text:
    Albert A. Fletcher, Respondent, v. Myron C. Barber and Another, Appellants.

      Devise not frustrated by an error in description — foreclosure of a mm'tgage — a defendant having a title superior to that of the mortgagor, when estopped by the judgment.

    Where there are any particulars or statements contained in a will showing the lot of land intended to be devised thereby, the addition of a circumstance, false or mistaken, will not be allowed to frustrate what appears to be the intent of the testator.
    Where, in an action brought for the foreclosure of a mortgage, a person whose title to the mortgaged premises is superior and prior to that of the mortgagor is made a defendant, and it is alleged in the complaint that he has some claim to or interest in the mortgaged premises, which, if any, accrued subsequently to the execution of the mortgage, ordinarily such person’s rights will not be affected by the foreclosure judgment, nor will he be estopped thereby from afterwards asserting his title t® the premises in question, but it is otherwise if -the defendant in a foreclosure action so made a party sets up by answer his prior right or claim to the premises, and, stating the facts in regard to his ■interest therein, asks the court to determine as to his title thereto. The judgment entered in such an action, fixing the rights of such defendant, estops his heirs and privies from thereafter asserting any title to the premises other than that determined by such judgment.
    Appeal by the defendants, Myron 0. Barber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 19th day of February, 1894, upon the decision of the court, rendered after a trial at the Franklin Circuit, before the court without a jury, adjudging that the defendants had no right, title or interest in certain real ■estate; that they wrongfully withheld the same from the plaintiff, .and that the plaintiff recover the immediate possession thereof.

      Jolvn 1. Gilbert, for the appellants.

      Oa/nkoell do Oantwell, for the respondent.
   Putnam, J.:

It is doubtful whether, under any authorized construction of the will of ’William Scranton, deceased, it could be held to have conveyed to Myron Barber (through whom defendants claim title) more than ten acres of the land to recover which this action is brought. Tlie description in the devise is indefinite, only extending part way around the lot. No boundaries are given on the north or east side. Nor is there any general or otiier description of the land sought to be devised, or any statements contained in the will, that enable us to determine the intent of the testator.

It is true that if there were any particulars or statements contained in the will showing the lot of land intended to be devised, the addition of a circumstance false or mistaken would not frustrate what appeared to be the intent of the deceased. (Lush v. Druse, 4 Wend. 314, 318, 329.)

But it is said in Thayer v. Finton (108 N. Y. 394-397), in regard to deeds, that “ while it is the settled rule that such conveyances, shall be construed so as to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, it is equally well settled that nothing will pass by a deed except what is described in it, whatever the intention of the parties may have been. (Coleman v. Manhattan Beach Co., 94 N. Y. 229.)”

In this case it seems difficult to construe the description contained in the devise in question in any way so as to make it cover the land, to recover which this action is brought.

We should, therefore, be inclined to concur in the view taken by the learned counsel for the appellants were it not for the proceedings, and judgment in a prior action brought by the plaintiff against Susan Barber, defendants’ ancestor. That action was brought to foreclose a mortgage executed by William Barber to plaintiff on the thirty-six acres which are the subject of this action and other premises against William Barber and Susan Barber, the complaint alleging that Susan Barber had, or claimed to have, some interest in, or lien upon, the-said mortgaged premises or some part thereof, which interest or lien, if any, had accrued subsequently to that of said mortgage. In the complaint all the mortgaged premises, including the thirty-six acres, were properly described. The complaint alleged that, about thirty-six acres of the whole lot therein described was subject to the life interest of Susan Barber.

Susan Barber in her answer made, among others, the following allegations: “ That said William Scranton, by his last will and testament, did give, devise and bequeath unto this defendant the use and occupation of about forty (40) acres of the premises mentioned and described in the complaint, to have and to hold the same during the period of her natural .life, and at her decease unto Myron Barber and his heirs forever* * * that on or about the 31st day of August, 1863, this defendant purchased from said Myron Barber all the right, title and interest of the said Myron in and to the premises devised to him by- said William Scranton, deceased, as aforesaid, and paid to him therefor the sum of five hundred dollars; that on said 31st of August, 1863, said Myron Barber and Julia Barber, his wife, at the instance and request of this defendant, executed a deed of conveyance of said premises to the defendant William W. Barber; that said premises were conveyed to said William W. Barber without any consideration having been received by the defendant for the same, and were so conveyed, not for the purpose of vesting the title thereof in said William W. Barber, but for the purpose, and with the understanding, -that he should have and hold the same only until such time as defendant should sell said premises or demand a reconveyance thereof to -her, and defendant has at all times since the date aforesaid used and occupied said premises, and is now in possession thereof.”

The judgment in said former action contained a provision that thirty-six acres of the mortgaged premises were subject to the life estate of said Susan Barber, and the sheriff’s deed to plaintiff, who was the purchaser at the mortgage sale, contained the same provision. The will of William Scranton, deceased, was admitted to probate on the 18th of June, 1862, and this action was commenced on June 2,1893.

It will he seen from the above-quoted extract from the answer of Susan Barber in the former foreclosure action brought by the plaintiff, that she expressly admitted that under the will of William Scranton, deceased, Myron Barber took title to the premises in dispute subject to her life interest therein, and that she purchased his interest for $500; and he afterwards, at her request, conveyed the premises to William Barber (who afterwards executed the mortgage to plaintiff to foreclose which the action was brought) under an agreement that he should hold the title to the same until such time as defendant should sell the premises or demand a reconveyance, and that she has continued in the occupation thereof since such conveyance.

In her answer she asked for the following relief: “ That the rights, ' interests and equities of the defendant in and to the pi’emises described in the complaint may be adjudged and determined.”

The court, as it could properly do, in pursuance of the prayer contained in the answer of Susan Barber, found that she was entitled to a life interest in thirty-six acres.

It will be seen, therefore, that Susan Barber, in her answer in the foreclosure action, admitted the title of Myron Barber to the premises in dispute, and the conveyance thereof by the latter to the mortgagor, William Barber, and claiming some equitable interest in the premises, asked that her rights and interests therein be determined by the court. ■ ■

It is true that, ordinarily^ where, in an action for the foreclosure of a mortgage, a person whose title to the premises is superior and prior to that of the mortgagor, is made a defendant, and it is alleged in the complaint that he has some claim to or interest in the mortgaged premises, which, if any, accrued subsequently to the execution of the mortgage, such person’s rights will not be affected by the foreclosure j udgment, nor will he be estopped thereby from after-wards asserting his title to the pi’emises in question. (Payn v. Grant, 23 Hun, 134; Lee v. Parker, 43 Barb. 611.)

But it is otherwise if the defendant in a foreclosure action so made a party sets up by answer his prior right or claim to the premises, and, stating the facts in regard to his interest therein, asks the court to determine as to his title thereto. In Goebel v. Iffla (111 N. Y. 170-177) it was said : “And, moreover, that if the facts upon which the plaintiff relies to defeat that prior title are stated, the defendant whose title is thus assailed may demur to the complaint upon the ground that the plaintiff has no right to bring him into court upon the foreclosure to try the validity of his title, yet, if the party so made a defendant should,' instead of demurring, answer and litigate the question, and then judgment should go against him, no case decides that the judgment would not conclude him in a collateral action.”

Susan Barber, although not compelled to, voluntarily elected in her answer to state the rights and'interest of herself, Myron Barber and William Barber to the disputed premises, and claimed an equitable interest therein, asking the court to determine her rights in the premises. She voluntarily raised an issue as to her rights in the premises, and submitted such issue to the determination of the. court. We think, therefore, that the judgment entered in the action estopped the said Susan, and, lienee, the defendants who claim the land under her, from asserting any other title to said premises than that determined by such judgment.

