered by the successful party in a regular proceeding in the action; and while under the order of reference to which we have referred, and under which the referee acted in this case, any damage which within- the ordinary and well-settled rules of damagés the plaintiff suffered by reason of the conversion of any of this property, and which, in an action of trover or replevin might be recovered, was legally allowable under this order in this action.

But I know of no rule of law that would include extra counsel fees for legal services beyond taxable costs and extra allowances given by the Code of Civil Procedure in an action of this character.

The learned counsel for this plaintiff refers to a class of decisions from which he' claims that the expenses and counsel fees rejected by the judge at Special Term may be properly allowed within the principles of the decisions to which he refers. But a careful examination of such decisions discloses that none of them were upon cases like the present.

In Rose v. Post (56 N. Y. 603) the question arose in assessing damages on a bond given on the granting of a preliminary injunction. The same is true of Edwards v. Bodine (11 Paige, 226); also, Troxell v. Haynes (16 Abb. [N. S.] 3). In Corcoran v. Judson (24 N. Y. 106) the action was on an injunction bond, and was to indemnify the plaintiff for the expense and damage to which he might be subjected by the proposed, contestation. The reference was to determine the extent of the defendant’s liability under that bond.

In Northrup v. Garrett (17 Hun, 497) the action was on a bond given on the issuing of an attachment, and the bond was given under the statute to indemnify the party to whom it was given, to pay all damages and costs which he may sustain by reason of the issuing of such attachment.” In Preuschl v. Wendt (5 N. Y. St. Repr. 429) the action was upon an injunction bond.

In all these cases and cases of a kindred character the damages were awarded upon tbe express agreement and undertaking on tlie part of the defendant to pay the same, and both parties acted under and had a right to rely upon the performance of that agreement by the obligors.

In the case at bar, while it is quite apparent that the conduct of the defendant tended greatly to enhance the expense of the plaintiff, there was no undertaking or agreement on the part of the defendant to indemnify the plaintiff farther than the plaintiff may ordinarily be indemnified in the successful prosecution of an action, or a series of actions, -by the costs and allowances awarded to a successful party in the usual method of practice in actions. The action was an ordinary action to compel this defendant, wrongfully in possession of property belonging to an estate, to deliver the possession of the same to the administrator, and account for and pay over the value of such as had been lost to the estate.

The defenses interposed were such as the defendant might legally interpose, subject to the peril of being beaten on the trial, with costs.

She did not, by making these defenses, and by resisting, although wrongfully, the efforts of the plaintiff to get possession of this property, subject herself to tlie liability of paying the plaintiff all the expenses he saw fit to incur. The principle contended for by the defendant in this case is, we think, well settled by authority. In Mattlage v. N. Y. Elevated R. R. Co. (17 N. Y. Supp. 537), which was an action for damages brought by an adjoining property owner, the jury, among other things, allowed the plaintiff $150 for legal expenses. The General Term of the New York Common Pleas says : “Ye know of no rule of law by which a party can recover from his opponent the counsel fees paid on the argument of an appeal by way of damages over and above those allowed as costs, except by virtue of an express contract, as when a bond or undertaking has been given on procuring an injunction attachment, etc. In any other case, if a party chooses to pay more than the amount allowed by law as costs, he must do so at his own expense.”

In Commerce Exchange Nat. Bank v. Blye (123 N. Y. 132) tlie Court of Appeals held that an action was not maintainable to recover damages for depreciation in the value of property taken in replevin between the entry of judgment and the determination on appeal, and Judge Pinch says : “ If that be so, added perils will surround appeals and a prolific source of new actions will come into existence.” In Day v. Woodworth (13 How. [U. S.] 363), which was an action for wrongfully pulling down a dam, the court said: “It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money expended in counsel fees, but the amount of these fees cannot be taken as the measure of punishment, or as a necessary element in its infliction.” (Lincoln v. R. R. Co., 23 Wend. 425 ; Hicks v. Foster, 13 Barb. 663.)

We are, therefore, of the opinion that the trial judge was right m sustaining the defendant’s objections and exceptions to the report of the referee in the particulars discussed, and that the court was right in sustaining the report of the referee in omitting to find and report that the plaintiff recover $5,096 on account of moneys received by Scott for sale of Texas lands, and interest from the time of the receipt of the same to the time of the hearing before the referee, or the expense and charges of plaintiff’s counsel, except as the same were allowed in the interpleader action at the trial thereof. This money, or the notes rejiresenting the same, never came into the defendant’s possession, and the mere claiming of them was not a conversion.

The same may be said of the money of intestate in the bank, as to which an interpleader action was prosecuted.

The money never having been reduced to possession by’ her, her mere claim of ownership did not constitute a conversion. In Connah v. Hale (23 Wend. 466) it was held that añ exercise or claim of dominion over goods by words, if the speaker have the goods in his power, is a tortious taking, but it also holds that a mere claim without authority or dominion is not a conversion.

In Andrews v. Shattuck (32 Barb. 396) it was held that “ if at the time the demand was made the goods are in the actual possession of another, and the person^ from whom- the demand is made has not, and never had, any control over them, the fact that he claims the goods and declares that they are his property will not amount to a conversion.”

The same was held in Gillet v. Roberts (57 N. Y. 32), and Earl, J., says in that case that “ no eases have yet gone so far as to hold that mere words under such circumstances could constitute a conversion.” If, therefore, it was proper to allow as damage any expense incurred in an action against a defendant for a conversion (which we hold it is not), still, as there was no conversion, no such damages could, in any event, be allowed in these interpleader actions: against the defendant for the property sought to be recovered, the-title to which was in dispute, and the order as to that branch of the-plaintiff’s appeal should be affirmed.

Nor do I see how the defendant can be charged with counsel fee and expense of the plaintiff on account of the interpleader action of the Bank of Gouverueur, if we are right in our conclusion, that such fee charges are not proper damages, or in the conclusion that this.money was not converted by the defendant, and as the exception by the defendant to that part of the referee’s report was overruled by the trial judge and the claim allowed, the order as to that should be reversed.

It was also an error in the trial court to charge the defendant with interest on the money in the bank, the title to which was determined by the interpleader action, as the same, as we have seen, was never in the possession or under the control of the defendant.

The decree entered upon the report of Parker, referee, in this action is, as it would seem, the final judgment in this action, and the proceedings since the entry of that decree are only in aid of that decree, and are, therefore, in the nature of motions, for which full costs of an action cannot be imposed. The proceeding from which this appeal was taken was a motion, and it was error, we think, to allow more than ten dollars as costs of that motion.

Let the order in this case, so far as the appeal of the plaintiff, is-concerned, be affirmed. Let the order from which the defendant appeals be modified by striking out the allowance of $361 for attorneys’ fees and expenses of Joseph George and John 0. Keeler.. Also, by striking out that part of the same allowing interest against the defendant on the funds recovered by the plaintiff in the inter-pleader action, brought by the bank. Also, by striking out that part of the order allowing the plaintiff the costs taxable on the trial of an action and an extra allowance on this motion, and substituting; in the place thereof ten dollars costs of the motion.

