author: O’Brien, J.:

text:
    NATHANIEL JARVIS, Jr., as Trustee of the Estate of THOMAS WYNNS, Deceased, Respondent, v. ANNA A. CHAPIN, as Executrix, etc., of WILLARD P. CHAPIN, Deceased, Respondent, Impleaded with EDWARD S. BULL, Appellant, and Others.

      Foreclosure — effect of the consent of a second mortgagee that all the parcels, although exceeding in value the amount of the first mortgage, he sold thereunder.

    One Jarvis, who had a second mortgage on certain real property, being informed that, the prior mortgage thereon was being foreclosed, although he was not made a party to the foreclosure suit, stipulated in writing upon the sale that all the property, consisting of several lots, might be sold, and that the surplus, over and above-the amount due upon the first mortgage, should be paid to him. After a sale, had, in accordance with this stipulation, some of the purchasers objected to the-title to certain of the lots and refused- to pay the purchase-price, and nothing was ever done to compel them to do so.

      Held, that Jarvis was entitled to foreclose his second mortgage, as against these-lots, to obtain any balance still remaining due to him.
    That he was in no manner estopped by his stipulation, or by the judgment in the action brought for the foreclosure of the first mortgage.
    That if, as alleged, the title objected to was good, and the purchasers could be compelled to accept it, it was not incumbent upon Jarvis to take action to compel ' such acceptance and the payment of the purchase-price, but the duty, if any 'such there were, was upon the plaintiff in the action for the foreclosure of the-first mortgage or upon the owner of'the equity of redemption.
    Appeal by-the defendant Edward S. Bull from a judgment of foreclosure and sale in the above-entitled action, entered in tlie office of the clerk of the county of New York on the 31st day of October, 1890.

      Robert P. Harlow, for the appellant.

      Anderson Price, for the respondents.
   O’Brien, J.:

The mere statement of the facts of this case without the citation of any authorities would make it reasonably certain that the judgment should be affirmed. This action was brought to foreclose a mortgage, made by Willard P. Chapin to Thomas H. Landon, to-secure the sum of $11,000. The mortgage covers real property situated in the city of New York, between One Hundred and Fifty-first and One Hundred and Fifty-second streets, and between Eighth and Edgecombe avenues. At the time of the making and recording of this mortgage there was a prior mortgage upon the same property.

An action to foreclose the prior mortgage was commenced about August, 1887, and as incidents thereto due notices of pendency of action were filed in the office of the clerk of the city and county of New York. A judgment in said action directed the sale of the mortgaged premises, or such part thereof as might be sufficient to discharge the said first mortgage debt, together with expenses and costs. The property was sold for enongh to pay the first mortgage and left a surplus, the whole of which was subsequently paid to the plaintiff in this action and credited by him upon the bond and mortgage, and after such payment there still remained a balance due to plaintiff, to recover which he commenced this action to foreclose his mortgage.

Although the plaintiff in this action was not a party by name to the record in the action to foreclose the first mortgage, owing, no doubt, to the fact that the assignment of the mortgage by Landon to plaintiff was not recorded until the 2d day of May, 1889, he was the real party in interest and his interest was represented by the executor of Landon, deceased. It may be assumed, moreover, that plaintiff had knowledge of the pendency of the action to foreclose the said first mortgage and never made any application to be made a party prior to the decree of foreclosure and sale therein. After the decree had been made in the action to foreclose the first mortgage a stipulation was entered into by the attorneys by which it was agreed that all the premises should be sold by the referee. Under this stipulation, which was known to plaintiff, the entire mortgaged premises were put up in thirty different parcels and bid in by various purchasers. The purchasers of lots numbered from nineteen to twenty-seven, both inclusive, and lots numbered twenty-nine and thirty, refused to complete their purchases, and no application has ever been made to the court to compel them to accept title. The ground of their refusal to take title is some paramount claim alleged to exist in favor of plaintiff as an individual. The plaintiff, after successfully prosecuting his claim against the surplus fund, commenced this action to foreclose his mortgage, which covered the same identical property and premises which were covered by the first mortgage already foreclosed, and under which the effort was made to sell all the property as stated.