We cannot regret reaching this conclusion. Susan Barber occupied the disputed tract for thirty years under the will of William Scranton, deceased. She apparently assumed that the will conveyed the land in dispute to her for life, with a remainder to Myron Barber, and accepted and had the benefit of the provision in her favor for the said period of thirty years. It seems, therefore, to be just that her descendants should not succeed in their contention in this action.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John O. Jefferey, Appellant, Indicted jointly with Clarence Crapser and John Rusaw.

      Indictment charging the obtaining of money under false pt'etenses — what justifies a conviction — evidence as to cha/racter — cross-examination — what evidence warrants a conviction.

    An indictment alleged that the defendants, at the time mentioned, feloniously, fraudulently and designedly, and with intent to cheat and defraud another, procured and obtained the signature of such other person to certain notes described therein by means of the false and fraudulent representations and pretenses therein set forth, and, after stating the representations made, further alleged that each of said representations was false to the knowledge of the defendants.

      Held, that the indictment should be sustained upon demurrer, although it did not allege that the person defrauded believed or relied upon the alleged representations of the defendants, or that he was thereby induced to sign the notes in question.

      The defendants, upon their trial in a criminal action, were shown to have procured the signature to certain notes hy the complainant, hy agreeing that a certain corporation or firm should thereafter pay him certain sums for oats, alleging that the corporation or firm was solvent.

      Held, that if the representation as to the solvency of the firm was false, it was a false representation as to a fact existing at the time of the making thereof;
    That a false pretense, under which such persons might be convicted, was not the false promise but the untrue statement as to the solvency of the corporation, or firm.
    Upon the trial of an action brought to convict a person of obtaining money under false pretenses, it is proper, on the question as to the intention of the defendant, to receive evidence of transactions similar to that on account of which the defendant is indicted.
    If upon the trial of a criminal action the defendant malíes a person a witness for the purpose of proving his good character, the People can properly cross-examine such witness; and if he has testified to the good character of the defendant, the People may ask him if he has heard reports derogatory to the defendant’s character, and the testimony of such witness, that he saw in the newspapers that the defendant had been indicted, is admissible in evidence.
    It is unnecessary for the People, in case of the indictment of a person under section 566 of the Penal Code, to allege or 'prove on the trial the value of the instrument the complainant was induced to sign through the false pretenses of the defendant.
    An allegation in an indictment that the defendants made a false and fraudulent representation is deemed to be an allegation that each of the defendants made-such representation and is sufficient as to each.
    To convict a person of obtaining money by false representations the prosecution must show the representations, their falsity, that they were known to be false by the defendant and that the person defrauded relied upon them.
    Herrick, J., dissenting.
    Appeal by the defendant, John 0. Jefferey, from a judgment of the Court of Sessions, held in and for the county of St. Lawrence,, rendered on the 6th day of December, 1893, convicting him of the crime of feloniously, fraudulently and designedly obtaining the signature of a person to two several promissory notes in writing, with intent to cheat and defraud another, and also from an order and judgment overruling the defendant’s demurrer to the indictment, and also fx-om an order denying his xnotioxx to quash and 'set aside the indictment against him and for a new trial and in arrest of judgment.

      D. E. Brong, for the appellant.

      L. P. Hale, District Attorney, and G. A. Kellogg, for the respondent.
   Putnam, J.:

It is urged by the learned counsel for the appellant that the demurrer interposed by defendant to the indictment should have been sustained for the reason that the third count thereof, under which defendant was convicted, did not allege that McCann believed or relied upon the alleged representations made by J efEerey, Crasper and Rusaw, or was thereby induced to sign the notes set out in the pleading.

But the indictment did allege that defendant, at the time mentioned, feloniously, fraudulently and designedly, and with intent to cheat and defraud another, procured and obtained the signature of the said John McCann to the two notes described by means of the false and fraudulent representations and pretenses therein set out. After stating the representations made, it further alleged that each of said representations was false, to the knowledge of defendant. We cannot answer the above-stated position taken by the appellant in any better way than to quote an extract from the opinion of Miller, J., in Clark v. People (2 Lans. 329), where a similar question arose. The learned justice used the following language : “ It will be observed that there is no positive and direct averment that the pretenses alleged had any influence upon the mind of the prosecutor or induced him in any way to part with the oxen, and it would no doubt have been more strictly in accordance with the rules of pleading applicable to such cases to have inserted an allegation embodying a charge of the character stated. It is, however, averred that by the false pretenses alleged the prisoner did obtain the property. This could not be true, in fact, unless the prosecutor believed the false pretenses set forth to be true and they had an influence upon his mind and induced him to part with the property. How could the prisoner obtain the oxen in the manner alleged unless it was done by means of the false pretenses operating upon his mind and influencing his judgment? The allegation that the prisoner made the representation for t'lie purpose named, in connection with tne subsequent averment that he did thus obtain the oxen, is equivalent to a statement that he believed the pretenses to be truo and was induced thereby to part with the property. First, is the inducement, and then follows the act of obtaining the oxen, the latter as a natural and inevitable consequence of the former. The fair and legitimate construction of the last allegation will warrant the inference that, inasmuch as the prosecutor was induced to part with the oxen, that he believed the statements made, and thereby the oxen were unlawfully obtained.”

We concur with the view of Justice Miller above quoted, and are, hence, unable to hold that the position of appellant is well taken.

The defendant also objects to the indictment because it alleges a false promise, and couples it with alleged false pretenses, which are of no importance without the promise, citing Ranney v. People (22 N. Y. 417). An examination of the authority cited shows that it is not parallel to the case under consideration. The false pretense in this case was founded on false representations as to existing facts by which McCann was induced to deliver to defendant his two promissory notes. In Ranney v. People (supra) the false pretense alleged was the promise of the defendant to employ the complainant at a future time and pay him, when he did not in fact intend to employ him. It was held that the false representation complained of was promissory in its nature, and, hence, that a criminal charge could not be sustained. In this case defendant obtained the notes from complainant by agreeing that a certain corporation or firm should thereafter pay him certain sums for oats, and that said corporation or firm was solvent. The false representation was as to the solvency of the firm as to an existing fact at the time the representations were made. The false pretense counted on was not the false promise, but the statement as to the solvency of the corporation or firm. This case is not different from the ordinary one of false pretense, where one buys goods on credit, falsely representing himself as solvent. In such a case there is a promise to pay for the goods, and the false pretense which would be of no importance without the promise.

Counsel for appellant further claims that the court erred in receiving evidence on the trial of similar transactions to that on account of which defendant was indicted. Such evidence, in cases of alleged false pretenses, where it is important to show the intention of defendant, has been deemed proper. (Bielschofsky v. People, 3 Hun, 40 ; affd., 60 N. Y. 616; Mayer v. People, 80 id. 364.)

Nor do we think that the court erred in alio wins: the witness Levan to testify that Jefferey had been indicted; that he saw in the papers that he had. The defendant had made Levan his witness for the purpose of proving good character; on that subject the People could properly cross-examine him, and as he had testified to the good character of the prisoner, the People could properly ask him if he had heard reports derogatory to his character. (Carpenter v. Blake, 10 Hun, 358-360; Leonard v. Allen, 11 Cush. 241-245.)

