text:
    MAGDALENA RENNER v. JACOB MÜLLER, and others.
    I. ALIENS, INHERITING BY.
    1. Governed by what law.

      (a) By the law in force at the time of the death of the person from whom they claim to inherit.
    1. Who entitled under such law.

    (a) Only those who at the time of the death are under the
    then existing law capable of taking by descent.
    3. Disqualification, ground of.
    (it) Inheritable Wood. The disqualification does not rest on lack of inheritable blood, but on a lack of right to inherit, for the reason that the alien is not a citizen or subject of the government where the land lies.
    II. ALIEN MARRIED WOMEN.
    Capable of inheriting, when; vide infra.

    HI. ALIENAGE AS AFFECTING TAKING BY DESCENT FROM A NATIVE BORN OR NATURALIZED CITIZEN DYING BETWEEN APRIL 15, 1857, AND APRIL 37, 1874.
    1. Alienage of claimant.
    (g) Who not prevented from taking hy reason thereof.

    1. Resident children born in foreign countries of persons then aliens, but who afterwards are duly naturalized; such children being under the age of twenty-one years at the time of the naturalization of their parents.
    3. Children of certain citizens, though born out of the limits and jurisdiction of the United States.
    3. The foreign-born widow and children of aliens dying during the interval between their application and actual naturalization, upon their taking the oaths prescribed by law.
    4. A free, white alien woman who, prior to such death, shall have lawfully intermarried with a citizen.
    1. This, whether her husband be a native-born or a naturalized citizen.
    3. If naturalized, the fact that he was naturalized after the marriage does not alter the case.
    3. This, though the woman at the time of marriage was not twenty-one years of age, provided she was over twelve.
    4. This, though the woman had never been within the United States.
    2. Alienage of ancestor.
    1. Deceased ancestor. The fact that the claimant is obliged to trace descent through a deceased alien ancestor, will not preclude him from inheriting.
    2. Living ancestor. Alienage of such ancestor does not enable one to take by descent as his representative, as if he were deceased.

      (a) Ancestor, definition of, with respect to this subject.
    1. Includes both lineal and collateral ancestors.
    8. Alien parent.
    1. Brothers and sisters, children of an alien parent, inherit of each other. The parent, though living, is by reason of his alienage passed by, and the descent between the children is immediate.
    4. Treaty between kingdom of Wurtemberg and the United States, allowing citizens of either party, to whom land
    would have descended under the laws of the other but for alienage, to sell the same and withdraw the proceeds under certain restrictions.

      The rights of the alien claimant in this case under this treaty are not clear, and should be reserved for decision - until the trial of the cause.

    5. Acts of legislature not applicable.
    1868, chapter 513;
    1874, chapter 261;
    1875, chapters 38, 336;
    1877, chapter 111,

      are not applicable, because not in existence when rights became vested by the death.
    The Revised Statutes,
    1830, chapter 171;
    1843, chapter 87;
    1845, chapter 115;
    1857, chapter 576,

      are not applicable, because their operation, so far as this question is concerned, is confined to lands left by a resident alien, except first section of the act of 1843, which is confined to lands which had been purchased and conveyed, or had been devised, or had descended, prior to its passage.
    IV. Injunction.
    1. EJECTMENT.

      (a) Where, under the laws of this State, it is clear that the title to the land in question descended to and vested in the plaintiff, and the only claim of defendants (who are aliens) is under a treaty between the United States and a foreign country, and it is not clear what rights they have under such treaty, and there is danger that the rents and profits of such land may be removed beyond the jurisdiction of the court and of the State, a proper case for an injunction is made.

      At Special Term,

      February 7, 1879.
    Motion for injunction.
   Freedman, J.

This is a motion for an injunction to restrain the defendant Muller from paying over rents of real estate, situate in the city of New York, to the alien next of kin of Karl Hafner, deceased.

The action is to recover possession, and the rents and profits of the property in question, from Jacob Muller and his tenants in possession under him ; and plaintiff’s right to. possession is founded upon the allegation that she is the sole heir of the deceased capable of taking the inheritance.

Karl Hafner died seized of the fee of the property in question, and intestate, on January 19, 1874. At the time of his death he was a citizen of the United States, and an actual resident of the city and county and State of New York. At the same time, the following of his blood relatives were residents of the United States, viz. :

1. The plaintiff, Magdalena Renner, a niece, the daughter and legitimate child of his sister, Caroline Sinn, who had died July 5, 1855, leaving her surviving no other child, who at the time of Karl Hafner’s death was a citizen of the United States.

2. Christine Müller, another niece, wife of the defendant Jacob Müller, and the daughter and legitimate child of his sister, Christine Eosine Wieland, who then was still alive and a resident of the kingdom of Wurtemberg.

3. Michael Wieland, a nephew, who is a brother of Mrs. Müller, and the son of Hafner’s sister, Christine Eosine Wieland ; and

4. Another nephew, the son of a deceased brother, which nephew had come to the United States in the autumn of 1873.

The three first named resided in the State of New York, and the fourth in Pennsylvania.

Karl Hafner also left him surviving a mother (since deceased), two sisters, one brother, two nephews, and -five nieces, natives and residents of the kingdom of Wurtemberg, none of which had ever been in this country, and all of which were aliens.

Upon the argument both sides agreed that Hafner’s title descended, at the moment of his death, upon some one or more of his heirs-at-law, or, in default of heirs, escheated to the State under the statute. It .could not remain in abeyance, but had to go somewhere. If there was no one ready and capable of taking it, it escheated. If, at the moment referred to, there was but one heir capable of taking, the title vested in him or her absolutely and exclusively, and no subsequent act of the legislature could divest it.

The parties differ widely, however, upon the question of the citizenship of some, and the rights, as conceded aliens, of others of Hafner’s next of kin, and the questions involved in those conflicting claims are of such great importance as to justify a somewhat extended discussion. <

The rule of the common law as to the rights of aliens, as stated by Lord Coke, and as recognized in ■this State, except so far as it has been changed or modified by statute, is :

“That an alien may purchase lands, tenements or hereditaments, to himself and his heirs, and, although he can have no heirs, yet he has capacity to take a fee simple, but not to hold it. For, upon office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is, if the alien doth purchase land and die, the law doth cast the freehold and the inheritance upon the king. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the king, upon office found, shall have them” (Co. Litt. 2, b).

In Hew York proceedings by office found which were formerly authorized by statute (2 R. S. 586) are abolished, and ejectment is provided as the first remedy (Code, § 428).

At common law, therefore, and where no prohibitory statute is in the way, an alien can take an estate in fee by purchase or devise, and can hold it against all parties except the State. But he cannot take by inheritance, nor transmit by descent (Mooers v. White, 6 Johns. Ch. 365 ; Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 603 ; People v. Conklin, 2 Hill, 67 ; Wadsworth v. Wadsworth, 12 N. Y. 376 ; Munro v. Merchant, 28 Id. 9).

In Hew York the acquisition, tenure, alienation and descent of real property are regulated by statute. The people of the State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State ; and all lands the title to which fails from a defect of heirs, revert.or escheat to the people (1 R. S. 718).

All lands within the State are declared to be allodial, so that, subject only to the liability to escheat, 'the entire and absolute property is vested in the owners according to the nature of their respective estates ; and all feudal tenures of every description, with all their incidents, are abolished (Id. % 3).

. Every person capable of holding lands (except idiots, persons of unsound mind, and infants), seized of, or entitled to, any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restrictions and regulations provided by law (1 R. S. 719, § 10).

But the capacity to hold lands, and of taking the same by descent, devise or purchase, was originally confined to citizens of the United States (76. § 8).

The chapter relative to the title of real property by descent contains a series of canons specifically regulating the descent. • It also prescribes that in all cases not expressly provided for, the inheritance shall descend according to the course of the common law (1 R. 8:-753, § 16).

