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

text:
    SARAH E. MELLEN, Respondent, v. WILLIAM C. BANNING, Sole Surviving Executor of the Last Will and Testament of ABNER MELLEN, Deceased, Respondent, and Others, Appellants.

      Will — an action for its construction is proper only where a trust exists — cloud upon a title — equity will not relieve therefrom, if the defect appears upon the face of the record.

    The jurisdiction of courts of equity to pass upon the interpretation of wills is incidental to that over trusts, and where there is no question relating to a trust in a will the case is not a proper one for the bringing of an action for its-construction.
    The complaint in an action brought, among other things, to restrain executors-from executing a power of sale contained in a will, alleged, as a ground therefor, that said power was inoperative, null and void, and never had any validity. To this complaint a demurrer was interposed, alleging that it did not state facts constituting a cause of action.

      Held, that a court of equity would not give relief in such a case.
    It is only where the claim of the adverse party to the lands in question is valid upon the face of the instrument or proceeding sought to be set aside, and extrinsic facts must be proved to establish such invalidity or illegality, that equity will intervene.
    (Lawrence, J., dissenting.)

      Appeal by the defendants, Gordon McKay Mellen, Stanley Mellen •and Evelyn Mellen, by Jane JI. Pierce, their guardian ad litem, from an order entered in the clerk’s office of the county of New York on the 30th day of January, 1891, overruling a demurrer interposed herein by said defendants; and also an appeal by said •defendants, by their said guardian ad litem, from an interlocutory judgment entered in said clerk’s office on the 9th day of February, 1891, overruling said demurrer, with leave to defendants to answer within five days upon payment of costs.

      A. T. Ackert, for the guardian ad litem of the infant defendants ■demurring.

      U. Dcdly, Jr., for the respondent.
   Van Brunt, P. J.:

This action, according to the complaint, is brought to obtain a construction of the will of one Abner Mellen, deceased, and also to restrain his executors from executing a power of sale contained in that will upon the ground that such power was inoperative, null .and void, and never had any validity. To this complaint the infant defendants demurred upon the ground that it does not state facts sufficient to constitute a cause of action.

While concurring with the conclusion arrived at by Mr. Justice Lawrence in his opinion thereon, although the point is not distinctly taken by the counsel for the infant defendants, I do not think that the court ought to entertain jurisdiction of this action for the reason that it cannot be maintained as an action for the construction of the will, because the jurisdiction of courts of equity to pass upon the interpretation of a will is incidental to that over trusts, and there is no question of trust in the will mentioned. This rule was distinctly ■enunciated in the case of Monarque v. Monarque (80 N. Y., 320), in which, in speaking of a certain action which had been brought to construe a will, it was held that the case was not a proper one for the action for the construction of a will, because there was no trust •or other element to justify invoking the jurisdiction of the court for that purpose. Therefore, it is clear that this action cannot be maintained as an action to construe a will.

But it is urged that the action may be maintained for the purpose of removing a cloud upon the title, and in support of that proposition the counsel for the respondents cite the case of Butler v. Johnson (111 N. Y., 204) and De Witt v. Van Schoyk (110 id., 7).

An examination of these cases will show that they do not support the claim in this action. It is a well-settled principle regulating the invocation of the jurisdiction of a court of equity to remove a cloud upon a title that, if the defect appears upon the face of the record or proceedings which are claimed to be invalid, the court will not entertain an action to declare such invalidity, and it is only where the claim of the adverse party to the land is valid upon the face of the instrument or proceeding sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality, that a court of equity will intervene.

Now, in the case at bar, it is claimed that the power of sale contained in the will is null and void upon its face. If that is the fact, then there is no room for the intervention of a court of equity, because it does not depend upon extrinsic evidence. That is the allegation and the judgment that is asked for.

The two cases above- cited in no way -conflict with this rule. In Butler v. Johnson the fact that the debts were outlawed, for the payment of which the executor was about to exercise the power of sale, was a fact extrinsic of the instrument creating the power, and, therefore, the case was brought within the rule above mentioned.

In the case of De Witt v. Van Schoyk the intervention of a court of equity was sustained because, unless the action of the defendant was restrained, its effect would be to change or confuse the boundary of two farms and render their location doubtful, and open over the land of the plaintiff a right of way through which the public would be allowed to travel, facts showing that the action against which an injunction was sought would confuse the plaintiff’s rights, which confusion would not necessarily appear of record.

It seems to me, therefore, that the court should not entertain jurisdiction of this action, and that the complaint does not state a cause of action within the rules limiting the invocation of the jurisdiction of a court of equity.

The judgment should be reversed and the demurrer sustained.

Daniels, J., concurred.

Lawrence, J.

(dissenting):

The action is brought for a judicial construction of the last will and testament of Abner Mellen, Sr., deceased, and to obtain an adjudication that, under the devise contained in the fifth clause of said will, the widow of the testator and his three children, Abner Mellen, Jr., Helen J. Banning and Maria L. Kendall, should acquire and become seized and possessed in fee simple absolute of an one-fourth part or share in the lands and premises mentioned in the complaint, and that the power of sale contained in the eighth clause of said will given to the executors of the testator is inoperative, null and void, and that it never had any validity.

The infant defendants, who are the children of Abner Mellen, Jr., a son of the testator, who has died since the death of his father,, demurred to the complaint on the ground that the same does not. state facts sufficient to constitute a cause of action.

It is alleged in the complaint that the widow of the plaintiff and his three children entered into the use, occupation and possession of said lands and premises, and continued in such possession until the death of the mother, which occurred on the 28th day of September,

1888, and that during all that time said parties exercised control, dominion and ownership over their respective parts or shares in said lands and premises and collected and received for and applied to their own use and benefit the rents, etc., of said real estate. It is. also alleged that on the 5th day of November, 1888, Abner Mellen Jr., being indebted to his wife, executed and delivered to one Lawrence E. Ellis, a full covenant warranty deed of his share; in said lands and premises, and that on or about said date said Ellis executed and delivered to plaintiff, the wife of Abner Mellen, Jr., a full covenant warranty deed of the premises conveyed to him.

There are various allegations in the complaint designed to show that the power of sale conferred upon the executors by the eighth clause of the will has become inoperative by reason of the failure of the executors to exercise the same, and also by reason of the devisées having agreed and elected among themselves to take the real estate and use and occupy the same. These allegations being made as matters of fact are, of course, admitted by the demurrer. > We have no doubt that under the fifth clause of thp will of Abner Mellen, Sr., the widow and the three children took an estate in fee in the real estate, subject to the execution of the power of sale given to the executors. (Crittenden v. Fairchild, 41 N. Y., 289; Kinnier v. Rogers, 42 id., 531; Hetzel v. Barber, 69 id., 7; Mutual Life Ins. Co. v. Shipman, 108 id., 22, 24.) It has, however, frequently been held that where a will directs real estate to be converted into money and the proceeds distributed, the parties entitled thereto may, if of lawful age, if the rights of others will not be affected, elect to-take the lands and prevent the actual conversion thereof into personalty, and that no distinct or positive’act is required, but that a slight-expression of intent will be considered sufficient to show such an "election. (Prentice v. Janssen, 79 N. Y., 478.) As was stated by Mr. Justice O’JBrien in disposing of the demurrer interposed to this complaint by William C. Banning, the sole surviving executor of the-last will and testament of Abner Mellen, Sr., deceased, the complaint, here was undoubtedly modeled on the case of Prentice v. Janssen, for we find the very language there used - here employed. Thus it is. alleged that the lands have been enjoyed, possessed and treated the same as real estate and that this was done by the acquiescence of the executors and all the parties in interest. With these allegations stated as matters of fact in the complaint it is impossible for-us to say, keeping in view the decision in Prentice v. Janssen (supra), and in similar cases, that the complaint does not state facts sufficient to constitute a cause of action, and we are, therefore, of. the opinion that the judgment of the court below was right and should be affirmed, with costs and disbursements to the respondents..

Judgment reversed and the demurrer sustained.


source: Caselaw Access Project

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

license: Public Domain

text:
    GEORGE F. HODGMAN, Appellant, v. STEPHEN T. BARKER, Defendant. NATIONAL BROADWAY BANK, Respondent.