We are of opinion that it is unnecessary for the People, in cases of indictment under section 566 of the Penal Code, to allege or on the trial prove the value of the instrument complainant was induced to sign by the false pretenses of the defendant. The instrument might be one whose value could not be proved. In this case the defendant obtained the notes of McCann, one of which for $100 is now outstanding, and on which he may be compelled to pay $100 and interest. We think the case stated in the indictment and proved on the trial was within the plain provisions of section 566 of the Penal Code.

It was alleged in the indictment that the defendants made the false and fraudulent representations therein alleged. This should be deemed an allegation that each of the defendants made such representations, and sufficient as to each.

The appellant further urges that the People on the trial failed to make out a case that authorized the conviction of defendant. The People were compelled to show the representations, their falsity, that they were known to be false by defendant, and that the complainant relied upon them.

The alleged representations were that D. Beers & Co., who had an office at Wilson, N. Y., had a charter from the United States government that would last for several years; there was no danger of McCann’s entering into the arrangement proposed by defendants to give them two notes, one for $100 and one for $200, for twenty bushels of oats, in consideration of which I). Beers & Co. would execute a contract to afterwards sell for, or buy of, McCann forty bushels of oats at fifteen dollars per barrel, because the company was strong and had a charter from the government of the United States.. Under all the circumstances of the case the word “ strong,” as used by defendants, should be construed to mean financially strong or able, the' word being evidently used to obtain for the company credit witli complainant.

The representations alleged in the indictment were sufficiently proved on the trial as against defendant Jefierey. It appeared that lie took part in the conversation between defendants and complainant at the time the notes were executed; told him there was no danger, the company was strong; drew the notes, and was one of the principal actors in the transaction. It was sufficiently shown by the testimony of JVIcOann that he relied on the statements made by the defendants, and was induced thereby to enter into the contract and make tne notes.

We think the evidence sufficient to go to the jury as to the falsity of defendant’s representations. It required no evidence to show that L>. Beers & Oo. did not have any charter from the United States government to carry on the business in which they were engaged, and that the representations made in that regard were false. It was shown -by testimony, received without objection, that there was a firm of D. Beers & Co. «located at Wilson, N. Y.„ which started in 1889 and ceased in 1890, before the transaction with McCann. The firm was composed of D. Beers and one Seeley, Prior to the execution of the contract between D. Beers & Co. and McCann, D. Beers had sold out his interest in the company to Seeley for a horse and buggy, so that, at the time of the transaction in question, Seeley alone was carrying on the business in the name of D. Beers & Co. It appeared that Seeley had passed through bankruptcy and was insolvent, and his financial standing was not good; hence, instead of I). Beers & Co. being strong, the evidence indicated that it was composed of one man, Seeley, who was insolvent.

As to whether the defendant knew that liis statement in regard to the solvency of Seeley, who was*doing business in the name of D. Beers & Co., was false, we think, under all the evidence and facts of the case, that the trial judge properly submitted the question to the jury. Jefierey claimed to be an agent of D. Beeus & Co., anil he lived in the same county with Seeley. Seeley had passed through bankruptcy, was insolvent, and his financial standing was not good at the time of the transaction with complainant. Under the circumstances, whether the positive and false statement of Jefierey to McCann that D. Beers & Oo. was strong, made to induce McCann to execute liis notes for $300, was or was not made with knowledge ■of the falsity of such statement, was a question for the jury. The jury could have found, on the evidence, that the representation made by the defendant was a reckless assertion as to a fact, as to the truth or falsity of which he did not know.

On the whole, we think the case was properly submitted to the jury, and that the evidence sustains the verdict.

Other exceptions were taken, 'which we have examined, but do not think it necessary to discuss. This court could not properly interfere with the discretion exercised by the trial court as to the sentence imposed upon the defendant.

The judgment should be affirmed.

Mayham, P. J., concurred; Herrick, J., dissented.

Judgment of conviction affirmed..


author: Herrick, J.:

text:
    Jesse L. Van Gaasbeck, Respondent, v. The Town of Saugerties, Appellant.

      Personal injuries resulting from the absence of bcm'riers on a highway — the question of negligence is for the jury to determine.

    Negligence on tlie part of a commissioner of highways may consist as well in the omission to erect harriers in dangerous places in a highway as in leaving the bed of the highway defective, and it is a question of fact for the jury to determine, upon the trial of an action, whether a town was or was not negligent in failing to erect suitable railings or barriers along the side of a highway.
    Appeal by the defendant, The Town of Saugerties, from a judgment of the Supreme Court in favor of the plaintiff, entered in the •office of the clerk of the county of Ulster on the 18th day of December, 1893, upon the verdict of a jury, rendered after a trial at the Hlster Circuit, and also from an order made at the Ulster Circuit on the 12th day of December, 1893, and entered in said clerk’s •office, denying the defendant’s motion for a new trial made upon the minutes.

      Charles Davis and P. Ccmtine, for the appellant.

      Carroll WhitaTcer and John J. Pinson, for the respondent.
   Herrick, J.:

This is an appeal from a judgment in favor of the plaintiff and against the defendant for $1,600.55 damages and costs, and from an order denying a motion for a new trial.

The action is brought against the defendant for the neglect of the highway commissioner of the defendant to properly maintain the highway, or a portion thereof, between the city of Kingston and the village of Saugerties.

The highway in question is a much used highway. For a distance of several hundred feet within the town of Saugerties the highway runs along the Esopus creek, and at a distance therefrom of from 100 to 200 feet. The road is at a considerable elevation above the creek, the descent thereto being quite sharp. The ground also rises from the road upon the side furthest from the creek with about equal abruptness. Upon the side of the road nearest the creek, for a distance of several hundred feet, there is a retaining wall, and the perpendicular distance from the surface of the road to the base of the retaining wall is between four and five feet.

The portion of the road described is quite densely shaded by trees. At the point where the accident happened the roadway is about fourteen feet in width.

On a dark, misty, drizzling night, the plaintiff, in endeavoring to drive over this road with a horse and wagon, went off the side of the road over the retaining wall, and received injuries for which this action is brought.

There were no guard rails or barriers upon the side of the road towards the creek, and it does not appear that there ever had been any. It appears in evidence that during the last five years, to which period of time the court limited the inquiry, there had been several accidents to persons at the locality described by driving off the side of the road. It also appears that the commissioner of highways of the town had been notified upon one or more occasions that it was a dangerous locality and should be protected.

There was evidence sufficient, I think, to warrant the jury in finding that the plaintiff was not guilty of contributory negligence.

There was evidence to show that for several years pi*ior to the happening of the accident the commissioner of highways had annually sums varying from between $2,000 and $3,000 to between $4,000 and $5,000, which were expended in opening new roads, grading hills, filling up hollows or valleys and erecting iron bridges; so that the question as to whether there was sufficient money in the hands of the commissioner to put the road in proper condition does not, it seems to me, arise.

The question as to whether the road at the place described was dangerous was one of fact for the jury.

“Negligence on the part of a commissioner of highways may com sist as well in the omission to erect barriers in dangerous places in a highway as in leaving a bed of the highway defective.” (Bryant v. Town of Randolph, 133 N. Y. 70-76; Ivory v. Town of Deerpark, 116 id. 476.)

And it is a question of fact for the jury to determine whether defendant was or was not negligent in failing to erect suitable railings or barriers along the side of the highway. (Wood v. Town of Gilboa, 76 Hun, 175.)

And upon both of these questions, as to whether it was a dangerous locality and whether it was negligence not to erect some kind of a barrier, there was some evidence to submit to the jury.

These questions were very clearly and fairly submitted by the-trial court, and I can see no reason for differing from the conclusions at which the jury arrrived.