It was also enacted, at an early day, that any alien who had or might come into the United States, upon making and filing with the secretary of state a deposition or affirmation, in writing, that he is a resident in the State, and intends always to reside in the United States, and to become a citizen thereof as soon as he ' can be naturalized, and that he has taken such incipient measures as the laws of the United States require to enable him to obtain naturalization, could take and hold real estate of any kind, to himself, his heirs and assigns forever, and might, during six years thereafter, sell, assign, mortgage, devise and dispose of the same,, in any manner, as he might or could do if he were a native citizen, but should have no power to lease or demise until he should become naturalized (1 R. 8. 730, §§ 15, 16).

It was further provided that if any such alien should die within 'the six years intestate, his estate should descend to his heirs, if he have any who are Inhabitants of the United States, in the same manner as though he died a citizen of the State (1 JR. 8. 720, §18).

After the six years the alien lost all the privileges so secured, except the right to hold the estate, unless he became naturalized according to the provisions of the laws of the United States.

The same statute also -provided that any such alien should not be capable of taking or holding any lands or real estate which might have descended, or been devised or conveyed to him previously to his having become such resident, and made such deposition or affirmation as aforesaid (§ 17).

It has been a subject of dispute whether this 17th section extended to aliens who had not complied with the provisions of the sections immediately preceding, and thus changed the common-law rule, or whether it was limited to aliens who had complied with the provisions ; in other words, whether it was intended to prevent aliens from taking real estate except upon a fulfillment of the requirements of the statute, or only intended to confine the benefits, conferred by the act on those who complied with its provisions, to the property thereafter acquired by them.

It has been decided in the case of Wright v. Saddler (20 N. Y. 320), that the object of this section was to confine the peculiar benefits of the act to cases where lands were acquired after the conditions required had been performed; and that as to lands previously acquired by those who availed themselves of the act and those acquired by aliens not within the act, the common law was left in force.

By subsequent enabling acts, viz.:, chapter 171, Laws of 1830 ; chapter 87, Laws of 1843 ; chapter 115, Laws of 1845 ; chapter 576, Laws of 1857, the capacity of resident aliens to hold and convey real estate was still further extended. Time and space do not permit any extended reference to them.

A passing notice should be taken, however, of the act of 1845, as the most important of them. By that act a resident alien was not only empowered to take by purchase or devise, upon making and filing the deposition or affirmation required by the former statutes, but it was also'expressly provided that, upon making and filing such deposition or' affirmation, he might hold all real estate previously granted, conveyed or devised to him in the same manner and with the like effect as if he at the time of such grant, conveyance or devise, had been a citizen of the United States. Provision was also made for the right of dower of the wives, and the rights of the grantees and devisees of alien residents of this State. By section 4, even- alien heirs of resident aliens were made capable, in certain cases and upon compliance with certain conditions, to take and hold by descent.

The section last referred to has been amended by chapter 261, Laws of 1874, and chapter 38, Laws of 1875, so as to enable aliens to take lands by descent from naturalized or native citizens as well as from resident aliens. But as these amendments were made after Hafner’s death, and consequently after the rights of all parties had become fixed, they may be at once dismissed. For the same reason chapter 111, Laws of 1877, which seems-to be an amplification of chapter 336, Laws of 1875, and of chapter 513, Laws 0/T868, need not be considered. The three last named statutes simply relate to the confirmation of the titles of citizens which may be questioned by reason of the alienage of former owners.

At the time of Hafner’s death, therefore, the law was that none but a citizen could inherit a fee by descent from a citizen ancestor. To this extent the common law, which upon this point rested upon the policy of the feudal law, still prevailed, notwithstanding the abolition of all feudal tenures.

I now proceed to consider the objections which have been urged against plaintiff’s claim, and especially against her standing in court.

I. The first objection is, that at the time of Hafner’s death the plaintiff was an alien.

It appears that she was born in the kingdom of Wurtemberg, on September 20, 1853; that her parents never resided in, and never were citizens of, the United States ; that she came to the United States in 1869; that, consequently, at the time of Hafner’s death, she had not resided five years within the United States, nor had she arrived at the age of twenty-one ; and that she had not, at that time, declared her intention to become -a citizen, nor had she been admitted to citizenship by the judgment of any court.

If these were all the facts, the charge of alienism would be well founded, and plaintiff would have no standing in court; for none of the statutes in force at the time of Hafner’s death, and above referred to, is of any avail to the plaintiff for the reason that Hafner did not die as a resident alien, but as a citizen ; and the plaintiff had at the time of his death neither filed the deposition or affirmation required by the laws of New York, nor declared her intention to become a citizen of the United States, pursuant to the acts of congress. Even if the premises in question had been devised to her by will, she could not, upon the facts and the law, so far considered, have taken them, for the statute relating to wills and the distribution of estates provides that every devise of any interest in real property, to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate, shall be void. The interest so devised shall descend to the heirs of the testator; if there be no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there be, competent to take such interest (2 í¿. 8. 57, § 4).

Moreover, it is well settled that a statute which merely authorizes an alien to take and hold real estate by purchase or devise, does not change the general law of descent.

According to the common law of this country it is not enough that a person is in the order of succession prescribed by statute, as required to take lands by descent, upon the death of the owner thereof intestate. He must also be a citizen of the United States at the time of the death of the intestate. He cannot qualify himself to inherit by becoming a citizen afterward. This disqualification does not rest upon a lack of inheritable blood, though that expression frequently occurs in the books, buf, as shown by Mr. Bingham on Descents, upon a lack of right to inherit for the reason that the alien is not a citizen or a subject of the government where the land lies. The inheritance itself is made up of a right to the possession and use of certain land, which right is derived from a grant or contract of the State. Hence, where, by the law of the State, a person who is not a citizen cannot be a party to such a grant or contract, he fails to inherit merely from lack of legal capacity to become a party to such grant or contract. And at common law the citizen encounters .the same difficulty when he finds that his right of succession must come from the intestate, not directly or immediately, but indirectly and mediately, through some alien relative deceased before the intestate. In the latter case the difficulty has been removed by statute; in the former the disqualification still exists.

It is claimed, however, on the part of the plaintiff, that by virtue of her marriage with Michael Renner, she became a citizen of the United States by force of section 2 of the act of congress passed February 10, 1855.

Michael Renner came to the United States in 1865, and has ever since that time resided here. On June 4, 1871, at the city of New York, he and the plaintiff were married, and on October 10, 1873, he was, on his application, duly naturalized and admitted to citizenship.

The acts of congress relative to the naturalization of aliens require, among other things, as conditions precedent to admission, an application in a certain prescribed manner, and proof of a residence of five years within the Unites States. Even minors, on arriving at the age of twenty-one, must, as a general rule, comply with these conditions before they can become citizens. This is the general policy of the law. Prior to 1855, exceptions were made in favor of:

1. Resident children of persons duly naturalized, being under the age of twenty-one years at the time of the naturalization of their parents ;

2. Children of certain citizens, though born out of the limits and jurisdiction of the United States ; and

3. The widow and children of aliens dying during the interval between their application and actual naturalization.

The persons falling within either of the first two classes are considered citizens of the United States without a formal application for admission, and those falling within the third class upon taking the oaths prescribed by law.

By section 2 of the act of 1855, it was provided:

“ Any woman who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.”

It was held by the court of appeals in Burton v. Burton (1 Keyes, 373), that the words “who might lawfully be naturalized under the existing laws,” were only a limitation of the-application of the section to a class of persons,—viz., to white women,—and hence it was determined that an alien woman who had married a citizen, but who had never been in the United States, became, by the act of marriage, a citizen, and that such act stood in the place of all the requirements demanded by the naturalization laws.