      Attachment — not vacated on the motion of an attachment creditor whose papers cvre also defective — what are legal conchisions — what proof of a levy is required.

    Wliere a subsequent attaching lienor seeks to vacate a prior attachment, and his papers are as defective as those of the person against whom he moves, he cannot succeed.
    The affidavit of the president of a bank, a subsequent attaching lienor, stated that certain notes, upon which money had been procured by the defendant from the bank, were forged, but there was not shown to exist any personal knowledge of tha; fact upon the part of the affiant.

      Held, that this statement was a mere conclusion of law.
    A deputy sheriff, who had charge of making a levy under a second attachment, made an affidavit in which he stated that a notice of attachment was filed in the county clerk’s office and, upon information and belief, that said attachment was levied upon the real property of the defendant, and that said property was the same as that levied upon under a prior attachment.

      Held, that the affidavit merely stated a conclusion; that it furnished no proof that the notice filed complied with the notice required by the Code of Civil Procedure (§ 649, sub. 1) and that it was also insufficient in being upon information and belief and furnishing no excuse therefor. (Lawrence, J., dissenting.)
    Appeal by the plaintiff George F. Hodgman. from an order made herein on the motion of the National Broadway Bank, claiming to be a subsequent attaching creditor, entered in the office of the clerk of the county of New York on the 3d day of March, 1891, vacating and setting aside the attachment issued in this action, against the property of the defendant, on the 2étlx day of October, 1890, with ten dollars costs.
    The affidavit upon which the attachment was obtained by the National Broadway Bank was as follows:
    Arthur T. J. Rice, being duly sworn, says that he is cashier of the plaintiff. That plaintiff is a domestic corporation and has a just cause of action against defendant for injury to personal property by reason of the fraud of defendant in procuring moneys from plaintiff, between June 15, 1890, and August 5, 1890, on six forged and fraudulent promissory notes issued in form to defendant, but fraudulently forged, made and used by defendant and transferred by him -for full value to plaintiff, whereby plaintiff parted with moneys and was defrauded in the sum of $21,500, which sum defendant is justly indebted to plaintiff over and above all counter-claims known to plaintiff.
    That the defendant is a non-resident of this State and resides in the State of New Jersey.
    That defendant has his place of business in the city of New York and has absconded therefrom and removed his property from this State with intent to defraud his creditors. That no previous application for a warrant of attachment herein has been made to any court or judge.

      E. K. Sackett, for the appellant.

      W. F. MacMae, for the respondent.
   Yan Brunt, P. J.:

I cannot concur in the conclusion arrived at by Mr. Justice Lawrence, that the order appealed from should be affirmed.

It is undoubtedly true that the papers upon which the plaintiff obtained his warrant of attachment disclose no cause of action as stated in the opinion of Mr. Justice Lawrence, but it would appear that the papers upon which the moving party, the National Broadway Bank, obtained its attachment were equally defective.

It appears from the warrant that it ivas obtained upon an affidavit made by the cashier of the National Broadway Bank, in which the allegation simply is, that the plaintiff is a domestic corporation, and has a just cause of action against the defendant for injury to personal property by reason of the fraud of defendant in procuring moneys on six forged and fraudulent promissory notes issued in form to the defendant, but fraudulently forged, made and used by the defendant and transferred by him for value to the plaintiff, whereby the plaintiff parted with moneys and was defrauded in the sum of $21,500, in which sum the defendant is justly indebted to the plaintiff over and above all counter-claims known to the plaintiff.

These are allegations of simple conclusions of law, and not allegations of fact showing that a cause of action existed. It further does not appear that the affiant could have had any personal knowledge as to whether the notes in question were forged or not, and without any evidence to support the assertion, the conclusion that the notes were forged is sworn to. This is wholly insufficient to support the attachment, aa has been held in the case of the National Broadway Bank against the same defendant, decided herewith.

It is true that, in the case cited, there was an attempt to establish the fact that the complaint was before the court on the granting of this attachment; but there is nothing in the papers presented' upon this appeal to show that such complaint was before the court, even if, with such complaint before the court, the defects in the affidavit in question would have been remedied.

Now, it cannot be that, where a party seeks as a subsequent lienor to vacate a prior attachment, and his papers are as defective in ■establishing the lien as are the papers of the party against whom he moves, that he can succeed in his motion.

There is another objection to the maintenance of the motion, and that is that, even if the attachment of the bank was properly issued, there is nothing to show that it had ever been levied upon the property of the defendant therein. It is true that it is said that the deputy sheriff, having charge of the warrant of attachment, has stated certain things in respect to the levying of the attachment, but, in the case cited above, the same language was considered, and a mere allegation upon information and belief, where no sufficient excuse is given for not furnishing the affidavit of the party from whom the information is received, was held to be insufficient.

In respect to the real estate it is alleged that deponent has examined the records of the county clerk’s office and has found that on the 25th of October, 1890, the notice of attachment in this action was filed, and on the 27th of October, 189.0, the notice of attachment was filed in the action of the National Broadway Bank, and that the real property levied upon is the same in both said notices of attachment. This is a mere statement of a conclusion.

What this notice was we do not know; we are not informed, and whether it was such a notice as complied with the previsions of the Code, so as to make the attachment a lien upon the real estate, is nowhere set forth.

We think, upon such loosely drawn papers as these, no status for the vacating of a prior lien is established, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied.

Daniels, J.:

The affidavit of Mr. Kelly, stating what he was informed by the deputy sheriff, had been done in the way of attaching the property of the defendant in the two stores, supplied no legal evidence that such was the fact. Information of that description is not proof.

Neither does the statement of the same person, that a notice of the attachment had been filed in the action in the clerk’s office, prove that any real estate had been attached under either attachment. To make service of an attachment on real estate, the law requires that there shall be filed with the clerk a notice of the attachment stating the names of the parties to the action, the amount of the plaintiff’s claim as stated in the warrant, and a description of ■the particular property levied upon, which must be subscribed by the plaintiff’s attorney, adding his office address, and be recorded and indexed by the clerk in the same book, in like manner as a notice of the pendency of • an action. (Code Civ. Pro., §649, sub. 1.) And the affidavit wholly fails to prove a compliance with this provision. This motion depended upon a matter of strict right between the moving and the preceding attaching creditor. In the absence of that right, established by proof, the earlier attachment cannot be avoided. It was not so maintained, for the affidavit failed to prove that the attachment of the bank had been levied upon either personal or real property.

There was no legal foundation for the motion, and I agree that the order should be reversed and the motion denied.

Lawrence, J.

(dissenting):

In this case the plaintiff obtained an attachment against the defendant’s property on the 24th day of October, 1890, upon an affidavit in which he states:

1. That he is entitled to recover from the defendant the sum of $12,500 over and above all counter-claims known to the plaintiff, and upon one of the causes of action mentioned in section 635 of the Code of Civil Procedure and particularly set forth in subdivision 2 of this affidavit.

2. That on or about the 20th of September, 1890, one Peter W. Gallaudet and others were engaged in business as note brokers in the city of New York under the firm name of P. W. Gallaudet & Co., and at the same date and ever since one John M. Cornell was engaged in business at said city as iron manufacturer under the, name of J. B. & J. M. Cornell. That at the date last mentioned said defendant Stephen T. Barker delivered to said P. W. Gallaudet & Co. three certain promissory notes, all bearing date September 20, 1890, and pui’porting to be made by said J. B. & J. M. Cornell, payable to the order of Barker & Co. in manner following, viz., one note for $4,600, due in four months; one for $4,400, due-in five months, and one for $3,500, due in six months, said periods being reckoned from thé date of said notes.

That all of said notes were indorsed by Barker & Co., which was the name under which said Stephen T. Barker was transacting business, and said name of Barker & Co. did not represent any other partner or person than said Stephen T. Barker, to the best of this deponent’s knowledge, information and belief. Deponent further says that upon the delivery of said notes as aforesaid, said Stephen T. Barker guaranteed to said P. "W". Gallaudet & Co. that the signatures of the maker appearing thereon, respectively, were the genuine signatures of said J. B. & J. M. Cornell; and the said Stephen T. Barker then and there requested said P. "W. Gallaudet <fe Co., as such brokers, to sell and dispose of said notes for him and to deliver to him the proceeds thereof, and thereupon said P. W. Gallaudet & Co. did sell and transfer all of said three notes to bona fide purchasers for valuable considerations, and did guarantee to said purchasers that the signatures of the maker appearing thereon, respectively, were genuine signatures of said J. B. & J. M. Cornell, and did pay over the proceeds of said sales to said Stephen T. Barker.