The defense interposed, though overruled by the referee and still ■claimed by appellant to be good in law, is that by virtue of the stipulation made in the suit brought to foreclose the prior mortgage, to which stipulation the plaintiff was privy, and the benefit of which he has received to the extent of the payment out of the surplus moneys, plaintiff bound himself to pursue his remedy for the collection of his debt by means of that stipulation exclusively, and is, therefore, estopped from maintaining this action. It is conceded that if the purchasers on the foreclosure of the prior mortgage who refused to complete their purchase were compelled to do so, the surplus would be sufficient to satisfy the plaintiff’s mortgage. Appellant contends that plaintiff is bound to pursue his remedy in the surplus proceedings and compel such purchasers to complete their bargains. In other words, it is claimed that plaintiff is estopped from maintaining this action by the judgment sale and stipulation in the former action.

All the questions urged upon this appeal, relating to exceptions to the referee’s rulings and the latter’s refusal to agree to appellant’s claim; center around this question as to whether this defense interposed is valid in law. The defense has at least the merit of novelty, and in its support appellant invokes the principles which underlie the doctrine of estoppels, both legal and equitable, and the principles which relate to the power of the court to determine the rights of all the parties to a foreclosure suit in a single action. It is difficult, however, to follow the appellant in his effort to make applicable the principles of law invoked.

Stripped of all verbiage, the question at issue is reduced to a narrow and apparently very simple one. The plaintiff has a mortgage on property upon which a prior mortgage exists, the latter is foreclosed in«an action to which the plaintiff personally or by privy is made a party; it is agreed therein, for the benefit' of all the parties ip interest, that instead of selling sufficient of the property only to satisfy the first mortgage, the entire premises should be sold in different parcels so as to realize sufficient not only to pay the first mortgage, but tbe second mortgage of tbe plaintiff and any other claims that might exist against the property.

The benefit of the stipulation and the intention of the parties was-frustrated by the failure, to take title, of the purchasers who had bid at the sale.

As to so much of the property as was sold and the title thereto in the purchasers perfected, all rights of the plaintiff and the subsequent incumbrancers who were made parties to the suit were cut off and foreclosed. As to the balance of the property, which was simply exposed for sale and bid off by persons who refused to complete their purchase, the plaintiff’s mortgage lien still remains, and no principle, legal or equitable, should or can prevent his proceeding to enforce such lien in a proper action such as he has here brought.

It is idle to insist that it was plaintiff’s duty to proceed in the former suit in which he was a defendant and compel the bidders to complete their purchases and thus raise sufficient to pay his claim. That duty devolved either upon the plaintiff in the prior foreclosure suit or upon the owner of the equity of redemption; and while the plaintiff here might have taken upon himself that labor, he was not so compelled either by force of the judgment itself or the stipulation upon which so much stiess has been laid. He could, with perfect propriety, elect to follow this method of collecting money which is admitted to be justly due him upon his mortgage. Ve have examined the case and exceptions on appeal and find no reason for disturbing the conclusions or judgment of the referee.

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

Van Brunt, P. J., and Daniels, J., concurred. '

Judgment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: O’Brien, J.: Yan Brunt, P. J.:

license: Public Domain

text:
    THE FIRST NATIONAL BANK OF JERSEY CITY, Appellant, v. FREDERIC B. BARD, Individually and as Assignee of CLARKE, RADCLIFFE & CO., and Others, Respondents.

      Confession of judgment, preceding an assignment for the benefit of creditors, and intended to create an illegal preference, is void — chap. 503, Latos o/1887.
    The members of an insolvent firm had an assignment prepared and executed it, and at the same time made confessions of judgment in favor of certain bona fide creditors.
    They waited, before delivering the assignment,until they were informed that a levy had been made under the j udgments, the amount of which exceeded the proportion of their estate,which,by chapter 503,Laws of 1887,might be devoted to preferences:

      Held, that all their acts were part of one scheme, the effect of which was to create forbidden preferences, and that the assignment and the judgments preceding it were fraudulent and void.
    Appeal by plaintiff, the First National Bank of Jersey City, from so much of a judgment, entered in the office of the clerk of the city and county of New York on the 1st day of June, 1889, as finds and adjudges that a certain judgment to the defendant Kenyon was not confessed to hinder and defraud the plaintiff; that the notes and the judgments, entered thereon in favor of the defendants, Carter,'Walker and Shepard, were not given or entered to delay or defraud the plaintiff or other creditors of Clarke, Radcliffe & Co. that the judgments in favor of the defendants, Carter, Walker and Shepard, were in all respects fair; that the judgment confessed by the defendants, Clarke, Radcliffe & Co., in favor of the defendant Kenyon, was a valid judgment, and, as thereafter amended, was valid; that the complaint be dismissed, as against the defendants, G-ershon P. Kenyon, Carter, Shepard and Walker, with costs, and that the defendant Kenyon is entitled to receive out of the funds in the hands of the receiver, as assignee, the sum of $100, besides costs.

