author: "McAdam, J. Per Curiam.

text:
    MARY A WARDLAW, as Administratrix, etc., Respondent v. THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant.

      City Surveyor; Not an office within the meaning of section 55, of the Consolidation Act.

    This action was to recover the salary of James R. Wardlaw, as assistant engineer, during the interim between the time of his suspension and his final discharge. The defence was that Wardlaw was appointed city surveyor, and his attempt to hold the position of assistant engineer was holding two offices which, under section 55 of the Consolidation Act. prevents a recovery.

      Held, that defendant might have discharged decedent and relieved itself from all liability, but it could not suspend him without pay. The appointment of city surveyor is not an office within the meaning of section 55 of the Consolidation Act. Office, in the sense there employed, embraces the idea of public station, tenure, emolument and duties, involving the right and duty to execute some public trust. The position of city surveyor has no tenure or salary ; does not exist independently of the incumbent, and does not become vacant by his death, removal or resignation.
    Before Sedgwick, Ch., J., and Freedman J.

      Decided May 2, 1892.
    Appeal by defendant from a judgment entered upon a verdict directed by the court at trial term, and from an order denying the defendant’s motion for a new trial.
    The following statement and opinion, upon which the judgment and order appealed from were affirmed, was motion for a new trial. filed denial of defendant’s
    “ The action was to recover $5,700, and interest, aggregating $6,821, for the salary of James R. Ward-law, as ‘ assistant engineer,’ during the interim between the time of his suspension and discharge. The defendant concedes the appointment, the suspension and discharge, and the readiness of Wardlaw to perform, his duties at all times. It claims, however, that because Wardlaw was appointed £ city surveyor ’ in 1877 by a resolution of the common council, his attempt to hold the position of £ assistant engineer ’ was the holding of two offices, which, under section 55 of the Consolidation Act, prevents a recovery. The court directed a verdict in favor of the plaintiff for the amount claimed, and the defendant moves for a new trial.
   "McAdam, J.

While the defendant might have discharged the decedent, and relieved itself from liability, it could not suspend him without pay (Gregory v. Mayor, 113 N. Y., 416; Emmitt v. Same, 38 State R., 355, Affd., Ib., 907), and the moneys he earned in other employments during the suspension are not to be credited to the defendant. Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; Lethbridge v. Mayor, etc., 39 State R., 385. There is nothing in the case which shows that the decedent abandoned or relinquished the office of assistant engineer, or in any manner discharged the defendant from its obligation to pay.0 The real question involved turns on whether the decedent, because he held the position of £ city surveyor ’ under a resolution of the common council passed in 1877, held an office within the meaning of the prohibition contained in section 55 of the Consolidation Act, which made him ineligible to hold the position of £ assistant engineer ’ under the defendant.

££ There is no express authority given to the common council to appoint city surveyors, and if the board possesses any power upon the subject it is by implication only. But that question need not be seriously considered, for it is apparent that the appointment is not an office within the meaning of section 55, supra. Office, in the sense there employed, embraces the idea of public station, tenure, emolument and duties, involving the right and corresponding duty to execute some public trust. In re Hathaway, 71 N. Y., 238 ; People v. Duane, 121 Ib., 367; U. S. v. Hartwell, 6 Wall., 385 ; U. S. v. Germaine, 99 U. S. R., 508. In legal contemplation, an office is an entity, and may exist though without an incumbent. People v. Stratton, 28 Cal., 382. It is an employment on behalf of government, in any station of public trust, not transient, occasional or incidental. It is where one has to do with another’s affairs against his will, and without his leave. The position of city surveyor has no tenure or salary. It does not exist independently of the incumbent, and does not become vacant by his death, removal or resignation. It resembles that of licensee more than anything else.

££ Every office implies an authority to execute some portion of the sovereign power of the State, either in making, executing or administering the laws. The question came up in this court when it held that Frederick Dwight Olmstead in holding the position of landscape architect of public parks and commissioner of state surveys was not holding two offices within the meaning of the. section referred to.

“ The court said : £ One who receives no certificate of appointment has no term or tenure of office, but performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, is not an officer and does not hold an office.’ Olmstead v. The Mayor, 42 N. Y. Superior Ct. R., 488.

££ The Court of Appeals has held that the legislative prohibition to common council against creating new officers extends to clerks, but not to janitors and ordinary servants, for they are not officers. Sullivan v. Mayor, etc., 53 N. Y., 652; Costello v. Same, 63 Ib., 48. The decedent, by reason of his position of city surveyor, was in no sense a clerk, city employee or public official, and did not come within the purpose and intent of the prohibition contained in section 55, supra.

William H. Clark, counsel to the corporation, and Sidney J. Cowen of counsel, for appellant.

Kellogg, Rose & Smith, attorneys, and L. Laflin Kellogg of counsel, for respondent.

“ ‘ The distinction/ said the Court, in Olmstead v. Mayor, supra, ‘ is plainly taken between a person acting as a servant or employee, who does not discharge independent duties, hut acts by direction of others, and an officer empowered to act in the discharge of a duty, or trust, under obligations imposed by the sanctions and restraints of legal authority in official life.’ The verdict was properly directed, and the motion for a new trial must be denied.”

Per Curiam.

The judgment and order should he affirmed, with costs, upon the opinion filed by the trial judge on denying defendant’s motion for a new trial.


source: Caselaw Access Project

author: McAdam, J. Per Curiam.

license: Public Domain

text:
    HENRY IDEN, Respondent v. ISAAC SOMMERS, Appellant.

      Chattel mortgage—Contract of sale—Chapter 315 of the Laws of 1884, as amended by Chapter 495 of the Laws of 1886, not applicable to household goods, when contract of sale is executed in duplicate, and one duplicate is delivered to the purchaser.

    The property in question, consisting of gas fixtures, were leased by plaintiff to one Woolf on the conditional sale and installment plan, the title to remain in plaintiff until the fixtures were paid for. While the property was in possession of Woolf he mortgaged the same to the defendant, who subsequently foreclosed the mortgage and disposed of the fixtures. The plaintiff brings suit to recover their value as for conversion. The defence is that defendant had no knowledge of the transaction between plaintiff and Woolf, and plaintiff having neglected to file the agreement providing that the title to the fixtures should, remain in him until paid for, it became inoperative and void under Chapter 315, Laws of 1884. The Act cited, as amended in 1886, does not apply to “ household goods.”

      Held, that gas fixtures are “ household goods ” within the proper meaning of that term, which has been defined as more,comprehensive than “ furniture,” and includes every article of personal property in the house or on the premises intended for ornament, use or consumption.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 2, 1892.
    Appeal by defendant from a judgment entered for the plaintiff, upon a verdict directed by the court, and from an order denying defendant’s motion for a new trial.
    The following opinion, upon which the judgment and order appealed from were affirmed, was filed by the trial judge on his denial of defendant’s motion for a new trial.
   McAdam, J.

