author: Van Brunt, P. J. : Bartlett, J.:

text:
    EDWARD V. THEBAUD and Others, Respondents, v. THE PHŒNIX INSURANCE COMPANY, Appellant.

      Marine insurance — implied wa/i'ranty of seaworthiness — a vessel built for inland namgation used for ocean traffic — duties of the assured with respect to her equipment.

    In an action, brought to recover upon a policy of marine insurance issued by the defendant, which insured the steamboat Dos Hermanos in the sum of $5,000, at and from Philadelphia to Frontera, Mexico, a defense was interposed that the vessel was unseaworthy. It appeared upon the trial that the vessel was built simply for river navigation, and that it sank during the ocean voyage.

      Held, that it was not sufficient to show that tlie vessel was strong and staunch for the purpose of river and smooth water navigation, but, in order to comply with the implied warranty, the plaintiff was obliged to show that everything which could be done to render this vessel fit for the voyage in question, taking into consideration her structural weakness, had been done.
    While the question of seaworthiness is peculiarly a question of fact for the jury, yet, where the evidence is without dispute that the voyage in question is one for which the vessel is not fitted, and that no precaution has been taken to provide for perils, which must necessarily be encountered, there is no question for the jury and a verdict is properly directed in favor of the defendant.

      Qumre, whether it was necessary for the plaintiff to prove that the vessel was seaworthy, as a seagoing vessel, or whether it was sufficient, the vessel having been built simply for river navigation, to show that she was good and staunch of her class, and that a proper outfit had been added for the ocean voyage.
    Appeal by tbe defendant from a judgment entered, on tbe verdict of a jury rendered at tbe New York Circuit, in tbe office of tbe clerk of tlie county of New York on the iYth day of April, 1886, and from an order denying a motion for a new trial, entered in said clerk’s office, April 15, 1886.
    6r. A. Black, for tbe appellant.

      II. PuPnwn, for tbe respondents.
   Van Brunt, P. J. :

This action was brought to recover upon the defendant’s policy of marine insurance which insured tbe steamboat Dos Hermanos in the sum of $5,000 at and from Philadelphia to Frontera, Mexico. Tbe vessel sank in tbe ocean on September 13, 1884. The issues tried were that the Hermanos was not seaworthy for tbe voyage, that she deviated and, therefore, discharged the policy. In the consideration of the questions raised upon this appeal it will not be necessary to consider other than the first above mentioned. In order that the plaintiffs should succeed in this action it was incumbent upon them to establish that at the time the vessel started upon her voyage she was seaworthy. This ’obligation was acknowledged by the allegations of the complaint that the steamboat departed from the port of Philadelphia upon said voyage on or about the IYth day of August, 1884, being then staunch, strong and in every respect seaworthy, with competent officers and crew. It is conceded that at least a part of the voyage which the steamer was expected to make was required to be upon the open ocean; and the question presented is as to what degree the proof should go in establishing the seaworthiness of the vessel insured.

It is claimed, upon the part of the defendant, that there being no exception whatever in the policy, it being the ordinary marine policy insuring the steamboat against marine risk, that it was necessary before there could be a recovery for the plaintiff, to prove that the vessel was seaworthy as a sea-going vessel. Upon the other hand it was claimed by the plaintiffs that the vessel having been built simply for river navigation it was not necessary for them to show that she was equal to a regulan sea-going steamer, but all they were required to establish was that she was good and staunch of her class, and that a proper outfit had been added for the ocean voyage.

Strange as it may appear when we consider the number of adventures which would be calculated to raise the question here involved, we have been unable to find any principle established by the adjudicated cases which controls the construction of a marine policy in this respect where such policy is entirely silent as to the dimensions and capacity of the vessel insured. The ordinary rule is that parol evidence cannot be admitted to contradict or qualify the implied warranty of seaworthiness, any more than it could have been if the warranty had been express. If this were the law, it would bo perfectly clear that no recovery could be had upon the policy in question, because the vessel insured was not seaworthy for the voyage for which it was insured in the ordinary acceptation of the term. And the only difficulty is as to whether, in the consideration of a policy of insurance of this kind, it is admissible to consider extraneous facts for the purpose of showing that there has been a waiver of the rigor of the warranty implied in the policy. In the ease at bar it is not necesary to determine this question, because if we concede, for the purposes of the decision of this case, that the latter rule must prevail, yet even under this contraction no recovery could be had. It is clear that the claim that all that it was necessary to show in respect of seaworthiness was that the vessel was strong and staunch for the purpose of river and smooth water navigation is not well founded; and none of the cases which are cited by the learned counsel for the plaintiffs in any way support any such proposition.

The case of Burges v. Wickham (3 Best & Smith, 669) establishes no such proposition as is claimed for it. In that case a policy had been issued insuring a boat, called tlie Ganges, from Liverpool to Calcutta, built for navigating the Indus river, and on this account unfit generally for ocean navigation. The assured had, before the policy was entered into, informed the defendants of the original construction and character of the Ganges, telling them at the same time that additional strengthening was in progress, and that everything that possibly could be done by temporary appliances to render a vessel of her construction as strong as could be made to encounter the perils of the voyage would be done, and the evidence showed that an additional premium was paid commensurate to the increased risk arising from the character of the vessel. In that case it was held that the warranty of seaworthiness must be taken to be limited to the capacity of the vessel, and, therefore, was satisfied if, at the commencement of the risk, the vessel was made as seaworthy as she was capable of being made, though it might not make her as fit for the voyage as would have been usual and proper if the adventure had been that of sending out an ordinary sea-going vessel.

This case extended the right to explain what was intended by the implied warranty in the policy, as far as any which we have been able to find has ever done. And the court held that because it was a river steamer that, therefore, the rigid warranty which would be applicable to a sea-going vessel could not necessarily have been intended when the vessel was insured, because no such warranty could possibly have been complied with. In that case it appeared that, because of the weakness of the vessel, an increased premium was charged. In the case at bar no such evidence appears.

It is argued that the premium taken was a high premium, in that the insurance company took a premium showing a computation of one loss in twenty; whereas, from the evidence in this case, it would seem that it would have been more proper, if an augmented premium. was to be taken, that it should have been based upon a computation of nineteen losses out of twenty.

The evidence in the case at bar, not only in respect to the question of insurance, but also in respect to another important feature of the case cited, utterly fails. The judgment of the court in the case cited was based upon this consideration: “ Taking all these considerations into account, I think that on such an adventure as this, viz., sending a river steamer across the ocean, the warranty of seaworthiness was complied with if as much was done to make her fit for the voyage as was in such adventures usual and proper, though it might not make her as fit for the voyage as would have been usual and proper if the adventure had been that of sending out an ordinary sea-going vessel.” And it was upon this consideration, and because the evidence showed that everything had been done to render the vessel as fit for the voyage as was possible, that the recovery was sustained.

There is no evidence of this kind in the case at bar. All that the evidence shows'is that the vessel was fit for river and smooth water navigation. There was not a particle of evidence tending to show that any substantial precaution was taken to protect her against the dangers to which a vessel of this construction was peculiarly subject, namely, the action of the sea upon her hull. The case is entirely barren of any evidence tending to show that any extraordinary precautions of any kind whatever were taken; and it would appear from the evidence that the vessel was lost because of the very causes which might have been anticipated, and, perhaps, might have been guarded against.

If it was necessary, in order to comply with the warranty, to show that everything which could be done had been done to render this vessel fit for the voyage, taking into consideration her structural weakness, it was necessary that the plaintiffs should have proved that fact, and not limited themselves to evidence tending to show that the vessel was staunch and strong of her class, and was fit for river navigation when she was insured for an ocean voyage. This was no proof of the allegation contained in the complaint that she was strong, staunch and seaworthy at the time she commenced her voyage.

Our attention has been called to another case (Bouilon v. Lupton 15 Com. Bench [N. S.], 113), in which three steamers, intended for the navigation of the Danube, were insured at and from Lyons to Galatz, with leave to call at all ports and places in the Mediterranean for all or any purposes, beginning the adventure at Lyons. These vessels left Lyons and duly arrived at Marseilles. All three of the vessels were in a fit and proper state for the voyage down the Shone to Marseilles, but from the nature of the navigation they could not, on leaving Lyons, be in a state of readiness as to masts and sails, chains and anchors, sea crew, etc., for the sea portion of the voyage to Galatz. They all left Marseilles properl} manned and equipped for the residue of the voyage, and it was held that the implied warranty of seaworthiness was complied with. The question discussed upon this point was a claim made upon the part of the insurance company that the warranty applied to the whole voyage, and that the change in the condition of the vessels at Marseilles did not fulfill the warranty; and that these vessels proceeded from Arles to Marseilles upon the Mediterranean without having been prepared for a sea voyage.