      Hamilton Wallis, for the appellant.

      Luden Oudin and Warren W. Foster, for the respondents.
   O’Brien, J.:

The plaintiff is a judgment-creditor of the firm of Clarke, Radcliffe & Co., and brings this action against that firm, its general assignee for the benefit of creditors and five of its judgment-creditors, by confession, to set aside said assignment and judgments as fraudulent and void on the ground that all the defendants entered into a fraudulent combination among themselves to hinder, delay and defraud the plaintiff and other creditors of said firm, and to evade the provisions of chapter 503 of the Laws of 1887, prohibiting preferences in assignments for the benefit of creditors exceeding •one-third of the assets of the assigning debtor.

The case was before this court upon a former appeal, and in the .absence from the record of the requisite certificate showing that it contained all the evidence, it was held that where the record does not show that it contains all the evidence the finding of the lower court on questions of fact will not he reviewed on appeal. It was also then stated that “ the single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment does not, of itself, standing alone, and irrespective of the ■other facts connected with the transaction, necessarily require the ■conclusion that the judgment is a part of the assignment. (10 N. Y. Supp., 634.) The record now before us is accompanied by the statement that it contains all the evidence, and, therefore, we can, and it becomes important to determine the facts proved upon the trial. It appears that the firm of Clarke, Radcliffe & Co., in the latter part of April, 1888, were unable to continue their business and decided upon a general assignment for the benefit of their creditors. On the twenty-fifth of April the firm was actually indebted, among others, to the defendant G-ershonP. Kenyon, in the sum of $107,190; to the defendant Benjamin Carter in the sum of $17,000; to the defendant William E. Shepard in the sum of $5,600 or thereabouts, and to the defendant John E. Walker in the sum of $1,500 or .thereabouts.

On this date the members of the firm went to the office of their attorneys, one of whom subsequently was chosen as their assignee, and then and there prepared the general assignment and confessions •of judgments, and these were all executed by all the members of the firm on that date and about the same time. The same afternoon the general assignment was taken into possession by one of the firm and handed to one of their attorneys, who was the partner of the assignee. Thereupon the confessed judgments were entered in the office of the clerk of this court, executions issued, thereon to the sheriff and levies made upon the property of the firm in this city. Transcripts of these judgments, except the one in favor of Kenyon, were taken by an employee of -the attorneys for the firm to Montgomery •county, in this State, and a transcript of Kenyon’s judgment, by the latter’s attorney, to the same place. On the morning of the twenty-.sixth of April they were filed in the clerk’s office of Montgomery •county, executions issued thereon, arid the property of the firm stored in a warehouse in Amsterdam was levied upon by the sheriff. Upon ■the same day, the twenty-sixth, the-messenger sent by the attorneys for the firm telegraphed that levies -had been made under the executions in Montgomery county, and thereafter, on the same day, one of the firm took the assignment from the possession of his attorney, the partner of the assignee, and delivered it to the assignee, who thereupon executed the assignment, and it was filed as required hy law.

The consideration of a judgment in favor of one Foye having been successfully impeached, and the general assignment itself having been set aside upon the ground of fraud, the learned trial .judge refused to distui’b the other judgments, and from such refusal this appeal is taken. These facts, beyond a reasonable doubt, show that the assignment and confessions of judgment together constituted a single transaction for the disposition of all the firm’s property, then upon the verge of insolvency. They were all drawn and prepared at the same time and at the same place by the same parties, .and were executed at substantially the same time. These acts were undoubtedly the result of a common scheme by which it was sought to make a disposition of the debtor’s property, and therein to give a preference to those to whom the judgments were confessed. That instruments of this character, executed under those circumstances, are to be considered as one instrument is well settled. (White v. Cotzhausen, 129 U. S., 329 ; Sweetser v. Smith, 22 Abb. N. C., 319 ; Kessell v. Drucken, 23 id., 1.) There is much force, therefore, in the suggestion that as the assignment and judgments constituted a single transaction, parts of which the court held to he fraudulent, that thereby the whole became tainted with fraud. In other words, it is claimed that the assignment and judgments, though contained in separate and distinct documents, constituted in law but a single instrument.