“ Theproperty consisting of ‘ gas fixtures was leased by the plaintiff to Woolf on the conditional sale and installment plan, title to remain in plaintiff until the fixtures were paid for. While the property was in the possession of Woolf he mortgaged the property to the defendant, who subsequently foreclosed his mortgage and disposed of the fixtures, thereby making himself liable to the plaintiff in trover as for conversion. Lempke v. Peterson, 1 City Ct. R., 15. The defence is that the defendant had no knowledge of the conditional agreement under which Woolf held the property, and that the plaintiff having neglected to file such agreement ‘with the conditions and reservations therein,’ those providing that title to the fixtures should remain in the plaintiff until they were paid for became inoperative and void. Laws, 1884, chap. 315. There would be force in this objection but for the fact that the act cited does not apply to ‘household goods’ (Laws, 1885, chap. 488; Laws 1886, chap. 495), and ‘ gas fixtures ’ are ‘ household goods ’ within the proper meaning of that term. They were sometimes comprehended by the term ‘ furniture,’ which means £ that which furnishes or whatever is added to the interior of a house for use or convenience,’ Bell v. Colding, 27 Ind., 179; Crossman v. Baldwin, 49 Conn., 491; Burrill's Law Diet., p. 33, and includes brass work, knobs, window shutters, etc. (Worc. Dic.). In Shaw v. Lenke, 1 Daly, 487, £ gas fixtures ’ are included in the term £ articles of furniture movable in their nature, although attached by screws, nails, brackets, etc. See also, Lawrence v. Kemp, 1 Duer, 363 ; McKeage v. Hanover Fire Ins. Co., 16 Hun, 239, affd., 81 N. Y., 38. In Camagy v. Woodcock, 2 Mundf. Va. R., 234, the phrase ‘ household goods ’ is defined as more comprehensive than ‘furniture,’ including everything in and about the house that has usually been held and enjoyed therewith, and would tend to the comfort and accommodation of the householder. See also, 9 Am. & Eng. Enc. of Law, 782, note 3; Paton v. Sheppard, 10 Sim., 186 ; Manning v. Purcell, 2 Sim. & G., 284. The expression ‘household goods,’ includes every article of personal property in the house or on the premises, intended for ornament, use or consumption (Dayton v. Tillow, 1 Robt., 21), even coal and wood provided for the use of the family. In re Fraser, 92 N. Y., 239. Those articles do not lose their generic character by being placed in a saloon or store, unless the intention to exclude them - from the operation of the term ‘ household goods ’ is made apparent, and that is not so here. It is the species of property rather than the temporary use made of it that determines its true character under the statute. So considered it follows that ‘ gas fixtures ’ are by force of the Acts of 1885 and 1886, supra, taken out of the operation of the Acts, 1884, supra, requiring conditional sale agreements to be filed. The Acts of 1885 and 1886 were passed in the interest of those who sell household goods ’ on the installment plan, and must be liberally construed to effectuate their purpose. The objection that a duplicate copy of the agreement was not delivered to Woolf was not made at the trial, when it might have been obviated, and cannot be raised for the first time now (cases cited in 33 State R., 425.)

Hess, Townsend & McClelland, for appellant, argued:—

That gas fixtures as they were placed and in use were not household goods. The evidence shows that they were chandeliers purchased for and used in a liquor saloon. The affidavit df the purchaser, Albert E. Woolf, upon the mortgage in evidence, shows that he resided at No. 1081 Lexington avenue. Aside from the authorities hereinafter cited it seems self-evident that goods, in order to be household goods, must be used in, or in some way connected with a household. Bouvier defines “ household” as follows : “ Those who dwell under the same roof and constitute a family.” Webster defines the same word as “ belonging to the house and family; domestic.” In 21 Albany Law Journal, page 83, see note of case Calhoun v. Williams, it is said: “The term :household’ literally means the inmates of the house, the family ; those whom the house holds.” Merchandise, in order to be household furniture, must in some way be used by, or relate to a family. The authorities are clearly to the effect that certain articles may be household goods, or not, depending upon the use to which they are applied. For example, plate used in a family passes under a devise or conveyance of “ household goodsbut plate not used in a family will not so pass. See Bouvier’s Law Dictionary, title “ Household furniture,” and cases cited. A shotgun will so pass if it is kept for the defence of the house. Matter of Frazer 92 N. Y., 246. If otherwise it will not pass. American and English Encyclopedia of Law, volume 9, title Household,” note 3. In Dayton v. Tillou 1 Rob. 21, Robertson, J., after stating that “ household goods” * # * fairly embraces articles commonly used in a family, says (see on page 28): “ A testator may, however, render other things household goods or household furniture by his use of them. Books belonging’ to a well-filled library, wines in a well-stored cellar, paintings and statues in a large gallery, curiosities of an extensive museum, numerous specimens belonging to a well-selected mineralogical or other collection may not be or may be household goods or furniture, according to their connection with the owner’s residence and his own and his family’s habitual use of or access to them.” In American and English Encyclopedia of Law, vol. 9, title 1, Household,” the following propositions are stated as settled by the authorities cited: Household furniture, etc., includes only what is in domestic use and not articles which are in the way of testator’s trade or business.” Where a man owned a hospital, in a town other than that of his residence, which he employed, under contracts with the naval commissioners, in entertaining the sick and wounded of the navy, the furniture of this hospital was not included in the expression household goods ’ as used in an exception in a marriage settlement with his wife, by which she renounced her claim upon his property.” “ Beds and furniture used by the testatrix in a boarding-school kept by her, and in which she lived, passed under her will as household furniture, but the schoolroom furniture, as the desks, etc., would not have passed.” Liquors, bar furniture and beds for guests in an inn are not household goods, within the meaning of the rule that it is not a badge of fraud to permit household goods levied upon in execution to remain in the debtor’s possession.” It seems clear, therefore, from the authorities cited that articles which may be household goods ” when used in the family for its comfort and convenience, are not household goods when used for other purposes. The case of Dayton v. Tillou, above cited, is very nearly in point. In that case Thomas Reilly at one time was the keeper of a public house where he resided with his family. The house was furnished, and, in addition to the furniture, there was a collection of curiosities kept there as an attraction for guests. Subsequently he leased the public house with the furniture and removed with his family to another residence which was furnished. Some of the furniture, pictures and curiosities were removed by him to his residence and others were left at the public house temporarily, to be removed when he desired. Upon the death of Mr. Reilly he bequeathed to his wife “ all the household goods and household furniture of every kind and description.” It was held that under the bequest his wife took the furniture in the house which he occupied and such pictures and curiosities as were left temporarily at the public house, to be removed at his pleasure ; but she did not take the furniture, pictures or curiosities which were designed to be left for use at the public house. The court held that she was entitled: 1st. To the articles which had been removed from the public house to his own home and used in his family. 2d. To the articles which he had left at the public house temporarily, intending to remove them to his home, and which were not used as ornaments of the public barroom; and says (see on page 29): “ The silver plate mentioned in the inventory annexed to the answer which had not been used in the testator’s private residence, curiosities not found there, large vessels suitable only for a hotel, as well as billiard tables, with, their appurtenances, used at the hotel, do not pass under the bequest.” The case last cited will be found to fully support the defendant’s contention.

“ If the construction aforesaid be correct the verdict in favor of the plaintiff was properly directed, and the motion for a new trial must be denied.”

Abram Kling, for respondent, argued :—

The language of the statute which provides “That the contracts for the sale of household goods shall not be required to be filed, has reference to gas fixtures sold by the plaintiff to Woolf. In 9 American and English Encyclopedia of Law (note 3), 782, the word household goods is defined to be “ all articles of household of a permanent nature, articles which are not consumed in their use and enjoyment, and which are used in, or acquired by the testator for his house.” In Camagy n. Woodcock, 2 Munf. (Va.), 234, the word household goods is defined as a wider term than furniture, including everything in and about the house that has usually been held and enjoyed therewith, and would tend to the comfort and accommodation of the householder. In Dayton v. Tillou, 1 Robt., 21, the word household goods has been defined by the general term of this court as embracing pictures, statues and a collection of curiosities were embraced in the words household goods. In ifclie Matter of Fraser, 92 N. Y., the Court of Appeals held: “ That coal and wood for use of the family and a shot-gun came under the term of household property.” In Paton v. Shepperd, 10 Sim., 186, tenant’s fixtures in a leasehold house, occupied by the testator, were held to pass as household furniture. In Manning v. Purcell, 2 Sim. & G., 284: A tavern-keeper whose dwelling-house is remote from his tavern, but whose family frequented the latter as much as the former, by the use of the term “ household furniture ” in his will, passes the furniture of the tavern. In Richardson v. Hall, 124 Mass. Courts, the Supreme Court held “that bronze statuary and pictures were included in the terms household property.” If the plaintiff furnished Woolf with lamps instead of “ gas fixtures ” there can be no question that they would have been regarded as household goods, and under the statute gas fixtures must be considered as necessary for the benefit of a householder as lamps. The law of 1886 was enacted for the benefit of the person who sold household goods, which would have been such goods or chattels which ínay be used for household purposes, and must be liberally construed, and as these fixtures are to illuminate the house, it must under decisions cited supra be so regarded. The fact that a party buying household goods uses them for purposes other than the household, does not deprive the owner of the property of his right and protection which the statute affords him.

Per Curiam.

The judgment and order should be affirmed, with costs, upon the opinion filed by the trial judge on denying defendant’s motion for a new trial.


author: Per Curiam.

text:
    JUSTUS HOERLE, Plaintiff v. JOSEPH McILHARGY, Defendant. EDWARD JACOBS, Receiver, Respondent in the appeal on the motion or petition of the McFARLAN CARRIAGE CO., Appellant.

      Partnership, action for the dissolution and appointment of a receiver, etc.