In discussing this question the court say: “ There is an implied warranty in every insurance of a ship that a vessel shall be seaworthy. By which it is meant that she shall be in a fit state as to repairs, equipment and crew, and, in all other respects, to perform the voyage insured and to encounter the ordinary perils at the time of sailing upon it. That is the general rule. If it be applicable here, of course, there can be no doubt that the defendants are right and they ought to succeed, because the warranty of seaworthiness has not been complied with at Lyons in respect to the whole voyage. If the insurance attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk; and if the voyage be such as to require a different complement of men or state of equipment in different parts of it, as if it was a voyage down a canal or river, and thence to and on the open sea, it is enough if the vessel be at each stage of the navigation in which the loss happens, properly manned and equipped for it.”

It thus appears that the last case cited in no way conflicts with any rule which has been established with reference to. the implied warranty attaching to policies of marine insurance. And the later case of Clapham v. Langton (5 Best & Smith [Q. B. Rep.] 729), is in entire accord with the principles which have been laid down. In that case the action was brought upon a policy of insurance upon a ship at and from the Tyne to Odessa or another port in the Black sea. The length, breadth, draught and tonnage of the vessel were specified in a memorandum on the face of the policy at the time of making the same. The defense was unseaworthiness. On the trial it appeared that before the execution of the policy the plaintiff wrote letters to the defendant describing the dimensions, etc., of the ship, and stating that she was a new iron steamer and took no cargo, but only coals enough for her use to Gibraltar, where she would coal again. The dimensions of the ship were also • stated in a memorandum on the policy. The ship was intended, after accomplishing the voyage, to be employed in river navigation only, and was, as to her hull, built and adapted to such navigation exclusively, and could not, by any strengthening appliances, be rendered fit to encounter the ordinary perils of the voyage. But before commencing the voyage certain appliances were put into and upon her hull to assist her in encountering the perils of the voyage The judge directed the jury that if the plaintiff had, before the execution of the policy, brought to the knowledge of the defendant the nature and description of the vessel, and the more than ordinary risk that she would necessarily encounter on the voyage, and if the vessel at the time of commencing the voyage had been, by the strengthening, made as seaworthy as a vessel of such a nature and description could reasonably be made, they should find for the plaintiff. The jury found for the plaintiff, and it was held that the direction was right, in that the warranty of seaworthiness, under the circumstances disclosed in this case, was limited to. the capacity of the vessel, and, therefore, was satisfied when such strengthening appliances had been resorted to as made the vessel as seaworthy as a vessel of such nature and description could reasonably be made.

IJpon an examination of the opinions there seems to have been a delightful contrariety of opinion, and although the court agreed that the judgment should be affirmed, they arrived at this conclusion for different reasons, and no opinion whatever was expressed upon the question whether parol evidence, as to the character of a vessel, is admissible to qualify the ordinary warranty of seaworthiness in a policy; and it would seem that the turning point of the case was that the policy contained the dimensions of the vessel, which showed that she could not possibly be seaworthy as a sea-going vessel. This conclusion, perhaps, is some-what conjectural, as the case is not explicit on this point, and the only point which seems to be established is that where a vessel is made as seaworthy for the voyage as a vessel of such nature and description could reasonably be made, the character of the vessel being known to the insurers there is no breach of the implied warranty of seaworthiness. We have not thought it necessary to comment on the evidence in this case in detail,’ because of the principle on which it is sought to uphold the verdict. It does not seem to be contended that if the rule which has been laid down as the one most favorable for the plaintiff which can possibly govern contracts, such as the one sued upon, is to prevail, there is any evidence that there has been a compliance with its requirements. Indeed, the whole course of the plaintiff’s argument is based upon the claim that if the defendant knew that the vessel w'as built for river navigation, all that it was necessary for the plaintiffs to prove was that she was good and staunch of her class, notwithstanding the peril insured against was an ocean voyage, and that there was no necessity to prove that any additional precautions, which were at all substantial, had been taken because of the additional risk, nor that the owner had put the vessel in the state in which she ought to be put on beginning such a voyage. It was held in the cases of Burges v. Wickham and Clapham v. Langton (supra) that the assured warrants that she shall be put in that state.

The only other point necessary to be considered is the claim made on the part of the respondent, that the question of seaworthiness is always one of fact to be determined by the jury; and our attention is called to the decision of the Court of Appeals, in the case of Walsh v. Washington Insurance Company (32 N. Y., 427), where the court say that the jury having found for the plaintiff, and the court below having approved the findings upon the facts, there would seem to be no serious question for consideration here, in regard to the seaworthiness of the vessel; for it is agreed by all the authorities that this is peculiarly a question of fact for the jury.” This case fails to establish any such claim as is made for it. Undoubtedly the question of seaworthiness is peculiarly a question of fact for the jury; but where the evidence is without dispute that the voyage is of a character for which the vessel is not fitted, and that no substantial precautions whatever, have been taken to provide for perils which must necessarily be encountered, there seems to be no question for the jury because there has been no compliance with the law, and the jury have no power to find contrary to the evidence. If there is any conflict of evidence upon the subject, and tlie jury find, and the verdict is approved by tbe court, of course tbe Court of Appeals bave no power to review tbe same upon tbe facts.

Tbe conclusion at wbicb we bave arrived is that there was a breach of tbe implied warranty contained in tbe policy, in that there was no attempt to put tbe vessel in tbe state in wbicb she ought to bave been put upon tbe beginning of an ocean voyage.

Tbe judgment must be reversed and a new trial .ordered, with costs to tbe appellant to abide tbe event.

Maoomber, J"., concurred;

Bartlett, J.:

I concur. I think tbe testimony established the unseaworthiness of tbe vessel, tested by any rule properly applicable to tbe case.

Judgment reversed and new trial ordered, with costs to tbe appellant to abide tbe event.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    JAMES J. NEALIS, as Receiver, etc., of MATHIAS STRANSKY and Others, Respondent, v. SALEM LISSNER and MICHAEL LEVENSON, Appellants.

      Allegations of fraud in a complaint — when they do not state a eau.se of .action in tort.

    A complaint, alleging that the defendants agreed with the plaintiff, the receiver of an insolvent firm, to purchase the stock in trade of the firm at a specified price, and that in case the defendants should, at the auction sale thereof,buy such stock for a less amount, they would, nevertheless, pay the agreed price; that the defendants purchased the stock at less than the price agreed upon, but refused to carry out the contract entered into by them, and that the plaintiff was entitled to the difference between the price paid at the auction sale and the price agreed upon, and further alleging that the defendants unlawfully conspired to cheat and defraud the said firm of Stransky, Reimans & Aarons, of which plaintiff was receiver, attended the sheriff’s sale, and purchased the merchandise there sold, and that while conspiring to the same fraudulent ends the defendants did certain other acts and things, does not state a cause of action in tort, and the allegations of fraud therein should be stricken out on the motion of the defendants.
    Appeal from an order made at tbe New York Special Term denying a motion to strike out certain allegations of fraud in tbe complaint as redundant, and for other relief, entered in tbe office of tbe clerk of tbe county of New York, November 27, 1888.

      The complaint set up an agreement made by the defendant to pay for a certain stock of goods a price agreed upon, and, although the same might be purchased at the auction sale thereof for a less price, to pay the balance of such price to the plaintiff. The complaint also contained the following allegation: That, pretending
    to act under said agreement, the defendants Lissner and Levenson unlawfully conspired to cheat and defraud said Stransky, Reiman & Aarons, attended the sheriff’s sale of the stock, goods and fixtures of Stransky, Reiman & Aarons, on or about the 26th day of March, 1888, and purchased the same for $23,185.09; that theretofore the said stock had been appraised at $51,443.81, which sum was agreed to by defendants as being the cost price, ninety per cent of which would be $46,299.43, leaving a balance due from the new firm of Lissner, Levenson & Reiman to the old firm of Stransky, Reiman & Aarons, under the agreement, of $23,114.34,- that, still conspiring to the same fraudulent ends, the said Lissner and Levenson opened a business in the same line as formerly conducted by Stransky, Reiman & Aarons at the same stand, having obtained a lease thereof at the same rate of rental formerly paid by Stransky, Reiman & Aarons ; and, still pretending in good faith to keep their agreement with said Reiman and said Stransky, Reiman & Aarons secured said Reiman’s services at the new stand, and the same was opened by him, and the business started and run for upwards of a month without compensation, and in the expectation that said Lissner and Levenson would carry out their said agreement, and relying on their promises so to do.
    The plaintiff or his attorney were ordered to show cause why the following portions of the complaint herein should not be stricken out as redundant, that is to say, the words “pretending to act under said agreement ” in the sixth line of the ninth folio of said complaint, and the words “ Lissner and Levenson unlawfully conspired to cheat and defraud said Stransky, Reiman & Aarons ” in the seventh and eighth lines of said ninth folio, and the words “ still conspiring to the same fraudulent ends ” in the eighth and ninth lines of the tenth folio of the said complaint, and the words “ still pretending in good faith to keep their agreement with said Reiman, and said Stransky, Reiman & Aarons ” in the second, third and fourth lines of the eleventh folio of said complaint; and why the plaintiff should not elect upon what cause of action he will rely herein, whether upon the cause of action upon contract or of fraud in said complaint set forth, or whether he will rely upon the cause of action therein for damages to Alexander Reiman or for damages to Mathias Stransky, Alexander Reiman and Louis Aarons, as copartners.