The defendants insist that the plaintiff does not come within this decision, because at the time of her marriage with Michael Benner the latter was not a citizen, though he became such afterwards. This precise point came up in Kelly v. Owen (7 Wall. 496), in which case the supreme court of the United States, approving the doctrine of Burton v. Burton, held as" follows:

“As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of Congress provide. The terms 1 married,’ or ‘ who shall be married,’ do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage.. They mean that, whenever a woman who under previous acts might be naturalized, is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. His citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, are citizens, would exclude far the greater number for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and if this was the object, there is no reason for the restriction suggested. The terms ‘ who might lawfully be naturalized under the existing laws,’ only limit the application of the law to free white women. . . .”

The defendants also contend that the plaintiff does not come within the decision of either of the two foregoing cases, because on the day of Hafner’s death she was not twenty-one years of age, and for that reason could not, on that day, have been naturalized under the laws existing prior to the act of 1855. This objection has no greater force, if as much, than the objection urged against Mrs. Burton. The plaintiff was no more incapacitated on that account, than Mrs. Burton was by reason of non-residence. Indeed, she was not so much, for, if necessary, she could confessedly have become naturalized under the naturalization act within a few months after Hafner’s death, while Mrs. Burton could not for five years after her husband’s death. Age of twenty-one years under the then existing laws was simply one of the qualifications necessary for an applicant to have, just as it was necessary for him to show a five years’ residence. The plaintiff comes' clearly within the reasoning, if not the letter, of the two decisions. The statute says “any woman,” and not “any woman of twenty-one years of age.” There is no more reason, in considering the general policy of the naturalization laws, why, in case of marriage with a citizen, the requirement of twenty-one years of age should not be dispensed with, than the requirement of a five years’ previous residence. They are both made requirements for the purpose of furnishing evidence of fitness to undertake the duties and responsibilities of citizenship, and one is no more important or necessary than the other. The fact of marriage furnishes evidence of such fitness, and the law says that a woman who is capable of lawfully entering into the marriage relation and does so, marrying a citizen, is fitted to become, and ipso facto becomes a citizen. The duties are no more onerous upon her than upon a native female of the same age, and she is still under the same disabilities. Her naturalization simply removes the disability resting upon alienism, and throws around her the protection of the nation. The propriety of this may be urged as a cogent reason in support of such a construction of the act as will give to the wife of the citizen the same protection as it gives to him and to their children. She has linked her destiny with the country by the strongest of ties. Citizenship does not depend upon age. To be qualified as a voter, a citizen must be of the age of twenty-one years and upwards. On the other hand, infants may-be citizens by birth.

I repeat, therefore, that there is nothing in the general policy of the naturalization laws which requires such a construction of the act of 1855 as will exclude the wife of a citizen from citizenship, either because at the time of the marriage she was an alien, or because her husband was an alien, if he subsequently became a citizen, or because she had not resided five years within the United States, or was under twenty-one years of age. All that is necessary is a valid marriage with a citizen, or one who subsequently becomes such, and that presupposes lawful capacity to contract it. At common law the age of legal consent is fourteen in males and twelve in females, and this rule is still in force in New York.

II. Defendant’s second objection to plaintiff’s claim is, that, even if at the time of Hafner’s death the plaintiff was a citizen, she was incapable of inheriting, for the reason that her mother, a sister of the intestate, through whom she must trace her descent, was an alien. That the latter always was, and in July; 1855, died, an alien, is conceded.

The objection is obviated, however,, by section 22 of chapter II. of part II. of the Revised Statutes, which provides that no person capable of inheriting under the provisions of the said chapter shall be precluded from such inheritance by reason of the alien issue of any ancestor of such person (1 R. S. 754, § 22).

This section is a modification of the common-law rule that no person can inherit who is compelled to trace his title through an alien ancestor, and it removes the incapacity which, but for its existence, would attach to the plaintiff.

The word “ ancestor,” as used in this statute, has been made the subject of much discussion, whether it should be construed to mean lineal ancestors only, or whether collateral ancestors were also intended, and it was finally held to embrace both lineal and collateral ancestors. They are ancestors of the estate, not of the blood (McCarthy v. Marsh, 5 N. Y. 263).

III. Defendant’s third objection to plaintiff’s claim is, that the fact that the mother of Karl Hafner, at the time of his death, was alive and an alien, impeded the descent to plaintiff’s mother, and that the plaintiff has no better claim than her mother would have had, if she had been alive and capable of inheriting at that time. It must be conceded that under the canons of the Statute of Descents the plaintiff, as a citizen, can only succeed, if at all, as the representative of her deceased mother, and that in this aspect of the case she must claim through her mother. But this she can do successfully.

It was held in Jackson v. Green (7 Wend. 333), that, at common law, one brother could inherit of another, though the father was an alien. And it is said:

“ Collateral descent from brother to brother is immediate, taking no notice of the father; but from uncle to nephew, or nephew to uncle, the descent is mediate, the father being the medium through which the descent must pass. Hence, one brother may inherit from another, though the father be an alien, or attainted; but a grandson cannot inherit from his grandfather, the father having died in the life of the grandfather, provided the father was an alien, or attainted; but the land shall escheat.”

It has become a maxim of the law that, as between brothers, a father, although a medium sanguinis, is not a medium Jiereditatis (Parish v. Ward, 28 Barb. 328).

It has also been decided, that the rule which enables brothers, sons of an alien father, to inherit of each other, because the descent between them is immediate, applies also between one of the brothers and the representative of the other, and also between the representatives of both of them (McGregor v. Comstock, 3 N. Y. 408 ; McCarthy v. Marsh, 5 lb. 274; Smith v. Mulligan, 11 Abb. N. S. 438).

Under the laws of New York, sisters stand upon the same footing as brothers, and hence the descent is also immediate between brothers and sisters. This being so, it follows that if an alien father cannot impede the descent between them, or their representatives, the same rule, as between them, must apply in the case of an alien mother. The fact, therefore, that at the time of Hafner’s death his mother was alive and an alien, can constitute no obstacle to inheritance between such of Hafner’s brothers and sisters, or their . representatives, as are otherwise capable and entitled to inherit.

The rule laid down by Chancellor Kent that “if a citizen dies and his next heir be an alien who cannot take, the alien cannot interrupt the descent to others, and the inheritance descends to the next of kin who is competent to take, in like manner as if no such alién had ever existed” (2 Kent, 56), applies to all cases in which the claimant does not make title through the alien, but where he or she can deduce his or her pedigree from the person dying seized, by leaving out or passing by the alien. Hafner’s mother may, therefore, be left out and. passed by ; and his sister (plaintiff’s mother) having died before him, and the impediment which her alienism would have otherwise presented having been obviated by statute, the plaintiff labors under no disqualification.

IV. Defendant’s fourth objection to plaintiff’s claim is, that even if the preceding three objections were untenable and the plaintiff were competent of taking by descent, she would not be sole heir, but that Christine Müller, another niece, and Michael Wieland, a nephew of the deceased, would be entitled to share with her; and that for this reason, if no other, she cannot maintain ejectment as sole heir. Christine was married to the defendant, Jacob Müller, in the city of New York, in the year 1862, and at the time of such marriage was twenty-two years of age. In 1863, Jacob Müller became a citizen of the United States, and thereupon, under and by virtue of the act of 1855 hereinbefore considered, his wife also became a citizen. It does not appear whether Michael Wieland was ever admitted to citizenship, nor is the fact material. The difficulty in the claim of both Christine Müller and Michael Wieland is, that though residents of New York at the time of Hafner’s death, they were the children of Christine Rosine Wieland, a sister of the intestate, who, at the time of the death of the intestate, was alive and an alien. As to them, therefore, even if they were citizens, section 22 of 1 Revised Statutes, page 754, does not apply. That section was taken substantially from the 11 and 12 Win. 3, chapter 6, and this has always been understood to apply only to the case of a deceased, not of a living ancestor.