      —Distribution of estate—Preference of creditors.

    In this case, after the appointment of a receiver of the co-partnership property, the appellant being a judgment creditor, applied to the court at special term in the original action for an order that the receiver pay out of the funds in his hands the amount of the judgment. The court below denied the petition, and from such denial this appeal was taken.

      Held, that the application was properly denied. In a case like this the court should consider and determine whether the applicant had a right to a preference over other creditors of the co-partnership. . If it appeared that the estate was certainly solvent, leave might he granted, but if insolvent, and there was nothing in the claim that should give priority or preference, the application should be denied. In this case there was no reason why the appellant should not share equally with the other creditors.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 2, 1892.
    Appeal from order denying appellants’ motion for payment by the receiver of a judgment.

      William King Hall, for appellant, argued :—
    I. A judgment obtained adversely against partners is entitled to priority against the assets of the firm, although an action has been previously commenced by one of the partners for a dissolution and an accounting, in which a receiver has been appointed. Warring v. Robinson, Hoff. Ch., 524, citing Pratt v. Robinson, July, 1839 ; Adams v. Hackett, 7 Cal., 187; Ib. v. Woods, 8 Ib., 153 ; 9 Ib., 24. The case of Holmes v. McDowell, 15 Hun, 585, aff’d without opinion, in 76 N. Y., 596, may appear adverse to our contention, but, upon careful consideration, it will be found not to be so. It reviews the above authorities and distinguishes them. West-brook, J., says: “ The object of the action was to adjust the affairs of the partnership, which was insolvent, and to divide the property equally among its creditors. * * * But the cases cited are unlike the present. In all of them, the suit was instituted by the one partner against the other for his own protection against the ■alleged fraudulent conduct of such other. They all lacked the elements of admitted insolvency. * * * It is possible, though it is not fully conceded to be sound, that when one partner seeks the aid of the court against the other, and the tribunal invoked simply holds the property for the benefit of its owners, it may permit one creditor to obtain ‘priority over another.” We insist that the distinction made applies to our case, and shows us entitled to the priority claimed. See also, Keeney v. Home Ins. Co., 71 N. Y., 396, which held: “ A receiver pendente lite is a person appointed to take charge of the fund or property to which the receivership extends while the case remains undecided. The title to the property is not changed by the appointment. The receiver acquires no title, but only the right of possession as the officer of the court. The title remains in whom it was vested when the appointment was made.” Cited in U. S. Trust Co. v. N. Y. W. S. & B. R. Co., 101 N. Y., 483 ; Ogden v. Arnot, 29 Hun, 146, citing Finke v. Funk, 25 Hun, 616, which held: “ A receiver appointed in a partnership case pendente lite has no powers except such as have been conferred by the order appointing him. He is a common law receiver, and his duty is to protect the property during litigation. The order appointing him effects no change in the title to the property.”
    II. It is correct practice for the judgment creditor to bring his lien to the attention of the court in this action, and ask to have the execution satisfied out of the moneys in hands of the receiver. Walling v. Miller, 108 N. Y., 173.

      Michael Jacobs, for respondent, argued :—
    I. The mere recovery of the judgment does not give the creditor a preference. “ Equality in the payment of debts by a receiver is the rule of law, unless by diligence or some special reason, a preference is declared of one creditor, or of one class, over creditors generally. No such circumstance exists in this case, and the judgment is to be regarded as determining simply the validity of the plaintiff’s claim.” * * * “ His debt is adjudged to be valid, but it must take its chance of payment with other valid debts in the general administration of the estate.” Clark v. Brockway, 1 Abb. Ct. App., 351.
    II. The estate being personal, vested in the receiver from the time and by virtue of his appointment, Chautauqua Co. Bk. v. Risley, 19 N. Y., 374. And as the creditor did not commence his suit until two months thereafter, he certainly can have no lien on the copartnership’s assets. The property is in the custody of the law for distribution equally among all the creditors. Noe v. Gibson, 7 Paige, 513; Walling v. Miller, 108 N. Y., p. 173.
    III. The receiver is not affected by a judgment to which he was not a party. People v. Knickerbocker Life Ins. Co., 106 N. Y., 623.
    IV. The attempt of the creditor is to obtain a preference over other creditors and should not prevail. If it does prevail, the appointment of a receiver in a copartnership controversy becomes a mere formality and of no practical value whatever.
    V. The case of Walling v. Miller, 108 N. Y., 173, cited by the appellant in the court below, in no way' aids it. On the contrary, it is an authority in support of the contention of the receiver. In that case it will be seen (at p. 177), the receiver was appointed “ two days after the levy by virtue of the execution,” while in the case at bar the receiver was appointed several months before the suit in the district court was even instituted.
   Per Curiam.

The action is for a dissolution of a partnership and for an accounting. In it a receiver had been duly appointed and had taken possession of the partnership property. After this the appellant began an action against the partners for a partnership indebtedness, and recovered judgment in the sum of ninety dollars. Qn these facts the appellant made petition to the court below, that the receiver pay out of the funds in his hands the amount of the judgment. The court denied the application, and this appeal is taken from that denial. The decision was correct. There was no legal lien on the property through the judgment and execution. The property was in custody of the law and was inaccessible to an execution or its usual consequences. The sheriff, to levy, would be obliged to ask the leave of the court to that end. As the receiver had not taken possession, after the execution had issued, the court would not be pressed by the consideration that there was a legal lien. In a case like this the court should look into the whole case and find whether, substantially, the applicant had a right to a preference. If the estate were certainly solvent, leave might be given. But if insolvent, and there was nothing in the nature of the claim that should give priority, the court should deny the application. In this case there was no reason why the applicant should not share equally with other creditors.

Order affirmed, with ten dollars costs.


text:
    VICTORIA P. WATSON, et al., Appellants v. MARY L. PINCKNEY, et al., Respondents.

      Deed of real estate to one party at the direction of another who pays the consideration—Trusts, express or implied—Undue influence over the execution of a will or a conveyance.

    The object of this action was to obtain a judgment of this court, to the effect, that certain pieces of real estate, the title to which, at the time of the death of Isaac L. Pinckney, stood in the name of his widow, Henrietta Pinckney, were equitably a part of the estate of Isaac L. Pinckney when he died. These pieces had been duly conveyed to Henrietta Pinckney at the request of her husband, who paid the consideration for the same. The plaintiffs claimed that the conveyances in question created a trust in said Henrietta Pinckney to consider and treat and dispose of the same, as the property and estate of Isaac L. Pinckney, under his last will and testament, in which he appointed the said Henrietta as sole executrix. The plaintiffs also claimed that said Henrietta Pinckney had accepted such grants on her promise that she should hold the said real estate in trust and hot as her own absolute property.
    The court held that no promise had been proved, and that if it had been so proved it would have been void, as also would have been the so-called and claimed trust. That if such an oral promise or oral trust had been established, it would not have been fraud on the part of the grantee to have refused to recognize the validity of either. The inference from the whole testimony in the case is, that Isaac L. Pinckney did intentionally what he did do, or cause tobe done, in regard to the conveyances, intending and meaning that his action in the premises should have its full legal effect.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 2, 1892.
    Appeal from a judgment entered upon findings, etc., made at special term.