      Aaron P. Whitehead, for the appellants.

      Charles Donahue, for the respondent.
   Brady, J.:

This action was brought upon a contract by which the defendants agreed to purchase the property of Stransky, Reiman & Aarons at a price named. It appears that the firm mentioned failed in the month of March, and the merchandise owned by them was sold under execution. Before the sale Reiman and the defendants agreed to go into business together, and to purchase the stock of the firm already suggested, the defendants agreeing that in case they should buy the stock for less than ninety per cent at the auction, they would, nevertheless, pay that sum for it. They purchased the stock at less than ninety per cent, but refused to carry out the contract, which induced this action, the plaintiff claiming, as receiver of the firm, that he was entitled to the difference between the price paid at the auction sale and the price agreed upon, which was something like fifty per cent. The complaint charges upon the defendants, in connection with the contract, fraudulent conduct; for example, it is alleged in paragraph seventh of the complaint that, under the agreement to which reference has been made, the defendants, unlawfully conspiring to cheat and defraud the said firm of Stransky, Reiman & Aarons, attended the sheriff’s sale and purchased the merchandise there sold, and that, still conspiring to the same fraudulent ends, the defendants were guilty of certain conduct, and that, by reason of the matters and things charged, the firm named were damaged to the extent of $30,000, which the plaintiff, as receiver, claimed the right to recover. The cases of Harway v. The Mayor (4 T. & C., 167) and Sheahan v. Shanahan (5 Hun, 461), cited on behalf of the plaintiff, do not sustain the proposition that, in such a case as this, the allegations of fraud are necessary, or are to be tolerated, and for the reason that, assuming the facts in regard to the contract, as alleged, to be true, it is not necessary, in order to establish the plaintiff’s claim to show, in addition, fraudulent devices of any kind whatever. The averments amount to a contract made and broken, and the right to maintain the action depends upon these elements, and these elements alone. The ease§ mentioned do not present any of these characteristics. In Sheahan v. Shanahan, for example, the defendant claimed that the judgment was erroneously recovered, because the complaint was for a wrongful conversion of property, while the cause of action established by the evidence was on contract. The General Term held that the foundation of the claim made by the plaintiff was an express contract, and, although the breach of it was alleged in terms characterizing the defendant’s failure to perform as wrongful, it was still no more than a non-performance of the agreement alleged to have been made, and that these allegations of wrong did not change the action from one on contract to one in tort. This case is really an authority for the proposition that the allegations of fraud were unnecessary for the plaintiff’s recovery. It may be said, perhaps, with propriety, that a deliberate refusal to carry out a contract necessarily involves the element of fraud; the refusal beingjprwna facie unjustifiable, and, therefore, in violation of law. For these reasons it is thought that the order in the court below should be reversed, and an order entered directing the allegations of fraud to be stricken from the complaint as redundant. This disposition of that' part of the appeal disposes, also, of the attempt to compel the plaintiff to elect whether he will proceed upon the contract alone or upon the alleged fraud. The attempt to obtain an order directing the plaintiff to elect whether he will rely upon the cause of action herein for damages to Alexander Reiman, individually, or for damages to the firm of which he was a member, must fail. The receiver seems to be invested with all the property of the firm, and this action is broad enough to embrace all the damages that may be urged by either of them growing out of the cause of action alleged.

Order appealed from should be reversed, ydthout costs.

Van Erunt, E. J., and Daniels, J., concurred.

Order reversed, without costs.


author: Macomber, J.:

text:
    THE CONGREGATION KOL ISRAEL ANSCHI POLAND, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Mvemption from taxation — exclusive possession of real property for the purposes of public worship is required in New York city.

    A building in the city of New York, tile upper and. second story of which, is used exclusively as a Jewish synagogue and place for holding religious services, and the first floor of which is used for living apartments by the janitor, and also for bathing apartments, accessible to all men and women of the Hebrew or Jewish race, whether members of the congregation of the synagogue or not, upon payment of a pecuniary compensation for the use thereof, sufficient to cover the expense of gas and fuel, and in lieu of a salary to the janitor, is not entitled to exemption from taxation, unde! the provisions of part I of chapter 18 of title 1 of section 4 of subdivision 8 of the Revised Statutes, as the same is modified by chapter 282 of the'Laws of 1852, embodied in section 827 of chapter 410 of the Laws of 1882, providing that exemption from taxation “shall not apply to any such building or premises in the city of New Yorir, unless the same shall De exclusively used for such purposes and exclusively the property oí a religious society.”

      Sernble, that if the bathing apartments were required in the religious services of the synagogue, and the practice of bathing was enjoined by the tenets governing the conduct of the worshipers therein, and the apartments were used exclu- . sively for the purpose of public worship, the property would be exempt from taxation.
    Appeal by tbe plaintiff from a judgment of the New York Special Term, entered in the office of the clerk of the county of New York June 30, 1888, dismissing the plaintiff’s complaint, which was filed to procure the cancellation of taxes for the years 1881, 1882, 1884 and 1885, upon No. 80 Forsyth street, in the city of New York.

      Samuel J. Grooks, for the appellant.

      Henry R. Reehmcm, counsel to the corporation, and J. S. Golemcm, for the respondents.
   Macomber, J.:

It was claimed, upon the trial, that the imposition of taxes for the years above mentioned was illegal and void, for the reason that the plaintiff is a religious corporation and that the premises assessed were, and had-been, used by it exclusively for religious services and worship, and were, consequently, exempt from taxation under the Revised Statutes and the laws pertaining to the city of New York.

The exemption claimed by the plaintiff is founded upon the Revised Statutes, part 1, chapter 13, title 1, section 4, subdivision 3, as amended by chapter 397 of the Laws of 1883. The statute is as follows: Every building erected for the use of a college, incorporated academy or other seminary of learning, and in actual use for either of such purposes, every building for public worship^ every school-house, court-house and jail, used for either of such purposes, and the several lots whereon such buildings so used are situated, and the furniture belonging to each of them,” shall be exempt from taxation.

Chapter 282 of the Laws of 1852, now embodied in section 827 of the consolidation act, declares that the exemption from taxation of every building used for public worship, etc., as above mentioned, shall not apply to any premises in the city of New York, unless such building shall be exclusively used for such purposes. The question, therefore, is whether the premises of the plaintiff were exclusively used for the purpose of public worship during the years above mentioned.

The evidence establishes these facts: The plaintiff, being a domestic religious corporation, did, on the 25th day of March, 1881, purchase the property now known as No. 80 Eorsyth street. Shortly thereafter the house, which then stood upon the premises, was altered and rebuilt for the purposes of the plaintiff, and from the 1st day of May, 1881, such building contained two floors or stories, continuously used by the plaintiff for the following purposes: The upper or second floor was used by the plaintiff and its members exclusively as a synagogue and place of holding religious services; one portion of the first or lower floor was used and occupied by the plaintiff’s janitor, wife and family as living apartments; the other portion thereof was occupied by bath tubs for women and by a pool or plunge for cleansing. Another portion thereof was occupied by bath tubs for men, and the remaining portion was occupied by hallways and stairs. The bath tubs were accessible to all men and women of the Hebrew or Jewish race, whether members of the plaintiff’s congregation or not, who might desire to use them, and were, during the period aforesaid, frequently used.by men and women of that race. Cold and warm baths were there provided for them by the janitor, who furnished them the necessary facilities, and received from them a pecuniary compensation therefor, which he retained for his own use, after paying the expenses for gas, fuel and the accessories of the bath, in lieu of any salary or compensation provided to him by the plaintiff as such janitor. Under these facts, conclusively established by the evidence, it is clear that the premises of the plaintiff were not exclusively used for the purposes of public worship during any of the time mentioned, and hence they are not exempt from taxation. The second story of the building, it is true, is used for religious services and public worship, and for no other purpose. But the use of the first floor for other pmqposes than those exclusively religious takes the plaintiff out of the operation and protection of the statute. There can be no question, under the facts proven, but that the plaintiff was well aware of the use to which the lower story was put. It is claimed, however, in behalf of the appellant, that the bathing apartments were a part of the religious services, enjoined by the obligations of the tenets governing the conduct of the plaintiff’s worshipers. If it were shown that these baths were administered as a part of the preparation for receiving religious instruction, and hence formed a part of the religious conduct of the plaintiff, it would not be required to pay the taxes thereon; but the proof shows that the baths were given to any persons of the Hebrew faith who applied for them, although they were not members of the plaintiff’s congregation and took no part in any services of the plaintiff. These views render it unnecessary to consider the question whether the taxes laid in the year 1881 stand upon a different footing from those of the succeeding year.

The judgment appealed from should be affirmed, with costs.

Yan Brunt, B. J., and Bartlett, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Judicial Settlement of the Account of SAMUEL D. BABCOCK and JOEL BURKE WOLFE, as Sole Surviving Trustees Under the Last Will and Testament of JOEL WOLFE, Deceased.