As so modified, let the order be affirmed, without costs of this appeal to either party as against the other.

Putnam and Herrick, JJ., concurred.

Order and judgment modified, and as mo'dified affirmed, without costs.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. The Forest Commission, Relator, v. Frank Campbell, Comptroller, Respondent.

      Forest Commission — limited powers thereof— cannot sue out a writ of eertiora/i'i — Code of Civil Proeedwe, § 3137.
    The Forest Commission, as such, is in no sense the owner of the forest preserve, and its control and authority over the same are only those of an administrative officer of the State charged with certain specified statutory duties in respect to the State lands known as the forest preserve.-
    No express power is conferred by chapter 383 of the Laws of 1893 upon the Forest Commission to prosecute an action or special proceeding in its name of office, and such commission is not authorized to sue out and prosecute a writ of certiorari in its official name as relator in order to review a determination of the Comptroller of the State of New York, canceling a tax sale of land embraced within the forest preserve.
    Under the provisions of section 3137 of the Code of Civil Procedure, only the person aggrieved by a determination sought to be reviewed is entitled to apply for and prosecute a writ of certiorari.
    'Certiorari issued out of the Supreme Court and attested on the '21st day of April, 1892, directed to Frank Campbell, Comptroller •of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all his proceedings, papers, decisions and acts in relation to his cancellation of a sale of land for the non-payment of taxes, and in relation to his refusal to vacate such cancellation.

      Willáami P. Gcmtwell, for the relator.

      T. F. Gowway, for the respondent.
   Mayham, P. J.:

The relator sued out a writ of certiorari to review the action of Edward "Wemple as Comptroller in canceling the tax sale of the southeast quarter of township 24, great lot 1, Macomb’s purchase, being a part of the town of Harrietstown in the county of Franklin.

The relator by this certiorari seeks to set aside the cancellation of the tax sale by the Comptroller on the ground, among other things, that that officer had no power under the statute to act upon the application of Turner, the alleged owner of the land, as he was not a purchaser at the tax sale, and that none but a purchaser can legally apply to the Comptroller for such cancellation. The defendant objects to any proceeding on the part of the relator on this writ, on the ground that the relator, “ The Forest Commission,” has no interest in this controversy, and that it cannot, therefore, invoke the aid of a writ of certiorari to review the action of the Comptroller in making the order of cancellation. If this contention of the defendant be correct, then the relator has no standing in court and is not in a position in this proceeding to challenge the correctness of the act of the Comptroller in making this cancellation, and it will not be necessary in that case to examine the questions sought to be raised by the relator under this writ.

Section 2121 of the Code of Civil Procedure specifies the parties on whose application the writ of certiorari may be granted, as follows : “An application for the writ must be made by or in behalf of a person aggrieved by the determination to be reviewed.” Was “The Forest Commission,” as such, aggrieved by the determination of the Comptroller in the cancellation of this tax sale ?

That body was in no sense the owner of the land in question, its control and authority over the same being only that of an administrative officer of the State, charged with certain specified statutory duties in respect to State lands known as the “ forest preserve,” and as to such “ forest preserve,” it is authorized by section 11 of chapter 283 of Laws of 1885 to bring in the name of the State, or on behalf of the People of the State, any action to prevent injury to the forest preserve, or trespass thereon, to recover damages for such injury or trespass, and to recover lands belonging to such forest preserve, but occupied or held by persons not entitled thereto.

This section also authorizes the Forest Commission, with the consent of the Attorney-General and Comptroller, to employ counsel in the prosecution of the actions therein authorized, but provides that such prosecution>.shall be under the direction and in the name of the Attorney-General; and if no such attorney or counsel is employed, the Attorney-General shall prosecute such actions. No other special authority to prosecute seems to be conferred by statute on the “ Forest Commission ” by chapter 283 of the Laws of 1885.

By section 102 of chapter 332 of the Laws of 1893 the powers and duties of the “Forest Commission” were more particularly defined and prescribed, and the jiowers therein expressly conferred may be .exercised by it. No express jiower is conferred by that section, or any other section of that chapter, on the relator to prosecute an action or special proceeding in its name of office ; the most that can be claimed under the provisions of that chapter is that it confers upon the Forest Commission certain police powers for the government.and management of the forest preserve. Section 112 of that chapter substantially re-enacts the powers of the Forest Commission conferred by chapter 283 of the Laws of 1885 to prosecute in the name of the People, for trespass committed on the forest preserve, and, with the consent of the Attorney-General, to employ attorneys to conduct such prosecution, but no authority is conferred by that section to prosecute any action in its own name.

The “ Forest Commission ” not being a corporation, individual or body politic, but simply an administrative office created by statute, with all its j>owers derived from and defined by statute, having no express authority to sue or be sued in its own name, is not authorized to sue out and prosecute this writ in its official name as relator. It is quite apparent that, as the Forest Commission is not a corporation, and is not authorized to sue or be sued, an action could not be maintained against it in its official name. (People ex rel. Second Ave. R. R. Co. v. Board of Park Commissioners, 97 N. Y. 37.)

In this case the court says : “ The park board is a mere department of the city government. It is not a corporation, and there is no statute authorizing- actions to be brought against it by its official name. We see no answer to this objection.”

It is true,that in that case the proceeding was against tne Doard of commissioners. But the objection that it can prosecute without authority, would rest upon the same ground of want of ability as that it cannot be prosecuted without authority. In either case the administrative body would have no standing in court for want of express authority to sue or be sued. If we are right in this conclusion, it follows tliat the relator cannot in these proceedings review the action of the Comptroller in canceling this tax sale, and that the writ of certiorari must be quashed. ¥e are not, therefore, called upon to consider the many important questions raised by the relator as to the power or authority of the Comptroller to cancel the tax sales.

"We think it cannot be maintained in this case that the relator has brought itself within the provisions of section 2127 of the Code of Civil Procedure, which allows only the person ‘aggrieved by the determination sought to be reviewed to apply for and prosecute the writ of certiorari.

The writ of certiorari must be quashed, with fifty dollars costs and disbursements to the defendant.

Putnam and Herrick, JJ., concurred.

Writ of certiorari quashed - and determination of Comptroller affirmed, with fifty dollars 'costs and disbursements.


text:
    In the Matter of the Probate of the Last Will and Testament of William V. Clark, Deceased.

      A witness, interested under a will, competent to testify as to the execution of a codicil — conflict of proof as to cm alleged codicil• — decision of the surrogate not disturbed..

    The testimony of a party interested under the will of a testator, in regard to the execution of a codicil to such will, is not inadmissible under the provisions of section 829 of the Code of Civil Procedure, if the rights and interests of such person would be unchanged whether the codicil was admitted or was refused admission to probate.
    One of the subscribing witnesses to a codicil to the will of a testator, called in proceedings for the revocation of the probate thereof, proved the execution of such codicil in full compliance with the requirements of the statute, and swore that the deceased declared the alleged codicil to be a codicil. • The other subscribing witness thereto heard no such declaration by the testator. It appeared that the will and codicil were attached together and that the testator declared that the witnesses had signed it before.
    The testimony of the subscribing witnesses as to what did occur wás positively contradicted by two other witnesses who claimed to have been present at the time of the alleged execution of the codicil.