Judgment should be affirmed, with costs.

Putnam, J., concurred ; IVIayham, P. J., concurred in the result.

Judgment affirmed, with costs.


text:
    Heywood Boot and Shoe Company, Respondent, v. Murray N. Ralph, Appellant.

      Costs — tender of an amount in settlement of an action — it must be paid into cowrt at the commencement of the action.

    A defendant, in an action brought to recover the agreed price of goods sold and delivered, who makes a tender of an amount in settlement of the plaintiff’s claim, and does not keep the tender good by paying the amount thereof into court at the commencement of the action, and by alleging that fact in his answer, is not entitled to costs, although the verdict rendered for the plaintiff is not in excess of the amount so tendered, and although such amount is paid into court on the day of the trial of the action.
    Appeal by the defendant, Murray N. Ralph, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of St. Lawrence on the 24th day of May, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the St. Lawrence Circuit.
    This action was brought to recover the agreed price of goods sold and delivered. The amount claimed in the complaint was $185.35, with interest from August, 1893. Prior to the commencement of the action the defendant offered to the plaintiff’s attorney the sum of ninety-six dollars and sixty cents and certain merchandise in settlement of the plaintiff’s claim, which offer was refused. Upon the trial judgment was directed fot the plaintiff for the sum of ninety-six dollars and sixty cents.

      Lawrence Puss ell, for the appellant.

      F. If. Glemelcmd and Ledyard P. Hale, for' the respondent.
   Herrick, J.:

The judgment in this case should be affirmed. The defendant did not keep his tender good by paying the amount thereof into court, at the commencement of this action, and alleging that fact in the answer. It was not paid into court until the day of trial, too late to stop the costs of the action and too late to stop the running of interest, the purposes for which it is required the tender should be made and kept good by a deposit in court. (Becker v. Boon, 61 N. Y. 317; Halpin v. Phœnix Ins. Co., 118 id. 165.)

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herrick, <1.:

text:
    In the Matter of the Estate of Frederick D. Hodgman, Deceased. Asahel R. Wing, as Executor, etc., of Philander C. Hitchcock, Deceased, who was one of the Executors, etc., of Frederick D. Hodgman, Deceased, and Another, as Executor, etc., of Frederick D. Hodgman, Deceased, Respondents. Charles L. Hodgman and Others, Appellants.

      Surrogate’s power to open a decree under Code of Civil Procedure, § 2481, subd. 6 — affirmance of a decree on appeal — effect thereof on the rights of persons interested, not appealing.

    A surrogate is empowered by subdivision 6 of section 2481 of the Code of Civil Procedure to open a decree settling the accounts of an executor or administrator “for fraud, newly discovered evidence, clerical error or other sufficient cause,” and under settled rules of interpretation the words “ or other sufficient cause,” must be interpreted to mean a cause of like nature to those specifically mentioned.
    Matters in the nature of a fraud, which have misled or prejudiced parties interested in the estate, 'although not actually constituting fraud in law, may afford sufficient ground to authorize a surrogate, or the Supreme Court in reviewing the action of the surrogate, to act under such section.
    An appeal from a decree can only bind those persons who are parties to the appeal, and if before an appeal is taken certain parties not taking the appeal have the right to have the decree appealed from, settling the accounts of an executor, opened, the fact that the decree had been affirmed upon such appeal does not affect their rights to have the decree opened. * J

    A surrogate has the power of a court of general jurisdiction to vacate inis decree under subdivision 6 of section 2481 of the Code of Civil Procedure, and relief may be granted, as in the Supreme Court, upon the application of any one, for sufficient reason, in furtherance of justice.
    Appeal by tbe petitioners, Charles L. Hodgman and others, from* an order of the Surrogate’s Court of Washington county, entered in the Surrogate’s Court of Washington county on the 11th day of May, 1891, as of the 30th day of April, 1891, granting the respondents’ motion to dismiss the order to show cause why the decrée entered in said office on tlie 23d day of April, 1892, settling the accounts of Asahel R. Wing, as executor of Philander C. Hitchcock, deceased, who was one of the executors, etc., of Frederick D. Hodgman, deceased, and another, as executor, etc., of Frederick D. Hodgman, deceased, should not be opened, vacated and set aside, and dismissing the petitions of the appellants and all proceedings thereunder.

      O halles 8. Foote, for the petitioners, appellants.

      Edgar Hull and O. H. Shurgess, for Wing, executor, respondent.

      Young c& Kellogg and O. II. Stwrgess, for Alfred 0. Hodgman,, respondent.
   Herrick, <1.:

This is an appeal from an order entered in the Surrogate’s Court, of Washington county, dismissing the petition of Charles L. Hodgman and fourteen others, to open, vacate and set aside the decree entered in the above-entitled proceedings, and to open the defaults of each of said petitioners in such proceedings, and that the petitioners be permitted to file objections to the accounts therein.

The decree that it is asked to open has already been before this court upon an appeal by Mary E. Hodgman, as executrix, and- as the widow and legatee of the decedent. (69 Hun, 484; 140 N. Y. 421.)

The Court of Appeals expressed its views very strongly as to the condition in which the accounts appeared, and as to the condition of the estate ; but inasmuch as the matters therein referred to did not affect the then appellant, neither the General Term nor the Court of Appeals felt it to be within their power to review the proceedings-any further than they affected the interests of the appellant.

The other legatees, heirs and next of kin not having appealed,, and thereby having apparently consented to the settlement of' accounts and the entry of the decree, the court was powerless to do^ anything more than to give a brief expression of its views of the matter as it then appeared.

The petition sets forth that the petitioners are next of kin, heirs and residuary legatees of and under the last will and testament of’ Frederick D. Hodgman.

It is alleged that as to some of them they were not, present at. the accounting, and were not represented by counsel thereat, because some of them were advised that such representation was unnecessary, and that the surrogate would protect their interests; as to others they allege in their petition that they had been informed by one of the executors, or by the representative of one of the executors, that the estate was settled, and that the amount theretofore paid to each of them constituted all that was or would be due to them, and for that reason, in addition to supposing that their interests, if they had any, would he protected by the court, they had not appeared, and had no one to represent them.

That as to four of them, an appearance was entered on their béhalf, 'hut that the person who made such appearance was not present at the latter hearings in the proceedings, and was not present at the settlement or alleged settlement of the accounts. They further allege that no copy of the decree entered was ever served upon them.

Several other petitioners, who it is claimed on the accounting had assigned all their interests in the estate, allege in their petition that they never knew imtil about two weeks before the filing of their petition herein that it was claimed at said accounting that they had assigned their interest in the estate, and assert that such instruments, purporting to he assignments, were procured from them by misrepresentation, and that they supposed that they were merely signing receipts for money actually received by them, and not signing assignments of their rights and interests in the estate.

Two of the petitioners assert that they could not read or write, and did not know what they were signing, except as it was represented to them. Yarious charges and allegations are made by different ones of the petitioners as to the manner in which their signatures were obtained to papers that it is now alleged by the executors of the estate were assignments of their respective interests therein.

One of the petitioners, who files a separate petition, alleges that it was only within the last few weeks before the filing of the petition that she was informed of the contents of the decree, and that the same decree awarded a distribution of the said estate to the estate of Philander C. Hitchcock, as executor, and away from the residuary legatees, heirs and next of kin of Frederick D. Hodgman ; and that she was only then informed that the attorney who represented her filed no objections to the accounts of the executors, or either of them. And she alleges, as to the paper purporting to be an assignment executed by her of all her interest in the estate, that her signature thereto was obtained by misrepresentation, and that she supposed it to be merely a receipt for the amount of money actually received by her, and not an assignment of all her interest in such estate.