In McCreery’s Lessee v. Somerville (9 Wheat. 354), which arose in Maryland under a statute substantially like the provision of the English act, the statute was construed in the same way.

So it has been held under the statute of New York that that did not enable a citizen to take by descent as the representative of an alien parent alive at the death of the intestate (People v. Irvin, 21 Wend. 128 ; McLean v. Swanton, 13 N. Y. 535).

These cases have settled the law to be, that when in the course of descent a title comes to an alien living; who, but for his alienage, would have been the heir, it will not pass through him but will pass by him to the next one who is competent.

Y. The defendants finally insist that the alien next of kin are entitled to take by descent, by virtue of the treaty of 1844, made between the United States and the kingdom of Wurtemberg, the said alien next of kin being subjects of that kingdom. That treaty allows subjects or citizens of either, party, to whom lands would have descended under the laws of the other but for their alienage, a term of two years to sell the same, and to withdraw the proceeds thereof without molestation. It also provides that the said term may be reasonably prolonged according to circumstances. More than five years having already elapsed since Hafner’s death, and the defendants having failed to show a prolongation of the term, it may be a serious question whether the alien claimants are still within the protection of the treaty, or whether, if they once lost it, they have any remedy left. For the treaty makes no provision as to the manner or means in or by which the prolongation may be applied for or granted, and it may well be that in the absence of appropriate legislation upon the subject, that part of it which calls for a reasonable prolongation remains a dead letter. The plaintiff also contends that the treaty as a whole has been impliedly abrogated. Upon reflection, I have come to the conclusion that these as well as all other questions arising upon this branch of the case, should be reserved for the trial of the issues. For the purposes of the present motion, it is sufficient to say that the rights of the alien claimants in that respect are not clear.

It appearing, then, that, aside from the questions arising under the treaty, all the objections against plaintiff’s claim are unfounded, that under the laws of this State the title to the property in question descended at the time of Hafner’s death to the plaintiff as the only heir competent to take it, and that there is danger that the rents and profits of such property may be removed by the defendant, Jacob Müller, beyond the jurisdiction of this court and of this State, the plaintiff has shown enough, according to well-settled rules of law, to entitle her to an injunction restraining such removal during the pendency of the action.

The motion for the continuance of the injunction during the pendency of the action must be granted, with ten dollars costs, to abide the event. Order to be settled on notice.


source: Caselaw Access Project

author: Curtis, J.,

license: Public Domain

text:
    MENDLICH GOTTBERG, Plaintiff and Respondent, v. WILLIAM C. CONNER, Sheriff, &c., Defendant and Appellant.
    CONVEYANCES TO HINDER AND DEFRAUD CREDITORS, &c., 2 JR. S. 137, §§ 1, 5.
    The statute does not contemplate that the title of a purchaser for value shall be impaired, unless the notice of fraudulent intent on the part of the vendor is a notice previous to the perfecting of the sale. The statute specifies, in such case, that the notice shall be a 11 previous notice,” but the plaintiff, in his request, omitted the word “previous,” and there was no error in the court declining to so charge, and charging the modification which was sound as a statement of law.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal by the defendant from a judgment entered June 16, 1876, in favor of (he plaintiff, for $1,522.95, and. from an order denying a motion on the minutes for a new trial. The action was for the wrongful seizure and conversion of the stock and fixtures of a store in possession of plaintiff, by the defendant, under authority of a warrant of attachment against the party owning the.business before plaintiff.
    The principal question upon the trial was as to the validity of the transfer of the business to plaintiff, as against creditors.

      Many exceptions were taken, especially to the judge’s charge, which are considered upon this appeal.
   Curtis, J.,

wrote for affirmance, with costs, holding principle laid down in head-note.

Sanford, J., concurred.


author: By the Court.—Curtis, Ch. J.

text:
    DAVID DIXON, Plaintiff and Respondent, v. BENJAMIN J. WENBERG, et al., Defendants and Appellants.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal from an order of the special term, directing judgment for plaintiff, on the answer of the defendants as frivolous.

      George A. Blade, for respondents.

      Mdward II. Hobbs, for appellants.
   By the Court.—Curtis, Ch. J.

The defendants stipulated, as agents for the owners of twelve thirty-seconds of a vessel, that the freights on a certain voyage should be collected by the plaintiff, who was to command the vessel. The voyage was made, and the freights, amounting to $700, were thereupon collected by the defendants, who claim that the vessel and owners are indebted to them for advances and services and commissions, which they allege they have the right to set-off against this sum.

The defendants are bound by their stipulation, and should comply with it. The right of the plaintiff to collect this money, in accordance with the defendants’ agreements that he should, is not prejudiced or affected, because, some other parties owe the defendants for advances, services and commissions, nor does it appear to be connected in any respect with the institution or discontinuance of the proceedings in admiralty, mentioned in the pleadings.

The order appealed from should be affirmed, with costs.

Sanford, J., concurred.


text:
    JACOB LORILLARD, Plaintiff and Appellant, v. WILLIAM P. CLYDE, and another, Defendants and Respondents.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal from an order of the special term, directing that the defendants have judgment on their demurrer to the plaintiff’s complaint, with leave to the plaintiff to amend his complaint as to the statement of the cause or causes of action, on payment of costs.

      Horace Barnard, for appellant.

      Andrew Boardman, for respondent.
   By the Court.—Curtis, Ch. J.

I think the demurrer should be sustained, for the reasons assigned in his opinion by the learned judge at special term, and that the order appealed from should be affirmed, with like leave to the plaintiff to amend his complaint.

Sanford, J., concurred.


author: Curtis, Ch. J.,

text:
    HENRY B. HEWITT, Plaintiff and Appellant, v. SAMUEL C. MORRIS, Defendant and Respondent.
    As between the keeper of a house of ill fame, and the landlord who rents the house for that purpose, and the person who equips it for the same purpose, neither has any advantage over the other in morals, and neither is to be more favorably considered by the court or jury in weighing testimony, and determining the credit to be given.
    Review of the evidence and facts in this case, by the court, from which there appears no good reason for disturbing the verdict.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal by plaintiff from a judgment upon a verdict in his favor of §1.05, and from an order denying a motion for a new trial upon the minutes.
    The action was brought to recover the value of certain personal property alleged to have been converted by defendant.
   Curtis, Ch. J.,

wrote for affirmance, holding principles above laid down.

Sanford, J., concurred.


author: Speir, J.,

text:
    THE AMERICAN MEDICINE COMPANY, Plaintiff and Respondent, v. ROBERT KEISLER, Defendant and Appellant.

    Appeal prom judgment.—What can be considered upon.—Conversion.

      The appeal is from the judgment only, and not from the order denying a motion for a new trial on the judge’s minutes. In order to bring up the case for review upon the facts there must be an appeal from the order denying the motion for a new trial.. The mere denial of a motion made upon the judge’s minutes presents no question of fact for review upon appeal from the judgment. The appeal should be from an order denying such motion, and exception taken thereto, if the facts are to be reviewed (Matthews v. Mayburg, 63 N. 7. 656). On the other hand, if it be claimed that the order denying such motion is an intermediate ordér involving the merits and affecting the judgment, the New Code requires that, before it can be reviewed upon an appeal from the judgment, it must be specified in the notice of appeal (§§ 1301, 1316). Questions of law, therefore, only are to be considered.
    Defendant offered to show that the plaintiffs had recovered in another action a verdict, including a demand of some of the property named in this action. The offer was not for a recovery of the some property. There was no offer to show that satisfaction had been obtained on the judgment, or that plaintiffs had made their election by suing out execution,—Held, inadmissible (Osterhout a. Roberts, 8 Gow. 43; Livingston v. Bishop, 1 Johns. 290).
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    This action, brought to recover damages for conversion of personal property. Plaintiff recovered a verdict, upon which judgment was entered, from which defendant appeals.