      Executors and trustees' — when they are entitled to full convmissions upon the corpus of the estate, in each capacity.

    A testator by bis will provided as follows: “I give, devise and bequeath all the rest, residue and remainder of the estate, real and personal, whereof I may die seized and possessed or entitled to, to my executors hereinafter mentioned, the survivors and survivor of them, their and his successors and assigns, to have and to hold the same as joint tenants, and not as tenants in common, upon the following uses and trusts: ” To collect the rents and income and pay over $8,000 thereof to his wife during her life, and the balance to others. He appointed two persons therein named “ executors of this my last will and testament, and trustees under the same; ” and similar phraseology was used in a codicil thereto. The executors were authorized to sell any of the personal estate, and invest the proceeds thereof in the purchase of improved real estate, in their names as trustees.
    By a decree of the surrogate of New York of March 6, 1884, the executors, after making certain payments therein named, were directed to assign, transfer and set over to themselves, as trustees, the estate remaining in their hands, to be held by them, as trustees, under the terms of the will; which they did.
    In proceedings thereafter taken for the settlement of the subsequent accounts relating to such estate, it was:

      Held, that, by the provisions of the will, there was a separation of the functions and duties of the executors and those ot tlie trustees, and that the duties of the executors clearly preceded those to be performed by them as trustees.
    That they were entitled to full commissions onikecoi’pus of the estate, both in their character as executors and also in their character as trustees under said will.
    Appeal by tlie trustees from tbat part of tlie decree of tlie surrogate of tlie county of New York which adjudged that they, as such trustees, were not entitled to any commissions on the principal of the personal estate, in addition to the full commissions on the corpus thereof awarded to them as executors under a previous decree made by the surrogate on their final accounting as surviving executors of said will, and determining that only one commission on the corpus of the estate was allowable to each of them.
    The testator by his will provided, among other tilings, as follows:

      Fifth. I give .devise and bequeath all the rest, residue and remainder of the estate, real and personal, whereof I may die seized and possessed or entitled to, to my executors hereinafter mentioned, the survivors and survivor of them, their and his successors and assigns; to have and to hold the same as joint tenants, and not as tenants in common, upon the following uses and trusts, nevertheless, that is to say : To have and to hold the same and the rents, issues, profits and income thereof, to collect and receive and, after paying thereout all proper and necessary costs, charges and expenses, to pay to my wife Margaret Y. S. Wolfe, or to her use, annually during her natural life, or so long as she shall remain my widow, the sum of eight thousand dollars of said rents, issues, profits and income in four equal payments. * * *

      Seventh. I hereby authorize and empower my executors to sell, whenever they may deem it advisable, any or all of my personal estate, and in their discretion to invest the same, or any part thereof, in bonds and mortgages on improved real estate in the city of New York, or in the purchase of improved real estate therein, in their names as trustees under this my last will and testament. * * *

      Lastly. I hereby revoke, cancel and annul all other wills and. codicils by me at anytime heretofore made, and nominate, constitute and appoint my friends Edgar S. Yan Winkle of the city, county and State of New York, and Samuel Denison Babcock, of Riverdale, Westchester county and State aforesaid, executors of this my last will and testament and trustees under the same.
    By a codicil to his said will the testator further provided :
    “ I hereby appoint my nephew Joel Burke Wolfe, who now resides at No. 133 West 14th street in the said city of New York, and who is a son of my late brother, TTdolpho Wolfe, to be an additional executor of and trustee under my said will; and I declare that my said will shall be read and eontsrued as if the names of the said Edgar S. Yan Winkle, Samuel Denison Babcock and Joel Burke Wolfe were inserted therein throughout instead of the names of the said Edgar S. Yan Winkle and Samuel Denison Babcock, and that all the trusts and powers in and by my said will reposed in and made exercisable by the said Edgar S. Yan Winkle and Samuel Denison Babcock, or the survivor of them, shall be executed and exercisable by the said Edgar S. Yan Winkle, Samuel Denison Babcock and Joel Burke Wolfe, or the survivors or survivor of them, tlieir and his successors and assigns, and in all other respects I confirm my said will.”
    By a decree of the surrogate of New York of March 6, 1884, the executors, after making certain payments, were directed to assign, transfer and set over to themselves, as trustees, the estate remaining in their hands.

      Henry Hi/mmelmann, for the trustees, appellants.

      Henry TP. Olai’Jc, attorney for Alice G. Wolfe, respondent.
   Macomber, J.:

It is apparent that the surrogate disallowed the claim of these surviving trustees on the ground that the testator did not, by bis will, contemplate a severance of the functions of the executors from those of the trustees, technically so-called. The general rule is well established as enunciated in the case of Johnson v. Lawrence (95 N. Y., 154), that where the functions or duties of the executor and trustee are not separable, but are blended together, double commissions are not allowable. On the other hand, as is decided in the case of Laytin v. Davidson (95 N. Y., 263), where the duties distinctively of an executor cease and those distinctively of a trustee are assumed, double commissions are allowable. This question is to be determined by an inspection of the will itself. By that instrument Joel Wolfe directs his executors to pay his just debts and funeral and testamentary charges and expenses, and authorized them to expend $5,000 upon his burial lot by way of ornamentation and improvement.. By the second, third and fourth clauses, he gives certain legacies to his wife and two of his nieces.

By the fifth clause he gives, devises and bequeaths “ all the rest, residue and remainder” of his estate, real and personal, to his executors, the survivor and survivors of them, their heirs, successors and assigns, to have and hold the same as joint tenants upon the following uses and trusts: To have and to hold the same, and the rents and issues, etc.; to collect and receive the same, and after paying thereout all proper and necessary commissions, charges and expenses, to pay to his wife during her life or widowhood an annuity of $8,000, of said rents, m equal quarterly payments. The rest and residue of said net rents and income were to be paid to maiden daughters of the testator’s deceased brother in equal shares during the life of the testator’s widow, with a provision that, in case of the death or marriage of any of the said daughters of the deceased brother her share of said income was to go to her unmarried sisters.

By the sixth clause the testator, upon the remarriage or death of his wife, gives, devises and bequeaths the rest, residue and remainder of his said real and personal estate to eight of his nieces, and a nephew, particularly specified, and provides that in case any of them die before that event, leaving issue, such issue shall take its parent’s share; and in case no issue is left, the surviving brothers and sisters of the one so dying shall take his or her share.

By the seventh clause the testator authorizes and empowers his executors to sell, whenever they deem it advisable, any and all of his personal estate, and in their discretion to invest the same in bonds and mortgages on improved New York city real estate; or in the purchase of improved real estate, in their names as trustees, under the last will and testament, or to use the same, or any part thereof, in the improvement of any real estate he may die seized of.

It also authorizes them, in their discretion, to hold and retain his personal estate, or any part of it, in the manner and form as invested at testator’s death. He also authorizes his said executors to rent, lease or improve any part of his estate, and declares, as his intent and purpose, that his personal estate shall be converted into real estate if it can be advantageously done. By another clause he authorizes his executors to let his real estate and to execute leases therefor. Lastly, he appoints Edgar S. Yan Winkle and Samuel Dennison Babcock, “ executors of this my last will and testament, and trustees under the same.” By a codicil he recites the appointment of the last-named gentlemen as “ executors of my said will and trustees under the same,” and then appoints his nephew, Joel Burke Wolfe, “ to be an additional executor of and trustee under my said will.”

An inspection of this will shows that there was a separation of the functions and duties of the executors and those of the trustees, and that the duties as executors clearly preceded the functions to be performed by them as trustees before the latter began, and that there was no provision for the co-existence, continuously and from the beginning, of the two classes of functions and duties. A previous decree of tbe surrogate directed that the executors, after making certain payments named, assign, transfer and set over to themselves, as trustees, all and singular the estate so found to be remaining in their hands, to be had and holden by them as such trustees under the terms of said will and upon the trusts thereby created. In pursuance of this decree the executors did turn over and transfer to themselves, as such trustees, all such estate remaining in their hands, having finished their duties as executors, and assuming actively and exclusively the duties of such trustees.

Under these circumstances, we think that the trustees were entitled to the commissions claimed, and that, consequently, the order of the surrogate should be reversed, with costs and disbursements.

Yan Brunt, B. J., and Bartlett, J., concurred.

Order of surrogate reversed, with costs and disbursements.


author: Van Brunt, P. J.:

text:
    CATHARINE McCABE, Respondent, v. GEORGE J. KENNY, Appellant.

      Specific performance of a contract to sell real property — what is not a ma/rlcetable title — escheat act, chapter 706 <?fl871, unconstitutional.