The petitioners accompany their petition with a list of objections1 that they propose to file against the accounts of the executors in the event of their petition being granted.

The motion is made under subdivision 6 of section 2481 of the Code of Civil Procedure. That empowers a surrogate in or out of court To open, vacate, modify or set aside, or to enter as of a former time, a decree or order of his court; or to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate, and his determination must be reviewed as if an original application was made to that term.”

It will be seen by the petitions that a number of the petitioners assert -that they did not attend the proceedings upon the accounting, for the reason .that they were assured that their appearance was unnecessary, that the estate was settled, and that the amount they had already received was all that was due them.

That as to others, the attorneys who represented them did not attend upon the final hearings and filed no objections to the executors’ accounts. They also assert that they did not know of the entry of the decree until a comparatively short time before the filing of their petition.

It will be observed that the Code empowers the surrogate to open a decree “ Eor fraud, newly discovered evidence, clerical error, or other sufficient cause.”

Under settled rules of interpretation, the words or other sufficient cause ” must be interpreted to mean cause of like nature to those specifically mentioned. (Matter of Tilden, 98 N. Y. 434.)

Matters then in the nature of a fraud, although not actually, perhaps, constituting a fraud in law, or which would be the basis of an action for fraud, yet matters of that character which have misled the petitioners, and by which they have been prejudiced, may be sufficient ground to authorize the surrogate, or this court in reviewing the action of the surrogate, to act under this section.

The learned judge who wrote the opinion in the Court of Appeals in the matter of this estate, in determining that many of the objections raised to the decree did not affect the appellant, and, therefore, could not be passed upon in that appeal, used the following language : If I could see in the result the faintest trace of danger to her I should be likely to advise a reversal of this decree as manifestly wrong in many important respects. In that event we should seek to ascertain how an estate of about $128,000, and which owed at its owner’s death, so far as I can see, not to exceed fifteen or twenty thousand dollars, has, after paying not more than eighty thousand dollars of legacies, become totally bankrupt and indebted to one of the executors for about ten thousand dollars, which there are no assets to pay. "We should inquire, also, wffiy Hitchcock, after having being once credited with the Oobb trust fund of ten thousand doHars, as delivered by him to one or more of his associates, and which was paid to the legatees by Mrs. Tates, and for which her account is credited, is a second time credited with that sum and permitted to swell his account to that extent against the estate. We should seek to know on what principle payments made to the residuary legateés were credited to the executors, when the result reached shows that no residue remained. And we should consider whether a confused mass of items, made up in total disregard of the rules for stating such accounts, should be allowed to serve as the basis for deliberate judicial action.”

A decree which calls for such vigorous language'from the court of last resort should not, in my judgment, be permitted to stand without further investigation, unless there is some decisive rule of the court to prevent it.

This statement of the Court of Appeals, coupled with the allegations of the petitioners, seems to me sufficiently sets forth “ sufficient cause,” in the nature of a fraud, why the decree as to these petitioners should be opened and vacated, unless, as I have stated, there is some insuperable bar to such action. To establish such insuperable bar we are referred by the respondents to the cases of Reed v. Reed (52 N. Y. 651) and Sheridan v. Andrews (80 id. 648), and other cases of like nature, holding that where a judgment or decree has been affirmed upon appeal, it is too late to apply to the Surrogate’s Court, or other court of original jurisdiction, to have such judgment or decree opened or vacated. That by a judgment of affirmance upon appeal, the power to reopeii or vacate such judgment or decree is taken from the Surrogate’s Court or other court of original jurisdiction.

It is the appeal then, and the action of the appellate court upon it, that deprives the petitioners of the rights that- they would otherwise have; but it seems to me that the appeal from the original judgment can only bind those who are parties to it. Before the appeal was taken they had the right to make this application, and the surrogate had power to grant it, and in my opinion this right, like any other right, is one that a party cannot be deprived of unless he has had his day in court.

The petitioners did not have their day in court upon the appeal. It appears that the very cpiestions that they now seek to raise by their petitions and by the proposed objections filed as part of the petitions could not be, and were not, passed upon by the General Term and the Court of Appeals, for the simple reason that the heirs and residuary legatees were not parties to the appeal; and it seems to me that the petitioners have shown good and sufficient reasons why they were not parties to such appeal, that is, they were not aware of the decree, and some of them at least had not appeared in the Surrogate’s Court, because they were informed by the executors of the estate, or those representing them, that there was no necessity for their appearing, and they were misled in believing that there was nothing due from the estate, that it was practically settled.

The other objection that is raised, that the surrogate has not power to set aside the legatees’ assignments as fraudulent, is not to be passed upon here. The instruments are not before us, and we cannot determine whether in truth and fact they are assignments or only receipts for the payment of money; if receipts they are always explainable by parol.

In addition to that, some of the petitioners it appears have not signed any such paper, whether the same be a receipt or an assignment.

It sufficiently appears, I think, from the proceedings already had in this court in the matter of this estate, that this decree ought not to stand. The question as to whether the petitioners, or any of them, have by their own acts placed themselves in such a position as will not entitle them to any portion of the residuary estate, can be determined upon a full hearing before the surrogate. If they possess rights which the surrogate has not power to adjudicate upon, after that fact is determined it will be time enough for them to resort elsewhere.

A decree which stands under the condemnation of the court of last resort, and that has only been permitted to remain in force as a decree, because no one who was injured by its errors made objection to it, now, that such injured parties do appear and ask to be heard, and-give reasons why they have not heretofore made their objections, the court will not, under the circumstances, be curious to find reasons or cases to permit it to remain longer in force and deprive the petitioners of, the opportunity of asserting their claims.

“ The surrogate has the power of a court of general jurisdiction to vacate his decree (§ 2481, subd. 6), and relief may be granted, as in the Supreme Court, upon the application of any one for sufficient reason in furtherance of justice.’ ” (Matter of Flynn, 136 N. Y. 287-291.)

And it seems to me that it is manifestly “in furtherance of justice’’ to open a decree that is open to the objections and criticisms made to this one when it was examined by the Court of Appeals.

The' order appealed from is reversed, the decree opened and vacated, and the petitioners permitted to file objections to the accounts as prayed for, with ten dollars costs and printing and other disbursements of this appeal, to be paid by the respondents.

Mayham, P. J., and Putnam, J., concurred.

Order reversed, decree opened and vacated, and petitioners permitted to file objections to the account, with ten dollars costs and printing and other disbursements, to be paid by the respondents personally.


text:
    In the Matter of the Application of Caroline J. Dewey, Appellant, to Compel George Edward Barber and Another, as Executors, etc., of Silas H. Dewey, Deceased, Respondents, to Account. In the Matter of the Application of George Edward Barber and Another, as Executors, etc., of Silas H. Dewey, Deceased, Respondents, for a Judicial Settlement of their Accounts; Caroline J. Dewey, Appellant.

      Bequest of interest creates an annuity — suppoi't of the testator’s widow favored —■ annuity paid from, principal.

      A bequest of the interest of a certain sum, not setting aside any fund to provide for its payment, is a gift of an annuity equal to the interest of such sum, and is not chargeable with any tax, expense of management or other deduction by the executor.
    The provisions contained in a will intended for the support of the wife of the testator should receive the construction most favorable to the accomplishment of the purpose intended.