       See same case, 6 J. & S. 407.

   Speir, J.,

wrote for affirmance, with costs, holding above principles.

Freedman, J., concurred.


author: Freedman, J.,

text:
    SAMUEL ROWLAND, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN, &c., OF NEW YORK, Defendants and Respondents.
    Salaries of court officers, &c.
    The resolution of the board of supervisors of New York city, of May 26, 1870, increasing the salary of certain officials, held void under chap. 382, section 3, Laws of 1870.
    The claim of plaintiff, a court officer, for said increase, &c.,—Held, invalid.
    Before Speib, Sanford and Freedman, JJ„

      Decided November 4, 1878.
    Appeal from judgment.
    Plaintiff was appointed, in the year 1852, an attendant or officer upon the supreme court in this county, by the board of supervisors, and continued to hold that position until March 1, 1874. On December 20, 1866, his salary was fixed at the rate of $1,200 per annum, and he was paid at that rate from June 1, 1870, up to the time of his discharge.
    It was claimed on behalf of the plaintiff that, by virtue of a resolution passed by the board of supervisors on May 26, 1870, his salary was fixed, from and after June 1 of that year, at the rate of $1,500 per annum.
    This suit is brought to recover $639.55, being the difference between the two rates of salary ($1,200 and $1,500 per annum) from June 1, 1870, to July 19, 1872.
    On the trial the court held, as a conclusion of law, that the board of supervisors were, by section 3 of chapter 382 of the Laws of 1870, prohibited from increasing the salaries of court attendants, and that the resolution of May 26, 1870, was void.

      From the testimony of the plaintiff it appeared that he waited and attended on two judges at their houses and at the court-house, carrying papers and letters, and went out on business of different kinds for the judges, fixed their benches, locked up the court stationery, attended the door, and other work of a similar character; that he never took an oath of office nor administered an oath to a witness, but assisted particular officers in their care of a jury, brought up the rear, and closed the door.
   Freedman, J.,

wrote as follows :—The main question involved has been decided by the court of appeals in Sweeny v. Mayor, &c. (58 N. Y. 625 ; affi’g 5 Daly, 274), and that decision is fatal to plaintiff’s claim. It is an express decision of the question before us, and as such it has never been modified or questioned. The mere fact, therefore, that the reasoning of a few later cases, involving somewhat similar, but really different questions, seems to indicate a change of views, affords no justification for this court for a departure from it.

The judgment should be affirmed, with costs.

Speir, J., concurred.


text:
    HENRY SCHILE, Plaintiff and Respondent, v. WILLIAM BROKHAHNE, Defendant and Appellant.

    Before Speir, Sanford and Freedman, JJ.

      Decided November 4, 1878.
    Appeal by defendant from judgment entered upon the verdict of a jury, and from order denying motion for a new trial on the minutes.

      L. H. Rowan, for appellant.

      Néhrbas & PitsTike, for respondent.

       See same case as to “ Bill of Particulars, (6c.,” 9 J. & S. 353.

   This case involved mainly questions of fact.

Freedman, J., wrote for affirmance, with costs.

Speir, J., concurred.


author: Per Curiam.

text:
    DAVID G. McKELVEY, Plaintiff and Respondent, v. PRYCE LEWIS, Defendant and Appellant.
    I. Judgment.—Amendment of, after appeal.
    1. RECEIVER GIVEN ADDITIONAL POWERS.

      (a) A judgment dissolving a copartnership and appointing a receiver maybe amended, after appeal therefrom, by the insertion of a clause directing the. receiver to take possession of the partnership property, and ordering the parties to deliver the same to the receiver, and by the insertion of a clause authorizing and directing the receiver to sell and dispose of the partnership property, “ under and pursuant to the usual course and practice of this court, and to collect and receive the outstanding debts due to the said firm, and to hold and keep the proceeds of such sales and collections, until the final determination of this action or the further order of this court.”
    This, although the appellate court has become possessed of the cause upon the appeal.
    Before Sanford and Freedman, JJ.

      Decided November 4, 1878.
    In this case, after an appeal had been taken by defendant, to the general term, from the special term judgment dissolving a copartnership that had existed between plaintiff and defendant, and appointing a receiver, and after the general term had affirmed the judgment below, and after the defendant had appealed to the court of appeals from said judgment of affirmance, and while that appeal was still pending in the court of appeals, and that court had possession of the cause on appeal, the plaintiff moved at special term that the judgment be amended by the insertion of the clauses set forth in the head-note. The court at special term granted the motion, and the defendant appealed.

      Andrew II. II. Dawson, of counsel, for defendant and appellant.

      H. E. Davies, Jr., and G. I. Whitehead, of counsel, for plaintiff and respondent.
   Per Curiam.

The order and judgment as amended should be affirmed, with costs.


text:
    EMILE S. LEGRAND, Plaintiff and Respondent v. MANHATTAN MERCANTILE ASSOCIATION, Defendant and Appellant.
    CORPORATION.
    1. EVIDENCE IN SUPPORT OF DEFENSE BY, NOT ADMISSIBLE.
    (a) In an action brought to recover for services rendered from December 1, 1874, to June 22, 1878, as a general banking clerk and French correspondent, at a stipulated compensation, the answer denied all the allegations of the complaint, except the allegation that defendants were an association; theininutebook of the corporation is not admissible on its own behalf, for the purpose of showing that there was no resolution of the board of directors authorizing the plaintiff’s employ.

      Exceptions to the sustaining of general objections to the following questions are not well taken.

    Q. Do you know whether the directors of the company ever authorized the employment of anybody for the purpose of making a code?
    Q. Was a code, such as you have heard described by this witness, necessary, or did it appertain in any way to the business of that corporation.
    Q. Had the company at this time any use, or was it engaged in any business, in which a code could be used?
    Q. As treasurer of the Manhattan Mercantile Association, did you ever have in your possession a dollar of money?
    Q. Do you know, as Treasurer of the Manhattan Mercantile Association, or otherwise, whether 500 shares of the capital stock of that company were subscribed for and 25 per centum thereof paid in?
    Q. Was there ever the sum of $25,000 paid into the company?
    Q. Did the company ever do any business other than that of appointing a board of directors?
    2. EVIDENCE IN SUPPORT OF CLAIM SUFFICIENT.

      (a) In such action as above, plaintiff, by his own testimony, showed that one of the directors employed him as French correspondent and general clerk, at a certain salary per month; that the company was doing no business; that it was understood he was first to make a telegraphic code, and when business came he was to be French correspondent and to do all the work which would be given him; that he was set at work on a telegraphic code for the company; that all the officers of the company knew he was at work on this code: that there was a slip prepared for entry in the book in which all the salaries to April 1, 1875, including his own, was entered; that every director of the company at that time had seen the slip, that the secretary had frequently told' him the amount of his salary, that the making a telegraphic code was no part of his duty as banking clerk or French correspondent.
    Held,
    Sufficient .to support a direction for a verdict in plaintiff’s favor.

      Decided November 4, 1878.
    In this case the trial judge directed a verdict for plaintiff. From the judgment entered upon this direction defendant appealed.

      Gardñner á Goodheart, attorneys, and Samuel B. Garvin, of counsel, for appellant.

      Charles A. Jackson, attorney, and Richard Mathews, of counsel, for respondent.
   Per Curiam.