There are like instances of the law being thus applied to separate documents as in the case of a mortgage, which may consist of a deed and a separate agreement of defeasance, both together constituting a single instrument. So a lease may consist of a lessor’s covenant executed separately from a lessee’s covenant, both together constituting a single lease, If the judgments are to be regarded as a part of the general assignment, it would seem to follow, logically and legally, that where a part is fraudulent, that avoids the whole. If the preferences sought to be given were in the instrument of assignment itself, and this was held to be fraudulent, the preferences, however valid, would fall with that .instrument.

If, therefore, the judgments and assignment are to be regarded as a single transaction or instrument, the judgments become engrafted in and an integral part of the instrument of assignment, the same as though contained therein. Why, as here, where there is shown a single scheme to make a general assignment for the benefit of creditors, should any distinction be made between preferences in and those outside of the assignment ? As was said in Spelman v. Freedman (54 Hun., 409), “ when the debtor has formed the determination to voluntarily dispose of his whole estate and has entered upon, that determination, it is immaterial into how many parts the performance or execution of his determination may be broken. The law will regard all his acts having for their object to effect the disposition of his estate as parts of a single transaction.”

But there is another and distinct ground upon which these judgments must be set aside. The question we would now consider is not whether the judgments were made for the purpose of hindering, delaying or defrauding creditors, but whether or not these judgments, being part of a scheme to give preferences, were not obnoxious to the statute (chap. 503 of the Laws of .1881) and, thex’efore, void. The facts show that the judgments and assignment were parts of a plan for the disposition of all the debtor’s property and an attempt and effort, as part of that scheme, to give preferences forbidden by law. Not only the circumstance of time, but the withholding of the assignment itself, although executed by the debtor’s, until after levies were made under the judgments, is confirmatory of this view.

In White v. Cotzhausen (supra), in commenting upon the case of Preston v. Spaulding (120 Ill., 208), tlie opinion proceeds. “ The Supreme Court of Illinois, considering the question whether the preferential judgments obtained in that case were within the prohibition of the act of 1887, said: £ The statute is silent as to the form of the instrument or instruments by which an insolvent debtor may effect an assignment. * „* * It will be observed this act does' not assume to interfere in the slightest degree with the action of a debtor while he retains the dominion of his property. Notwithstanding this act he may now, as heretofore, in good faith sell his property, mortgage or pledge it to secure a 'bona fide debt, or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor. But when he reaches the point where he is ready, and determines, to yield the dominion of his property, and makes an assignment for the benefit, of his creditors, under the statute, this act declares that the effect of such assignment shall be the surrender and conveyance of all his estate, not exempt by law,, to his assignee, rendering void all preferences and bringing about the distribution of his whole estate equally among his creditors; and we hold that it is within the spirit and intent of the statute that when the debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of . his determination may be broken, the law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single transaction; and on the execution of the formal assignment it will, under the statute, draw to it, and the law will regard as embraced, within its provisions, all prior acts of the debtor, having for their object and purpose the voluntary transfer or distribution of his estate to or for creditors; and if any preferences are shown to have been made or given by the debtor to one creditor over another in such disposition of his estate full effect will be given the assignment, and such preference will, in a court of equity, be declared void and set aside as in fraud of the statute.”

In Abegg v. Schwab (23 Abb. N. C., 7), subsequently affirmed upon another ground in Abegg v. Schwab (31 N. Y. St. Rep., 139), it was held that judgments confessed by debtors about to make an assignment for benefit of creditors, the effect of which judgments will be to prefer creditors beyond the amount of one-third in value of the assigned estate, after deduction of wages, costs, etc., in evasion of the Laws of 1887 (chap. 503), which prohibits preference in excess of one-third, are void if made as parts of one plan for the disposal of all their property.”