      A testator left a will which, among others, contained the following provisions:
    “ Third. I give, devise and bequeath to my said wife, Caroline J. Dewey, the interest upon the sum of twelve thousand dollars, to be paid to her annually during the period of her natural life by my executors hereinafter named, said sum to be in lieu of her dower interest in my real estate.

      “Fourth. I direct my executors to pay to my sister, Almira Sawyer, during the term of her natural life, a sum sufficient for her support and maintenance, and suitable to her condition and circumstances in life, such sum to be determined by my executors. * * *

      “Sixth. I give, devise and bequeath all the rest, residue and remainder of my property, after the payment of the legacies, charges, bequests and devises hereinbefore mentioned, to my daughter, Elizabeth R. Barber, wife of George Edward- Barber, and in case of her death before my own, to the heirs of her body.
    “ Seventh. I hereby designate and appoint as my executors, to carry the provisions of this will into efiect, Martin Y. B. Stetson, of Champlain, N. Y., and George Edward Barber, of Plattsburgh, N. Y., with leave to sell or dispose of my real and personal property not otherwise disposed of, as in their judgment may seem best.”
    The testator’s family, at the time of his death, consisted of his wife, who was fifty-nine years of age, his sister, Almira Sawyer, who was eighty-one years of age, and his daughter, Elizabeth R. Barber, who was married and lived with her husband. He had every reason to believe that his estate would amount to more, by a not inconsiderable sum, than twelve thousand dollars, and he was substantially out of debt at the time of his death.

      Held, that taking into consideration the circumstances of the testator and of his estate, the language of the will was to be so construed as to make the grant to his widow an annuity.of $720, payable out of his estate, and not a bequest of the use and income resulting from the $12,000 during her life;
    That, under these circumstances, the principal of the estate might be resorted to, if necessary, in order to pay such annuity to the testator’s widow.
    Appeal by Caroline J. Dewey, one of tbe legatees named in tbe last will and testament of Silas H. Dewey, deceased, from portions of a decree of the Surrogate’s Court of the county of Clinton, entered in the Clinton County Surrogate’s Court on the 11th day of July, 1894, settling, allowing and adjusting the accounts of George Edward Barber and another as executors of Silas H. Dewey, deceased.

      George M. Wright and Lerrmél B. Pike, for the appellant.

      B. Oorbim,, for the respondents.
   Herrick, J.:

This is an appeal by Caroline J. Dewey from the decision of the surrogate in settling the accounts of George E. Barber and Martin Y. B. Stetson, as executors of the estate of Silas IT. Dewey, deceased.

Silas H. Dewey, about a year prior to his death, made and executed his will, in which, among other things, are the following provisions:

“ Third. I give, devise and bequeath to my said wife, Caroline J. Dewey, the interest upon the sum of twelve thousand dollars, to ' be paid to her annually during the period of her natural life by my executors hereinafter named, said sum to be in lieu of her dower interest in my real estate.
Fourth. I direct my executors to pay to my sister, Almira Sawyer, during the term of her natural life, a sum sufficient for her support and maintenance and suitable to her condition and circumstances in life, such sum to be determined by my executors.
“ Sixth. I give, devise and bequeath all the rest, residue and remainder of my property, after the payment of the legacies, charges, bequests and devises hereinbefore mentioned, to my daughter, Elizabeth R. Barber, wife of George Edward Barber, and in case of her death before my own, to the heirs of her body.
Seventh. I hereby designate and appoint as my executors, to carry the provisions of this will into effect, Martin V. B. Stetson, of Champlain, N. Y., and George Edward Barber, of Plattsburgh, N. Y., with leave to sell or dispose of my real and personal property not otherwise disposed of, as in their judgment may seem best.”

At the time of his death the testator was substantially out of debt. Tie owned a farm of over 200 acres, for which it appears he had been offered the sum of $11,000 about the time of the making of his will; his stock and farm implements were of the value of about $2,200; and he also owned mortgages to the amount of about $3,300.

TIis family consisted of his wife, who was of the age of fifty-nine years, his sister, Almira Sawyer, of the age of eighty-one years, and his daughter, Elizabeth R. Barber.

Only a portion of the real estate has ever been sold by the executors ; the major portion remains unsold.

At no time since her husband’s decease has the widow, the appellant, received the full amount of the interest of $12,000 ; all that has been paid to her has been the balance of the income arising from the farm and personal property, after deducting taxes, insurance, repairs and various other farm expenses.

A bequest of the interest of a certain sum, not setting aside any fund for its payment, is a gift of an annuity equal to the interest of said sum, and is not chargeable with any tax, expense of management or other deduction by the executor. (Brimblecom v. Haven, 66 Mass. [12 Metc.] 511; Swett v. City of Boston, 35 Mass. [18 Pick.] 123.)

I have not been referred to any case in this State that is precisely in point.

In the case of Whitson v. Whitson (53 N. Y. 479) the testator’s will read as follows: “ I give and bequeath to my beloved wife, Eliza C. Whitson, the life use of the sum of ten thousand dollars ($10,000), directing my executors to semi-annually pay to her the lawful interest of the said sum of -ten thousand dollars from the day or date of my death; and after the decease of my widow this ten thousand dollars to descend and pass to any heir or heirs my said wife should have by me; and if no such heir or heirs, I hereby give and bequeath the same to my son, Oliver Whitson.”

Justice G-rover, in passing upon that case, used the following language: “ The question in this case is whether the bequest to the respondent was the use and income of ten thousand dollars during her life, or an annuity of seven hundred dollars payable semi-annually for the same period. If the former, the taxes upon the funds and expenses of the trust must be paid out of the income. If the latter, it is equally clear that that sum must be paid to her from the estate, without any deduction on account of taxes imposed upon the fund producing the annuity, but these must be paid out of the estate. There is no conflict of authority upon this point.”

So, in this case, the question is whether the testator intended to grant to his widow an annuity of $720, payable out of the estate, or whether it was simply the use and income of $12,000. If the first was his intention, then the expenses of managing the estate, the taxes, insurance, cost of repairs to the property, is not to be deducted, and the amount payable to her diminished by the expenses of managing the testator’s estate.

In the Whitson case it will be observed that a specific sum of $10,000 was set aside, and it is first provided that the widow shall have the use of that sum; subsequently it is provided that the executors shall pay to her semi-annually the lawful interest of the said sum of $10,000; then he provides that this specific sum of $10,000 shall go to his son. It was held there that it was not the intention of the testator to give his wife an annuity of $700 per year, without any abatement for taxes, insurance, etc.; he had given her the use of $10,000.

And it would also appear that in that case the testator did not intend that any portion of the principal sum of $10,000 should be used to pay an annuity to his wife, because he made a bequest of the whole of that sum to take effect after the death of his wife.

In the case of Delaney v. Van Aulen (84 N. Y. 16) the testator, after making a few specific bequests, devised all his estate to his executors, in trust, to receive the rents, issues and profits thereof, and out of such rents, issues and profits certain annual sums were to be paid to various beneficiaries.

In the case of Pierrepont v. Edwards (25 N. Y. 128) the testator by his will gave his entire estate to his executors in trust, directing them to convert into money any of the estate, real or personal, which might be unsafe or unproductive, and invest the proceeds in safe and productive securities, and that out of the income of the estate thus invested they should pay the sum of $8,000 to his wife, or, in case the testator should not leave a child or children by her, $7,000 so long as she should remain his widow, the balance of the income to-be-divided in equal portions between his brother and two unmarried sisters.

The income of the estate, in fact, fell below $7,000 a year, and the executor was compelled to pay out a portion of it for taking care of unproductive property; and the question there arose whether the executor was compelled to pay the widow her annuity of $7,000 when the income was insufficient.