    In proceedings to compel tlie specific performance of a contract for the sale of certain real estate it appeared that Matthew Leavy purchased the premises in question in 1836, and continued in the ownership thereof until the year 1837, when he died leaving a last will and testament, and two children and a widow surviving him. Both of the children died in infancy, leaving them surviving their mother, who died in 1850.
    After Leavy’s death his widow continued in the possession of the property, collecting the rents up to the time of her death, when Gilbert Leavy, a brother of the testator, came to this country and immediately took possession of the premises, and continued in the exclusive possession thereof down to the year 1871, collecting the rents of the property. He was naturalized in 1857. In 1871 Gilbert Leavy, being in possession of the property, conveyed the same to his daughter, Catharine McCabe, the plaintiff in this action, who remained in undisturbed possession thereof down to the time of the commencement of this action.
    Subsequently a mortgage, which had been executed on the premises by Matthew Leavy, was foreclosed, to which Catharine McCabe and her husband, and the only heirs-at-law of Matthew Leavy living at that time, were made parties defendant, under the sale in which action Catharine McCabe became the purchaser. Matthew Leavy had brothers and sisters, all of whom were residents of Ireland and unmarried, and Mrs. Leavy had a brother and a sister, the former of whom was never in this country; the latter of whom died in Connecticut, but whether before or after the death of Mrs. Leavy was not definitely established.

      Held, that the adverse possession, claimed to he established in Gilbert Leavy and the plaintiff, depended upon a question of fact and also upon a doubtful question of law, there being no evidence that Gilbert Leavy was in possession of these premises, under a claim of title thereto, until he conveyed to the plaintiff iml871, and that the title was not a marketable title such as the purchaser should be compelled to accept.
    That chapter 706 of "the Laws of 1871, entitled “An act to release the interest of the people of the State of New York in certain real estate to Catharine McCabe,” was unconstitutional, there being no reference in the title of the act to the real object thereof.

      Johnston v. Spicer (107 N. Y., 185) followed.
    Appeal from a judgment rendered at tbe New York Special Term, directing a contract for tbe sale of certain premises in tbe city of New York to be specifically performed, and entered in tbe office of tbe clerk of tbe county of New York on tbe 31st day of January, 1889.

      Payson Merrill, for tbe appellant.
    Pougherty, Purnin dc PLend/rielts, for tbe respondent.
   Van Brunt, P. J.:

Tbe facts as found by tbe court below, briefly stated, are as follows : Matthew Leavy purchased tbe premises in question in 1833, and continued to be tbe owner thereof until tbe year 1837, in which year be died at tbe city of New York, leaving a last will and testament, which was duly admitted to probate. In view of tbe conclusion at which we have arrived, tbe terms of this will are entirely immaterial. Tbe executors never qualified. lie left him surviving two children and a widow, both of which children died in infancy, leaving their mother surviving, who died in tbe year 1850 or 1851. Matthew Leavy’s parents died prior to bis death. Mrs. Leavy bad a brother named Peter, and two sisters, Ann Murtha and Ehzabeth Hart, her only heirs-at-law. Peter never was in this country. Ann died in this city, prior to tbe death of Mrs. Leavy, unmarried. Ehzabeth was married to John Hart, and died in Connecticut, but whether before or after the death of Mrs. Leavy is not definitely established, but presumably after. Matthew had four brothers and two sisters, James, Gilbert, Bernard and John, and Mary and Ann; all of these were living at the time of the death of the survivor of Matthew’s children, except James, who had died prior to Matthew, unmarried. At this time all of the above-named brothers and sisters of Matthew were residents of Ireland, and unmarried. After the death of Matthew, his widow continued in possession of the property and collected the rent up to the time of her death. In the year 1851 or 1852, a few months after the death of Mrs. Leavy, all the brothers and sisters of Matthew being still residents of Ireland and aliens, one brother, Gilbert Leavy, came out to this country, and immediately on his arrival took possession of the premises in question and continued in exclusive possession thereof down to the year 1811. During the whole of this period he remained in possession of the premises, and appropriated to the use of himself and some of his relatives the rents of the property. Gilbert was naturalized a citizen on the 22d of October, 1851, and from this fact it was claimed to be established that he must have come to this country prior to October, 1852. In the month of February, 18J1, Gilbert Leavy, being then in possession of the property, assumed to convey the same to his daughter, Catharine McCabe, the plaintiff in this action, who immediately thereupon entered into the actual possession of said, premises, and has remained in undisturbed possession thereof down to the commencement of this action. It is further found by the learned court that in April, 1811, by chapter 106, Laws of 1811, the State of New York released to said Catharine McCabe all its interest in the premises in question. The title of said act was “ An act to release the interest of the people of the State of New York in certain real estate to Catharine McCabe.”

Subsequently a mortgage was foreclosed which had been executed on the premises while Matthew Leavy was in possession thereof. Catharine McCabe and her husband, Bernard Leavy, Thomas Leavy, John Leavy and Elizabeth his wife, Ellen Leavy, and Mary Blake were made parties to the action. Said Catharine McCabe, Bernard Leavy, Thomas Leavy, John Leavy, Ellen Leavy and Mary Blake, the defendants, were all of full age and the only heirs-at-law of Matthew Leavy then living. Upon the sale in foreclosure Catharine McCabe became the owner. The court found that the plaintiff and Gilbert Leavy, her grantor, had been in the actual continued occupation of the premises in question for upwards of thirty-six years past under claim of ownership. Although it is doubtful whether the proof is sufficient to sustain this finding, it is not material in view of the conclusion at which we have arrived. The court further found that the plaintiff in this action, while in possession of the premises, entered into a contract with the defendant for the sale of the premises, and that the defendant, claiming the title to be defective, refused to take the same. And as conclusions of law the court found: First, That on the death of the survivor of the children of Matthew Leavy, which occurred in the year 1842, whatever interest the heirs of Matthew Leavy might have had, under his will or by descent, escheated to the State, as they were at that time, aliens and incapable of inheriting. Second. That the release from the State to the plaintiff herein vested in her all the interest which the heirs of Matthew Leavy would have received if citizens. Third. That if any interest came to the brothers and sisters of Matthew Leavy, either by devise or by descent, such interest was duly foreclosed in the action brought by Davidson, and, under the sale in said action of foreclosure, became vested in the plaintiff Catharine McCabe. Fourth. That, as against the heirs of Matthew Leavy, the plaintiff has a good title to the premises in question, either through the release from the State or through the sale under the Davidson foreclosure proceeding.

The learned court also found that the possession of Gilbert Leavy and Catharine McCabe established an adverse possession thereof for thirty-six years past, and directed that the defendant perform his contracts. From this judgment this appeal is taken. It is a well-settled principle that the purchaser of land at a judicial sale is entitled to a marketable title ; and that a title open to a reasonable doubt is not a marketable title, and the court cannot make it one by passing upon a disputed question of fact or a doubtful question of law in the absence of the party in whom the outstanding right is vested. (Fleming v. Burnham, 100 N. Y., 1.)

It seems to us, under this rule, that the title tendered to the defendant was not such a one as he was bound to take. In the first place, the adverse possession claimed to have been established in Gilbert Leavy and the plaintiff depended upon a question of fact, and also upon, a doubtful question of law, because there is no evidence whatever that Gilbert Leavy was in possession of these premises under a claim of title; and there is no evidence that he claimed such title until he conveyed to the plaintiff in 1871. It is true he was in possession and collected the rent, but what his claim in respect to the title of the premises was we are in no way informed. He made no claim by virtue of a written instrument, but simply seems to have seized upon the property and converted the rents to his own use, but whether he claimed title to the same or not does not appear, except so far as it may be inferred from the fact of his collecting the rents, which it would appear he did not claim as his own, but divided the same amongst the widow of one of his brothers and his sister. "What the nature of his claim was, from this evidence, it is impossible to determine, and it is clearly not that distinct claim of title which is required by the act in order to establish an adverse possession It is found by the court that upon the death of the survivor of the children of Matthew, whatever interest the heirs 'of Matthew might have had escheated to the State, as they were at that time aliens. But it is also found, that the release from the State to the plaintiff vested in her all the interest which the heirs of Matthew would have received if citizens.

It is clear, under the rule laid down in the case of Johnston v. Spicer (107 N. Y., 185) that the act under which the plaintiff claims is unconstitutional. In the case cited the title of the act was “An act to release the interest of the people of the State of New York in certain real estate to * * * and for other purposes.” This title, leaving out “ and for other purposes,” is identical, with the act under which Catharine McCabe claims to have received her interest from the State. The court held this to be unconstitutional because it embraced, in fact, more than one subject, namely, the transfer of title to real estate and for other purposes. And then they go on and say that if they were able to overcome this objection, the court were still of the opinion “ that the lack of any intelligible reference in the title to the real object of the act, and its palpable misdescription, thereof, is fatal to< its validity. The true object of the enactment was, obviously, to convey to some one of the heirs of George Spicer the rights of property acquired by the State through escheat or forfeiture in the real and personal property of Ellen Spicer. No reference is made in the title to the former ownership of either George or Ellen Spicer, or to the fact that the State acquired its interest by escheat or reversion; no indication that the act was intended to transfer any interest in personal property, and no reference to the place or location of the property affected. There is absolutely no clue in the title by which the intention of any interested party would naturally be attracted to or informed of the real object of the act. The manifest intention of the constitutional provision was to require sufficient-notice of the subject of proposed legislation of a private or local character to beso expressed in the title as to put not only interested parties, but also persons concerned in the proposed legislation, upon their guard, and to inform all persons reading it of the general purpose and scope of the act. While this is not required to be done by pursuing any particular formula or with much detail of .specification, and great liberality of construction should be indulged in by the courts to uphold the constitutionality of legislation, yet a due regard to constitutional requirements demands that when its plain and obvious purposes are disregarded or evaded the judgment of the court should give effect to its provisions.” And the court held that, for the reasons stated, the act was unconstitutional. The title to the act now under consideration being, as far as this question is concerned, the same, it falls within the rule thus laid down, and must be held to be unconstitutional, and nothing passed to the plaintiff thereby. Therefore, no matter which horn of the dilemma we take, the plaintiff did not acquire, under the proceedings in foreclosure, a good title, because, as far as the heirs of Matthew were concerned, their interest escheated to the State, and the State not being a party to the foreclosure, such interest was not cut off, and, secondly, because no right of the State has been released to Catharine McCabe by the act in question.