      William J. Hardy, for appellants, argued:—
    I. Wherever persons maintaining relations of confidence to each other, have dealings, in the course whereof one obtains a benefit from the other, and the transaction is impeached, it is incumbent upon the beneficiary to establish its righteousness by affirmative proofs. In ordinary cases, the donee in accepting a gift assumes the burden of showing whenever called upon that the donor knew what he was doing and intended that his act whereby the gift was conferred should have the operation claimed for it. And where the relations between the donor and donee were of a fiduciary character, it is necessary for the latter to show further, that the donor’s intention to confer the gift was fairly produced. While equity does not deny the possibility of valid transactions Between the two parties, it raises a presumption against the validity of every transaction Between them by which one obtains a possible benefit, and casts upon that party the burden of proving affirmatively his compliance with equitable requisites, and of thereby overcoming the presumption. The principle is applied with great emphasis and rigor to gifts, whether they are simple bounties, or purport to be the effects of liberality based upon antecedent favor and obligations. Contracts made upon a valuable consideration are not scrutinized with quite so much severity as gifts, but even they are subjected to the operation of the principle and must conform to its requirements. The courts have always been cautious not to fetter this useful jurisdiction by defining the exact limits of its exercise, and have carefully refrained from defining the particular instances of fiduciary relations, in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle ■extends to every possible case in which a fiduciary relation exists as a fact; in which there is a confidence reposed, which invests the person trusted with an advantage in treating with the person so confiding. And the rule is not restricted in its application to cases in which by reason of the superiority of one of the parties a domination or duress is imported. It is general in its scope and embraces every case in which a benefit is obtained from one who ■ trusts or confides in the beneficiary, and without assuming that there was in fact either duress or undue influence, it imposes upon the beneficiary the obligation of showing that he has not unjustly or unfairly practiced upon his benefactor. If the transaction appears to have had its spring and origin in the relation of confidence, if it appear that some trust reposed was a controlling ingredient in the motive of the one from whom the bounty proceeds, then the one who has profited by the trust or confidence acquires his advantage cum onere. The one who impeaches the result need only show that a benefit has arisen out of confidential relations, and this once appparing, the burden is thrown upon the defendant who seeks to maintain the benefit. Where a person through the influence of a confidential relation acquires title to property or obtains an advantage which he ought not in equity and good conscience to retain, the court to prevent the abuse of confidence will convert him into a trustee, and compel him to restore what he has unjustly acquired or seeks unjustly to retain. Hoghton v. Hoghton, 15 Beav., 300; Rhodes v. Bate, 1 L. R. Ch. App., 252 ; Dent v. Bennett, 4 My. & Cr., 269; Billage v. Southee, 9 Hare, 534-540; Miller v. Simons, 72 Mo., 669; Bigelow on Fraud, p. 354 (ed. 1888); I. Story Fq. Jur., §§ 307, 311,218 ; II. Pom. Eq. Jur., §§ 955-957, 963; Fisher v. Bishop, 108 N. Y., 28; Case v. Case, 49 Hun, 83; Weller v. Weller, 44 Ib. 176, et seq.; Boyd v. De la Montaigne, 73 N. Y., 502; Bergen v. Udall, 31 Barb., 9 ; Carpenter v. Mosher, 32 State Rep., 82.
    II. The wisdom of the rule of evidence in these cases was never more highly signalized than by the facts here. The proofs are clear and strong that the husband never-intended that the deeds should operate as absolute gifts; that he never permitted the deeds to interfere with his use and enjoyment of the properties; that he never in fact vielded up or parted with his interest in the houses to the extent required in gift; and on the other hand, that his wife never construed the transactions as gifts; that she herself never enjoyed the use or benefits of the lands; and that she never, until shortly prior to this action, asserted any claim either verbally or by conduct, that was inconsistent with her husband’s title. It is not debatable that Isaac L. Pinckney was moved to place these titles in his wife by the fact of her being his wife; that he was affected by the confidential relations that existed between them ; that in trusting her with these lands and the performance of his wishes in regard to them, he confided in her as his wife ; and that he would not have caused these titles to he conveyed to her had she not been his wife, had he not so confided in and trusted her, and had she not by her previous fulfillment of similar trusts, tacitly or passively encouraged him to further entrust to her the titles in suit. And she thereby accepted and sanctioned as obligatory upon her conscience, the provision he was making for his children after her ; and made with him a, perhaps unspoken, engagement to hold the property for their benefit.
    III. Of course, the testator was free to give these properties to his wife ; but that he did so is not shown ; and such a gift can only be established by <e evidence in addition to that derived from the execution of the instrument conferring the gift.” Weller v. Weller, 44 Hun, 176. The defendants can make good their claim to the properties in suit, only by showing affirmatively that the testator at the time he conferred the title to them upon his wife, understood fully the nature and effect of his act, and clearly intended that his act should operate as an absolute gift of the properties to her, and that she herself used no unfair means to produce such intention in him; or in the alternative, that she did not, in finally claiming a fee simple in the properties, seek to obtain or retain an advantage that her husband did not intend to confer and that she was not entitled to retain in equity or good conscience. These proofs she has not made, and cannot make. An absolute gift requires a renunciation by the donor, and an acquisition by the donee, of all interest in, and title to the subject of the gift. A portion cannot be retained, and the remainder disposed of. And nothing could be plainer than that, neither the testator nor the defendant intended or contemplated that he had renounced, or that she has acquired an unqualified interest in, and title to these properties. Curry v. Powers, 70 N. Y., 217; Rosenburg v. Rosenburg, 40 Hun, 93 (and cases cited).
    IY. And in this view, that the burden was upon the defence to show that the properties were gifts from Mr. to Mrs. Pinckney, etc., there was no evidence whatever produced at the trial to support the findings, to the effect that the testator caused the respective houses named in said findings to be conveyed to his wife “in fee simple absolute.” Gift cannot be made to rest upon the conveyance ■ alone ; and the mere deeds are wholly without color in a case such as this. There Avas never any dispute about the fact of the execution of these deeds, or that Mrs. Pinckney Avas named as grantee in them. The issues are whether or not the donor, Mr. Isaac L. Pinckney, avIio bought and paid for the properties, fully understood and appreciated the legal effect of his wife’s being so named as grantee in these conveyances; whether or not he intended in causing her to be so named as grantee, that she should acquire the full legal and equitable titles to the properties “ in fee simple absolute; ” whether or not if he so understood and so intended, such intention was fairly and justly produced; and whether or not if he intended to reserve any interest in the said property, his widoAv is now giving effect to such intention, or is acting unconscionably in claiming rights that he had no purpose of conferring. Upon these issues, the affirmative lay Avith the defendants, and no evidence having been adduced to show what were the transactions that resulted in Mrs. Pinckney’s being named as grantee in these deeds, there is no evidence to support the findings enumerated, and therefore the exceptions to such findings must be sustained. Nay, more, Mr. Pinckney having beyond dispute attached some reservation to the conveyance of the properties to his wife, it is, in itself, an abuse of confidence for her, now that death has sealed his lips, to maintain silence as to her transactions with him.
    Y. The facts sufficiently show: (1.) That Isaac L. Pinckney did not intend to part with, and did not, in fact, part with all his estate in these properties in causing them to be conveyed to his wife; (2.) That he did not intend that the conveyances of these properties to his wife should operate as absolute gifts of the same to her ; (3.) That, if the conveyances be construed as operating to this effect, then he did not fully understand the nature of his act in causing the conveyances to be so made; (4.) That, in so far as the husband intended to qualify the gift and attach a limitation to it, he was reposing a trust in his wife, which was begotten of a generation’s length of fond and confidential relations with her ,• (5.) That, if his widow now claims inconsistently with this limitation upon her husband’s gifts, she is claiming a benefit that he did not know he was conferring, and did not intend to confer ; and (6.) Such a claim by her involves an abuse of her husband’s confidence in her as his wife ; wanting which, the conveyances would never have been made ; and, as • such, it contravenes equity and good conscience. When the testator made his will, he intended that all he then had, and he and his wife both considered that the properties in suit were his, should be equally subjected to its provisions. And the acceptance by his wife of the trust, provisions of, and executorship and trusteeship under, this will, and her subsequent conduct under the will in treating all the properties as one entire estate, derived from the testator, establish her assent and make her a party to an understanding and agreement with her husband, the terms of which are declared in his will, and set forth in the complaint. And a court of equity will interfere to exact the utmost good faith (uberrima Jides) in the fulfillment by her of this agreement in order to prevent her taking any undue advantage of the unlimited affection, duty and confidence of her husband. Such an interposition is not intended to prevent an act of bounty, nor is the natural influence flowing from such relations discountenanced by the court, but it is an inseparable condition that this influence should be exerted for the benefit of the person subjected to it, not for the advantage of the person possessing it, and the latter must show that a reasonable use has been made of that confidence, and that no unconscionable advantage has been taken. The judgment should be reversed and the conveyances to Mr. Pinckney of the properties described in the complaint should be decreed not to have been intended by the testator as absolute gifts to her, but as conveyances to the use of himself and herself for their lives in joint tenancy, with remainder to his and her children in fee, and the properties should be settled to the uses limited in his will.