It will be seen that none of these cases are similar to the one at bar, and that no principle can be extracted from them which is decisive of this case.

In speaking of the authorities bearing upon the question under consideration, in the case of Pierrepont v. Edwards, the court said : “ It will be seen, by an examination of them, that no positive rule of ready application to every case can be laid down, but that each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the testator’s family arid estate, which may be fairly brought to bear upon the question of intent. The leading principle of the cases is that when the testator bequeaths a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent- intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund.”

Provisions in a will intended for the support of a wife should receive the most favorable construction to accomplish the purpose intended. (Thurber v. Chambers, 66 N. Y. 42; Stimson v. Vroman, 99 id. 80.)

The language of the will, together with the circumstances of the testator and of his estate, lead me to the view that he intended to grant to his wife an annuity of $720 a year. He had not set aside any portion of his estate which was to produce such annuity, as in the case of Whitson v. Whitson, neither did he provide that it should, be payable out of the income of his estate, as in the case of Delaney v. Van Aulen. It was not to be drawn from any specific source, nor was any specific sum set apart ■ to produce it; his whole estate was given into possession of his executors; and the primary purpose to be accomplished by them was the payment of this annuity to the widow.

The sum of $12,000 was not set apart, but it was simply used as a measure of the amount of the annuity to be paid to her. The will does not provide for paying over this $12,000 to any one else upon the death of the widow, as in the Whitson case, but bequeaths all the residue of his property after the payment of the legacies, charges, bequests and devises hereinbefore mentioned.”

And these bequests and charges consist in a direction to pay his sister, who was then eighty-one years of age, a sum sufficient for her support and maintenance, and the legacy of $200 to a grandnephew.

His estate he had every reason to believe would amount to more, by not an inconsiderable sum, than $12,000. His wife was somewhat advanced in years, he had but one child, married, living with her husband, and it was but natural that his first thought should be for the care and comfort of his wife, during her widowhood. He measured the amount that he judged necessary for maintaining her, and,, if necessary to comply with that intention, the principal of the estate, I think, under the circumstances, may be resorted to. Neither is that annuity subject to decrease by the taxes and expenses of maintaining the estate, so that the whole sum of $12,000 may be kept intact for the residuary legatee; she is to have a sum equivalent to the interest on $12,000, payable out of the estate, not out of the income alone; there is no direction to the executors to preserve any particular sum for the residuary legatee, but only what is left after providing for his sister, paying the legacy of $200 and the annuity to his widow.

In the case of Pierrepont v. Edwards (supra) the court said : “ If we were to hold that the widow was to have nothing unless the property or securities in which the estate happened to be invested yielded income, and that she was not to be paid the full $Y,000 per annum, directed to be paid to her, unless the investment should happen to yield that sum, we should, in my opinion, sacrifice the .substance and primary intention of the will for the sake of an incidental provision inserted for the convenience of the estate, and not intended to limit or control, or to render uncertain or conditional, the provision in her favor.”

The other objections of the appellant to the decree are not sustained, but for the errors indicated in this opinion th'e decree of the surrogate is reversed and a rehearing ordered, with costs of this appeal to be paid out of the estate.

Matham, P. J., and Putnam, J., concurred.

Decree of the surrogate reversed, a rehearing ordered before the surrogate, with costs and disbursements of this appeal to be paid out of the estate.


author:
      Mayham, P. J.:
      Putnam, J.:

text:
    Charles M. O’Neil, Respondent, v. Jane Hester, Appellant.

      The denial of a motion for learn to amend an answer is discretionary ■ — a decision as to a doubtful point of la/w is not a sufficient reason for an amendment ■— laches.

    Ah order made by the Special Term of the Supreme Court, denying a motion made by the defendant in an action for leave to amend his answer, rests entirely in the discretion of the Special Term, and unless upon appeal the court can see that there was an abuse of discretion on the part of the Special Term such order will not be reversed.
    While newly discovered facts may justify the amendment of a pleading, it is doubtful whether the promulgation of a decision, settling a question of law theretofore unsettled, furnishes any sufficient reason for the allowance of an amendment of a pleading to meet such new conditions.
    A delay on the part of a defendant in an action in making a motion to amend his answer may, in the discretion of the judge hearing the motion, furnish a sufficient reason for the denial thereof.
    Appeal by the defendant, Jane Hester, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 2d day of July, 1894, denying the defendant’s motion for leave to amend her answer and for an order requiring the plaintiff to reply thereto.

      A. T. Olearwater and William O. De Witt, for the appellant.

      Brimmier do Newcomb and John E. Y<m Etten, for the respondent.
   Mayham, P. J.:

The complaint in substance alleges that Mary Y. O’Neil, at the time of the commencement of this action, was, and for more than twenty years had been, the plaintiff’s wife, with whom he lived happily, and that during the years 1887,1888 and 1889, while he was so living with his wife, the defendant, who was his wife’s mother, intending to injure plaintiff and deprive him of the comfort, society and aid of his wife, wrongfully induced her to refuse to live and. cohabit with the plaintiff, and to insist upon the plaintiff leaving her house, and by her threats of disinheriting her daughter induced and caused a separation between the plaintiff and his wife, and induced plaintiff’s wife to refuse to live and cohabit with him, and claimed damage in the sum of $30,000.

„ The original answer in substance denied the allegations of the complaint, alleged that the refusal of plaintiff’s wife to live with him was her own voluntary aet, and was not caused or procured by the defendant, alleged want of support by the plaintiff of his wife, and unkind and improper treatment of her by the plaintiff.

The action was once tried, and the trial resulted in a disagreement of the jury. On the case being moved for a second trial the defendant’s attorney obtained from the judge holding the Circuit an order to show cause, returnable in term, why the defendant’s answer should not be amended by incorporating therein an allegation that the plaintiff and his wife, by an instrument in writing and under seal, dated the 27th day of September, 1889, made a voluntary agreement of separation, and that ever since that time had,, pursuant to that agreement, lived separate and apart, and that the plaintiff had thereby voluntarily relinquished the comfort, society and assistance of his wife.

On the return of that order and on the hearing of that motion the trial judge denied the same, with costs, but without prejudice to the renewal of the same by the defendant. On the 29th day of June, 1894, the defendant renewed the motion to amend her ansiver on notice and all the proceedings in the action, and upon the affidavit, of the defendant’s attorney setting forth, among other things, as a-reason for the renewal of the motion, the decision in a recent case promulgated since the decision of the former motion, that such voluntary contract of separation constituted a complete bar to tbe action of tlie plaintiff.

The Special Term again denied her motion, and from tlie order denying the same tlie defendant appeals.

Without stopping to inquire whether'as an original proposition we would have granted the motion to amend, we think that there are two valid reasons why we must affirm this order.

First. The order was, we think, purely in the discretion of tlie judge at Special Term, and unless the court can see that there w'as an abuse of the discretion, an order granting or refusing an application to amend will not be reversed on appeal. (Sayre v. Frazer, 47 Barb. 26; Denis v. Snell, 54 id. 411; Rosenwald v. Hammerstein, 12 Daly, 377.)

There is no pretense in this motion that the existence of the contract proposed to be set up was not known at the time of tlie service of the original answer, which was served several years before, this motion to amend, and while newly discovered facts may sometimes justify the amendment of a pleading, it -is doubtful whether tlie promulgation of a decision settling a question' of law hitherto unsettled, furnishes any sufficient reason for the allowance of an amendment of a pleading to meet such new conditions.