      Held, that the testimony presented a disputed question of fact which it was the duty of the surrogate to decide, and his finding that the codicil was not executed in compliance with the statute, and his refusal to admit it to probate, should not be disturbed upon appeal.
    Appeal by Isaac K. Grennell, executor, etc., of William V. Clark, deceased, and others, from so much of a decree of the Surrogate’» Court of the' county of Saratoga, entered in the Surrogate’s Court of Saratoga county on the 1st day of June, 1894, as revoked the probate of a codicil to the will of said decedent, with notice of an intention to bring up for review upon such appeal said decree and the order revoking such probate.

      Foley & Wmg, for the proponents, appellants.

      J. 8. F Amoreaux, for the contestants, respondents.
   Mayham, P. J.:

The testator made his original will, bearing date September 22, 1885, in and by which he bequeathed to his wife $2,000, one-third of all of his household furniture absolutely, and the use of the remaining two-thirds during her life; he also devised to her the use of the farm on which he lived, together with the use of the team, tools, stock and implements, and such grain as might be on hand at his death, during her natural life, in lieu of her right of dower, and of all other legitimate claims she might have against his estate, real or personal, and after his death the remainder of his farm he devised to his grandson, William C. Grennell, in fee. By the third item he gave and bequeathed $500 to Mary Jane Hayner.

By the fourth item he bequeathed to Mary A. Grennell, wife of Isaac K. Grennell, $300. '

By the fifth item he gave to Mary A. Glenn, widow of Allan S. Glenn, $1,000.

By the sixth item he gave to his grandson, William C. Grennell, his gold watch.

By the seventh item he gave to Eliza Grennell and William 0. Grennell, and Rosella Grennell, children of Isaac Grennell and grandchildren of testator, $5,000 each.

By the eighth clause he bequeathed to his four grandchildren all the personal property bequeathed to his widow remaining at her death.

By the ninth clause he gave to his four grandchildren, share and share alike, all the rest, residue and remainder of his estate.

By a codicil to his will, dated the 26th day of April, 1888, the testator revoked legacy numbered third to Mary Jane Hayner, and legacy numbered fourth to Mary A. Grennell, and directed that the sums therein bequeathed pass, under the residuary clause of his will, to the persons therein entitled to such residue.

On the 17th of December, 1889, the testator made another codicil to his will, and by the first clause thereof revoked the fifth clause of his will entirely, and also revoked the provisions made for Mary A. Glenn in the eighth and ninth clauses of his will.

In the second clause of such codicil he bequeathed to the five children of Mary A. Glenn, who .were his great grandchildren, each the sum of $200. By the third clause of this codicil the testator bequeathed the share given to Mary A. Glenn in the eighth and ninth clauses of his will, to his grandchildren, Eliza Grennell, William C. Grennell and Rosella Grennell, to be divided equally between them.

On the 21st of October, 1892, the will and codicils of the testator were duly proved and admitted to probate by the surrogate of Sara-toga county, and Isaac K. Grennell, the executor named therein, duly qualified as such.

On the 28th of November, 1892, Scott B. Glenn, a-great graúdson of .the testator, presented his petition to the surrogate of Sara-toga county, praying for the revocation of such probate and letters testamentary, stating various grounds for the relief sought. On the hearing a large amount of evidence was taken before the surrogate, and from such evidence the surrogate found and directed that at the time of the execution of the will and each of the codicils thereto, the testator was of sound and disposing mind, and in all respects competent to make and execute the same, and that the will dated September 22, 1885, and the codicil dated April 26, 1888, were in all respects executed and published by the testator in conformity to law, and entitled to be admitted to probate as and for the last will and codicil of the deceased.

The surrogate refused to find that the instrument purporting to be a codicil to the will dated December 17, 1889, was genuine and valid, and was executed and published by the testator in conformity with the statute,' and accordingly decreed that the will dated September 22, 1885, and the codicil dated April 26, 1888, were valid, and confirmed the probate as to them, and that as to the codicil dated December 17, 1889, the probate thereof was revoked. The main contention of this appeal is as to that part of the decree revoking the probate of the second codicil. .

By the provisions of that codicil the whole tenure of the will and first codicil were materially changed, and the bulk of the estate transferred from one branch of testator’s family to another. The testator’s entire estate was about $45,000. By the first will and codicil the Grennell branch of testator’s family was to receive about $28,500 of the estate, and the Glenn branch about $14,500.

By the last codicil the Glenn branch of testator’s family was to receive $1,000, and the Grennell branch received $43,000.

Some attempt was made by the petitioner to show that the codicil was in part the result of undue influence of Isaac K. Grennell, who is the father of the Grennell beneficiaries, and executor named in the will, who, as the proof showed, had occupied a confidential relation with the testator.

But the learned surrogate held that the codicil was not the result of undue influence, and as he saw the witnesses who testified in this proceeding, and there was no direct proof of undue influence, we must regard his determination as the settlement of a disputed question of fact which we should not disturb on appeal. But the learned surrogate held and decided that statutory formalities required for the due execution of a will were not complied with in the execution of this codicil, and that the due. execution of this codicil was not, therefore, proved.

One of the witnesses called upon that branch of the case proved the full compliance with the requirements of the statute, and swore that the testator declared the alleged codicil to be a codicil. The other heard no such declaration. But it is urged on the part of the executor that as the will and codicil were attached together, the declaration by the testator to the witnesses that they had signed it before showed that the testator regarded their subscription to the document as equivalent to a declaration that the paper was a part of the will, and their signatures in his presence, and in the presence of each other, as a signature in his presence, and in the presence of each other, in substantial compliance with the statutory requirements.

But the testimony of the subscribing witnesses as to what did occur is positively contradicted by two other witnesses, who claim to have been present at the time of the alleged execution of this instrument.

That testimony raises a disputed question of fact which it was the •duty of the surrogate to decide, and under the circumstances of this case we cannot disturb his finding on that disputed question.

But it is insisted by the executor that the surrogate erred in xeceiving the testimony of Mrs. Máry J. Clark, widow of testator, and that she, being a beneficiary under the will of her husband, was, therefore, disqualified from giving testimony as to this codicil under the provisions of section 829 of the Code of Civil Procedure.

But it will be seen that this witness had no interest in favor of or adverse to either party in controversy under this codicil. It neither added to nor diminished her rights of interest in the estate of the testator.

She was not, therefore, a party interested in the event, or a person from, through or under whom such person or interested party -derived his title or interest.

Her rights and interests in her husband’s estate remained unchanged after as well as before the making of this codicil, and her testimony does not, therefore, come under the condemnation of that section.

On the whole case I see no error in the determination of the learned surrogate, and his decree must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Decree of surrogate affirmed, with costs.


author: Kellogg, J.: Herrick, J.

text:
    Hiram Tompkins, Respondent, v. Cornelius Sheehan, Appellant.

      Meidenee of a, conversation had in the absence of one of the pa/rties, inadmissible.