The judgment should be affirmed, with costs.


author: By the Court.

text:
    EDWARD K. RAUBITSCHEK, Plaintiff, v. JACOB BLANK, Defendant.
    l. Fraudulent representations.—Defense op, must be pleaded.
    1. CHECK SUED AS AGAINST MAKER BY A HOLDER AFTER DISHONOR.

      (a) Defense of fraudulent representation by the payee to the maker, must be pleaded.
    II. Real property.—Exchange op.
    1. STATUTE OF FRAUDS ; CONTRACT, SUFFICIENCY OF, UNDER.

      (d) A check signed by one of the parties, and a receipt given for the check, stating that the check was given on the exchange of properties, mentioning them, and stating the prices of the property, signed by the other party, constitutes a valid contract as against the party signing the receipt, and raises a sufficient consideration for the check.
    m. Check.
    1. Consideration, what is sufficient.

    See Real Property, supra.

    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    Exceptions heard at general term.

      This action was brought on a check made by defendant, to the order of George Herdfelder. The answer alleged that the check was given without any consideration, and that it was transferred to plaintiff after presentment and dishonor, and with full knowledge of all the facts.
    On the trial it was conceded that the transfer to plaintiff was after the dishonor of the check, and that plaintiff knew that fact.
    It appeared there was an oral agreement between the maker and payee for an exchange of real estate.
    In pursuance of this agreement, the maker gave the check in suit, and the payee gave to the maker a receipt which specified that the check was received on the exchange of the properties, mentioning them and stating their prices.
    It was verbally understood that the parties were to meet the next day and enter into a formal contract.
    They did not do so because the maker of the check backed out of the bargain.
    The check and the receipt were the only writings entered into.
    It did not appear whether the signer of the receipt still held the property he proposed to exchange or not, as the evidence offered on that subject was, upon objection, excluded.
    Defendant offered to prove that at the time the check was given, Mr. Eaubitschek himself being present, he made certain representations in regard to the property; that, on ascertaining the next morning their falsity, the defendant refused to carry out the bargain ; and that Eaubitschek was the agent of Herdfelder in making that bargain.
    This was excluded, and exception was taken.
    The trial judge directed a verdict for the plaintiff, and ordered the exceptions to be heard at a general term, in the first instance.

      John P. Schuchman, attorney, and Thomas Darlington,, of counsel, for defendant,
    Cited: Wright v. Weeks, 25 N. Y. 153; Davis v. Shields, 26 Wend. 341; Deery v. Parker, 52 N. Y. 494; Cagger v. Lansing, 49 Id. 550 ; Levy v. Brush, 45 Id. 589; De Bearski v. Page, 36 Id. 537.

      Kurzman and Yeaman, attorneys, and of counsel, for plaintiff.
   By the Court.

The exceptions must be overruled and judgment ordered for the plaintiff, with costs.


text:
    THE PACIFIC PNEUMATIC GAS COMPANY, Plaintiff and Respondent, v. JOHN W. WHEELOCK, Defendant and Appellant.
    I. Judgment of supreme court op California on appeal.
    1. NOTICE OF APPEAL.

      {a) Not necessary one should appear in the judgment roll in order to render it admissible in evidence.
    1. The judgment record contained an order made by the supreme court reversing a decision of the court below, also an opinion given by the court on such reversal, also an order entered in the court below, reciting the filing of the remittitur from the supreme court, reversing the order and judgment theretofore made by such court, and in pursuance such rermttit/wr ordering that judgment be entered in favor of defendant against plaintiff for $595.66, principal and interest, all in gold coin of the United States; also a postea entered in conformity with the order so entered on the remittitur, but it contained no notice of appeal. ,
    Held,
    that the record was admissible. It will be presumed that the supreme court became properly possessed of the cause on appeal. The absence from the record of a notice of appeal does not overcome this presumption.

      II. California.
    1. STATUTE LAW OF, HOW PROVED.

      (a) By a volume having on its titlepage the following: “The statutes of California, passed at the fourteenth session of the legislature, 1863. Begun on Monday, the fifth day of January, and ended on Monday, the twenty-seventh day of April.
    “Sacramento :
    “ Benjamin P. Avery, State Printer.
    “1863,”
    and the testimony of a practitioner at the bar of that State, who stated that that edition was recognized by the bar and courts of that State, and was in fact the only one they had to use, but was unable to state whether he had himself used or had seen others use a volume of that edition in the courts.
    Before Sanford and Freedman, JJ.

      Decided November 4, 1878.
    This action was brought upon a judgment for costs, entered in the third district court of California, in an action brought in that court by this defendant as plaintiff therein against this plaintiff as defendant therein. The judgment was entered in favor of the defendant in that action against the plaintiff therein, upon a remittitur sent down to that court by the supreme court, reversing* with costs a judgment theretofore rendered by that court in favor of the plaintiff against the defendant.
    On the trial of this action the counsel for defendant herein objected to the reception in evidence of the record of the judgment sued on, because it contained no notice of appeal to the supreme court. The objection was overruled, and an exception taken.
    He also objected to the reception of a printed volume of the laws of California, on the ground that it did not purport to have been “ published by authority of the State of California,” and that it was not proved that this volume or one of the same edition had ever been admitted in the judicial tribunals of California, as evidence of the laws existing in that State. This objection was also overruled and an exception taken.
    The cause was tried before a judge without a jury. The judge before whom it was tried directed judgment for plaintiff for the costs adjudged by the judgment sued on, with interest thereon.
    From the judgment in conformity with this direction defendant appealed.

      Robertson & Robertson; attorneys, and of counsel, for appellant.

      Joseph P. Osborne, attorney, and of counsel, for respondent.
   By the Court.

The judgment should be affirmed, with costs.


text:
    MARY M. BABCOCK, Administratrix of the goods, &c., of CHARLES A. BABCOCK, deceased, Plaintiff and Respondent, v. SAMUEL BONNELL, Jr., Defendant and Appellant.
    I. Accord and satisfaction.
    1. PAYMENT OF A LESSER FOR A GREATER SUM.

      (a) When a holder of promissory notes accepts from the maker less than their face, and surrenders the notes to the maker, there is a complete accord and satisfaction, and the maker is discharged from all liability on the notes and on the indebtedness for which they were given.
    II. Stoppage in transitu.
    1. EFFECT OF, AS CAUSING FAILURE OF CONSIDERATION.

      (a) When a note is given for the purchase price of goods, and the goods while in transitu are stopped by the vendor, who takes possession thereof and sells them, the consideration for the note fails, and as between the original parties the maker is discharged from all liability thereon, and on account of the purchase.
    HI. PROMISSORY NOTES.
    1. Surrender of, operating as accord and satisfaction.
    Seo supra.

    2. Failure of consideration, what will cause.

      (a) Stoppage in transitu.
    See supra.

    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    This action was in effect to recover from defendant the amount of insurance received by her upon a policy of insurance for $5,000, dated February 22, 1870, issued upon the life of C. A. Babcock, for the benefit of defendant as a creditor. The loss by the policy was made payable to defendant. All the premiums were paid by the defendant.
    The action was tried before the court without a jury.
    An underlying question of fact arose on the trial, viz. : whether the policy was taken out as collateral security, for an indebtedness of the firm of C. A. Babcock & Co. to defendant, or as payment for the balance of • such indebtedness, after applying thereto this defendant’s percentage (or share) of the assets of the firm of C. A. Babcock (which was this insolvent), as soon as they could be turned into money, and the sum of $705.63, derived from the sale of a cargo of coal consigned to C. A. Babcock and Co., but sold only to this defendant; the court found it was taken out as collateral security. The question then arose whether the indebtedness for which it was taken out as collateral still remained outstanding. The defendant claimed that that indebtedness consisted of three notes, dated September 30, November 11, and November 15, 1869.
    As to the note of November 15, it appeared in evidence that it was given for a cargo Af coal sold to Charles A. Peabody & Co. by defendant, which coal was shipped to that firm; that defendant stopped the coal in transitu, and took possession of it on February 21, 1870, and thereafter sold it.
    As to the notes of September 30 and November 11, it appeared that one Wheelwright, acting under the following letter from C. A. Babcock & Co. (which firm was then insolvent), to wit:
    Office of C. A. Babcock & Co., ) Bangoe, 19 March, 1870. j
    Samuel Bokwell, Jr., Esq., New York.