Second. The delay of the defendant in making the motion to amend might, in the discretion of the judge hearing the motion, furnish a sufficient reason in the exercise of his discretion for the denial ■of this motion. Even if it be held that newly-promulgated law may .furnish a reason for the allowance of an amendment, the motion should be promptly made.

The case to which tlie defendant refers in the moving affidavit was affirmed in January, 1893 (Buckel v. Suss, 21 N. Y. Supp. 907), and the notice of this motion bears date June 14, 1894, a period during which fifteen regular Special Terms had been held in this district at Albany, and four times that number of Special Terms at Chambers in tlie third judicial district, at which this motion might have been heard.

Under such circumstances we cannot hold that the learned, judge at Special Term abused his discretion in denying this motion.

Order affirmed, with ten dollars costs and disbursements.

Putnam, J.:

Concurring in tbe views expressed in the foregoing opinion, I also think that the order appealed should be affirmed, because an amendment of the original answer of defendant was not called for. Under that answer the agreement of September 27, 1889, can be properly read in evidence by defendant, and will answer any claim of damage for acts of defendant subsequent to its execution.

The learned counsel for the appellant is, I think, mistaken in his assumption that if the agreement in question was set out in the amended answer and admitted in the reply, another trial before a jury would be obviated. The agreement does not release damages already accrued to plaintiff at the time of its date. The alleged wrongful acts of defendant for which the action was brought accrued in 1887,1888 and 1889. In the affidavit of plaintiff, read by defendant as part of her moving papers, he said that the cause of action accrued during three or four years prior to the execution of said agreement, and was consummated and completed two years prior thereto. Hence, as the agreement does not attempt to release past damages, if it was set out in the answer and admitted in the reply, the case would go to a jury, although on trial the judge might hold that no damages could be recovered for acts of defendant subsequent to the execution of the instrument.

Under the present answer the agreement can be introduced in evidence with the same effect by the defendant. The plaintiff cannot recover for acts of the defendant after the date of the agreement, and the defendant will be entitled to an instruction by the court to the jury to that effect. Hence, the rights of defendant are as well preserved under the present pleadings as they would be under the proposed amended answer.

Herrick, J., not acting.

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


author: Mayham, P. J.:

text:
    Effie B. Oliver, Appellant, v. Margaret R. French and Others, Respondents.

      A judgment at va/riance with the decision, is irregular — the irregularity must be specifically stated in the moving papers — rule 37 — a failure to specify the irregularity presumed on appeal to be the ground of denial of the motion.

    If the judgment entered in an action upon the decision of the court is not such as is authorized by the findings, it is irregular, and may be corrected upon motion. The motion to correct the same must, under the provisions of rule 37 of the General Rules of Practice, specify the irregularity complained of, and the expression of the opinion of the counsel for the party moving to correct the judgment (contained in the affidavit upon which an order was obtained to show cause why such judgment should not be canceled), that the judgment failed to conform in many particulars with the findings and conclusions of the trial judge, is not such a specification of the alleged irregularity of the judgment as under such rule calls the attention of the court specifically to the irregularity complained of.
    Where a motion is made to correct an alleged irregular judgment, if the irregularity is not specified in the notice of motion and the motion is denied, the court, upon appeal, may presume that the motion was denied on the ground of the defect in the notice.
    Appeal by the plaintiff, Effie B. Oliver, from an order of tbe Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Columbia on the 2d day of April, 1894, dismissing an order to show cause why the judgment entered in this action in the office of the clerk of the county of Columbia on the 26th day of April, 1893, should not be corrected or amended to conform to the findings of fact and conclusions of law as found in said action, with notice of an intention to bring up for review upon such appeal said order.

      J. Rider Oady and Hole, Bullceley c& Termant, for the appellant.

      A. Frctnlc B. Ohaee, for the respondents.
   Mayham, P. J.:

This action was tried by a judge who made and filed his conclusions of fact and law, none of which were excepted to on the trial.

Hpon such findings the judge, after hearing the attorneys for the respective parties as to the form and substance of the decree to be entered in the action, made, signed and filed the same, and judgment was duly entered thereon.

Afterwards, on an order to show cause, granted by the trial judge, a motion was made by the plaintiff to modify the decree upon the ground that the same did not conform to the findings of fact and law found by such trial justice, and the plaintiff asked on such motion that the judgment be so modified as to make it conform to the facts and law found.

The judge denied such motion, and from the order denying the same the plaintiff appeals. The only question, therefore, before us on appeal to be considered is whether or not the decree conforms substantially with the facts found.

No decision separate from the findings of fact and law seems to have been made by the judge. The objection is taken by the respondents that the order to show cause, which in this matter operates as a notice of motion, is so defective, in not stating tlie precise irregularity complained of, that the motion was for that reason properly denied. Standing upon the order to show cause alone, such objection is well taken, but the appellant seems to rely upon the affidavit on which the order was granted to cure that defect.

The order was granted, as appears on its face, upon the affidavit of one of the counsel in the case, who states, from inspection of the findings of fact and conclusions of law, that such judgment, inadvertently or otherwise, fails to conform in many particulars with the findings of fact and conclusions of law; and upon the printed case, which appears in this record to contain ninety-two pages of printed matter, if the judgment is not such as is authorized by the findings it is irregular and may be corrected on motion. (Howland v. Howland, 20 Hun, 472; Ingersoll v. Bostwick, 22 N. Y. 425.)

Rule 37 of the General Rules of Practice of this court provides that when a motion is made to correct an irregularity, the motion or order shall specify the irregularity complained of.

The judge at Special Term wrote no opinion, and the precise ground upon which it was denied does not appear.

"We do not think that the notice of motion or order to show cause .and affidavit on which it was made specified the irregularity within the meaning of rule 37. The affidavit expressed the opinion and •conviction of the affiant that the judgment failed to conform in many particulars with the findings and conclusions of tlie trial judge. Is that such a specification of the irregularity as, under the rule, calls the attention of the judge at Special Term or this court specifically to the irregularity complained of? We think not. If the Special Term or this court were to examine the voluminous case, affidavit, order to show cause, findings and judgment, and make an analytical examination of all of these documents, the court might not be able to reach the alleged irregularity aimed at by the affidavits and order, while a concise statement in the moving papers could easily have directed the attention of the court to the alleged irregularity, and thus secured a definite determination of the precise point upon which a review could be taken and the exact point determined 'with definiteness and precision.

Such was, doubtless, the object of the rule and policy of the law. As the case is presented, this court cannot determine whether the Special Term disposed of the case upon the ground of the insufficiency of the motion papers or upon the merits. In Lewis v. Graham (16 Abb. 126) it was held that, where the irregularity is not specified in the notice and the motion is denied, the court on appeal may presume that the motion was denied on the ground of defect in the notice. (Roche v. Ward, 7 How. Pr. 416; Baxter v. Arnold, 9 id. 445.)

In the case at bar the learned tidal judge, after a full hearing of the parties, with his findings of fact and law and judgment before him, denied the motion.

In the absence of any specific designation of the particulars, in which the judgment or decree is at variance with the findings of fact and law by the judge, I think his order denying the motion to modify the judgment must be affirmed.

Order affirmed, with ten dollars costs and printing disbursements, without prejudice to a renewal of the motion on additional papers, in compliance with rule 37 above referred to, .on payment of costs of this motion.

Herrick, J., concurred; Putnam, J., concurred in result.

Order affirmed, with ten dollars costs and printing and other disbursements, without prejudice to appellant’s renewing motion.