This decision followed the rule laid down in White v. Cotzhausen (129 U. S., 329). A distinction, however, is to be observed between the Illinois statute, the construction of which was involved in that case, and the New York statute. The former made preferences in violation of the statute void, while our statute only renders preferences in excess of one-third void.

A grave question is, therefore, presented under our statute, as to whether any greater penalty is to be attached to illegal preferences than such as the statute itself imposes. For this reason I assume the learned judge writing the opinion of this court upon the appeal in Abegg v. Schwab (supra), was disposed to question the soundness of the conclusion above quoted as to the effect of an illegal preference upon the entire judgment.

This, however, is no longer an open question in this court, for in Spelman v. Freedman (54 Hun, 409) the principle enunciated in Abegg v. Schwab was distinctly held. In Stein v. Levy (55 Hun, 381-385), the presiding justice, referring to Spelman v. Freedman (supra) says: “ It was held in that case that judgments which were confessed as part and parcel of a scheme resulting in an assignment,, whereby all the debtor’s property was devoted to the payment of preferred creditors, should not be allowed to stand as the assignment and confession of judgments must necessarily be considered together, they having been part and parcel of a single scheme and were plain violations of the law in question.”

If right in our assumption that the assignment and judgments were parts of a single scheme or transaction for the disposal of all the insolvent debtor’s property, these cases are controlling. "While,, therefore, the trial judge was right in concluding upon the evidence that the judgments themselves were not fraudulent, still he seems to have overlooked the consideration of the question as to whethcr the judgments did not violate the statute forbidding preferences.

It has been urged by the respondent that as the assignment itself has been set aside and no longer exists, that the upholding of the judgments would not contravene the statute which can only be-invoked where an undue preference is given in a general assignment for the benefit of creditors. The logical conclusion flowing from such an argument would be, that if the assignment was valid the. judgments would be void ; but that the setting aside of the assignment for fraud would leave the judgments of binding force and effect. Thus we would reach a.legal absurdity by holding that, where an illegal preference is sought to be made, the court will hold the judgments void if the assignment is valid, and if the assignment is fraudulent the judgments will be upheld.

It is unnecessary for us to determine what results may flow from this conclusion as to the judgment-creditors’ liability to account fi> the plaintiff for the amounts received by them respectively under their judgments. Whether the plaintiff can compel the defendants to account for such sums received, or not, cannot control the conclusion to be reached as to the invalidity of the judgments if otherwise warranted.

Our conclusion, therefore, is that the judgment appealed from should be reversed and a new trial ordered, with costs to plaintiff to abide the event.

Yan Brunt, P. J.:

I concur in the result of this opinion, but I think there is an. additional ground why the judgment should be reversed. It is apparent that the confession of these judgments was part of the fraudulent scheme of the judgment-debtors by which they, by means of another fraudulent judgment and a fraudulent assignment, sought to defraud their creditors.

It is true that the judgment-creditors were not privy to this fraud, but that does not validate their judgments, because if a judgment is suffered in pursuance of a fraudulent intent of the debtor the judgment is void, irrespective of the intent of the creditor.

Daniels, J., concurred.

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


author: Van Brunt, P. J.:

text:
    CATHARINE McINTYRE, Appellant, v. THE GERMAN SAVINGS BANK and JAMES CARROLL, Respondents, Impleaded with Others.

      Practice — appeal from an order denying a new trial crnries costs as of course — Code of Civil Procedure, sec. 3289 — such costs may be collected by execution — Code of Civil Procedure, sec. 779.
    TJpon affirmance, on appeal, of an order of the Special Term denying a motion for a new trial, made upon a case and exceptions, the respondent is entitled to the costs of appeal, as a matter of course, under the Code of Civil Procedure (§ 8239).
    Such costs are costs of a motion, and may, when not paid within the proper time, be collected by execution in the manner provided by the Code of Civil Procedure (§ 779). '
    . Appeal by tbe plaintiff Catharine McIntyre from an order, entered in tbe office of tbe clerk of tbe county of New York on tbe 20th day of February, 1891, in so far as tbe same grants a stay, until tbe entry of final judgment in tbe above-entitled action, of tbe collection of costs awarded by tbe General Term, and vacates the execution issued for their collection.