That thereafter, and before this action, said Gallaudet & Co. discovered, and the fact is, that said signatures, appearing upon said notes to be the signatures of J. B. & J. M. Cornell, were not the signatures of the said J. B. &'J. M. Cornell, and that said notes never were made or signed by the said J. B. & J. M. Cornell, or by the authority of the said J. B. & J. M. Cornell; that said Stephen T. Barker is insolvent and' has absconded, and his present whereabouts are unknown to plaintiff; that said P. W. Gallaudet & Co. have assigned to this plaintiff all their claims against the said Stephen T. Barker arising out of the facts hereinbefore stated; that said Stephen T. Barker is not a resident of the State of New York, bnt resides at Glen Ridge, in the State of New Jersey.

The National Broadway Bank subsequently moved to set aside the attachment in favor of the plaintiff upon an affidavit made by its attorney, wherein it is stated that on the 27th of October, 1890, an attachment against the property of the defendant was duly granted in an action, wherein it was plaintiff and Barker defendant, and that a warrant was duly issued to the sheriff of the city and county of New York, who has by virtue thereof attached the property of the defendant, as hereinafter set forth, and that James Young, as deputy sheriff, has charge of the warrants issued in both actions, and has informed said attorney that on the 24th of October, 1890, he attached the property of the defendant in the stores No. 27 Maiden lane and No. 8 College place, in New York city, and that on the 27th of October, 1890, he attached the same property under the warrant of attachment in the aforesaid suit of the National Broadway Bank.

That the defendant also owned an undivided one-fiftli interest in certain real estate, situated in the city and county of New York, and deponent has this day examined the records in the clerk’s office of the said city and county of New York, and finds therein that on the 25th day of October, 1890, a notice of attachment was filed in this action, and that on the 27th day of October, 1890, a notice of attachment was filed in the action of the National Broadway Bank, and that the real property so levied upon is the same in both said notices of attachment.

The motion by the bank to set aside the attachment in favor of the plaintiff on the ground of the insufficiency of the plaintiff’s affidavit was granted.

We are of the opinion that the order below should be affirmed. There is nothing in the affidavit on which the plaintiff’s warrant was obtained which shows that the plaintiff’s assignors, P. W. Gallaudet & Co., had been called upon by the holders of the forged paper to pay over to them the amounts for which they had .purchased the notes, or had incurred any liability thereon.

Until such fact appears, it seems to us no cause of action arose in favor of the firm of P. W. Gallaudet & Co. and that, therefore, the action of the plaintiff was prematurely brought. The plaintiff, however, attacks the affidavit :on which the bank obtained its attachment, and claims that it does not state a case in which an attachment should issue.

"We are of the opinion that the statement in the affidavit of Mr. Kelly as to the information derived from the deputy sheriff respecting the attachment of the personal property in Maiden lane and College Place, would not be sufficient evidence to sustain a lien in favor of the bank upon that property; but enough is stated in that affidavit to show that the interest of the defendant in the real estate had been duly attached under the bank’s attachment. The other criticisms upon the affidavit of the moving party we do not regard as sound.

The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent.

Order reversed, with ten dollars costs and disbursements, and motion denied.


author: Peatt, J.:

text:
    THE TRUSTEES OF THE FREEHOLDERS AND COMMONALTY OF THE TOWN OF EAST HAMPTON, Respondents, v. JOHN A. BOWMAN, Appellant.

      Estoppel — the ratification of wrongful acts must he made with knowledge — the rule applied to town officers.

    A town trustee, by exhibiting a forged resolution, purporting to give him power to convey town lands, induced one Bowman to accept a deed thereof, and a subsequent board of trustees, ignorant of the fraud, and supposing that the delinquent trustee had collected the money by due authority, brought an action and recovered judgment against the trustee for (among other claims) the consideration named in the deed to Bowman; but collected nothing under the execution issued thereon.

      Held, that the suit against the trustee, not followed by any further action upon the part of the town against him after discovery of the fraud, was not a ratification by the town of his acts, and that it was not estopped thereby from repudiating them.
    Appeal by the defendant John A. Bowman from a judgment, entered in the office of the cleric of Suffolk county on the 11th day of December, 1889, after a trial by the court without a jury at the Suffolk Circuit.
    The action was brought to set aside, as a cloud on plaintiff’s title, represented by a deed made by the trustees of the town of East Hampton to the defendant of certain town lands. This deed was executed by the clerk of the trustees, one Seymour L. Toolcer. The trustees passed a resolution, on April 17,. 1882, whicli was subsequently altered by some person by interlining the words “ with power to sell and convey ” so as to read:

      .Resolved, That Marcus B. Hand, Charles J. Mulford, Nathaniel Dominy, Sr., William Cullom, William D. Conklin and George B.. Edwards be and are'hereby appointed a general prosecuting committee, with power to sell and convey; and also a committee on privileges, with power to act as they deem expedient.
    Under this, one Nathaniel Dominy, Sr., succeeded in selling the lands in question to the defendant. On December 15, 1882, this resolution appears on the records:

      Whereas, By resolution of this board of December 4, 1882, it was resolved that the committee theretofore duly appointed by said board be and are instructed to sell water lots or any of their remaining interest in any of the undivided lauds of the town, according to their discretion, and the clerk was thereby instructed to execute such conveyances as may be directed by them and their counsel, and

      Whereas, Under and by authority of said resolution, and the power and authority in them vested by this board, the said committee of this board have, on behalf of said trustees, sold and caused to be conveyed to John A. Bowman certain undivided lands hereinafter mentioned.
    We hereby ratify, confirm and approve the action of said committee and of said clerk in the sale and conveyance to said John A. Bowman of all the remaining undivided and common lands of said town of East Hampton, westward of Montauk and within the bounds of said town, and more particularly described in the deed to said Bowman and we have caused the clerk of this Board to execute a proper deed therefor, bearing date December 14, 1882.

      Resolved, That the action of said committee be and hereby is ratified and approved and the execution and ensealing by the clerk and delivery by the president of said committee of said deed to said John A. Bowman is also hereby ratified, confirmed and approved as and for the act and deed of this board, and the said conveyance is in all things confirmed.
    The plaintiffs alleged that neither of these resolutions were ever passed. Mr. Platt was the attorney for the purchaser in the negotiations for the land.

      Thomas Yoimg, for the appellant.

      Wibnot M. Smith and E. A. Carpenter, for the respondents.
   Peatt, J.:

W e concur in the opinion of the learned trial judge. The town never authorized the conveyance of the lands in question. The minutes, which on their face appear to attest such authority, were in that respect forged. The grantee, doubtless, dealt with the faithless representative of the town, and paid his consideration money in good faith. It could scarcely be decreed otherwise.

So far, then, the case 'is clear. A person standing in an official position towards a town, having no authority save that derived by resolution of the town officials, simply cheats a man into paying money over to him by exhibiting false tokens as to the extent of his authority and delivering a deed which is without a shadow of authority. Dominy simply lied to Mr. Platt and backed up his lie by exhibiting a resolution which was genuine in part but false and forged in the vital matter of authority. No corporation could conduct business if any other rule prevailed than to hold that this faithless official had thus simply swindled an innocent man out of his money.

But now comes the tight place in the case. New town officials found this record. They were themselves deceived thereby. Dominy thus mislead them so that they, too, relying on his fraud, called on the faithless official to pay over the money which they supposed that he had collected for and with authority of the town. They sue him and recover a judgment. They issue an execution but get nothing. Hence, while the town thus appears to ratify the collection and thus to ratify the transaction out of which it arose, the essential and vital element of the doctrine of ratification is, nevertheless, wanting — knowledge of the facts of the case. The town ■officers were mislead into that suit. The swindler succeeds in getting all parties into a false position. Now, if we were to hold that this judgment was a ratification, we should hold that Dominy might swindle the town into an election to ratify. And that plainly involves unsound reasoning. The question of estoppel does not arise until we determine the point of election and ratification. But the town did not discover the fraud xxntil after the execution was returned unsatisfied. There is no evidence that it has taken a single step in pressing its judgment against Dominy after the discovery of the truth in the premises. If it had, it would be difficult to defend the town against the consequences of election and ratification under the rule in Bowker Fertilizer Company v. Cox (106 N. Y., 555).