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

Cullen, J., concurred.

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


author: Bartlett, J.:

text:
    FRANCIS VAIL, Appellant, v. ELIZABETH A. VAIL, in Her Own Right and as Executrix of and Trustee Under the Last Will and Testament of AARON F. VAIL, Deceased, NETTIE VAIL, ROBERT VAIL and OPHELIA VAIL, Respondents.

      Pa/rtition — power of the commissioners to direct a partial destruction of buildings.

    Commissioners, appointed in an action brought for the partition of real property, do not possess the power, with a view to effecting an equal division of the property, to direct a partial destruction of the buildings thereon.
    Appeal by tbe plaintiff from a final judgment in partition confirming the report of commissioners directing an actual division of the lands in suit, which judgment was entered in the office of the clerk of the county of New York on the 2d day of July, 1888.

      J. Hampden Dougherty, for the appellant.

      Charles W. Dayton, for the respondents.
   Bartlett, J.:

This is an action for the partition of premises situated partly on Grand street, partly on Orchard street and partly on Ludlow street, in the city of New York. It is undisputed that the rights and interests of'the respective parties have been correctly ascertained ; and it is also conceded that the premises are capable of being actually partitioned. This appeal is from the final judgment confirming the report of the commissioners who were appointed to make the partition, except so much of the said judgment as awards the plaintiff costs. Practically, it presents but a single question for our consideration ; and that is, whether, to effect an equal division, commissioners in partition possess the power to direct the partial destruction of one of the buildings on the property which is the subject of the suit. Both parties seem to have agreed that for the purposes of partition it was proper to divide the premises into two parcels, one comprising the three dwellings fronting on Grand street, the other including all the rest of the property, that is to say, the lot on the corner of Grand street and Orchard street, the lot on Orchard street and the lot on Ludlow street. The commissioners thought, however, and say, in the memorandum accompanying their report, that justice could not be done to the party to whom the three Grand streets lots might be awarded, “ unless the depth of these lots were increased by adding for light and air ” a rectangle seven feet wide along the rear of those lots. A portion of this rectangle is vacant; but upon a part of it stands a tenement — which is one of two rear houses located on the Orchard street lot — and this tenement must be demolished to the extent of removing a portion thereof, seven feet wide and twenty-nine feet deep, in order to carry out the intention of the commissioners to add the seven-foot rectangle to the Grand street parcel for the purpose of affording light and air to the same. The expense of taking down seven feet of the tenement was estimated by the commissioners at $1,200, and this was imposed upon the party who should receive the Grand street lots. The Grand street lots were awarded to the plaintiff, but he is dissatisfied and appeals because the action of the commissioners has conferred no benefit upon him in giving him a strip of unoccupied land; and yet he is charged with a considerable sum of money on account of having this strip,set off to him.

That the commissioners contemplated the destruction of the rear Orchard street tenement, so far as it occupies the seven feet strip, is plain. I have already quoted from their memorandum, in which they speak of the necessity of increasing the depth of the Grand street lots by adding this rectangle “for light and air.” In the same memorandum they say that “the uncontroverted testimony established the fact that, for $1,200, seven feet of the building can be taken down, a new wall erected,” and suitable alterations effected. In their report itself they say it will be necessary to partly take down and otherwise make alterations in the rear buildings on the Orchard street lot; and in an affidavit by two of the commissioners, relating chiefly to the question of their fees, they declare that the portion of the Orchard street building, seven feet wide, which stands upon the rectangle or slip, would not only be valueless, but would really be an incumbrance on the Grand street allotment. In view of these various statements, it is idle to urge that the commissioners contemplated nothing more than the erection of a division wall in the Orchard street rear building, which, should cut off seven feet thereof from the defendants’ allotment. "What they meant and intended, beyond any reasonable doubt, was that the part of this building which stands on the seven-foot strip should be wholly demolished and removed. Otherwise, what they say about the necessity of allotting this strip to the Grand street parcel “ for light and air,” and their estimate as to the cost of removing that portion of the building, would be meaningless. The learned judge at Special Term, however, seems to have treated the action of the commissioners simply as directing the division of one building in to two. In Walter v. Walter (3 Abb. N. C., 12, 18), Davis, J., intimated that it might be proper for commissioners to make such a division; but, as has been said, the plain intention here was not to divide the rear tenement, but to destroy seven feet of it.

The cases cited by the respondents and by the court below do not, any of them, sustain the proposition that commissioners in partition can prescribe the destruction of any portion of the property in order to effect an equal division thereof. Of these cases, the principal one is Wood v. Little (35 Maine, 107). In this case the property to be partitioned included a cotton factory. The agreed statement of facts declared that the factory could not be divided into the several parts prayed for in the partition without destroying the property for the puposes for which it had been maintained by the owners. But it further declared that the factory could be divided, as prayed for, without destroying the same for purposes and uses other than those for which it was erected and had previously been maintained. A partition was ordered upon the express conclusion of the court that it was possible to make the desired division “without destruction of the ¡iroperty or seriously impairing its value,” thus clearly implying that if an actual partition would have destroyed the factory, or even seriously impaired its value, such a division would not have been sanctioned. All that this case holds, therefore, is that the mere fact that a building cannot be employed for the same purposes to which it has heretofore been devoted is not a valid objection to a partition thereof, provided the partition will not destroy its value for other purposes. The case of Walter v. Walter (supra), involved a question not of destruction but of division. This case was decided at chambers by the former presiding justice of this General Term, and there is language in the opinion which implies, doubtless correctly, that commissioners in partition possess the power to direct the division of one city store into two stores, and hence to order the construction of a division wall. And it has been held in England that such commissioners may direct new hedges and fences to be made. (Lister v. Lister, 3 Young & Coll., 540, 546.)

The other decisions referred to below relate to the disinclination of courts to disturb the findings of commissioners on questions of value, but no cases need be cited to show that an error of law in the procedure of commissioners in partition ■ can be and should be reviewed, and if detrimental to a party, should cause the report to be set aside or modified so that justice may be done.

Neither the Oode nor any case which I have been able to find sanctions the exercise of any such power as the commissioners have endeavored to exercise in this case. It was in excess of their authority and demands a reversal of the judgment, so far as the judgment confirms their report. (Oode Civil Pro., § 1556.) No occasion appears to exist, however, for the appointment of new commissioners. The gentlemen who have already acted are familiar with the premises, and the estate will probably be saved expense by referring the matter back to them, with directions to make partition in such a way as not practically to destroy any portion of the buildings to be partitioned.

In the opinion below, as well as in the brief for respondents, the question of the commissioners’ fees is discussed, but as the appellant makes no point on that subject, it has not been considered by the General Term.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment reversed and question of partition sent back to commissioners.


text:
    DAVID W. BRUCE and Others, Trustees of CATHARINE L. WOLFE, Respondents, v. URIAH WELCH, Appellant.

      Landlord and tenant — measure of damages for a breach, by the landlord, of a covenant to allow the tenant to remove mantels and grates.

    A tenant who, under the terms of his lease, is authorized to remove the marble mantels and grates in the demised premises, provided that he makes good the injury which may be done by such removal, being prevented from so doing, is entitled to recover, by way of damages for the breach of the agreement, the value of the particular mantels and grates as they stand in the building.
    He is not limited in his recovery to such value as they would have had, after having been taken out of the building.
    Appeal from a judgment entered upon a verdict in favor of tbe plaintiffs, in the office of the clerk of the county of New York, on the 4th day of January, 1888, and from an order denying a motion for a new trial, entered in said office on the 6 th day of February, 1888.
    The action was brought to recover rent under a lease, for a breach of which a counter-claim was interposed; which lease provided, among other things, as follows: It is agreed that the said parties of the second part shall be allowed to remove the marble mantels and grates, provided the injury or damage which may be done by such removal shall be repaired and made good by them, the said parties of the second part.

      Charles E. Miller, for the appellant.