      Arthwr IJ. Smith, for tbe appellant.

      Zewis Sanders, for tbe respondents.
   Van Brunt, P. J.:

Section 3239 of tbe Code provides that upon an appeal from an interlocutory judgment or order in an action, costs are in tbe discretion of tbe court, and may be awarded absolutely or to abide tbe event, except as follows: When tbe appeal is taken from an order granting or refusing a new trial, and tbe decision upon tbe appeal refuses a new trial, the respondent is entitled, of course, to tbe costs of tbe appeal.

In the case at bar, tbe appeal was from an order of tbe Special Term denying a motion for a new trial on a case and exceptions, and such order was affirmed, and, in pursuance of tbe section of the Code which has been cited, tbe respondent was entitled, as matter of course, to tbe costs of tbe appeal. They were not in the discretion of the court. The court bad no power to make these costs .abide the final event of the action, but the respondent, upon the affirmance of such an order, had an absolute right to these costs, and they were awarded by the order of the General Term, entered upon the affirmance of the order of the Special Term. This brings the case clearly within the provisions of section 779 of the Code, where the costs of a motion or any other sum of money directed by an order to be paid are not paid within the times therein specified, an execution against the personal property of the person required to pay the same may be issued by any person to whom said costs or sum •of money is made payable by said order.

If it be said that the costs of an appeal from an order are not motion costs, it may be sufficient to answer that they clearly are such within the contemplation of the Code, because there is no other provision made for their collection.

It may be argued that they may be included in the final judgment, but occasions may arise where such costs are incurred after the entry of a final judgment, as section 1005 provides that a motion for a new trial may be made after final judgment.

It is clear that, in the contemplation of the Code, an appeal from an order denying a motion is nothing but a continuation of the motion; and whatever costs may be incurred in the continuation of the motion are the costs of the motion, and have no relation whatever to the general costs of the action. We think, therefore, that the plaintiff had the right to collect these costs, she being, by the provisions of the Code, absolutely entitled to the same.

As to the claim that the plaintiff, by appealing from so much of the order as restrained her from collecting the costs, leaving standing in her favor that part of the order denying the motion to compel her to enter judgment, thereby waived her right to appeal, we fail to see the force of the suggestion. A party moved against is successful in defeating a part of the' relief. asked upon such motion; and because of such success it is claimed she is deprived of the right to appeal from so much of the order as grants relief against her.

This is certainly a novel proposition, that a party must be entirely defeated in order that she may have a right to appeal; and that where the success of the moving party is only partial no right of appeal exists.

The order should be reversed and the motion denied, with tern dollars costs and disbursements.

■Brady and Daniels, JJ., concurred.

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


text:
    HENRY C. HOWELL, as Administrator, etc., of SALLIE A. HOWELL, Deceased, Plaintiff, v. ALLEN G. NEWMAN, Executor, etc., of THOMAS GARDINER, Deceased, and Others, Defendants.
    Dower— if a dowes'ess talcos no proceedings therefor in her lifetime, the right abates-absolutely.

    Where a widow, entitled to dower in real property, does not take any proceedings-in her lifetime to assert her claim, the right to have dower admeasured abates with her death, and neither her personal representatives nor those of her assignee can thereafter enforce it in any form.
    Exceptions ordered to be heard in the first instance at General Term, after a dismissal of the complaint on a trial at the New York Circuit before the court and a jury on October 20,1890.

      James M. I/ydJy, for the plaintiff.

      John 8. Davenjjort and A. B. Taqojpan, for the defendants.
   O’Brien, J.:

This is an action for the recovery of a dower right brought against-the estate of, and beneficiaries under the will of, the late Thomas Gardiner by the plaintiff as the personal representative of the assignee of such dower right.

The widow and doweress, by deed dated the 13th day of October, 1888, assigned her dower and right of dower to Sallie A. Howell.

Plaintiff’s intestate subsequently died August Y, 1889, and this-action was commenced after her death, October 5,1889. No action for admeasurement of dower in any shape was brought in the lifetime of Emma Gardiner.

The sole ground upon which the complaint was dismissed was,. that an action for dower commenced after the widow’s death will not lie. If this ground is well laid it is unnecessary to discuss the-other questions raised upon this appeal as to whether or not the will creates a trust estate incompatible with dower, and, therefore, compelled an election by the doweress.