    Upon the trial of an action the question at issue was whether 1,785 shares of the stock of a corporation were sold to the defendant, or whether 1,985 shares thereof were so sold. It was shown that a conversation took place in the absence of the defendant, long prior to the sale, between the plaintiff and the other owners of the 1,985 shares of stock and the agent acting for all of them, who made the sale, in which it was agreed between them that none of the owners of such stock would sell their respective shares unless all sold.

      Held, that evidence of such a conversation was inadmissible ,and that the reception thereof was an error which called for the reversal of a judgment rendered against the defendant in such action. Herrick, J., dissenting.
    Appeal by the defendant, Cornelius Sheehan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 8th day of November, 1893, upon the verdict of a jury for $2,668.50, rendered after a trial at the Saratoga Circuit, and also from an order entered in said clerk’s office on the 19th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      J. W. Orame and Ednjovn Oountryman, for the appellant.

      Charles S. Lester, for the respondent.
   Kellogg, J.:

The one question upon the trial was, were the 200 shares owned by plaintiff included in a sale to defendant of shares in the Congress Spring Company, consummated December 19, 1890 ? At that date 1,785 shares were delivered to defendant, and paid for by him. These 1,785 shares were owned, before sale to defendant, by other parties than plaintiff. The plaintiff claims that the sale in fact included his 200 shares, and made the number of shares actually sold 1,985. The plaintiff’s shares were not delivered with the others, nor were they paid for.

The sale was negotiated on the part of the owners by Mr. Bockes, acting for himself as owner of a number of the shares delivered, and as agent for the other owners — each owning and holding his stock in severalty.

The agency of Bockes was created wholly by authority from each owner separately, obtained by direct communication with each a short time prior to the delivery of the 1,785 shares, and after the proposal to buy made to him by defendant through his agent, Mr, Crane. This is the testimony of Mr. Bockes and is undisputed. None of the owners of stock other than Bockes were present at or have any knowledge of the negotiation leading up to the sale or o£ the terms of the sale.

This simple question of fact was before the jury, was this sale a sale of 1,985 shares or a sale of 1,785 shares? Obviously, it should have been determined by what was said and done between Bockes on one side and defendant Sheehan and his agent Crane on the other, and the knowledge of existing pertinent facts with which each was chargeable.

On the trial Bockes as witness gave, in substance, his version of what was said and done. He was flatly contradicted by witnesses Crane and Sheehan as to all or most of the material matters tending to establish plaintiff’s claim, and in a degree, perhaps, contradicted by his own written memoranda and by plaintiff’s telegram one day after the delivery of the 1,785 shares.

To corroborate the testimony of the witness Bockes, or to add to its weight and credit in the minds of the jury, the plaintiff offered to give in evidence a conversation between witness Bockes, the plaintiff, and the other owners of stock, had long anterior to the sale and long before any sale to defendant was contemplated, to the effect that none of these owners would sell his stock 'unless all sold.

A serious struggle, and a prolonged one, as / the printed case shows, took place in the presence of the jury over the admission of this testimony. The conclusion is not unreasonable that the jury were led to believe that this evidence was of great weight, perhaps-the turning point in the case.

A juryman’s natural course of reasoning respecting this conversation would be: This witness says there was a conversation between the owners of the stock at some time. No one disputes it. Neither' Crane nor Sheehan can dispute it; they were not present. The conversation amounted to an agreement that neither owner would sell unless all sold. That means if either broke this agreement he would become liable in an action for damages brought by the injured one. Is it likely that Bockes would take that risk, and subject himself to-such an action by the plaintiff ? Without instruction that such agreement had no binding force, was absolutely void for lack of consideration if for no other reason, our common experience teaches that the effect of such evidence upon the minds of a lay jury would be very great and in the line indicated.

But suppose the jury had been instructed that such an agreement could be only binding upon the conscience, then does not the conscience of this witness become thé subject of inquiry to determine how much weight by probabilities this jury ought to attach to it ? He would not have sold the 1,785 shares, because in conscience he was bound not to sell unless he sold 1,985 shares. This is the plaintiff’s argument, with the court’s approval. Suppose now, defendant had offered to show that the witness in fact had no conscience, and the argument ought noi for that reason to have any weight, would the trial court have permitted it ? Certainly not.

But plaintiff’s counsel says that the witness communicated this conversation to the defendant. What was said to defendant is eompetent, for that the defendant could either admit or deny ; but this could furnish no ground forgiving a conversation had when defendant was not present, though it were the same conversation, for that the defendant could not deny.

If the communication to defendant could furnish ground for admission of such testimony, even that ground is hardly furnished here. We are pointed to this question and answer to show such communication to defendant: “ Q. What did you ever say to Judge Crane or Mr. Sheehan in regard to the arrangement that no one would sell the stock without the others ? A. I told him that at the time the stock was delivered and he paid for it; that was the only time I ever spoke to Mr. Sheehan on the subject.”

It clearly appears from this that nothing was ever said by witness to defendant on the subject before the delivery <mdpayment.

It should be borne in mind that this conversation, so objected to and admitted, had no remote connection with the authority of Bockes to make a sale. It did not create the agency, and did not qualify or limit such agency. He testifies his agency was wdiolly created at another time. Nor did this conversation impress any binding conditions upon the stock, its ownership or disposition ; and even if it had been communicated to defendant it must be presumed that both parties knew it presented no legal obstacle to a separate sale by either owner.

I think the admission of this conversation in evidence was error so material and prejudicial to defendant’s case that a new trial should be granted, with costs to abide the event.

Mayham, P. J., concurred in result.

Herrick, J.

(dissenting):

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant, and also from an order denying a motion for a new trial upon the exceptions in the case.

The plaintiff in his complaint alleges that he, together with one William IT. Bockes and three others, were owners in December, 1891, of 1,985 shares of the capital stock of the Congress Spring Company, of which amount the plaintiff owned 200 shares.

That on or about the 19th day of December, 1891, the said William H. Bockes, acting for himself and as agent for the plaintiff and the other ownei’S of said stock, entered into an agreement with defendant, whereby he promised and agreed to sell to the defendant the said 1,985 shares of the capital stock in said company; and that it was then specially understood and agreed with the parties owning such stock that they would not sell any portion thereof, unless the purchaser would agree to purchase and pay for the whole thereof at the price mentioned in said agreement. That, pursuant to said agreement, Bockes, for himself and as agent for the other owners, delivered to the defendant 1,785 shares of such capital stock, and agreed to deliver the other 200 shares as soon as the certificate could be found, which certificate, at the time of such agreement, was mislaid. He further alleges that the defendant received and accepted the said 1,785 shares of stock, and paid for the same, and that soon thereafter the plaintiff tendered to the defendant the other 200 shares of the capital stock, showing the certificate of title therefor, and that the defendant promised and agreed to accept such stock and pay for the same according to the agreement; then follows the allegation that he neglected and refused to accept and pay for such stock as he had agreed to do, and a demand for judgment.

The defendant for answer admits the purchase of 1,785 shares of the stock, being two hundred and ninety-seven from said Hanson, four hundred and ninety-six from said Richards, four hundred and ninety-six from said Gage, and four hundred and ninety-six from said Bockes; and that he paid the said persons for said shares the amount stated -in the complaint.”