But the town has taken no step. It has simply stopped. Ought it to have procured the modification of the judgment against Dominy by rejecting therefrom the money claimed or collected from Bowman ? Perhaps that would have been a wise thing to do as a measure of prudence to evince and emphasize its election to repudiate Dominy’s wrongful act. But it was not, as it seems to us, necessary so to do. It was a question of fact whether or not the town did promptly repudiate Dominy’s wrong when it discovered its right so to do. The fact that it suffered the judgments to stand was merely a circumstance which, with others, might tend to show an election to ratify. But the findings and disposition of defendant’s requests by the learned trial judge pretty clearly show that the town never did, in fact, elect to ratify Dominy’s wrongful act, or do any act amounting to such a ratification after discovery of his fraud. The election to repudiate it would always be an answer in Dominy’s favor to any attempt on the part of the town to enforce the judgment. This is no affair of Bowman’s. lie neither lost or gained anything by the conduct of the town in this respect. He simply stands where he stood before the town sued Dominy at all. He is simply the victim of Dominy’s fraud.

Perhaps a different question would have arisen if the town had collected any of the money under that part of the judgment which rested on Dominy’s collection from Bowman. Indeed, that might be true even if it had collected anything under the judgment, for it constituted an entire recovery. But even then I incline to think that if it had promptly turned the collection over to Bowman on discovering Dominy’s fraud, it might still have been entitled to avoid the deed for want of authority. The town would have been in no worse position "than if Dominy had voluntarily paid over the money received from Bowman. Suppose, for example, that some stranger had made this forged alteration of the town minutes, and that Dominy had honestly supposed he had the authority, and had made this deed under those circumstances, and then collected the money from Bowman and paid it over to tbe town. Would not the whole business have been a mistake which a court of equity would have had power to correct on prompt repudiation by the town, and return or offer to return the money to Bowman? But, of course, it is unnecessary to speculate on the point.

The views above indicated lead us to the conclusion that we must affirm this judgment, but, under the peculiar circumstances of the case and the novelty of the question, we shall deny costs.

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

Judgment affirmed, without costs.


text:
    RACHEL WEINBERG and Another, Respondents, v. PHILIP WEINBERG and Another, Appellants.

      Practice — set-off made the basis of a new action — when a pa/rty is put to his election.

    An action was begun in Kings county for a breach of contract. A few days later the defendants in that action began an action against the plaintiffs therein in the county of New York for moneys paid and loaned. In the second action the plaintiffs of the first action interposed a counter-claim setting forth the facts stated in tlieir complaint for breach of contract.

      Reid, that, as the defendants might have interposed as a counter-claim to the first action the cause of action which was the substance of the second action, and had not done so, they could not now compel the plaintiffs in the first action to elect in which action such plaintiffs' claim should be tried, and that both actions must stand for trial.
    Appeal by the defendants, Philip Weinberg and Louis Clark, Jr., -from an order, entered in the Kings county clerk’s office on the 28th day of January, 1891, denying their motion that plaintiffs be ordered to elect either to proceed in this action or to confine themselves to the counter-claims set up in their answer in an action between the same parties, brought in the county of New York, and in case the plaintiffs elect to proceed herein, that their proceedings in New York upon said counter-claims be perpetually stayed; and that in case the plaintiffs elect to confine themselves to the counterclaims in the New York action, that this action be perpetually stayed.

      This action was begun November 11, 1890, for a breach of contract relative to the sale and delivery of seal skins. On November 18, 1890, the defendants began in New York county an action against the plaintiffs for moneys expended and loaned, wherein these plaintiffs set up as a counter-claim the facts set forth in the first action. Thereafter the defendants sought by motion to compel the plaintiffs to try their claim in one action or the other.

      Ferdinand Kurzmam, for the appellants.

      Charles F. JBurlce, for the respondents.
   Peatt, J.:

This action was begun November 12, 1890. Defendants have a claim against plaintiffs which they might have pleaded as a counterclaim. They preferred to bring an independent action in another county.

In that action these plaintiffs interpose as a counter-claim the facts on which this action is based. A motion is now made that the plaintiffs be required to elect in which action their claim be tried, and that they be stayed from proceeding in the other action. Various answers to the motion suggest themselves. The cause of action in dispute between the parties are in no way connected, and it is very doubtful whether justice will be promoted by trying all the claims in one action.

Moreover, the plaintiffs were entirely within their rights in beginning this action, and if defendants desired to try all the claims together, they should have interposed their demand in this action. Not having done so, they have lost their right. It is by their own choice that two actions are pending, and for the inconveniences, if any, resulting, they are alone responsible.

The motion appealed from must be affirmed, with ten dollars costs and disbursements.

BakNAed, P, J., and DykmAN, J., concurred.

Order affirmed, with costs and disbursements.


author:
Barnard, P. J.:
      Pbatt, J.:

text:
    WILLIAM T. BLATZ and Others, by their Guardian, EMMA W. L. BLATZ, Plaintiffs, v. JACOB ROHRBACH, DEFENDANT.

      Civil damage act — proof simply of the sale of liquor does not justify the jury in attributing suicide thereto — Laws of 1878, chap. 646.
    In an action under tire civil damage act (Laws of 1878, cliap. 646), arising out of tlie death of one who, as alleged, committed suicide while intoxicated, proof of the sale of liquor to the deceased, standing- alone, does not justify the submission to the jury of the question whether his suicide was caused by intoxication.

      Semble, that death might be inferred from intoxication where no other apparent cause had intervened, as in the case of one dying in a stupor, or where, while intoxicated, he is drowned, killed or frozen to death.
    ExoeptioNS of the plaintiffs, William T. Blatz, Charles A. Blatz, Erederieka C. O. Blatz,. Henry C. Blatz, Bertlia Y. L. Blatz, Marguerite S. I. Blatz, Ludwig M. Blatz and Gertrude E. E. Blatz, infants, by Emma W. L. Blatz, their guardian ad litem, taken upon a trial at the Westchester Circuit before the court and a jury, the exceptions of the plaintiffs having been directed to be heard in the first instance at General Term. The complaint was dismissed.

      Charles II. Woxon, for the plaintiffs.

      L. L. Van Allen, for the defendant.
   Barnard, P. J.:

The complaint was properly dismissed. The father of the plaintiff committed suicide on the 3d of March, 1885. He went home intoxicated about eleven p. M. and was found dead next morning. He was proven to have passed a portion of the evening of March 3, 1885, at defendant’s saloon, and that he drank while there two glasses of a mild kind of lager beer. He was perfectly sober while there and perfectly sober when he left the defendant’s premises at about ten p. M. There was proof given that this mild form of lager beer called Spenk beer ” will not intoxicate. Npon this evidence the jury could not give a verdict that the intoxication which induced the suicide was occasioned in whole or in part by the defendant.

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

Pbatt, J.:

This is au action brought under the civil damage law (chap. 646, Laws of 1873) to recover damages suffered by plaintiff for loss of his father, who committed suicide while intoxicated.

It is a sufficient answer to this appeal that there was no proof sufficient to be submitted to the jury that the defendant sold the deceased any intoxicating- liquor. (Blatz v. Rohrbach, 116 N. Y., 450.)

It seems to be conceded by both sides that, if the plaintiff had proved that defendant sold any intoxicating liquor to the deceased, it would have been a proper question to submit to the jury whether the suicide was caused by the liquor or intoxication.

We cannot concur in the view that such proof, standing alone, is sufficient to warrant a submission of that question to the jury. Undoubtedly, death might be inferred from intoxication where a party has died with no intervening apparent cause — like one who has drank himself to a stupor and died; or where, from accident, like falling overboard, or under the cars, or exposure to cold when drunk, or in any other manner where it is clear the intoxication has. some logical relation to the cause of death.