      William, Mem, for the respondents.
   Bartlett, J.:

I think the defendant was entitled to a broader measure of damages than was sanctioned by the trial judge in his rulings upon the evidence sought to be introduced to sustain the counter-claim. Under the covenant in the lease the defendant was to be allowed to remove the marble mantels and grates, provided that he made good the injury which might be done by such removal; and, by way of counter-claim against the demand of the plaintiffs for the rent of the premises, he averred that when he wished and attempted to remove the mantels and grates, both before and also immediately after the expiration of the lease, his landlords prevented him from so doing, and have continued to keep such, mantels and grates and use them. In the briefs of counsel there is some discussion as to whether any right of removal on the part of the tenant existed after the term expired, but it is unnecessary to pass upon this question, as there is no proof of any effort to take away the property subsequent to the expiration of the lease. In proving his damages, by reason of the unlawful detention of the mantels and grates, the defendant was limited to evidence of their value after being taken out of the hotel property and removed therefrom. He sought to show, by a witness familiar with the value of such property, what was the value of these particular mantels, as they stood in the hotel and were used by the proprietors of the building, but the question put for this purpose was excluded. The trial judge was also requested to charge the jury that the defendant was entitled, under his counter-claim, to recover the value of the mantels to the plaintiffs as used by them, but he refused to give the desired instruction. An exception was duly taken to the ruling of the court in each instance, and these exceptions present the principal question in the case.

Good morals certainly forbid that a man should be allowed to derive benefit from a violation of his obligations to others. Hoes the law permit a wrong-doer to retain to himself advantages thus gained as against the person whom he has wronged ? I think not. There are cases in which indemnity to the injured party is not the full measure of the damages which he may be entitled to recover, and it seems to me that this is a case of that character. The mantels, as they were left in the hotel, unmoved, might well be worth twice as much as they would have been if detached from the property and turned over to the defendant; and in that case, if the damage recoverable by the tenant for being deprived of them were limited to their value after removal, the landlord would make a profit by keeping them in violation of his covenant. A rule for the ascertainment of damages which would permit such a result should not be approved unless sustained by some authority which we feel bound to follow. Instead of being thus supported, a rule more in consonance with natural justice has been enunciated as applicable to such a state of facts as tins case presents. In the well-known and very able opinion of Duke, J., in the case of Suydam v. Jenkins (3 Sandf., 614), that learned judge says: “ Setting aside the exceptional cases in wbicb. exemplary damages may be justly claimed and given, and confining ourselves to those in which the remedy sought is simply pecuniary, the principles which, as it seems to us, are manifestly just and universal in their application, are that the owner, to whom compensation is due, must be fully indemnified, cmd that the wrong-doer must not be permitted to deri/ve any benefit or ad/oantage whatever from his wrongful aet.” The latter proposition is reasserted in different forms in the course of the opinion, and its correctness illustrated by various examples. “ If goods uninsured should, by force or fraud, be removed from a warehouse, which immediately thereafter is consumed by fire, as they must have perished had they remained, it is certain that the owner sustains no loss by the removal; yet none can suppose that, in an action against the wrong-doer, the fact could be given in evidence to bar a recovery, or that the recovery could be for a sum less than the value of the goods when removed. Here, although the judgment in its whole amount is a positive gain to the owner, yet it imposes no penalty in the form of exemplary damages upon the wrong-doer. It merely compels him to pay for that which he had no right to appropriate, and thus prevents him from deriving any benefit from his wrongful act.” And so in the case at bar, to compel the plaintiffs to pay what the mantels are worth to them does not impose upon them any damages by way of punishment, but merely forces them to give an equivalent for what they have unlawfully retained from the defendant, and precludes them from making any profit out of their own wrong.

As the jury might have allowed the defendant a large sum by way of counter-claim, and reduced the plaintiffs’ recovery proportionately, if the correct rule as to the measure of damages had been applied, the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment reversed and new trial granted, with -costs to the appellant to abide tbe event.


author: Bartlett, J.: Daniels, J.: Yan Brunt, P. J.:

text:
    In the Matter of the Examination in Proceedings Supplementary to Execution of ISAAC SICKLE, Judgment-Debtor, on the Application of T. RUSSELL DAWSON, Judgment-creditor.

      Action to lime an assignment adjudged to be invalid ■ — ■ it is not a ba/r to p/'oceedings supplementarry to execution or to an examination of the assignee as a witness therein.

    A judgment-creditor, by electing to bring an action to have an assignment made by the judgment-debtor adjudged to be invalid, does not waive his right in • proceedings supplementary to execution to compel the assignee to appear as a witness and to testify in such proceedings, and to produce certain books in the custody of the witness as assignee of the judgment-debtor.

      In the Matter of Assignment of Holbrook (99 N. Y., 538); Dick v. Philips (41 Hun, 603) distinguished; Schloss v. Wallach (16 Abb. N. C.,_319n.; 38 Hun, 638; 102 N. Y., 683) followed.
    The fact that, in such a proceeding, the questions asked of a judgment-debtor or of a witness tend to show that the judgment-debtor has made a fraudulent assignment, affords no valid objection to such questions.
    There is nothing in the provisions of section 1914 of the Code of Civil Procedure which precludes an examination of this character in proceedings supplementary to execution.
    Appeal by Herman Cantor, a witness in supplementary proceedings, from an order made at the New York Special Term adjudging liim guilty of contempt in refusing to answer certain questions, wbicli order was entered in the office of the clerk of the county of New York.

      Bl/umanstiel & Hirsch, for the appellant.

      Charles E. Hughes, for the judgment-creditor, respondent.
   Bartlett, J.:

The respondent, T. Russell Dawson, recovered a judgment against Isaac Sickle, and, upon the return of the execution unsatisfied, obtained the usual order for the examination of the judgment-debtor concerning his property. In these proceedings, supplementary to execution, he caused a subpoena to be served upon Herman Cantor, the appellant, to appear and testify therein and to produce certain books in the custody of the witness as assignee of the judgment-debtor. Mr. Sickle was first examined and testified that he made an assignment for the benefit of his creditors on November 16,1887. Mr. Cantor was then sworn as a witness, and stated that he was the assignee of Mr. Sickle and had taken possession of the books in his store, all of which he produced at the hearing, One of ■ these he identified as Mr. Sickle’s check-book. He also stated that he had a number of checks in his possession that had been drawn by-Mr. Sickle prior to the assignment. At the instance of counsel for the judgment-debtor, however, the witness declined to answer the question whether any of these checks were drawn in November, 1887, or how many were drawn within two months of the assignment, or how many were drawn within two weeks thereof to the order of Mr. Sickle, or the order of any of his sons, or of any person identified with him in business, or to bearer. The witness also declined to turn to the check-book and checks that he had produced and give the dates and amounts thereof, or to state whether there was any entry on the stub of the check-book of a check drawn by Mr. Sickle in November, 1887, to his own order, or cash, or to the order of one of his sons, for $800, or $850 or, $950. The objections to these questions, or rather the reasons which the witness gave for declining to answer them, under the advice of the counsel for the judgment-debtor, were subsequently discussed before Mr. Justice Lawrence, who directed that the witness should answer them all. Thereupon the questions were again put to Mr. Cantor and he again declined to answer. For this refusal he has been adjudged guilty of contempt, by the order from which the present appeal is taken.

In the brief for the appellant it is stated that Mr. Dawson, the judgment creditor, after instituting the present supplementary proceedings, commenced a creditor’s action to set aside the general assignment made by Mr. Sickle to Mr. Cantor. I do not find anything in the appeal papers to show that such a suit has been instituted, but, inasmuch as the case appears to have been disposed of below upon the assumption that such was the fact, the existence of such an action may as well be assumed for the purposes of this appeal. 'The appellant insists that by electing to bring an action to invalidate the assignment the judgment-creditor has waived his remedy in the present proceeding, so far as he seeks to obtain the information indicated by the questions put to the witness; and, furthermore, that au assignee under a general assignment cannot be compelled, by mere subpoena, to produce the books and papers of the estate, and make discovery.

In considering these points, which are the only objections upon which the appellant relies, it is important to keep in mind the precise position which the appellant really occupies in the supplementary proceedings. He is in no sense a party to such proceedings. The parties are Dawson, the judgment-creditor, and Sickle, the judgment-debtor. Cantor is not made a party by the fact that heretofore Sickle has made an assignment to him. If that transaction had any effect to make him a party to the supplementary proceedings, he would be a party thereto just as much whether any subpoena had been served upon him to appear and testify as a witness or not. He comes into these supplementary proceedings as a witness, and in no other capacity; his attendance being enforced under the authority of' section 2444 of the Code of Civil Procedure, which provides that in proceedings supplementary to execution either party may be examined as a witness in his own behalf, and may produce and examine other witnesses as upon the trial of an action.” This provision gives a judgment-creditor, prosecuting supplementary proceedings, just the same rights, in respect to enforcing the attendance and conducting the examination of witnesses in his behalf, as a plaintiff would have in the trial of a suit at law, including the right to compel the production of books and papers by subpoena duces tecum. In the Matter of the Assignment of Holbroolc (99 N. T. 538), it was not decided that judgment-creditors are prohibited from examining an assignee of the judgment-debtor, but merely that proceedings for the examination of witnesses under the general assignment act are warranted only when taken in aid of an assignment, and not in hosUUty thereto. This is because all proceedings taken under the general assignment act necessarily assume the validity and bona fides of the assignment; and hence it was held that a creditor who desired to attack the instrument could not do so in the course of a proceeding conducted under and pursuant to that statute, but must resort to other remedies.