And, as a second defense in his answer, denies all the allegations in the complaint except as first admitted.

It will be observed that the complaint charges the sale of a block of stock owned by several parties in different amounts, and that there was an agent acting for all the owners, with the understanding and agreement that the block of stock should be sold as a whole; and the theory of the plaintiff evidently is that the contract was for the sale of the 1,985 shares of stock as an entirety, and that by the acceptance of a portion of such stock and payment therefor the defendant bound himself to take the whole amount.

The defendant’s theory evidently is that it was a separate contract with each owner for the number of shares of stock held by him.

The only questions argued by the appellant upon this appeal are those arising upon the admissibility of evidence offered by the plaintiff and received by the court over the defendant’s objection.

The plaintiff was permitted to show conversations between the plaintiff and the agent Bockes and the other owners of the stock in the absence of the defendant, in which it was agreed between such owners that no one would sell his stock unless the others did ; that they would all stand together and all keep the stock, or all sell it at the same time for the same price, and that this agreement was communicated to the defendant before the sale of the stock to him.

The evidence to prove such agreement was objected to as immaterial and incompetent; that the conversations were in the absence of the defendant, and it was argued that any such agreement was not binding in any way upon the defendant; that it was evidence made by the plaintiff in his own behalf, and, having been made in the absence of the defendant, that it could not be received as evidence corroborating the testimony of the agent Bockes as to what the agreement actually was between himself and the defendant.

I do not think that the exception to the admission of testimony to prove such agreement is well taken; in determining that question the allegation of the complaint must be kept in mind that the agreement was to sell the entire block of stock; that no part of it was to be sold unless all was sold, and that one of the owners was acting as agent for all of them; that the contract that he was making was one that would inure to the benefit of each one of the stockholders in proportion to the number of shares owned by him; that the conversation he was testifying to was one that related to the question of his agency.

The agreement testified to by him, and which he says was communicated to the defendant, was a limitation of his agency; under it he could not sell any portion of the stock unless he sold the whole thereof, and, therefore, it seems to me that the proof was strictly in accordance with the allegations made in the complaint, and is also admissible as a statement of his authority as agent made to the defendant prior to or during the negotiation of the sale of the stock ; it does not present the same question that would be presented in the case of a separate and distinct contract for the sale of plaintiff’s stock alone.

The question is raised upon this appeal that the- plaintiff’s agent did not communicate this agreement between the owners of the stock to the defendant or his agent until after the delivery of the other stock to and the payment therefor by the defendant.

According to the testimony of the plaintiff’s agent, the plaintiff at the time the agreement to sell this block of stock was made was in Chicago; his agent telegraphed to him the proposed agreement to sell, to which the plaintiff replied that he would sell if the rest did. That thereafter plaintiff’s agent went to the office of defendant’s agent and there met the defendant, and made a delivery of all the certificates of stock that he had in his possession, and then and there told the defendant and his agent that he could not deliver them plaintiff’s stock, because he could not find it. “And that as soon as he found it, it would be delivered to them for the purpose of having them pay for it with this; it was included in this sale ; I said they must take that stock, although I could not deliver it; it was part of the original bargain, they were to buy the whole; I said they must take that stock when it could be delivered.”

Further on he was asked this question: Q. “ "What did you ever say to Judge Crane or Mr. Sheehan in regard to the arrangement that no one would sell the stock without the others ? ” A. “ I told him that at the time the stock was delivered and he paid for it; that was the only time I ever spoke to Mr. Sheehan on the subject.”

After making this answer the defendant’s counsel moved to strike •out the testimony of the witness as to the interview between the plaintiff, Tompkins, Gage and Hanson, the other persons who had .sold their stock to defendant, “ on the ground that there is no proof that what was said there was communicated to the defendant or his agent.” The motion was overruled by the court.

It will thus be seen that the defendant did not raise the question that the communication was not made until after the other stoclc had been delivered and paid for, but simply raised the question that the conversation had mot been communicated to the defendant or his agent at all, whereas, in truth the witness had just sworn to such communication, and, from his answers to the question propounded to him, taken in connection with his other testimony, the jury might have fairly inferred that he had communicated such conversation before the other stock was delivered and paid for, although at the same place and during the same interview.

For these reasons, I can see no error in the admission of the testimony in question, or the refusal of the court to strike it out.

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

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


author: Pee Curiam :

text:
    The People of the State of New York ex rel. The Union Pacific Tea Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.

      Corporation — liable to taxation under chapter 542 of the Lems of 1880 — decision of the Comptroller as to its capital stock.

    A corporation, neither a manufacturing corporation nor one wholly engaged in carrying on manufacture within the State of New York, is liable to taxation under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof.
    The determination of the Comptroller of the State of New York, as to the amount of capital stock employed by a cox’poratio’h within the State of New Yoxk, should not- he overruled unless, on a motion for revision, it is clearly shown to be wrong.
    Certiorari issued out of the Supreme Court and attested on the 27th day of June, 1894, directed to James A. Roberts, Comptroller of the State of New York, commanding him to return to the office of the clerk of the county of Albany all the proceedings had, and testimony taken before him, in relation to the tax imposed upon the relator under chapter 542 of the Laws of 1880.

      Cha/rles 3. Tuscomi, for the relator.

      Theodore E. 3cmeook, Attorney-General, and John, W. 3oga/n, Deputy Attorney-General, for the respondent.
   Pee Curiam :

We think that relator cannot be deemed either a manufacturing corporation or one wholly engaged in carrying .on manufacture within this State, and, hence, that it was liable to taxation under the provisions of chapter 542 of the Laws of 1880, and acts amendatory thereof.

The determination of the Comptroller, as to the amount of capital stock employed by relator in this State, should not be overruled unless on the motion for revision it was clearly shown to be wrong. (People ex rel. A. C. & D. Co. v. Wemple, 129 N. Y. 558, 565, 566.)

After a careful examination of the proofs presented, on the motion for a revision, we are unable to say that the reduction of the valuation of relator’s property within the State then made was not all it was entitled to. We think the estimate then made of the value of relator’s property in this State was not shown to be erroneous.-

An opinion does not seem to be called for in the case.

The determination of the Comptroller should be affirmed, with costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Writ of certiorari quashed, decision of Comptroller affirmed, with, fifty dollars and disbursements.


author: Mayiiam, P. J. :

text:
    Frederick F. Proctor, Respondent, v. Henry P. Soulier Appellant.

      Order to show cause — it must comply with section 780 of the Code of Civil Procedure and rule 37 of the General Buies of Practice — it will be reviewed, on an appeal from the order granted on the return thereof— injunction order — discretionary only on compliance with the Buies of Practice.

    An order to show cause takes the place of a notice of motion, and, under the provisions of section 780 of the Code of Civil Procedure and rule 37 of the General Rules of Practice, the former cannot be substituted for the latter except in the manner particularly pointed out and authorized therein.
    The objection was specifically taken by the defendant in an action, on the return of an order to show cause procured by the plaintiff, that no special reason was stated in the plaintiff’s affidavits why a shorter time than eight days was required for the hearing of the motion nor was the condition of the action or the next term or Circuit at which it could be heard, stated in the affidavits. The objection was overruled before the defendant interposed his defense to the motion upon the merits.