But, where a party deliberately commits suicide, how can it be said or inferred that it was the result of intoxication ? Indeed, without some evidence that the deceased, when drunk, had exhibited some tendency to melancholia or mental depression, why should a jury be permitted to speculate and infer that intoxication caused the idea which, carried into execution, resulted in suicide. If we are to reason from our experience, is it not true that liquor has an exhilarating rather than depressing effect upon a person.

In this case it cannot be urged that because the father committed suicide when under the influence of liquor, that intoxication may be assumed to be the cause, for the reason that he had often been drunk before, and no such attempt had ever been made or indicated. In no view can it be said, in this particular case, that intoxication had any influence in causing death.

There was an utter failure of proof upon that subject, and there was nothing either in the peculiar history of the deceased, or from a standpoint of science or human experience, to indicate that liquor had any influence in inducing the death.

If statistics of suicides could be considered pertinent, I think it. will be found that 5,000 suicides occur where the person is sober to one where the party is intoxicated.

If it was an issue of an assault made by the deceased upon another person, it might well be assumed it was induced by intoxication because human experience shows that liquor makes some people ugly and quarrelsome, but there is no experience that indicates that intoxication tends to suicide, but rather to the contrary.

So far as the proof in this case indicated, it was utterly impossible for any one to point out any reasonable cause for the suicide, or any logical connection of intoxication with it. Ve think, in such case, it is not competent to permit a jury to speculate upon the matter and render a verdict for which there is no just foundation in science, experience or reason.

If it was the first time the party had ever been intoxicated, or if the previous history of the man had shown that liquor had a-depressing effect upon him, or that surrounding facts and circumstances pointed to intoxication as the cause, it might present a. different question; but to say that the bare fact that a drinking man had become intoxicated was the inducing cause of a deliberate intention to commit suicide has no foundation in law or reason.

A verdict to be valid must be a logical inference from the facts adduced upon the trial.

Judgment affirmed.

Exceptions overruled and judgment for defendant, with costs.


author: DyicmaN, J.: BabNAbd, P. J.

text:
    In the Matter of the Probate of the Will of ANN FORBES, Deceased.

      Will not contestable ■ — - because it does not conform to the intentions of a testatrix as expressed shortly before Us execution.

    The court will look, for the final expression of the intentions of a testatrix as to the disposition of her estate, only to the will itself.
    It is not a valid ground of objection to the probate of a will that, shortly before executing her will, the testatrix expressed an intention which was not carried out in the instrument as written.

      Appeal by Edwin Forbes, a son of the testatrix, Ann Forbes, from a decree, entered in the office of the Surrogate’s Court of Kings county on the 11th day of December, 1890, admitting to probate the will of Ann Forbes.
    IJpon the hearing in the Surrogate’s Court it was shown that Ann Forbes made a will by which, after directing the payment of certain legacies, she gave the residue of her estate to her sons, in trust, to pay the income to themselves (other than the contestant) and certain grandchildren. The surrogate, at the request of the contestant, found the following facts:
    1. The deceased, Anna Forbes, died on the 14th day of July, 1890, being eighty-four years old. Her health had been feeble for .some time.
    2. The deceased left lier surviving four sons, viz., Duncan B. Forbes, Joseph C. Forbes, William H. Forbes and Edwin Forbes, and two grandchildren, viz., George Jordan and Joseph C. Jordan, the children of a deceased daughter. The said grandchildren are infants, aged, respectively, fourteen and seventeen years, and the said .son Edwin is aged fifty-one years.
    3. About eighteen months before she died the deceased made her last will and testament, and left it for safe keeping with her attorney who drew it.
    4. In and by the said will the deceased gave or devised nothing to her said son Edwin, and by a clause of the said will, numbered “ Fifth,” she gave her reasons for so treating him.
    5. The said deceased, four days before her death, sent to the office of the said attorney for the purpose of making a new will. The said attorney being at the time in Europe, a clerk in his office went to the residence of the deceased to receive her instructions. She informed him, substantially, that she desired to do the same by her son Edwin as by the other children, and directed him substantially to prepare a new will, the same as the old or existing will, ■except that' in it Edwin should be made to receive a child’s share and be treated in all respects in the disposition of the property as the other sons.
    6. It was then the testamentary desire and intention of the deceased to so make her new will, and to so dispose of her property, ■■and thereby make her said son Edwin share equally as aforesaid, and she remained of that disposition and intention, and supposed she was effectuating and carrying out the same in executing and making the paper writing offered for probate as her last will and testament.
    7. The said attorney’s clerk having received the said instructions returned to the said attorney’s office, and there had the proposed new will made in typewriting. He omitted the said “ Fifth” clause-of the said first will, and inserted the name of the said Edwin Forbes (the contestant herein) in two places in the said proposed new will, viz.: (1) In the subdivision thereof marked “ Second,” immediately after the names of the said three other sons where they first occur in the said subdivision; and (2) immediately after the said three names where they afterwards occur in the said subdivision in the following sentence: “ If either or both of the Jordan children die before attaining his or their majority, the share of the one so dying shall go to my sons Duncan D., Joseph C. and "William H. Forbes anfi Edwin Forbes in equal shares.” He made no other changes in the said first will.
    8. Except for the said changes, the paper offered for probate is ¿xactly the same in words, order and form as the said first will.
    9. The said clerk did forthwith on the same day bring the said new will to the deceased at her said house, and did also bring with him the said first will.
    The contestant objected, before the surrogate, that the instrument was not her will; that it did. not express her intentions as to the contestant.

      William J. G-aynor, for the contestant, appellant.

      Ghades J. Patterson, for the proponent, respondent.
   DyicmaN, J.:

This is an appeal from a decree of the surrogate of Kings county, admitting to probate the will of Ann-Forbes, deceased. The probate of the will was resisted because the name of Edwin Forbes, a son of the deceased, was not inserted as a recipient of a portion of the income of the trust estate created by the will during its continuance, and the claim was that such omission was a mistake and that it was the intention of the testator to have such name so inserted. We can find neither principle or authority that will justify the rejection of a will for sucb a cause, and tbe introduction of such a rule would be productive of dangerous litigation and destroy many wills.

There are many reported cases where proof has been introduced in controversies over wills of the expression of testamentary intentions which were not carried out in the instrument. Such testimony lias usually been introduced upon the question of undue influence, but we find no case where such proof has been received to destroy a will on the ground of mistake alone, and we can easily perceive that such a doctrine would be fraught with danger.

Testamentary dispositions of to-day may be revolutionized to-morrow, or the next day, or the next, and the scrivener who prepares the will may or may not be informed of the change ; but it is the written instrument and the solemnities surrounding its execution which manifests the intention of the testator as it is finally fixed in his mind, and his purposes must be sought for and discovered in the will, and not in external circumstances or previous declarations.

In actions for the construction of wills, or where those instruments have been called in question in other actions, statements and provisions which they contained have been held void for uncertainty and mistake, as in the case Kalbfleisch v. Kalbfleisch (67 N. Y., 360), where it was held that the numeral eight was used mistakenly. But such presumption and construction is indulged •for the purpose of upholding a will, and not for its destruction. To .avoid intestacy, and not to decree it.

The decree should be affirmed, with costs.

Pbatt, J., concurred.

BabNAbd, P. J.

(dissenting):

The facts are very clear. The testratrix made a will some four years before her death. This will exhibited an estrangement between her and one of her children. This child was deprived of a share in the estate, which was about $26,000. A few days before lier death she sent to her attorney, Mr. O. J. Patterson, who had drawn her will. Mr. Patterson was in Europe and one of his clerks in his office responded to the call. He saw the testatrix and was instructed to draw a will and make this disinherited child even with the others. The clerk made such changes as he supposed would do this, and he read the will over to the testatrix and she • executed it. She was about eighty-four years old and died four days thereafter. The will did not, in point of fact, carry out the intention of testatrix. The formal execution of the will, under these circumstances, should not be deemed to establish an execution by a free and capable testator who understood its contents. The changes were misleading when made, and the essential change to carry out the testatrix plan was not made at all. She relied on her lawyer, and did not have sufficient mental power, from her age and from her mortal sickness, to comprehend the will. It was executed under a mistake. If the whole will was not understood, all of it fails, even if the bequests in it were intended when given to other persons than this disinherited son. The will is an entirety, although the Surrogate’s Court in New York admitted a will to probate striking out that portion executed under a mistake. (Burger v. Hill, 1 Bradford, 360.)