      Bear Sir: Our friend, J. S. Wheelwright, Esq., will visit New York in the early part of next week, and we will avail ourselves of the opportunity to have him arrange for the settlement of your claim against us, leaving in abeyance the cargo of Hepzibah, and the note given in settlement of same. We have not yet heard from the New Boston Coal Mining Company, and presume Mr. Ogden has not yet been able to go to his office. Yours, truly,
    C. A. BABCOCK & CO.
    —paid to defendant $925, and received therefor these two notes, which he subsequently surrendered to C. A. Babcock & Go.
    The court held the consideration for the npte of November 15 wholly failed, and that the notes of September 30 and November 11 had been compromised and settled, and the liability of C. A. Babcock to the defendant thereon had been extinguished. And further held that the entire indebtedness of C. A. Babcock & Co. to the defendant was satisfied and discharged before the death of Charles A. Babcock.

      The following opinion was delivered in the court below:
    Sanford, J.—“ Upon the evidence in this case I am satisfied, and therefore find, as matter of fact, that the defendant never acquired or had any interest in the policy upon the life of plaintiff’s intestate, or in the money to accrue and become payable thereon, except as a creditor of the firm of C. A. Babcock & Co., whereof the plaintiff’s intestate was a member, and to the extent of his claim against that firm. As such creditor, and to the extent of such indebtedness, he held the policy as collateral security. The claim set up in his answer of an absolute and indefeasible title to the policy, and of the receipt by him in payment and satisfaction of his demand, is wholly unsupported by the evidence, and, indeed, is refuted by his own letters and his testimony.
    “ I further hold and find that the entire indebtedness of that firm to the defendant was satisfied and discharged before the death of said intestate. Under the circumstances of the case, as they appear in evidence, the transfer by defendant to Wheelwright of the two notes, dated respectively September 30 and November 11, 1869, and their subsequent transfer and surrender by Wheelwright to the firm of C. A. Babcock & Co., operated as a compromise and settlement thereof, and extinguished the liability of that firm to the defendant thereon. The seizure and sale by defendant of the coal shipped by the Hepzibah discharged the liability of C. A. Babcock & Co. upon their note of November 15, 1869. The consideration of that note wholly failed when the defendant assumed to stop the coal in transitu, and to sell it to Farrar. There is no evidence that C. A. Babcock & Co. ever agreed to make good to defendant the difference between the price paid by Farrar, and the amount of their note. The evidence fully warrants the inference that, as between them and the defendant, the sale was rescinded, and that the defendant subsequently dealt with Farrar on his own and not on their account. The sale to Farrar was consummated May 4, 1870, and thereafter the defendant held the policy only as security for the reimbursement of premiums paid by him thereon.
    “I do not think that the plaintiff should be estopped, by her intestate’s disclaimer, on the part of himself and his family, of a “wish to have any interest or advantage in it,” from asserting her legal rights under the policy, nor does the language of such disclaimer seem to me sufficient to change the legal relations previously existing between her intestate and the defendant. It is at most the expression of an erroneous opinion as to those relations, and, in my judgment, concludes no one.
    “If the amount already received by the defendant on account is insufficient to reimburse the premiums paid by him with interest, he may be allowed the deficiency out of the fund in court, subject to such allowance; the fund must be paid to the' plaintiff; judgment is ordered accordingly, but no costs are allowed to either party.”
    Judgment was entered in conformity to this decision, adjudging that plaintiff was entitled to' the amount received by defendant upon the policy,. less the premiums paid by him, and interest, and adjudging that as to so much of the premiums paid by defendant as to which he had not been reimbursed out of moneys received by Mm upon the policy, with, interest, be paid out of the fund on deposit in the United States Trust Company (in which company, by an order of this court, the amount received by defendant on the policy, less certain premiums, and the interest thereon, had been deposited), and that the balance of said fund be paid to plaintiff.

      From this judgment defendant appealed to the general term.

      N. & If. Niles, attorneys, and W. W. Niles,, of counsel, for appellant.

      Davies, WorJc, McNamee & Hilton, for respondent.
   Per Curiam.

The judgment should be affirmed on the opinion delivered at special term, with costs.


author: Cubtis, J.,

text:
    WILLIAM ARROWSMITH, Receiver, &c., Plaintiff and Respondent, v. TIMOTHY O’SULLIVAN, et al., Defendants and Appellants.
    Fraudulent conveyances.—Refusal to find.
    One who sells goods to a party, after a conveyance by him, presumptively void as against creditors, but before actual change of possession, is a creditor, within the meaning of the statute.
    Exceptions to the refusal of a judge or referee to pass upon questions of fact present no questions for review on appeal.
    Before Curtis, Ch. J., and Freedman, J.

      Decided January 6, 1879.
    Appeal by the defendants O’Sullivan and wife, from a judgment adjudging certain sales of O’Sullivan as fraudulent and void.
    The action is brought by the plaintiff as receiver, for the benefit of certain judgment creditors of the defendant Timothy O’ Sullivan, to set aside as fraudulent conveyances of real and personal estate, executed by him. to his wife’s brother j and by the latter conveyed to the defendant, Mary O’Sullivan, the wife of the judgment debtor.

      The said creditors sold defendant the goods, for the price of which their judgments were recovered, after the conveyances in question, but before actual change of possession thereunder.
    Upon the settlement of the case, certain questions of fact were presented, and the court was requested by defendant to pass upon them, but refused, because they should not be in such form, and because they were immaterial, or referred to items of evidence rather than to conclusions of fact.

      Henry A. Brann, attorney, and of counsel, for appellant,
    Cited, as to conveyances, &c.: Babcock v. Ecklen, 24 N. Y. 630 ; Loeschigk v. Hatfield, 5 Rob. 29 ; Larremore v. Campbell, 60 Barb. 67; Lee v. Hunton, Hoff. Ch. 457.

      Louis M. Doscher, attorney, Stephen B. Brague, of counsel, for respondents,
    Cited, as to conveyances, &c.: 2 R. S. 136, §§ 5, 6; 1 Smith’s L. C. (7 ed.) 40; Tillson v. Terwilliger, 56 N. Y. 273 ; Fielder v. Day, 2 Sandf. 594 ; Savage v. Murphy, 8 Bosw. 75; Randall v. Parker, 3 Sandf. 69 ; McCarthy v. McQuade, 1 Sweeny, 387. As to refusals to find: Code, § 1023; Van Slyke v. Hyatt, 46 N. Y. 264; Caswell v. Davis, 58 Id. 228; Gove v. Hammond, 48 How. 385.
   Cubtis, J.,

wrote for affirmance, with costs, holding propositions laid down in head-note.

Fbeedman, J., concurred.


text:
    JAMES OFFICER, Plaintiff and Respondent, v. JOHN J. BURCHELL, Impld., &c., Defendant and Appellant.
    Before Curtis, Ch. J., and Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal by the defendant Burchell, from so much of the judgment in foreclosure as charges him with deficiency.

      (Jharles A. JaeJcson, for appellant.

      William McDermott, for respondent.
   The case involves only questions of fact.