      Held, that the, objection was not too technical to be regarded, as it might have involved a substantial right of the defendant by affording him inadequate time and opportunity to prepare to meet the affidavits used by the plaintiff upon the motion.
    Where an application-is made by the plaintiff in an action by an order to show cause, for an injunction and the appointment of a receiver, the defendant has a right to insist upon a substantial compliance with the Code of Civil Procedure and Rules of Practice, and if denied that right he is entitled to relief upon appeal.
    An order to show cause constituted the only authority for a motion, upon which was granted an order which was appealed from; the order to show cause was recited in the order appealed from and constituted the jurisdictional basis upon which the order appealed from was granted.

      Held, that although the order to show cause was not appealed from, yet, as the objection to its validity was raised on the motion, it must be regarded as having directly affected the order appealed from and might be reviewed upon such appeal.
    Although the granting of an order for an injunction rests in the sound discretion of the Special Term, and should not be interfered with on appeal, it is only when the judge at Special Term has, in accordance with the prescribed rules of law and practice, acquired jurisdiction of the parties and subject-matter, that he can exercise such discretion.
    Appeal by the defendant, Henry P. Soulier, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in the office of tbe clerk of tbe county of New York on the 1st day of June, 1894, and in the office- of the clerk of tbe county of Albany on the 19th day of June, 1894, appointing a receiver of tbe property of tbe firm of Proctor & Soulier, with notice of an intention to bring ,up for review upon such ajipeal said order.

      John A. Delehcmty, for tbe appellant.
    Dittenhoefer, Gerber da Jmnes and Simon W. JSosendale and Albert Sessberg, for the respondent.
   Mayiiam, P. J. :

.Various preliminary objections of a somewhat serious character were raised by the defendant at tbe return of tbe order to show cause, which, are pressed here as grounds for a reversal of the order granting the temporary injunction and appointing a receiver in this case, and which seem worthy of consideration.

The first objection was based upon the ground that the papers on which the order was granted did not conform to the requirements of rule 37 of the General Rules of Practice of this 'Court made under the provisions of section 780 of the Code of Civil Procedure.

That section provides that notice of motion and papers upon which it is to be made must be served at least eight days before the time of hearing when special provision is not made by law, or by the General Rules of Practice, for a shorter time, or the court or judge, upon affidavit showing that a shorter time is necessary, makes an order to show cause; and rule 37 provides that an order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall, in his affidavit, state the present condition of the action and whether it is at issue, and if not yet tried, the time appointed for holding the next trial term or Circuit where the action is triable.

The order to show cause in this action was dated on the 18th day of May, 1894, and by its terms was required to be served on the nineteenth day of the same month, and was returnable on the twenty-third thereof, with leave to the plaintiff to serve other affidavits within two days before the hearing.

No special reason is stated in the affidavits why a shorter time than eight days was required for the hearing of the motion, nor was the condition of the action or the next term or Circuit at which it could be heard stated in the affidavits on which that order was granted, as required by rule 37.

The order to show cause takes the place of a notice of motion, and as it would seem from the section of the Code of Civil Procedure and rule above referred to, the former cannot be substituted for the latter except in the manner particularly pointed out and authorized therein.

This objection was specifically taken by the defendant on the return of the order to show cause, and was overruled before the defendant interposed his defense upon the merits.

"We can hardly hold that this objection is too technical to be regarded on this appeal. It may have involved a substantial right of the defendant by affording him inadequate time and opportunity to prepare to meet the somewhat voluminous affidavits used by the plaintiff on this motion.

At all events, the defendant had a right on this summary application for an injunction and for the appointment of a receiver to insist upon a substantial compliance with the Code and rales, and if denied that right to ask this court to enforce its rules.

It was also objected by the defendant, on the hearing of this motion, that the temporary injunction was defective in not briefly stating the ground upon which it was granted, as required by rule 13 of the General Rules of Practice of this court.

It is true that the order to show cause is not appealed from, but it constitutes the only authority for the motion on which the order appealed from was granted, is recited in the order appealed from, and constitutes the jurisdictional basis upon which the order appealed from was granted, and as the objection to its validity was. raised on this motion, I think it must be held as directly affecting the order appealed from, as without the order to show cause there would be no notice of motion on which this order could have been made.

It is insisted that the granting of the order for an injunction rested in the sound discretion of the Special Term, and should not be interfered with on appeal. But it is only when the judge at Special Term has, in accordance with the prescribed rules of law and practice, acquired jurisdiction of the parties and subject-matter that he can exercise such discretion.

The object of rules of court and statutory methods of practice is to guard parties from surprise, and preserve method and order in the administration of justice, and parties and attorneys have a right to expect that the courts will administer the law in accordance with the rules which they have promulgated for their guidance.

Failure on the part of the courts to observe them makes the rules little less than a delusion and a snare by which the public may be misled to their injury.

.For these reasons we think the order appealed from was erroneous, and should be reversed.

Putnam and IIerrick, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements*


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    Josephine Van Olinda, Respondent, v. Mary B. Hall, Appellant.

      Sill of particular's not granted on the attorney’s affidavit- — -failure of the movin{_AL party to deny allegations as to ha/i'boring plaintiff’s husband — inference resulting therefrom — bill of particulas-s not granted to disclose evidence — discretiona/ry power.

    A motion by the defendant in an action to compel the plaintiff therein to furnish her with a bill of particulars of all the facts and circumstances set forth in the complaint, cannot be granted upon the affidavit of the attorney for the defendant.
    Where the defendant moves, in an action brought to recover damages for the alienation of the affections of the plaintiff’s husband, that the plaintiff be com pelled to furnish her with a bill of particulars of the facts and circumstances set forth in the complaint, the failure of the defendant in her affidavit to deny the charges contained in the plaintiff’s complaint and affidavit that she hai'bored, kept and maintained the plaintiff’s husband at her house, raises the inference that the facts so alleged are within her own knowledge.
    A bill of particxxlars under section 531 of the Code of Civil Procedure is never granted for the purpose of inquiring the plaintiff in an action to disclose the evidence on which she will rely in the prosecution thereof.
    The granting or withholding of an order to furnish a bill of particulars rests in the sound judicial discretion of the court to which the application is made, although the General Term may in a proper case review the exercise of such discretion.
    Appeal by the defendant, Mary B. Hall, from an order of tbe Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 30th day of July, 1894, denying the defendant’s motion to compel the plaintiff to furnish the defendant with a bill of particulars of all the facts and circumstances set forth in the complaint, with notice of an intention to bring up for review upon such appeal said order.

      Will IF. Smith, for the appellant.