      Samuel L. Gross, attorney in person, and Hon. Samuel Jones of counsel, for respondent Gross, argued:—
    I. There is no testimony whatever in the whole case that Henrietta Pinckney ever admitted to any one that the 38th street house, the 39th street house, the 40th street house and the 73d street lot, or either of them, belonged to the estate of Isaac L. Pinckney, or that she held either of them upon any trust whatever. The only apparent attempt to show such an admission was made by Victoria P. Watson, one of the plaintiffs, who, when testifying relative to Plaintiff’s exhibit B, not signed or subscribed, said that Henrietta Pinckney told her when she handed her exhibit B that there were two houses in 39th street which belonged to the estate of Isaac L. Pinckney. If Henrietta Pinckney did make that statement, she, of course, referred to the. house on the northwest corner of 39th street and 3d avenue, and the house adjoining it on the rear, both of which are on 39th street, and both of which did then and do now belong to the estate of Isaac L. Pinckney. The house in 39th street, which was owned by Henrietta Pinckney individually, and which is called in the complaint the 39th street house, adjoins the two houses above mentioned. There is absolutely no evidence in the case of any undue or other influence or act on the part of Henrietta Pinckney calculated to induce the making to her of the deeds of the properties called in the complaint the 38th street house, the 39th street house, the 40th street house and the 73d street lot, or either of them. Nor is there a particle of evidence which tends to show that Isaac L. Pinckney was a man who would be likely to be improperly or easily influenced.
    II. Henrietta Pinckney, as the executrix of the estate of Isaac L. Pinckney, deceased, having, prior to the commencement of this action, filed her account as such executrix in the office of the surrogate of this county, in which account she charged herself with having received and with then holding the 3d avenue house for the estate of said deceased, all the parties to this action being parties to said accounting proceeding, the surrogate had full jurisdiction in the matter, and the plea in her answer, that said accounting proceeding is a bar to this action in so far as it relates to the 3d avenue house is valid and effectual. Code of Civil Procedure, § 2472; Lewis v. Maloney, 12 Hun, 207; Rogers v. King, 8 Paige, 210; Schuehle v. Reiman, 86 N. Y., 270.
    III. The Seventy-ninth street house having been conveyed to Henrietta Pinckney in exchange for the Thirty-eighth street house, it stands in the place of the Thirty-eighth street house, and in so far as the title of Henrietta Pinckney is concerned, it needs no independent consideration in discussing this appeal. The only remaining properties which are embraced in this section are the Thirty-eighth street house, the Thirty-ninth street house, the Fortieth street house and the Seventy-third - street lot. The facts attending the conveyance of these several properties were such as to bring them squarely within the section of the statute which declares that no trust shall result in such cases. 1 R. 8., 728, § 51. Everett v. Everett, 48 N. Y., 218, 223; Garfield v.
      Hatmaker, 15 Ib., 475, 478; Wheeler v. Reynolds, 66 Ib., 227, 231, et seq.; McCartney v. Bostwick, 32 Ib., 53, 59; Gould v. Gould, 51 Hun, 9; Levy v. Brush, 45 N. Y., 589, 595; Hutchins v. Hutchins, 98 Ib., 56; Hurst v. Harper, 14 Hun, 280; Cook v. Barr, 44 N. Y., 156 ; Hoar v. Hoar, 48 Hun, 314; Hubbard v. Sherp, 11 N. Y. State Rep., 802; Kimball v. Grauw, 9, Ib., 339; Schmidt v. Schmidt, 48 Supr. Court (J. & S.) 520; Sturtevant v. Sturtevant, 20 N. Y., 39. 1 R. S., 728, § 51, supra, is as follows, viz.: u Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as alienee in such conveyance subject only to the provisions of the next section. The next section, 52, referred to in section 51, provides that a trust in such cases shall result in favor of creditors to the extent that may be necessary to satisfy their just demands.
    IY. Even if a parol promise is made to reconvey or to hold to one’s use as alleged in the complaint it is not allowed to contravene the express terms of the statute, but is absolutely void in law and equity. Wheeler v. Reynolds, 66 N. Y., 227; Schmidt v. Schmidt, 48 Supr. Court (J. & S.), 520 ; Gould v. Gould, 51 Hun, 9. In Gould v. Gould, supra, the husband paid the purchase money and caused the deed to be made to his wife, she promising to convey to him upon request, and after such conveyance to the wife the husband managed the property and expended about $2,000 in improvements thereon. The parties subsequently separated and the husband brought an action to compel a conveyance by his wife to him. The complaint was dismissed and the judgment affirmed by the general term. Barker P. J., writing the opinion, held that the deed vested in the wife the fee-simple of the land and that her promise to reconvey was not binding on her either in law or equity. In Schmidt v. Schmidt, supra, it was held, Freedman, J., -writing the opinion, that where lands were bought in the name of the wife with the joint funds of the husband and wife, no trust could be enforced in favor of the husband without proof of some wrong or fraud committed by the wife. That if there was an express contract that the husband should have some interest in the lands it would be void under the statute of frauds.
    V. The contention of the plaintiffs is that it was the intention of Henrietta Pinckney and her husband that she should in fact acquire no rights whatever under the deeds to her of the said several houses and lot, and they seek to establish this by parol. If such were in fact the intention of Henrietta Pinckney and her husband it cannot be made effectual by parol under the statute, and the authorities cited. Rapadlo, J., in his opinion in Hutchins v. Hutchins, supra, says on page 63 : “ It has never been held that a deed can be so far contradicted by parol as to show that it was not intended to operate at all or that it was the intention or agreement of the parties that the grantee should acquire no rights whatever under it, or that he should reconvey to the grantor on his request without any consideration.” Nor can parol evidence be resorted to for the purpose of supplementing or aiding the proof furnished by written admissions. Cook v. Barr, supra. Earl, Com., in Cook v. Barr, on page 160, says : “ The parol evidence and the acts of the parties show clearly the alleged trust, but these cannot be resorted to to help out the proof furnished by the writing. The writing must show that there is a trust and what it is, and failing in this it is insufficient.” And again on page 161, he quotes as follows from 1 Hilliard on Real Property, 4th ed., 425 : u A trust cannot be established by parol evidence, even though this goes to confirm other written evidence.” The parol evidence offered by the plaintiffs would not therefore avail them, even if it tended to establish the claim alleged. But it does not tend to establish the alleged claim. All the declarations of Henrietta Pinckney upon the accounting and in her deposition upon the trial of this case are that the several properties are and always have been her absolute property, and the same is true of her written declarations. The same is also true of the written declarations of her son Charles.
    YI. Fraud alone will avoid the express terms of the statute, and fraud will not be presumed in favor of a husband as against a wife. Schmidt v. Schmidt, supra ; Gould v. Gould, supra ; Garfield v. Hatmaker, supra;. Hoar v. Hoar, 48 Hun, 314. A refusal to perform a parol promise to recovery or to hold to one’s use even when affirmatively shown to have been made, does not constitute fraud. Gould v. Gould, supra. Indeed, if a refusal to perform a parol promise to reconvey upon request, or to hold to one’s use, would take a case out of the statute, the statute would be absolutely null.
    YH. Fraud must be alleged and proved by the party seeking to take advantage of it. Bailey v. Ryder, 10 N. Y., 363. There is no evidence whatever in this case, of the slightest semblance of fraud on the part of Henrietta Pinckney. Nor can the appellants succeed upon this appeal on the ground of “ part performance.” The court will not lend its assistance on the theory of part performance unless the terms and conditions of the alleged agreement which the court is asked to enforce, are first satisfactorily proven or made distinctly to appear to the court by competent evidence, so that the court is not left to spell out or infer by the acts of the parties, or otherwise, that an agreement had been made and what its terms might be. Parkhurst v. Van Cortlandt, 1 Johns. Ch., 273; Steere v. Steere, supra ; Stanton v. Miller, 58 N. Y., 192. The only acts of Henrietta Pinckney which are urged to be in part performance of the alleged but unproven agreement are her acts in mingling the receipts from the estate of Isaac L. Pinckney of which she was executrix, with her receipts from her individual properties, viz., from the 38th street house,- the 39th street house, the 40th street house and the 73d street lot. It is shown by the testimony of Henrietta Pinckney that the said receipts were mingled by her for the sole reason that “ it was more convenient.” All the income from the estate of Isaac L. Pinckney belonged to Henrietta Pinckney absolutely under the will. No one can assign any good reason why she should keep this income separate from other income which belonged to her under other instruments, and except in one or two instances, if at all, can it be said that any of the principal of the estate of Isaac L. Pinckney was mingled with the incomes and those only temporarily. These acts of mingling did not effect a change of ownership in the properties mingled, nor indicate anything as to the ownership of them. Fitch v. Rathbun, 61 N. Y., 579; Sherman v. Elder, 24 Ib., 381. Much less could such mingling be held to indicate anything as to the ownership of the principal of the two estates which consists solely of real estate.
    VIII. The foregoing cited cases establish beyond any chance for discussion that the title of the 38th street house, the 39th street house, the 40th street house and the 73d street lot was conveyed to Henrietta Pinckney, in fee simple absolute, and that said houses continued to remain so up to the time of her death, unless subsequent to such conveyances to her, she created some interest therein in some one else. It has already been shown that there have been no part performances, (a.) No interest in any one else could be created, unless by act or operation of law or by some instrument in writing, subscribed by the said Henrietta Pinckney, 2 R. S., 135, § 6 ; James v. Patten, 6 N. Y., 9 ; Wheeler v. Reynolds, supra; Levi v. Brush, supra; Hutchins v. Hutchins, supra ; Cook v. Barr, supra ; Dillaye v. Greenough, 45
      N. Y., 438 ; Steere v. Steere, 5 Johns. Ch., 1; Hubbard v. Sharp, 11 N. Y. St. Rep., 802; Kimball v. DeGrauw, 9 Ib., 339. 2 R. S., 135, § 6, is very explicit and is as follows, viz.: “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized in writing.” The word “subscribed ” used in the statute, 2 R. 8., 135, § 6, supra, means written underneath or at the end of such writing. James v. Patten, supra. No such writing so subscribed has been produced, and Henrietta Pinckney in her testimony expressly declares that said houses and lot were and always had been her separate and absolute property, and that there is not and has not been any trust in relation to them, (h.) And the trust so created or declared must not only be in writing and subscribed by the party, but it must be explicit as to its nature and terms. Dillage v. Greenough, supra; Steere v. Steere, supra. Kent, Chancellor, in his opinion in Steere v. Steere, says, on page 11: “ To take the case out of the statute of frauds the trust must appear hi writing under the hand of the party to he charged with absolute certainty as to its nature and terms before the court can undertake to execute it.” And on page 13 of same case: “ Parents will usually make declarations and express intentions of holding them property for their children, but a technical trust would not easily be deduced from them unless they were contained in a last will and testament made on purpose to dispose of the estate. It would be injurious to that freedom of intercourse and to the operation of those kind and generous affections which ought to he cherished in the circle of the domestic connections, to make such deductions from loose and general expressions, in a confidential correspondence between one member of a family and another, and to give them the force and rigor of legal obligations. Nothing answering the foregoing requisites appear in the case at bar.
    IX. The plaintiffs having utterly failed to prove either the agreement or the part performance alleged in the complaint, or any cause of action whatever, now ask the court to hold that the burden of proof has “ shifted,” and that it is incumbent upon the defendants to prove affirmatively that they, the plaintiffs, are not entitled to any relief. This is an ingenious theory, but it is not the law as we understand it. If this position of the plaintiffs were sound, it would be impossible for a husband to make a gift to his wife which his children might not deprive her of after his decease.'