I think the will ought not to be admitted to probate. The former will is proven to have been destroyed and revoked thereby.

The will should be refused probate and letters of administration issued as in case of intestacy, with costs to both parties out of the estate.

Decree affirmed, with costs.


author: Barnakd, P. J.:

text:
    HENRY F. KEENAN, Appellant, v. JOSEPH G. BIRD and Others, Respondents.

      Vendor and purchaser — substantial difference between the a/mount of land as surveyed and as described in the contract — mutual mistake — the purchaser need not fulfill.

    In a contract for the sale of agricultural land reference was made to a certain deed for a more particular description, hut there proved to he a variance of twelve acres between this description and an actual survey of the land. Both parties were mistaken as to its quantity.

      Held, that the deficiency was so substantial that the vendee should not he required to perform the contract.
    Appeal by the plaintiff Henry E. Keenan from a judgment entered in the office of the clerk of "Westchester county on the 15th day of February, 1890, after a trial by the court without a jury at. the Westchester Special Term.
    The actio a was brought to rescind a contract for the sale of land and to recover $100 paid on account thereof and the expenses of the examination of title, on the ground that a farm agreed to be conveyed as containing sixty-seven acres contained, as ascertained by a survey, but TS^9/^ acres of land.

      liiehard V. Boyd, for the appellant.

      Arthur T. Hoffman, for the respondents
   Barnakd, P. J.:

On the 14th day of May, 1889, the defendants by a written agreement under seal, covenanted to convey a title to certain premises particularly described in the complaint. The deed was to be delivered on the 14th of June, 1889. One hundred dollars was paid on account of the purchase-price, and the balance, $5,900, was to be paid at the delivery of the deed to plaintiff. Before the time for the delivery of the deed the plaintiff caused a survey to be made of the land and found that the description in the contract contained a trifle over forty-eight and a-half acres. The contract contained no detailed description, but referred to the deed thereof given by the sheriff upon a .foreclosure sale thereof in 1862, with a specific reference to the record of the deed in the register’s office of Westchester county. This deed was in the possession of plaintiff’s attorney before the contract was'executed, and the contract was drawn from it. The sheriff’s deed gave a general description of the land mainly bounded by the premises of adjoining properties “ containing, by estimation, sixty acres, be the same more or less.” The contract drawn by plaintiff’s attorney contains a still more general description of the land, but refers to the sheriff’s deed for a more particular description, and states the amount of land to be “ aboxit sixty acres more or less.” The representation made by the owners was that the sheriff’s deed “ called for sixty acres of land.” “ That the property overrun that amount and they considered it to contain about sixty-seven acres.” The land was a very irregular piece of land.

There is nothing in the case to justify a finding of fraud. The vendors sold by the piece, and the statement of quantity in the sheriff’s deed was accurately given as well as tlie deed itself for examination of title. The negotiations were all conducted on this deed and its accuracy of description and its estimates of quantity. The finding, that there was no fraud was right.,

Is the plaintiff without relief % The contract was not executed and the parties were mutually mistaken as to quantity. The variance is so marked and the purchase being of agricultural land, that the case seems to be covered by Paine v. Upton (87 N. Y., 327). Words such as “more or less” or “ containing by estimates” certain-quantities, do not deprive a vendee of relief where the variance is. so material as to show that the risk of quantity was not one of the-elements of the contract. The evidence shows clearly a mutual mistake in the case, and that the land was purchased-for agricultural purposes, and that the deficiency is so great that it would be inequitable to the vendee to compel him to bear the loss.

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

PRAtt, J. concurred.

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


author: LeaRNEd, P. J.:

text:
    MARTIN COFFIN, Appellant, v. WILLIAM LOCKHART and Another, Respondents.

      Specific, performance — the remedy discretionary with the court — when not granted to compel one, who had agreed to pay a mortgage, to perform his covenant.

    complaint in an action alleged tliat the to one Parsons, and afterwards had sold them to the defendants, who, as part of the consideration, covenanted to pay the bond and mortgage; that the bond and mortgage were payable, but that the defendants had not paid them, and the plaintiff demanded specific performance by the defendants of their covenant to pay, or judgment for the amount of the bond and mortgage. To this action Parsons was not made a party.
    A demurrer was interposed

      Held, That the action could not be
    'That the court, in granting stances, and where, as in this case, the land has been made the primary fund, and the plaintiff has become, in effect, a surety, and there is nothing to show that the land will not satisfy the debt, it is no hardship to compel the plaintiff to pay bis bond, and then, by subrogation, enforce the mortgage against the land, -.and any deficiency against the party who has covenanted to pay the bond and mortgage.
    Appeal by the plaintiff Martin an ment, entered in the clerk’s office of Warren county on the 10th day of February, 1891, sustaining the demurrer of the defendant Walter Lockhart to the complaint, with leave to the plaintiff, within twenty days after service of a copy of the order upon which said judgment was entered, to serve an amended complaint on payment of costs.

      J. II. Bam, for the appellant.

      Charles II Batter son, for the respondents.
   LeaRNEd, P. J.:

The complaint avers that the plaintiff in 1880 executed his bond .and mortgage to one Parsons, payable January 1,1883; that in October, 1885, he sold the premises to defendants, who covenanted to pay the bond and mortgage as part consideration of the premises; that they have not paid the same; that said bond and mortgage are payable. Parsons is not a party to the action. The plaintiff demands specific performance of the covenant to pay the bond and mortgage or judgment against defendants for the amount; such .amount, when collected, to be paid to the clerk of the court, subject to the order of the court.

The defendant demurs: 1. Because the complaint does not state facts sufficient. 2. Because Parsons is not made a party.

The Special Term sustained the demurrer, giving plaintiff leave to amend. The plaintiff appeals. The learned justice doubted whether Parsons was not a necessary party, but decided the demurrer •on the insufficiency of the complaint.

The granting of a specific performance has always been held to be discretionary, that is to say, the court will consider the special circumstances of the case in order to determine whether the plaintiff should have such relief or should be remitted to his common-law remedy. (Day v. Hunt, 112 N. Y., 191.) For that reason it is especially important to understand all the circumstances of any case cited by plaintiff to sustain his position.

There is an obiter remark of the chancellor in Warner v. Beardsley (8 Wend., 199), which is often cited in subsequent cases. It was not necessary to the decision, and whether right or wrong, it, therefore, decides nothing.

In Marsh v. Pike (1 Sandf. Ch., 211; affirmed, 10 Paige, 595) the mortgagor applied to the grantees to pay off the amount of the mortgage, and they refused. He also applied to the mortgagee to permit a foreclosure in his name at the mortgagor’s expense, and tbe mortgagee refused. a grantees in favor of tbe plaintiff, tbe mortgagor, for tbe amount of tbe mortgage, tbe amount to be paid to tbe mortgagee.

Tbe assistant vice-chancellor bad dismissed tlie bill against tbe mortgagee, from wbicb dismissal there was no appeal. But the remarks of tbe chancellor imply that tbe dismissal was improper; according to bis view stated in Warner v. Beardsley (ut supra) and in Gibbs v. Mennard (6 Paige, 260), and according to the dictum in King v. Barnard (2 Johns. Ch.,561.) That is, these views of the chancellor and tbe dictum cited are to tbe effect that tbe surety may bring the principal debtor and tbe creditor into a court of equity to enforce tbe collection of the debt out of property primarily liable. (So in Antrobus v. Davidson, 3 Merivale, 579 ; Ritenour v. Mathews, 42 Ind., 7; 3 Pomeroy’s Eq., 1417, note.) That doctrine, however, does not aid tbe plaintiff in this case, because be has not brought tbe creditor into tbe action.

He relies on Farnham v. Mallory (3 Keyes, 527) as an authority that it is not necessary to make the creditor a party. But that was a different case. In that case tbe vendor of land encumbered by a mortgage bad agreed with tbe vendee to pay and discharge the same. And tbe defendant bad guaranteed that tbe grantor would do this. The court sustained an action on tbe guaranty by the grantee of tbe land to whom tbe guaranty bad been given. In that case tbe land bad not become tbe primary fund. Tbe vendor bad been paid tbe full price on bis agreement to discharge tbe mortgage. No question of equity was involved. It was a simple action at law on tbe contract to recover tbe amount.