A consideration of the character of the action itself will determine-whether or not, after the death of the widow, it can be maintained.

‘ The judgment upon the allegations of the complaint asked for is :■ That the plaintiff have dower of-, all the testator’s lands, and that the same be set off and admeasured, and, in, the alternative, that a gross sum be decreed.

.It will thus be seen that the present action is not a proceeding-under the Code by the widow for dower assigned or damages for withholding dower, but is an action'to admeasure dower. The judgmenttobe entered in such an action is that provided by section 1613 of the Code, which authorizes judgment awarding the widow during-her natural life actual possession of a certain portion of the property, or that she be paid a certain sum annually during her life, and that damages may be awarded her for withholding dower.

"Whatever doubt may have existed at common law as to the right to assign, it has been settled in this State that a widow’s dower right, although not admeasured, is an absolute right which is assignable. (Pope v. Meade, 99 N. Y., 201; Payne v. Beaker, 87 id., 153.) While, therefore, the assignment made my Emma Gardiner to Sallie A. Howell of her dower right, if any existed, was valid, it still m-emains. to be determined what effect the death of Mrs. Gam-diner had upon such right prior to its being admeasured.

Authorities can be cited for the maintenance of an action to admeasure dower brought by the assignee. But in all the cases it will be found that such right was m-ecognized and enforced only during the lifetime of the widow. In Kyle v. Kyle (67 N. Y., 407) it is said: “By the Revised Laws (1 R. L., 60, § 1) she might prosecute at any time in her life.”

The dicta to be found thi-oughout the opinion in this case will show that the court was of opinioim that such an action could only be maintained dum-ing the lifetime of the doweress. The case of McKeen v. Fish, (33 Hun, 30; affirmed in 98 N. Y., 645) is a direct authority against the plaintiff’s contention. In that case the appellant’s testatrix commenced an action to have her right of dower •determined. A reference was ordered, and before any interlocutory judgment was entered the widow served a consent in writing-agreeing to receive a gross sum in lieu of dower.

Subsequently, and while the action was still pending, and prior to the determination thereof, she died. The trial proceeded, and subsequently the referee found and reported a state of facts that would have entitled the widow, had she been living, to some right •of dower. Davis, J., in the course of the opinion, says: “We are ■of opinion that, at the time of the death of the plaintiff’s testatrix, her action, notwithstanding the filing of her consent, had not reached a state or condition in which she was entitled to claim a vested right to a gross sum of money equal to the value of her dower in the property, Or any part thereof. A different state of things might •exist if her right of dower had been determined and the proceedings in the action had reached a stage in which the court had adjudged that a sale of the premises be made. 'x' * * Until it has been determined whether a parcel or parcels will be set off to the widow or a sale ordered, and the value of her life interest invested and paid to her, after she is adjudged to be entitled to •dower, her right, beyond mesne profits, remains a mere naked and inchoate life estate and terminates on her death.”

This is a direct authority which in no way conflicts with the cases •cited by the appellant as authorizing an action by an assignee for .allotment of dower, for, upon examination, the latter will all be found to be cases where actions were brought during the lifetime of the widow.

Emma Gardiner, the widow in this case, having died before the ■commencement of this action, the period during which a distinct parcel of the property could be laid by, or a sum in lieu thereof, had expired; and in the absence of statutory jn-ovision authorizing this action, it must be deemed to have abated on her deáth. It is clear, therefore, from the authorities, that the claim to dower, as here asserted, is not a lien upon the testator’s land, and the widow having died without action, neither her personal representatives, nor the personal representatives of her assignee, can assert any such ■claim or maintain an action either to enforce a lien or admeasure or recover a sum in gross in lieu thereof.

The right of the doweress, therefore, not having been asserted in some form during her lifetime, does not survive her. The exceptions taken by the appellant upon the trial must, therefore, be overruled and judgment ordered, in accordance with the direction of the trial judge, in favor of the defendants dismissing the complaint, with costs and disbursements to each of the respondents.

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

Exceptions overruled and judgment ordered in favor of the defendants, dismissing the complaint, with costs and disbursements to each of the respondents.


author: 'Van Brunt, P. J.

text:
    ANNA MARIA HOCH and Others, Respondents, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and Another, Appellants.