Curtis, Ch. J., wrote for affirmance, with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    WILLIAM A. LEONARD, Plaintiff and Respondent, v. THE N. Y. CENT. & H. R. R. R. CO., Defendant and Appellant.
    Statutory report op R. R. Co’s.—Evidence.
    A copy of report of a railway company to State engineer and surveyor, in accordance with 2 B. 8. (6 ed.) p. 534, section 45, subd. 102; and lb. p. 552, section 99 (duly certified by the deputy State Engineer); under 1 B. 8. (6 ed.) p. 558, section 7 ; J5. p. 415, section 7; and Code. Oiml Pro., section 933, is competent evidence of a material admission made therein by the defendant as a corporation, with respect to the injury complained of.

      Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from judgment entered upon the verdict of a jury and from order denying defendant’s motion on the minutes for a new trial.

      Frank Loomis, for appellant.

      Edward GebJiard, attorney, and Dewitt Q. Brown, of counsel, for respondent.
   Freedman, J.,

wrote for affirmance of judgment and order, with costs, holding above propositions; also holding that the case below was properly tried, and that none of defendant’s exceptions were well taken, under the rulings of the general term, upon the first appeal in this case, when the evidence and authorities were carefully examined (42 N. Y. Super. Ct. 225).

Sedgwick, J., concurred.


text:
    BRICE P. WALLING, Plaintiff and Appellant, v. CHARLES H. SCHWARTZKOPF, Defendant and Respondent.
    Sale of goods with warranty.—Recoupment.—Indefinite pleading, REMEDY FOR.
    The rule that the acceptance and retention of the goods by the buyer without complaint of defects, after a reasonable time and opportunity for examination has elapsed, is a waiver of all objections to quality, and estops him from recovering damages for defects, applies only to cases of executory contracts without warranty. In case of a warranty, his right to recoup the damages arising from a breach of the warranty survives the acceptance (Day e. Pool, 52 IT. T. 416 ; Bounce v. Bowe, 57 Id. 16; Marcus v. Thornton, et al., reported supra).

    Held, that both defendant’s counterclaims were good on demurrer. If greater certainty and definiteness were required, the remedy was by motion.
    Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from an order, and the judgment entered thereon, overruling plaintiff’s demurrer to two counterclaims set up in the answer of the defendant, with leave to plaintiff to reply on the usual terms.
    The complaint is for an alleged indebtedness upon an account for milk sold and delivered. This account is not put in issue by the answer, which contains two distinct counterclaims. To these plaintiff demurred on the ground of insufficiency.
    The first states a breach by plaintiff of the very contract under which the milk was sold and delivered, the particulars of the breach, and the loss sustained by the defendant thereby.
    The second is based upon a breach of warranty. It sets forth the warranty of the milk, its breach, and the particulars thereof, and defendant’s loss in consequence thereof.

      J. Stewart Ross, attorney, and counsel, for plaintiff and appellant,
    Cited : Reed v. Randall, 29 N. Y. 358, and cases cited; Rust v. Eckler, 41 Id. (2 Hand), opinion of Daniels, J., p. 491, and of Woodruff, J., p. 494; Delafield v. DeGrauw, 42 Id. (3 Keys), 467; Normington v. Cook, 2 N. Y. Supm. Ct. (T. & C.) 423 ; Leavenworth v. Packer, 52 Barb. 132; Flanagan v. Demarest, 3 Robt. 173 ; Woodruff v. Peterson, 51 Barb. 252.

      Simon Sultan, attorney, and of counsel, for respondent,
    Cited : Lee v. Beebe, 6 Weekly Dig. 206 ; Vischer v. Greenbank Alkali Co., 11 Hun, 159 ; McKnight v. Devlin, 52 N. Y. 399 ; Mount v. Lyon, 49 Id. 552 ; Moak Van Santvoord's Pleadings, 3 ed. 425 ; Muller v. Eno, 14 N. Y. 507; Rust v. Eckler, 41 Id. 488 ; Day v. Pool, 52 Id. 416 ; Parks v. Morris Ax & Tool Co., 54 Id. 586 ; Vincent v. Leland, 100 Mass. 432; Willard v. Merritt, 45 Barb. 297; Benjamin on Sales, §§ 894, 896, 869, 870, 880; Wells v. Selwood, 61 Barb. 238.
   Freedman, J.,

wrote for affirmance of order and judgment, with costs, with leave to plaintiff, upon payment of such costs and those imposed below, to withdraw his demurrers and serve a reply within twenty days.

Sedgwick, J, concurred.


text:
    WILLIAM L. DRUMMOND, Plaintiff and Appellant, v. GEORGE W. CARLETON, Defendant and Respondent.
    Before Curtis, Ch. J., and. Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from judgment entered upon the report of a referee dismissing plaintiff’s complaint upon the merits, with costs.

      Wm. A. Copp, for appellant.

      Edmund Coffin, Jr., for respondent.
   This case involves only questions of fact.

Per Curiam.

The judgment should be affirmed with costs, on the opinion of the referee.


text:
    JOHN S. ROSS, Plaintiff and Appellant, v. ELIZABETH HARDEN, Adm., Defendant and Respondent.
    Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from judgment, dismissing complaint on trial by jury.

      Gr. W. Lord, MoaTc <6 Lyddy, for appellant.

      John E. BurriTl, for respondent.
   Per Curiam.

The judgment should be affirmed, upon the opinions given, on the decision by two former general terms, in March, 1876, and November, 1877 (42 Sup’r Ct. 427, ante, p. 26).

Judgment affirmed, with costs.


text:
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. JOHN M. FALCONER, Defendant and Appellant.
    I. Re-abgument.
    1. WHEN ORDERED.

      (a) When the former decision is based in part on a decided case, which has subsequently been reversed by the court of appeals.

      Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    Motion by appellant for a re-argument of the appeal herein.

      Abner O. Thomas, for appellant.

      O. F. Wells, for respondent.

       Note.—For the opinion delivered on the first argument, see ante, p. 132.

   By the Court.—Curtis, Ch. J.

The defendant is sued as one of the makers of two promissory notes by the indorsee. The defense is, that the payees of the notes own them, and that they are the real parties in interest and not the plaintiff, and that his possession of them is merely as their agent to collect them and remit the proceeds. At the trial the defendant offered to show this, but it was excluded by the court, and there was a verdict for the plaintiff.

The defendant appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial. The judgment and order were affirmed upon appeal. The opinion of the court to some extent rested upon the decision of Hayes v. Southgate (10 Hun, 511). Since then, the latter case has been before the court of appeals and reversed (18 Alb. L. J. 318). In view of this and of the decision in Taylor v. Sarget (6 Weekly Dig.), the appellant’s motion should be granted.

Sedgwick and Freedman, JJ., concurred.


author: Van Vorst, J;,

text:
    WILLIAM F. BONYNGE, Plaintiff and Appellant, v. DAVID DUDLEY FIELD, et al., Defendants and Respondents.
    Stenographers.—Attorneys’ liability f.or services of.
    This action was brought by the plaintiff, a stenographer, to recover the value of services alleged to have been rendered by him at defendant’s request, &c., in taking minutes of testimony, &c., in certain legal proceedings in which defendant appeared as attorney for one of the patties thereto.

      Held, that the defendant being the agent of a known principal, did , not incur a personal liability by simply requesting the performance of such a service for his client, and also that there wás no evidence in the case of an agreement on his part to be liable therefor, nor anything from which it could be safely said that it was the intention of the parties that the defendants should be so responsible (Bonynge ». Waterbury, 12 Run, 534 ; and Sheriden a. Genet, Id. 660, followed).
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Appeal from judgment dismissing the complaint.

      BusJinell & Albright, attorneys, and 8. Jones, of counsel, for plaintiff and appellant.

      Charles F. Bauerdorf, for defendant and respondent.
   Van Vorst, J;,

wrote for affirmance, with costs, holding the proposition laid down in the head-note.

Speir, J., concurred.