It is settled in a transaction like the present that in equity tbe land becomes the primary fund, tbe grantee is treated as tbe principal and tbe mortgagor as tbe surety. (Comstock v. Drohan, 71 N. Y., 9.) On that ground and on special equities have tbe cases rested, in which, as above stated, tbe mortgagor has been allowed to bring creditor and grantee into court to enforce tbe lien on the land for bis own protection. On that ground the case of Woodruff v. Erie Railway Company (93 N. Y., 609) rested. Tbe railroad was insolvent and the property was in tbe bands of a receiver, and it was evidently proper that tbe coui’t should, by action or otherwise, direct its own officer to do equity and perform the contract. But it will readily be seen that it might sometimes be inequitable to compel the creditor to enforce his lien, as, for instance, when the security was insufficient and when the creditor believed that the security would improve.

In the present case the plaintiff seems to have intended to bring a bill for specific performance to compel the defendant to pay certain money. It is certainly unusual to ask specific performance of a contract to pay money. The remedy on such contracts is at law. And if it be said by the plaintiff that the money is not to be paid to him and, thei-efore, an ordinary action on the covenant would not be proper, the answer is that if the plaintiff has suffered damages he may recover such damages ; if not, no cause of action exists.

The case of Slauson v. Watkins (86 N. Y., 597) seems to be decisive of this case. The plaintiff had executed her bond and mortgage on the real estate. She contracted to sell it to defendant, who was to assume the mortgage and pay the balance of the purchase-price. And on the same day, at his request, she performed her part of the contract by conveying her part of the real estate to his wife, subject to the mortgage. The mortgagee began to foreclose. Pending the foreclosure, the plaintiff commenced an action to compel the defendant to pay and the mortgagee to receive the money due on the mortgage. The complaint was dismissed and the dismissal was affirmed by the Court of Appeals. The only difference between that case and this is, that the land had been conveyed to the wife of the person who had agreed to pay the mortgage ; which is plainly immaterial, as it was conveyed subject to the mortgage, and was, therefore, the primary fund; and, secondly, that a foreclosure was pending. Of course, the pending of the foreclosure might be an additional reason for the dismissal of the complaint. But the court goes beyond that and states that no case is cited where a court of equity has interfered to compel the principal debtor to pay a debt before it has been ascertained that the fund primarily liable was insufficient. And this remark of the court may point out a distinction which will reconcile some apparently conflicting principles. In Pomeroy, as above quoted, it is said that the surety may sustain a quia timet suit in equity before payment. This is stated in Wooldridge v. Norris (L. R., 6 Equity, 410) on the authority of Lord Redesdale, who says : “A surety may file a bill to compel the debtor on a bond in which he has joined to pay the debt when due, whether the surety has been actually sued for it or not.” But in the present case the land has been made the primary fund and the grantee may be called a surety to the land. Therefore, it is equitable that the debt be enforced first against the land before the purchaser is personally charged. Now, the plaintiff’s action tends to reverse this equity and to make the defendants pay the debt which should be paid primarily out of the land. It cannot be sustained on the doctrine of quia timet, because there is property specifically pledged for the debt, which may be sufficient, and to which, at least, resort should first be had.

The plaintiff in this case owes the debt. He borrowed the money of the mortgagee, and though in equity he is treated, since the conveyance to the defendant, as surety and his land as the primary fund, still there is no hardship in requiring him to pay his bond, and then by subrogation to enforce the mortgage against the land and to collect on foreclosure the deficiency from the defendant. The land should be made to pay the debt if possible.

We are not to be understood to say that there are no cases in which a surety, may bring a suit in equity against the principal debtor and the creditor to enforce a lien on property pledged for the debt; or in which the surety may bring an action quia timet against the principal. We think the present complaint cannot be sustained.

The judgment must be affirmed, with costs; with leave to amend complaint in twenty days on payment of costs.

Landon and Mayham, IJ., concurred.

Judgment affirmed, with costs; with leave to plaintiff, on payment of costs in twenty days, to amend complaint.


author: Learned, P. J.:

text:
    WALTER V. WILSON, Respondent, v. THE CITY OF TROY, Appellant.

      Negligence of the water commissioners of a city — interest recoverable on a claim-sounding in tort — Laws of 1872, chap. 129.
    The water-works of the city of Troy are city property, and the rales of the commissioners forbid any person but the superintendent or his employees to tap a main. A property owner wished water introduced into a house, and certain plumbers employed by her applied to the superintendent of the water-works to have the connection made, which was done and the amount paid by the commissioners for the services rendered by their men in the work was repaid to the commissioners by the plumbers.

      Held, that the city was liable to the owner of a horse which fell into a hole dug by the laborers of the commissioners in order to tap the main, the opening having been left insufficiently guarded.
    In an action for negligence in causing, as alleged, permanent injury to a horse, the jury may give interest upon the sum found by them to represent the depreciation in its value, from the date of such injury.
    The charter of the city of Troy (Laws of 1872, chap. 129) provided that no action could be maintained upon a claim against the city unless it was presented to the city comptroller, and the latter did not audit it within sixty days.

      Held, that no interest could be recovered upon such a claim until sixty days after ■ the date at which it had been duly presented as required by the act.
    Appeal by the defendant, the City of Troy, from a judgment in favor of the plaintiff, entered in the clerk’s office of Rensselaer county on the 1st day of October, 1889; and also from an order denying the defendant’s motion for a new trial, after a trial at the Rensselaer County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $4,761.

      William J. Roehe, for the appellant.

      Levi Smith and Orim Gambell, for the respondent.
   Learned, P. J.:

This is an appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a new trial. The action is to recover damages for injury to two horses occasioned, on the evening of November 13, 1879, by their falling into a ditch in South street in Troy, alleged to have been dug by the city authorities. On the •trial, however, the -litigation and the recovery were confined to one horse, the stallion. Mrs. Sleight was having a building repaired on the north side of south street. She employed Dodds & Ferguson, plumbers, to connect her building by means of a lateral pipe with the water main in the street. The water-works of Troy belong to the city. They are managed by a board of water commissioners. (Laws 1832, chap. 51, § 6 ; Laws of 1855, chap. 58.) The commissioners can make ordinances and regulations for the use and control of the water. (Sec. 6, law last cited.) By one of these ordinances it is declared: “ It shall not be lawful for any person or persons, .except the said superintendent and those employed by him or by the water commissioners, to tap or make any connection with the main or distributing pipes of said water-works, or to permit the same to be done except as aforesaid.”

Dodds, one of the firm above named, went to the superintendent or his clerk, and told him that he wanted men to open the street and fill it up again at that place, for the purpose of putting the water into the house. Men were accordingly sent there by the water ■commissioners or the superintendent, who were afterwards paid by the water commissioners for the work. Dodds & Ferguson paid the water commissioners. These laborers were accustomed to be sent all over the city by the water commissioners to dig trenches, .and were paid by them. And Dodds & Ferguson knew, by tlieir own experience, that the water-works commissioners always had such work done by their own men. Dray, who was working for Dodds & Ferguson, pointed out to the men the place where the lateral pipe was to go, and after the ditch had been dug by them put in the lateral pipe.

The three men sent by the water commissioners began work in the morning and dug a trench across the sidewalk and to the center of the street, about twenty-five feet. The trench was from two and a half to three feet wide and six feet deep; the earth thrown on each side. The trench was also dug about four feet along the main, and two feet wide to give room to tap the main. The lateral pipe was laid in, and the trench was filled up from near the main to the fence. The part over the main and some four feet north of the main remained open; being, as one witness says, about four feet ■square and five or six deep. The laborers quit work at six, and put an old wooden saw-horse, three feet long and two feet high, alongside the ditch. No other barrier was placed, and no lamp put there.

On the same evening one Wilson, not the plaintiff, was driving a team of horses up South street, and, as he testifies, the first thing he knew his horses had gone out of sight. They had fallen into the hole above described; the stallion first and the other upon him. The night was very dark, and neither moon or stars shining. With much difficulty the horses were extricated by the use of ropes and by digging a trench towards the south. For the injury thus done to the stallion the recovery was had.