      A. H. Ammidown, for respondents Pinckney, argued :—
    I. To establish a trust (in lands) the evidence must all be in writing and sufficient to show that there is a trust and what it is. Parol evidence cannot be resorted to for the purpose of supplementing or aiding the proof furnished by written admissions. Cook v. Barr, 44 N. Y., 156; Wheeler v. Reynolds, 66 Ib., 227.
    II. There can be no resulting trust in favor of the husband where he purchases lands and takes a conveyance thereof in the name of his wife. Jencks v. Alexander, 11 Paige, 619 ; Brewster v. Power, 10 Ib., 560; 1 Rev. St., 728, § 51; Garfield v. Hatmaker, 15 N. Y., 475 ; Nivor v. Crane, 98 Ib., 40. An oral promise by her to convey to her husband would not be enforced by the court. Schmidt v. Schmidt, 48 Superior Ct., 520; Gould v. Gould, 51 Hun, 9. There is no fraud or undue influence alleged and it appeared none existed. The complaint itself shows there was no fraud or undue influence. Wheeler v. Reynolds, 66 N. Y., 227, 235.
      “ The wife is presumed to act under the influence of her husband, but it is proper to remark that the husband is never presumed to act under the influence of his wife.” Tyler on Infancy and Coverture, p. 330, citing City Council v. Roven, 2 McCord’s (So. Car.) Rep., 465. A father’s purchase in name of child is presumed an advancement. No resulting trust, Story’s Rq., § 309.
    HI. There would seem to be no evidence to sustain the allegations of the complaint, but certainly there is ample evidence to sustain the defence and it is respectfully submitted that there is certainly no such preponderance of evidence for the appellants as will induce the general term to review the facts. Hart v. Wilder, 13 N. Y., Supp., 615 ; Spies v. Rome, W. & O. R. Co., 15 Ib., 348 ; Aldridge v. Aldridge, 120 N. Y., 614, 617.
    IV. There is no instance since the Revised Statutes, certainly, of a trust created by circumstances similar to those in question, the plaintiffs’ success would nullify the provisions of the Revised Statutes applicable to such cases and destroy the certainty and security of conveyances of real estate.
   Per Curiam.

The plaintiffs are children and issue of children of Isaac L. Pinckney. Isaac L. Pinckney made his last will and testament and it was admitted to probate in the year 1867. His wife wras named as sole executrix, and letters testamentary were issued to her. She was named a defendant in this action. The sixth subdivision of the will is : * * * “I hereby direct that upon the death of said executrix, my real estate, or such part thereof as shall remain unsold, be sold at public or private sale and the proceeds thereof, together Avith all my property and effects of every nature or description, be divided share and share alike among my children living, or in case either shall have died leaving issue, then the child or children shall take its parent’s share.

The object of the suit was to have it adjudged that certain pieces of real estate, standing in the name of the widow of Pinckney and the executrix of his will, equitably were part of his real estate when he died. These pieces have been duly conveyed to her by third persons at the request of her husband, he paying the consideration.

As the ground for the relief asked, the complaint alleges, as follows: ■ ■

IV. That during his life-time and from the date of his intermarriage in or about February 1,1834, with the said Henrietta Pinckney, the testator lived with her (until his death) in the intimáte and confidential relation of husband and wife ; and that in course of such relations and by reason of the confidence reposed by the testator in his said wife, the said testator who carried on at said city of New York the business of buying and selling real estate adopted and pursued the course and practice of causing conveyances of such real estate so purchased by him to be made in the name of the said Henrietta Pinckney as grantee ; but that it was not the intention of the said testator nor of his said wife, that such conveyances should operate as gifts or grants to the said Henrietta Pinckney, absolutely; but on the contrary thereof it was mutually understood and agreed between the said testator and his said wife, that all such real estate so purchased by him and conveyed to her should be held by her subject to the use, direction and control of the testator during his life-time, and to such appointment, if any, as he might make by his last will and testament; and that after his death, she should stand seized of all such properties as she should not have conveyed pursuant to his directions during his life-time, to the use and benefit of the issue of himself and his said wife in such estates, interests and shares, respectively, as they would be entitled to (the same) in case the said testator had died seized and actually possessed of the same; and that all such grants and conveyances of realty which were so caused to be made to the said Henrietta Pinckney hy the said testator and more particularly the grants and conveyances of the lands and tenements hereinafter more particularly described were so caused to he made by the testator and accepted by her upon the promise and understanding on her part that she should and would hold the same to the uses and purposes aforesaid.

As to the supposed promise, it was not proved. If it had been proved, it would have been void. This also is true of the so called trust: if you suppose such an oral promise or oral trust to have been made, it would not have been a fraud to refuse to recognize the validity of either. Levy v. Brush, 45 N. Y., 589. It is supposed that as the gift.was made by husband to wife, there was some presumption of law against the gift which requires the wife to explain something. Conceding this proposition, the wife as a witness called hy the plaintiffs, and corroborated by probabilities, and extrinsic circumstances, proved that her husband acted voluntarily without influence from her. The inference from the whole testimony is that he did intentionally what he did, meaning that it should have its full legal effect.

The right of the parties as to the Third avenue property are in due course of administration and adjudication in the Surrogate’s Court, and there is no occasion for this court to proceed here if it would be legal to proceed under the circumstances.