      George A. Swart and L. Yarney, for the respondent.
   Mayham, P. J.:

The complaint alleges, in substance, that the defendant on or about the 15th day of December, 1893, and on divers other days and times up to the commencement of this suit’, wrongfully intending to injure the plaintiff and deprive her of the support of her husband, enticed him away from the residence of the plaintiff to that of the defendant, and divers other places, and there has ever since boarded, maintained, harbored and kej)t her husband against her will; and that during that time, by wiles, arts and evil endearments bestowed upon him by the defendant, has alienated his affection from the plaintiff and caused him to abandon her and cease to recognize her as his wife, or to live and cohabit with her as such, and claims damages.

The answer denies any knowledge or information sufficient to form a belief of the plaintiff’s marriage with her alleged husband as set out in the first count of the complaint, and, secondly, denies each and every other allegation of the complaint.

The defendant moved for a bill of particulars of the plaintiff’s claim in the action, showing,

“First. At what particular time or times, place or places, and by what means the plaintiff expects or intends to prove this defendant enticed plaintiff’s husband away from plaintiff.
“Second. At what time or times, place or places, and by what wiles, arts and endearments bestowed upon plaintiff’s husband, the plaintiff expects or intends to prove this defendant poisoned said husband’s mind against plaintiff, and induced him to remain away from plaintiff.
Third. What acts, words or means plaintiff expects or intends to prove, were used by this defendant to induce plaintiff’s husband to leave plaintiff, or remain away from her, or poison his mind against plaintiff, or alienate his affections from plaintiff, or for such further order or relief as the court may grant in the premises, and costs of this motion.”

In support of this demand the defendant produced the affidavits of the defendant and her attorney to the effect that the comjdaint was not sufficiently specific to enable the defendant to prepare to defend the action.

The plaintiff by her affidavit, in answer to the defendant’s motion, avers that she has no personal knowledge of the facts alleged in the complaint of the wiles and artifices used by the defendant to alienate her husband’s affection, and charges that all the facts therein alleged are within the personal knowledge of the defendant, and repeats her allegations on information and belief that her husband has stayed with the defendant at Saratoga and other places, as alleged in the complaint.

On these facts the Special Term denied the defendant’s motion, the judge writing no opinion, and the ground of his decision not being stated in the order.

The affidavit of the attorney for the defendant in support of this motion is of little or no effect, as it seems to be well settled upon authority that such a motion cannot be granted upon the affidavit of the attorney. (Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 50 N. Y. St. Repr. 417; Gridley v. Gridley, 7 N. Y. Civ. Proc. Rep. 215 ; Hoeninghaus v. Chaleyer, 22 N. Y. St. Repr. 528.)

So that the case stands upon the affidavits of the plaintiff and defendant. Hpon the facts therein stated we see no reason for reversing the order of the Special Term. The defendant in her affidavit on this motion does not deny the charges in the complaint and affidavit of the plaintiff, that she harbored, kept and maintained the plaintiff’s husband at her house, which failure raises an inference that the facts alleged are within her own knowledge. (Fink v. Jetter, 38 Hun, 163; Young v. De Mott, 1 Barb. 30: Hawes v. Foote, 9 Misc. Rep. 203; Constable v. Hardenbergh, 59 N. Y. St. Repr. 318; 76 Hun, 434.)

The defendant having served her answer in this case, taking issue on the general allegations of the complaint, a bill of particulars in an action of this character would be only an order requiring the plaintiff to disclose the evidence on which she will rely in the prosecution of her action.

A bill of particulars under section 531 of the Code of Civil Procedure is never granted for such a purpose. (Hazard v. Birdsall, 61 Hun, 208; 40 N. Y. St. Repr. 707; Bennett v. Wardell, 43 Hun, 452; Roberts v. Cullen, 40 N. Y. St. Repr. 672.)

The granting or withholding of an order to furnish a bill of particulars rests in the sound judicial discretion of the court in which the application is made (Smith v. Johnston, 22 N. Y. St. Repr. 593), and while the General Term may in a proper case review the exercise of that discretion and reverse the order, yet the facts of this case do not justify such interference.

The order must be affirmed, with ten dollars costs and printing and other disbursements.

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs and printing and other disbursements.


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    Margaret B. Coie, Respondent, v. John E. Carl, Appellant.

      Tax —possession of real estate by a tenant is the possession of the owner — it authorizes the collection of a tax by distress — action of replevin in sepit.

    The occupation and possession of a farm by a tenant working such farm on shares with the owner thereof is the occupancy and possession of the owner for the purpose of ¿he collection of taxes assessed against the owner upon such lands.
    The actual possession of property by the consent of the owner, although unaccompanied by any ownership, is within the meaning of the statute authorizing the collection of taxes by distress and a sale of the goods and chattels of the person who ought to pay the tax, or of any goods and chattels in his possession.
    Where a person wrongfully takes possession of the goods of another, an action of replevin in sepit will lie, and no demand is necessary for the return of the goods before the commencement of such action.
    Appeal by the defendant, John E. Carl, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 2d day of February, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the Montgomery Circuit, adjudging the plaintiff to be entitled to the recovery of the possession of the property in controversy, and also from an order entered in said clerk’s office on the 19th day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      H. M. Elchredge, fer the appellant.

      G. E. Phillips and Z. 8. Westbrook, for the respondent.
   Mayham, P. J.:

The plaintiff sued the defendant for the alleged conversion of a cow and wagon, of which she claimed to be the owner, and replevied the property; and the same not being reclaimed by the defendant, the sheriff delivered the possession to the plaintiff.

The defendant, in his answer, sought to justify the taking of the property under a warrant for the collection of taxes issued to him as collector of taxes for the village of Fort Plain.

The 'tax roll and warrant were put in evidence, and directed the defendant, as collector, to collect from all persons therein named the several sums set opposite their respective names on the last column on such roll.

On such roll was a tax assessed against Fidelia Waddell, as executrix of the last will of Hannah W. Kellogg, deceased, for real and personal estate, which tax amounted to the sum of eighty-two dollars and ninety-seven cents, to collect which, as the evidence tended to show, the defendant levied upon the property in dispute in this action.

The defendant never reduced the property to his actual possession, but while the same was constructively under such levy, the plaintiff replevined the same.

The evidence shows that the defendant had, in a previous year in which he acted as collector, levied upon the same property on a tax against the same party and sold the same in satisfaction for such tax, and that the property was bid off on such sale by one George Hawn, at the request of Mrs. Waddell, and was, with other property, by him sold to the plaintiff, under a written bill of sale, which was put in evidence on this trial.

The evidence also tended to show that the real estate of which Mrs. Waddell’s testatrix died seized, on which this tax was in part assessed and levied, was in the joint possession of the executrix and a tenant of such executrix who was working the same under contract with her on shares, and that such executrix resided upon a portion of such premises, and that the property in dispute in this action was, at the time of the levy by the defendant on such premises, in the possession of such tenant or such executrix, or both.

This evidence, or some of it, was disputed by the evidence on the part of the plaintiff; but it seems conceded that the executrix was the owner of this land, either in her own right or as executrix, so that the occupancy and possession by the tenant working such farm on shares was the occupancy and possession of the executrix for the purpose of the collection of taxes assessed against the executrix upon such lands. (Taylor v. Bradley, 39 N. Y. 129.)