It seems to us plain that the ditch- was dug by laborers in the -employ of the city; and that the city must he liable for any negligence causing damage. The water commissioners properly would not allow the main to be tapped except by their own workmen. They might have insisted that the person for whom the pipe was to be inserted should dig the ditch, and might have reserved to themselves only the making of the connection. But probably they found it to be convenient to do both. And at any rate they did -adopt that course, and in this case did, as a matter of fact, dig this ditch. And it was none the less their work because Dodds & Ferguson afterwards paid them. Dodds & Ferguson did not control the workmen, but only pointed out the place where the lateral pipe was to be laid.

The case of Pettengill v. Yonkers (27 N. Y. St. Rep., 531) seems to apply directly to this case, holding that the city was liable for negligent acts of the water commissioners, and also recognizing the •duty of the city to guard and protect improvements, public or private, in a street so as to prevent travelers from receiving injury. To the same effect is Turner v. City of Newburgh (109 N. Y., 301), Russell v. Village of Canastota (98 id., 496). It hardly seems to need argument to show that a city which digs a pitfall in a street and does not guard it is liable for damages to a traveler who is injured thereby. (Ehrgott v. The Mayor, 96 N. Y., 264.) And certainly this ditch was not guarded, and was in the highest degree dangerous.

The defendant urges that, as the present value of the stallion was testified to be $250, the verdict could have been only $2,750. But the same witness who testified that the present value was $250, also testified that before the accident the value was $5,000. Therefore, the verdict was not contrary to the ordinary rule of damages. The defendant next insists that the damages were excessive. The stallion was kept for breeding purposes, and was shown to be a fast horse. Since the accident thé proof shows that lie is stiffened across the shoulders and back; that when speeded he becomes lame. Wit_ nesses who had experience in the breeding of horses testified that they would not like to breed from a horse thus injured. There was no testimony as to the amount of the damage given by defendant. So that we may justly assume the correctness of that given by the plaintiff. And from the account given of the accident it is plain that the injury might have been very great. We cannot say under the evidence that the damages were excessive.

The complaint demanded judgment in respect to this horse for $3,000 and interest from the date of the injury. The jury gave a verdict for $4,761, which was $3,000 and interest as above stated. It is urged by defendant that interest could not be allowed. The court had charged that the jury might allow interest and the defendant excepted. On this question of the allowance of interest we think that many of the decisions in actions of contract do not give much light. But, even in an action of contract, where certain property was to be delivered at a certain time, it was held that, as a matter of law, the plaintiff was entitled to interest. (Dana v. Fiedler, 12 N. Y., 40.) So in an action of trover for conversion, interest from the time of the conversion should be given. (Andrews v. Durant, 18 N. Y., 496 ) This same rule is reaffirmed in McCormick v. Pennsylvania Central Railroad Company (49 N. Y., 303, 315). The reason given is that interest is as necessary a part of a complete indemnity as the value itself, and is not in the discretion of the jury. This was the doctrine also in Hyde v. Stone (7 Wend., 354) and Bissell v. Hopkins (4 Cow., 53). Now, evidently, the reason for this rule is that the injured person has been, from a certain time, deprived of property which was actually in his possession and enjoyment. To pay him back simply the value several years afterwards would not be an indemnity. For, if the property had not been taken from him he would, during all the intervening time, have had the use and enjoyment of it. And this he has been deprived of by the wrongful act of the defendant.

In White v. Miller (78 N. Y., 393), there is a compilation of most, of the recent cases, which, the court says, shows the uncertain state of the law. The cases cited are all actions on contract, as was that case itself. That case was a breach of warranty on the sale of cabbage seeds for some small price. It is quite possible that if the recovery had only been for the price paid interest on that price would have been allowed. But the damages allowed were the difference in value between a crop of cabbage raised from the seed sold and a crop which would ordinarily have been raised from seed such as these were warranted to be. And the court held that interest on such damage could not be allowed. It will be seen, then, that the damages were in themselves speculative, and that no property in the plaintiff’s possession was taken away or injured. The court recognizes in that case the rule as to trover and trespass de bonis asportatis, as above stated; that is, that interest is a matter of legal right in those cases. Now, what possible difference in principle can there be between a case where a defendant forcibly carries away my horse and a case where he injures my horse so, much that it is valueless? If by defendant’s violence he breaks my horse’s legs so that he is good for nothing, I have lost my property just as much as if defendant had stolen it. And to compensate me I ought to have interest on the damages done, up to the time of' recovery. The wrong-doer ought not, by delaying to compénsateme, have the use of the money which should have compensated me at the time of the injury. In cases like the present the defendant is to blame and the plaintiff is innocent. And the culpable defendant should make full compensation. He does not do so unless he pays interest.

The action in the present case is on the common law-liability for negligence. In Sargent v. Inhabitants of Hampden (38 Me., 581), the action was on a statute, and the decision rested on the language of the statute, which limited the recovery to “ the amount of the-damages sustained thereby.”

The defendant urges that the plaintiff has been the possessor of the stallion ever since and has used it. But the jury have found that by this injury the value of the stallion was at once reduced by $3,000. That sum is not speculative, but actual damages accruing at the time of the injury. Let us suppose that by the accident the plaintiff’s wagon liad been broken to pieces, but that one wheel remained uninjured. Would it be any answer to the claim for interest to say that the plaintiff has had the wheel ever since and has made some use of it ? We think not.

The question of interest arose in a similar case to the present. (Parott v. Knick. Ice Co. (46 N. Y., 361). That was an action for damages to a sloop, caused by a collision with a propeller. It was tried before a referee and he allowed interest. The court said that in trover, replevin and trespass interest is allowed for the purpose of complete indemnity; and it was difficult to see why, on the same principle, interest on the value of property lost or destroyed by the wrongful or negligent act of another may not be included in the damages. This is the doctrine of Sedgwick on Damages, 385.

In Reiss v. New York Steam Company (35 N. Y. St. Rep., 86), the Superior Court in an action for damages to personal property held, that the jury might give interest, but that the plaintiff was not entitled to interest as a matter of law. The case of Mairs v. Manhattan R. E. Association (89 N. Y., 507), relied upon in that case, was an action for damages to land by flooding the same. So was Walrath v. Redfield (18 N. Y., 457).

It is, perhaps, not necessary to hold in this case that the plaintiff is entitled to interest as a matter of right, although we believe that to be the true rule in such cases.

The court charged the jury: “You cannot go beyond $3,000 and the interest on that from the time,” etc.

The defendant’s counsel requested the court to charge that no interest is allowable, citing White v. Miller. The court declined. The jury rendered a verdict for $3,000 and interest. Then the court said that the jury must compute the interest. They did so ■and allowed in all $4,161. Therefore, the court left to the jury the question whether they would or umuld not allow interest, while the position of the defendant was that the jury had no right to allow interest. Rut we do not see, as a matter of principle, why 'the allowance of interest in such a case is not a matter of right for the purpose of complete indemnity as much as it is in trover.

There is another question of some novelty in respect to interest. The charter of Troy (Laws of 1812, chap. 129, tit. 6, § 10) says that no :acfion shall be maintained in a case like the present, unless it shall appear that the claim was presented to the comptroller, and that the comptroller did not audit it within sixty days. This accident happened November 19, 1879. The claim was presented April 5, 1881. The action was commenced October 5, 1885. Now, it is said that interest cannot be allowed for the time prior to the filing of the claim and the refusal to audit. "We are of opinion that this is so. The statute, makes the presentation and the refusal to audit prerequisites to the right of action. And it would seem reasonable that, in an action for damages for a tort, interest should not begin to run until the right of action has arisen. The language of this charter is not like that of chapter 572, Laws of 1886. And this provision of the charter seems to be intended to provide that the city shall not be liable until the claim has been presented and its comptroller has had time to examine and to determine whether or not to pay.

In this view no interest was recoverable from November 19,1879, to June 3, 1881. This view requires a deduction of $292 for the interest. With this deduction, the judgment is affirmed, without costs to either party.

Landon, J., concurred; Mayham, J., not acting.

Judgment for deducting $292 and for affirming judgment so .deducted, without costs.