Judgment affirmed, with costs.


text:
    GEORGE R. BURROWS, Appellant v. THE ATLAS STEAMSHIP COMPANY, Respondent.

      Trial—Effect of a request by both, sides for direction of verdict by the judge upon the testimony.

    In an action to recover damages for alleged wrongful discharge, each side at the conclusion of the evidence moved for the direction of a verdict in its favor. The trial judge thereupon directed a verdict in favor of the defendant. Held, that the request of each side operated to give the judge the office of the jury, and that as the evidence was not conclusively in favor of the plaintiff, the disposition of the case by the trial judge was final.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 2, 1892.
    Appeal by plaintiff from a judgment entered upon tbe verdict of a jury directed by the trial court, and from an order denying a motion for a new trial upon the minutes.
    The action was brought to recover damages for the alleged wrongful discharge of plaintiff from defendant’s employ before his term of service had expired. The defence was that plaintiff had been guilty of acts of misconduct and insubordination which justified his discharge.

      Frederick Ingraham, attorney, and James W. Treadwell of counsel, for appellant.

      Cary & Whitridge, attorneys, and Edwin T. Rice, Jr. of counsel, for respondent.
   Per Curiam.

There were no errors of law made during the course of the trial. At the end of the testimony each side asked that a verdict he directed in its favor. This gave to the judge the office of the jury. The evidence was not conclusively in favor of the plaintiff, and the finding of the judge for the defendant was final.

Judgment and order appealed from affirmed, with costs.


text:
    GEORGE C. JOHNS, Appellant v. THE PRESS PUBLISHING COMPANY, Respondent.

      Libel, publication of, privileged communication, because it was a fair and, true report of a judicial proceeding ; plaintiff could only recover upon affirmative proof of malice.

      Held, that aside from ex parte petitions and the like, any publication made in the ordinary course of judicial proceedings is privileged if the article be a fair and impartial account thereof. Although the publication may be to the disadvantage of the particular suitor, the paramount advantage to the public fully justifies the end attained. The truth irrespective of motives is a complete justification to a civil action for libel. Every one has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Such comments are not libellous, however severe in their terms, unless they are written maliciously. Report and comment are two separate and distinct things. A report is the mechanical reproduction of what actually took place. Comment is the judgment passed upon the circumstances reported by one who has considered the same. Fair reports are privileged, while fair comments are no libels at all. Blending the report and comments together does not make the matter libellous if it would not be so if the one was separated from the other. The report in this case is within the protection of privileged publications, and the comments are justified by the facts disclosed. The plaintiff could only recover upon affirmative proof of malice, and there is an entire absence of that essential element in the case. .
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided May 2, 1892.

      Appeal from a judgment entered upon the dismissal of the complaint at trial term and from an order denying the motion of the plaintiff for a new trial.
    The following opinion, upon which the judgment and order appealed from were affirmed, was filed by the trial judge on his denial of plaintiff’s motion for a new trial.
   McAdam, J.

“ Asidefrom ex parte petitions and the like, any publication made in the ordinary course of judicial proceedings is privileged, if the article be a fair and impartial account, thereof. Though the publication may be to the disadvantage of the particular suitor, the paramount advantage to the public fully justifies the end attained. Perhaps the earliest and best expression of the reason of the rule is that contained in the opinion of Lawrence, J., in Rex v. Wright, 8 Term Ii., 298, in which it is stated, in substance, that though the publication of proceedings in courts of justice may severely reflect on individuals, yet such publications, if they contain true accounts, are not libels,—not the subjects of actions, because it is of great importance that the proceedings of courts of justice shall be known; that the general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience to the person whose conduct may be the subject of the proceedings ; or, as Pollock, C. B., said in Ryalls v. Leader, Law Rep., 1 Ex., 299, £ one ought to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair bona fide statement of the proceedings there.’

There was a judicial hearing and inquiry had in the present case in open court, and the public had the right to know all about it. The policy of the State is tersely expressed in these words: £ Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge tlie liberty of speech or of the press.’ Const., Art. 1, § 8.

“ This is the supreme law of the land, and contains as noble a sentiment as was ever penned by man.

“ The truth, irrespective of motives, is a complete justification to a civil action for libel. In criminal prosecutions the accused is obliged to go a step further, and prove that the publication was made with good motives and for justifiable ends. It. This to prevent breaches of the public peace. Nor is a defendant by pleading the truth in justification, although the plea be unsustained by proof at the trial, to have that circumstance considered by the jury as evidence of malice, or to enhance the damages (Klinck v. Colby, 46 N. Y., 427) unless it be interposed in bad faith (Holmes v. Jones, 121 N. Y., 461) and the circumstances warrant that conclusion.

u Every one has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Such comments are not libellous, however severe in their terms, unless they are written maliciously.

“ While the law justifies honest reports and comments, it will not permit one, under the guise of reporting proceedings, to use the dagger of malice, the assassin of character, to circulate falsehood, whose only office is to injure and destroy.

Report and comment are two separate and distinct things. A report is the mechanical reproduction of what actually took place. Comment is the judgment passed on the circumstances reported, by one who has applied his mind to them. Fair reports are privileged, while fair comments are no libels at all. Blending the report and comments together does not make the article libellous, if it would not be such if the one were separated from the other. A careful reading of the article complained of, in connection with the pleadings in the action commented upon, in the light of the evidence given by the plaintiff on this trial, proves that the article is a fair report, and that the comments are substantially true. The report is, therefore, within the protection of privileged publications, and the comments are fully justified by the facts disclosed. The comments being true, are not libellous, and the report being privileged, the plaintiff could only recover upon affirmative proof of malice, and there is an entire absence of that essential element in this case.

Where the publication is not privileged, a different rule prevails, and malice may be implied from the mere falsity of the charge, but where the communication is privileged, it rebuts th e prima facie inference of malice, and throws upon the plaintiff the burden of proving malice in fact. Reference to the language of the article, and to the facts in the pleadings and evidence confirming its accuracy, has been intentionally omitted, as it might prove as offensive to the plaintiff as the article itself—perhaps more so.

“ There has been a tendency in some cases to limit-the power of the court to the decision of the question whether the article complained of is privileged, and requiring the submission to the jury of the question whether the defendant fairly and properly conducted himself in the exercise of it; but the evidence in this ease so clearly shows the absence of misconduct, that the action admits of only one result, and that a verdict for the defendant. The English cases hold that it is only when the judge is satisfied that the publication cannot be a libel, and that if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance. Per Kelly, C. B.; Cox v. Lee, L. R.; 4 Exch., 288; Hart v. Wall, 2 C. P. D., 146.

“ The article here complained of is not susceptible of a double meaning—one innocent, and the other libellous, and the action does not fall within the rule requiring the jury to determine whether the article is libellous or not.

Smith, Bowman & Close, attorneys, and Artemas B. Smith of counsel, for appellant.

Lowrey, Stone & Auerbach, attorneys for respondent..

“ The rule applicable is that where, upon the whole evidence, a verdict in favor of a plaintiff would be set-aside as against evidence, it is the duty of the court to grant a nonsuit. Neurendorff v. World M. I. Co., 69 N. Y., 389. This is such a case.

“No injustice was done to the plaintiff, his complaint was properly dismissed, and the motion for a new trial must be denied.”

Per Curiam.

Judgment and order affirmed the opinion of the learned trial judge.


text:
    HENRY BISCHOFF, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Elevated railroad, evidence as to benefits from—When easements appur tenant to rear portion of building not cut off by intervening wall on ground floor—Evidence as to effect of railroad upon other property, when dissimilarity of such property not material—Eirect evidence of damage from the railroad—Recovery of rental damage during remaining period of lease outstanding at date of plaintiff's purchase.