Nor has the case of Dick v. Phillips (41 Hun, 603) any application here. That case related not to an examination in supplementary proceedings,nor to the examination of a witness upon the trial of an action, but to the examination of a party before trial, and the court held that, under the present Code of Civil Procedure, a party could not be compelled to produce books and papers for the inspection of his adversary before trial, except in the mode prescribed in the article relating to discovery. (Sections 803-8Ó9.) But, as has already been shown, the fact that Mr. Cantor is a party to the judgment-creditor’s action does not make him a party to these supplementary proceedings ; and, therefore, there is no force in the argument that he can only be compelled to produce his books and papers herein by a proceeding founded upon petition.

The case of Schloss v. Wallach (16 Abb. N. C., 319 n; 38 Hun, 638; 102 N. Y., 683) is an authority against the appellant’s position and directly in point. There it was originally held at chambers that supplementary proceedings were a substitute for the old creditor’s bill, and that where the creditor has resorted to the latter he could not endeavor to obtain evidence to supp'ort his bill in supplementary proceedings founded upon the same judgment. This decision was reversed by the General Term without any opinion, and the case was. subsequently taken to the Court of Appeals where the appeal was dismissed. The counsel for the appellant concedes that the effect of these decisions is “ that a judgment-creditor may take any number of remedies against his debtor, and that by so doing he makes ho election, but they are all concurrent remedies.” This proposition, however, the appellant contends, does not affect the question whether an assignee can be compelled in supplementary proceedings to testify from books and papers ; but that question is disposed of by what has already been said in respect to the character in which the appellant comes into the present proceedings. He is here as a mere witness, and not in any sense as a party, and, unless he be regarded as a party, his counsel’s contention on this part of the case must fail. I find nothing in this proceeding which is in conflict with the provisions of section 1914 of the Code of Civil Procedure; that section provides that an action cannot be maintained to obtain a discovery, under oath, in aid of the prosecution, or defense of another action. But this is not such an action. It is simply a supplementary inquiry conducted for the sole purpose of ascertaining whether the judgment-debtor bas any property lawfully applicable to the payment of the judgment against him. The witness is properly examined concerning matters pertinent'to such inquiry; and the fact that what he says may be useful in another litigation does not deprive the judge of jurisdiction to examine him. In such a proceeding the fact that the questions asked of a judgment-debtor, or of a witness, tend to show that the judgment-debtor has made a fraudulent assignment, is no valid reason why such questions should not be answered. (Lathrop v. Clapp, 40 N. Y., 328.)

The questions asked of the appellant in this proceeding were proper; it was his duty to answer them, and his refusal to do so was a contempt for which he has been none too severely punished.

The order appealed from should be affirmed, with costs and disbursements.

Daniels, J.:

I concur in the opinion of Justice Bartlett for the reasons he has given, and for that mentioned by the presiding justice, and for the further reason that, as long as the first order remains unappealed from and unreversed, it cannot be assailed by this appeal from the order directing the punishment of the witness. By that order the witness was directed to answer, and he could not after that decline to do so as long as that remained in force.

Yan Brunt, P. J.:

I concur. The witness could not raise the objection that the judgment-creditor had commenced proceedings to set aside the assignment. If that fact was a bar to this proceeding the judgment-debtor could only avail himself of it by a proper motion to dismiss the proceeding; witnesses are not accorded the privilege of putting in answers for defendants.

Order affirmed, with costs and disbursements.


text:
    JOHN BROWN and Others, Appellants, v. ALICE BROWN and Others, Respondents.

      Action for partition — what issue therein is triable by a jury under section 1511 of the Code of Civil Procedure — a reference is proper where the main question relates to the condition of the accounts between the parties.

    The issue of fact in an action for partition, -which, under section 1511 of the Code of Civil Procedure, is triable by a jury, is an issue which involves the right to maintain the action. This section has no application unless some defense is interposed which, if successful, will prevent any partition whatever.
    It .does not apply to a case in which the only matters in controversy relate, directly or indirectly, to the accounts with which the respective shares are chargeable.
    Where the true condition of the accounts between the respective parties is one of the main questions presented by the case, although other issues may be involved, an order of reference is proper.
    Appeal by plaintiffs from an order of reference, made at tbe New York Special Term, in an action for partition, and entered in tbe office of tbe clerk of tbe county of New York on tbe 19tb day of September, 1888.

      Artemus B. Smith, for tbe appellants.

      James W. MeBllvmney, for tbe respondents.
   Bartlett, J.:

By its terms, tbe order from wbieb tbe plaintiffs have appealed refers this action, and all tbe issues herein, to a referee to bear and determine tbe same. Tbe appellants insist that they are entitled to a trial by jury. This view could hardly have been entertained at tbe time tbe motion for a reference was argued; for one of tbe plaintiffs, in an affidavit read in opposition to that motion, stated that tbe case bad been noticed by bis attorneys for trial at Special Term, and that be desired and intended to have tbe cause, duly placed upon the Special Term calendar and brought to trial in its order. More than this was requisite, however, to constitute a waiver of tbe right to a jury trial (Code Civil Pro., § 1009), and we must, therefore, inquire whether tbe plaintiffs were entitled to such a trial under tbe pleadings.

Section 1544 of the Code of Civil Procedure provides that an issue of fact, joined in an action for partition, is triable by a jury. The issues of fact to which this provision relates are only such as involve the maintenance of the action. It has no application, unless some defense is interposed, which, if successful, would prevent any partition at all. Such a defense, for example, would be a denial of the plaintiff’s title, or a denial that the parties were joint tenants or tenants in common. But in a case like the present, where both parties pray for a partition, and where there is no dispute as to their proportionate interests, but the only matters in controversy relate, directly or indirectly, to the amounts with which the respective shares are chargeable, neither party is entitled to a trial by jury as aunatter of right; and if the trial will require the examination of a long account on either side, the action may properly be referred.

I am satisfied that the examination of a long account will necessarily be involved. An agreement is attached to the complaint, embodying an arrangement into which the parties entered for the improvement of the land now sought to be partitioned, and the erection of houses thereon. It provided that the plaintiff John Brown should have an interest of two undivided fifths in said property, the plaintiff James Lamb one undivided fifth, and the defendant Alice Brown two undivided fifths, upon his and her each paying his or her like proportion of the costs of said lands and of all improvements thereon.” Each of the parties also agreed to furnish his or her full share of the moneys required for the purposes aforesaid in proportion to his and her interest in said lands, and any one who furnished less than his or her fall proportionate share was to be chargeable with and to pay interest on such deficiency to those who furnished the necessary moneys. The erection of the buildings was to be superintended by the plaintiff John Brown, and upon the sale of the land and buildings, or any portions thereof, the parties were to share the profits or losses of the undertaking in proportion to their respective interests in the land. The plaintiffs, in their complaint, expressly demand that an account may be taken of all the dealings and transactions of the parties to the said agreement, and an account of the amounts contributed, received and paid by the said parties thereto, respectively; and the defendant Alice Brown, in her answer, prays that the plaintiff John Bj’own may be ordered • to file and render a verified account of Ms proceedings in relation to the matters and things set forth in the complaint, and that said account be passed, stated and allowed by this court or a referee to be appointed herein. It will be seen, therefore, that the parties agree as to the necessity of an accounting, and it is evident that the true condition of the accounts between the parties is one of the main questions arising in the case, although other issues may be involved. Under these circumstances, an order of reference is proper. (Genet v. Delaware, etc., Canal Co., 12 Civ. Pro. R., 448.)

But the appellants contend that whatever accounts existed between the parties have become stated by virtue of a clause in the agreement between them, which declares “ that the accounts of the costs of said lands, the costs of the improvements thereon, and the expenses connected therewith, and also the accounts of money furnished by each of them,” for the purposes of the agreement, are stated in and appear upon the books of account of the plaintiff’s firm. I do not think this clause in the agreement was intended to be a conclusive admission of the correctness of the accounts as contained in the books of the plaintiff’s.firm, so as to preclude the defendants from alleging and proving them to be erroneous. It is rather to be regarded merely as a declaration that such accounts are prima facie correct, and it puts upon the defendants the burden of showing that they are not so. This seems to be a fair construction of its scope and meaning.

The facts presented for the consideration of the court below showed that the case could be more suitably and satisfactorily tried before a referee than in any other way, and, as there was. jurisdiction to make the order of reference, it should be affirmed, with costs.

Daniels, J., concurred.

Order affirmed, with costs.