The possession of the farm under such an agreement is so far joint that one cannot maintain trespass against the other. (Decker v. Decker, 17 Hun, 13.) It would seem, therefore, that under the circumstances of this case, that it was a question of fact whether or not the person against whom this tax was assessed was the owner or in possession of these goods.

■ The evidence shows that the goods were purchased on the previous tax sale, for her or by her direction, and while the bill of sale would seem to transfer the legal title of these chattels to the plaintiff, yet, if they were in fact in the possession of Mrs. Waddell, they would be .liable to 'distress and sale for a tax assessed against her.

The Revised Statutes (1 R. S. 397, § 2) provides for the collection of taxes “ by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession.” And in Hersee v. Porter (100 N. Y. 403) it was held that actual possession by consent of the owner, although unaccompanied by any ownership in the thing possessed, is within the meaning of the statute. There is in this case some evidence tending to show that these goods were left on these premises by the consent of the plaintiff. It was, therefore, we think, a question of fact for the jury to determine, under the evidence, who had-the possession of the farm on which these goods were found by the sheriff, and, if in the possession of Waddell and Hawn, then as to the title of this projjerty, and as to whether or not the plaintiff left them in possession of the executrix with her consent.

We cannot agree with the contention of the appellant that a demand by the plaintiff of this property was a prerequisite to maintaining an action for these goods.

If they were liable for this tax, no demand would relieve them from that liability. If they were not, then the defendant was liable for the original wrongful taking, and replevin vn, sepit would lie. Nor can we agree that the sale of these chattels for a former tax by this defendant is an estoppel as against him.

That sale was not directly from the defendant to this plaintiff, but to George Hawn, a son of one of the occupants of Waddell’s premises. It does not appear that the defendant had any knowledge of a sale by Hawn to the plaintiff.

We think the learned judge erred in taking the case from the jury, and that he should, as requested by the defendant, have submitted the question of the ownership by and of possession in Mrs. Waddell, under proper instructions, to the jury.

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

Putnam and Herrick, JJ., concurred.

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


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    William F. Gill, Respondent, v. Ætna Live Stock Insurance Company, Appellant.

      Action on contract — a breach thereof must be alleged in the complaint — failwe of a plaintiff to ash on the trial for an amendment of the complaint — effect thereof on an appeal — effect of admissions in the answer.

    It is a settled rule of pleading that the complaint in an action on a contract must, in order to authorize a recovery, allege a breach thereof, and a complaint not con- ■ taming such an allegation may, under section 499 of the Code of Civil Procedure, be attacked at the trial because of such defect.
    Where, on the trial of an action, the attention of the plaintiff is called to a defect in the complaint, and he does not then request the court to exercise its power of granting an amendment thereof, but instead invokes and obtains a determination of the trial court on the question of its sufficiency, the complaint upon an appeal from the judgment rendered in favor of the plaintiff will not be amended under the provisions of section 723 of the Code of Civil Procedure, nor will such defect be disregarded upon such appeal under the provisions of that section.
    Such a defect in a complaint, in an action upon an insurance policy is not cured by the service of an answer which, while admitting the death of the animal insured, does not, however, concede all the conditions necessary to the creation of a liability und'er the policy.
    Appeal by the defendant, the hEtna Live Stock Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 13th day of June, 1894, upon the decision of the court rendered after a trial at the Warren Circuit.
    This action was tried by the court, a jury trial having been waived by the parties' in open court.
    The defendant, before any evidence was offered, moved that the complaint be dismissed, on the ground that it did not state facts sufficient to constitute a cause of action.
    The motion was denied by the court, and the defendant excepted.
    The plaintiff, thereupon, asked for judgment upon the pleadings, and the defendant conceded, for the purpose of the motion, that the plaintiff was the owner of the horse for the loss of which the action was brought, and that the defendant’s mortuary fund was sufficient to pay the plaintiff’s claim.
    On these facts, and the pleadings in the action, the judge granted plaintiff’s motion for judgment, to which ruling and decision the defendant objected and excepted, and from tbe judgment entered for the plaintiff the defendant appeals.

      Cameron cb JMJcArthwr, for the appellant.

      Charles JR. Patterson, for the respondent.
   Mayham, P. J.:

The complaint in this case does not state a cause of action. The insurance policy was a contract on which an action could only be maintained after a breach.

Proof of all the facts alleged in the complaint, undisputed by other evidence, would not entitle the plaintiff to recover, and this seems to be conceded by the plaintiff. There was no allegation that there was any default in the payment by the defendant, or that any sum was due on the contract. (Krower v. Reynolds, 99 N. Y. 245-249; Keteltas v. Myers, 19 id. 231-233; Tooker v. Arnoux, 76 id. 397.)

These, and other authorities which might be cited, show that the settled rules of pleading require, in actions on contract, that the complaint must allege a breach to authorize a recovery, and a complaint not^ containing such an allegation may, under section 499 of the Code of Civil Procedure, be attached at the trial for such defect. That objection was made by the defendant on the trial of this action and was overruled. That ruling, we think, was erroneous.

But it is insisted that the defect could have been cured by amendment at the trial, and that it may now be amended on this appeal under section 723 of the Code of Civil Procedure.

That section provides for the amendment on appeal in furtherance of justice, and on such terms as may be just, and it also provides for disregarding the defect which does not affect a substantial right. But I do not think that this case is one in which we should exercise the power conferred by that section of amending on this appeal, or disregarding the defect.

The attention of the plaintiff was sharply called to the defect in the complaint on the trial, and he did not then call upon the court to exercise its power of granting an amendment of the complaint, but rather invoked and obtained a determination of the trial court on the question of the sufficiency of the complaint.

The defendant had a right, therefore, to rely at its own risk upon the objection and exception, and it would not be in furtherance of justice on this appeal to relieve the plaintiff by amendment, and thus throw the burden and expense of the litigation on the defendant, when, if we are correct in holding this complaint insufficient, he was right and the plaintiff wrong before the trial court. Nor do I think the defect was cured by the answer.

The case is different from Cohu et al. v. Ilusson (113 N. Y. 662), relied upon by the plaintiff. In that ease the note upon its face showed that it was past due, from which fact the law would imply a liability, and its execution having been admitted, and no allegation of payment being alleged, the existence of an outstanding unpaid demand arose from those facts, which became payable at the time of the maturity of the note.

It is true that the answer in this case admits the death of the horse, but under the conditions of the policy, as set out in the complaint, that alone does not necessarily create a liability. Other conditions to create a liability of the defendant are contained in the policy, which are not admitted, and which would require proof before it could be claimed that non-payment constituted a breach by the defendant of the terms of the contract.

The admission, therefore, in the answer does not cover all the facts necessary to be established by the plaintiff to create a liability, or prove a breach of the contract by the defendant.

"We think, also, that there were other material allegations of the complaint which were controverted by the answer upon which the plaintiff was required to introduce proof, as the answer took issue upon them, and that it was error for the learned trial judge to find in favor of the plaintiff upon the complaint alone, unsupported by proof upon these controverted questions.

Judgment must be reversed and a new trial granted, costs to abide the event.

Putnam and Herrick, JJ., concurred.

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