    In an action to secure an injunction and incidental damages against an elevated railroad with respect to premises on Park Bow, the trial judge refused to find at defendants’ request that the station in Park Bow near plaintiff’s premises and the great number of people drawn thereby to the vicinity of plaintiff’s premises constituted a special benefit thereto from the same. Held, no error. The request involved a question of fact whether the persons drawn into the vicinity of plaintiff’s premises were likely to become customers at the same, which fact further depended on the occupations, means, and places of home and business ■ of the passers-by. The refusal of the judge to find upon this question of fact cannot be disturbed.
    A portion of the premises in suit, known as No. 20 Duane street, is not so cut off from the advantage of light and air from Park Bow by solid separating walls without openings as to deprive such portion of easements in Park Eow, the first floor of No. 20 Duane street being the continuation of a floor in No. 1 Chambers street. Beyond this, No. 20 Duane street in its front had an easement which was not limited to Duane street hut extended easterly to Park Eow.
    The plaintiff put in evidence the rents of Sweeny’s hotel, situated on Park Eow, a short distance from plaintiff’s premises, from 1879 to the time of the trial. The defendants objected to this evidence as indefinite, irrelevant, and not within the issues in this action. Held, that it was within the scope of the action to ascertain what the effect of the railroad had been upon Park Eow either in decreasing or increasing rental or foe values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. For want of a particular objection, the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structure and kind of occupation, was immaterial to the inquiry of whether, in a course of years, rents on Park Eow had increased or decreased.
    The plaintiff called-as a witness one Harnett, who testified as to the values of real estate. On cross-examination, he was asked by defendants’ counsel, can you give the value of Mr. Bischoff’s building ? The answer was, that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Eow sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked: “Q. Is it on account of the difference in the building that you make the $25,000 difference.” The answer was “I make the damage the elevated railroad has done.” On re-direct examination plaintiff’s counsel asked: “ Q. In estimating for counsel for defendants you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? “ The question was objected to as asking for the opinion of the witness as to the damage. The court also asked: “How much did you allow in the estimate already given.” The witness answered, “I stated from $60,000 to $65,000. I figured the damage done from $30,000 to $35,000. In other words, I think the property would sell for $100,000, if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. Held, that the plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he said it was worth then $60,000 to $65,000 and $25,000 damages had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of the plaintiff to accomplish this would not make questions they had asked incompetent.
    At the time the plaintiff purchased the premises in 1884, there was an outstanding lease on the premises which had still three years to run. Held, that it was proper to award the plaintiff rental damages during that period.
    Before Sedgwick, Ch. J., Dugro and. Gildersleeve, JJ.

      Decided May 9, 1892.
    Appeal by defendants from a judgment entered upon the decision of a judge at special term. The action was brought to secure an injunction and incidental damages against the defendants’ elevated railroad with respect to the plaintiff’s premises in Park Bow.

      Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellants.

      Peckham & Tyler, attorneys, and W. G. Peckham of counsel, for respondent.
   Per Curiam.

The action is to restrain defendants from maintaining their elevated road and from running their cars thereon in front of plaintiff’s premises.

It is argued for the appellants, that the judge incorrectly refused to find as requested in the 50th and 51st proposed findings of fact. These are : There is a station of defendants’ railroad near plaintiff’s premises, which is daily used by great numbers of people, some of whom pass through Park Eow in front of plaintiff’s premises, and the existence of station and railroad and the great numbers of people thereby drawn to the vicinity of the plaintiff’s premises constitute a special benefit to said premises. The first request has no importance. It relates to some people. That some people passed the plaintiff’s premises could not affect the value of those premises. Whether great numbers of people being drawn to the vicinity of plaintiff’s premises would constitute a special benefit to them, would depend upon the likelihood of their becoming customers at plaintiff’s premises or perhaps purchasers of them. Whether there would be such advantage would again depend upon the occupations, means, and the places of the homes and business, of the passers-by. The question is of fact for the judge and his refusal to find should not be disturbed. This is perceived in the description of the crowds, candidly given by the counsel for the appellants. He says : Great numbers of persons employed in the factories, warehouses and places of business in this part of the city use these stations every day and usually pass through some portion. of Park Eow in going to or from the station.”

The learned court took into consideration fully the advantages or benefits conferred on the property by the railroad. And except, in rare cases, it is always done wherever the market value of the abutting land is proven, for the advantages, general or special, have gone into the land and affected its value.

The counsel for the defendants asked that this finding of fact be made. It was “ 62nd. The portion of plaintiff’s premises, known as No. 20 Duane street, constitutes a separate building with a separate entrance, separate walls and no frontage on Park Eow. No easements over Park Eow are appurtenant.” The evidence does not seem to show that between the two so-called separate buildings there is any separating wall so solid and without openings'that the Duane street building is cut off from the advantages of light and air that are derived from Park Row. At one time the easements from Park Row were appurtenant to the Duane street part of the property. So far as the latter is concerned there is no proof that it has been extinguished. The relation of the buildings is such that, for instance, the first floor of 20 Duane street is a continuation of a floor in No 1 Chambers street. Beyond this No 20 Duane street, in its front, had an easement which was not limited to Duane street but extended easterly to Park Row. The judge would not have been justified in finding as requested. Stevens v. The N. Y. El. R. R. Co., 28 N. E. R., 667.

The plaintiff was allowed to prove what had been the rents of Sweeny’s hotel, from 1879 to the present time. That hotel was a short distance from the plaintiff’s house. Questions on this subject were objected to on the ground that they were indefinite and irrelevant and did not relate to the premises in question and were not within the issues in this action. It was within the scope of the action to ascertain what the effect of the railroad had been upon Park Row, either in decreasing or increasing rental or fee values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. In these suits evidence is often allowed without objection upon a direct examination. For want of the particular objection, the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structure and kind of occupation was immaterial to the inquiry of whether in a course of years rents on Park Row have increased or decreased.

The plaintiff called as a witness one Harnett, who testified as to the values of real estate. On cross-examination he was asked by defendants’ counsel, Can you give the value of Mr. Bischoff’s building ? The answer was that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Row sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked: Q. “ Is it on account of the difference in the building that you make the $25,000 difference ? ” The answer was, I make the damage the elevated railroad has done.” On redirect examination plaintiff’s counsel asked: Q. “ In estimating for counsel for defendants you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? ” The question was objected to as asking for the opinion of the witness as to the damage. The court also asked, How much did you allow in the estimate already given ? The witness answered, I stated from $60,000 to $65,000. I figured the damage done from $30,000 to $35,000. In other words I think the property would sell for $100,-000, if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. The plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he had said it was worth then $60,000 to $65,000 and $25,000 damage had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of plaintiff to accomplish this would not make questions they had asked ’incompetent.

The reduction of rent on an outstanding lease was not negligent or without cause. The plaintiff testified that he could not get the rent from the tenant in its full amount, and therefore he lowered it to $60 a month. The judge was justified in finding that the plaintiff’s action was -due to business expediency or necessity, in endeavoring to get the largest rent that could be got.

The action of the judge in giving damages from 1884, when the plaintiff acquired the property, and through three years of a then pending lease, is in accordance with the decision of Korn v. The N. Y. El. R. R. Co., 15 N. Y. Supplement, 10.

Other exceptions have been examined and do not call for a reversal of the judgment. 1

Judgment affirmed, with costs.


author: By the Court.—Freedman, P. J.

text:
    RUDOLPH RANNOW, Appellant v. EDWARD C. HAZARD, et al., Respondents.

      Practice—Notice of appeal from an order must state the substance of the order correctly.

    On the 30th day of April, 1892, an order was duly entered in this action (ex parte) declaring the plaintiff’s “case on appeal” abandoned. The plaintiff obtained an order to show cause why the order of 30th of April declaring “ the appeal ” abandoned should not be vacated. This motion was heard by Judge McAdaji, and on the 23d day of May, 1892, an order was entered denying the motion to vacate the order of April 30th. The plaintiff served a notice of appeal from an order denying a motion to vacate an order declaring the “ appeal herein ” abandoned, and this is the appeal before the court.

      Held, there was no such order granted as the notice of appeal described (declaring the appeal abandoned). The original order of April 30, 1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute the appeal on the judgment roll. This order was duly made and entered, and has not been appealed from. There was no order made in this action declaring the appeal abandoned, and no order entered denying a motion to vacate such an order.

      Held also, on the merits, that the plaintiff had not sufficiently excused his default.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from an order denying plaintiff’s motion to vacate an order declaring case on appeal abandoned.

      Frederick Hemming, attorney, and Waldorf H. Phillips of counsel, for appellant.

      Hugh Porter, attorney and of counsel, for respondents.
   By the Court.—Freedman, P. J.

Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30, 1892, declared the case on appeal abandoned which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered and has not been appealed from.

Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed we cannot say that the plaintiff established the point by a preponderance of evidence.

The order denying the motion to vacate should, therefore, be affirmed, with $10 costs and disbursements.

Dugro and Gildersleeve, JJ., concurred.