      Damages — easement — abandonment of— where acted, upon it becomes an irrevocable

    In an action brought to recover damages resulting from past trespasses of an elevated railroad, in the city of New York, in impairment of easements appurtenant to certain real property, it appeared that the premises were conveyed, in • December, 1883, by a deed stating that they were granted “ in the condition in which the same now are; ” and the trial court found that the elevated road at that date was constructed, maintained and operated in front of said premises by virtue of some estate, license or authority from plaintiffs’ grantor.

      Meld, that the construction of the elevated road, under some estate, license or authority from the plaintiffs’ grantor, amounted to an abandonment of the easement by such grantor to the elevated road.
    That as such abandonment had been acted upon by it, it became, as to the road, an irrevocable license.
    The distinction between a license which requires for its enjoyment an interest in land and one relating only to an abandonment of an easement, considered as to their revocability.

      Wiseman v. Duahsing&r (84'N. Y., 38) distinguished.
    Appeal by the defendants, the Metropolitan Elevated Railway ■ Company and the Manhattan Railway Company, from a judgment in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of January, 1890, after a trial at Special Term in said county.

      B. Tolies, for tbe appellants.

      B. W. Tyler, for the respondents.
   'Van Brunt, P. J.

This action was begun, in 1888, by John C. Hoch to recover past damages and to obtain an injunction as to the property 133 South Fifth avenue, upon the ground of the trespass of the defendants upon the easements appurtenant thereto.

It appeared from the evidence in the case, that Hoch purchased the premises in question in December, 1883, his grantors conveying the premises “ in the condition in which the same now are,” and the •court found that the defendants’ railroad was constructed, maintained and operated by virtue of some estate, license or authority ■derived from the plaintiffs’ predecessor in title.

Past damages and an injunction were also sought for the premises No. 104 West Third street, also purchased by the plaintiff, in December, 188T. The plaintiff tore down an old building which was upon the premises, and in May, 1888, began the erection of a five-story enement-house, which was completed by the first of November, 1888. His grantor, Margaret D. Griswold, had commenced an action against the defendant to recover the permanent depreciation •caused to these premises by the railroad, and her deed contained a reservation of any rights or action at law or in equity for damages caused by the railroad prior to or during her ownership of said premises. Hoch having died during the progress of the action, the present plaintiffs, individually and as executrices and trustees under the will of Hoch, were by order substituted as plaintiffs and the action revived.

The court held, as to both pieces of property, that the plaintiffs were entitled to recover for past damage, and also assessed a sum upon the payment of which the defendant should be entitled to a conveyance of the easements, in default of which it was decided that the plaintiffs were entitled to an injunction. The first question presented' is that there can be no recovery of past damages, and no injunction as to 133 South Fifth avenue, the court having found that the erection of the defendants’ railroad was duly licensed and authorized by the then owner of said premises.

This point, we think, is well taken. It appears, by the conveyanee to Hocli, that the said premises were conveyed in the condition in which they then were, with the-railroad constructed and the easements appropriated. Such a deed conveys every easement appurtenant to the premises conveyed which the grantor owned or was entitled to recover; as easements always follow the principal estate. (2 Hilliard on Real Property [Bd ed.], 556 ; Huttemeier v. Albro, 18 N. Y., 48; Hills v. Miller, 3 Paige, 254.) Consequently, if nothing had been done by the original plaintiff’s predecessor to affect his claim to such easement, it clearly passed with the conveyance to him as appurtenant to the estate conveyed. But the court having found that the defendants’ railroad was Constructed, maintained and operated by virtue of some estate, license or authority derived from the original plaintiff’s predecessor in title, there appears to have been an abandonment of such easement by the owner of the title for the purposes of the construction of the defendants’ railroad. And that the right to an easement may be lost and extinguished by abandonment is held in the case of Snell v. Levitt (110 N. Y., 595), in -which the principle is laid down that while an easement acquired by grant cannot be lost by mere non-user for any length of time, it may be extinguished by abandonment; and non-user for a period of twenty years, under circumstances showing an intention to surrender the easement, is sufficient to extinguish it. And the further principle is laid down that, where the abandonment has been acted upon by the owner of the servient tenement so that it would work harm to him if the easement were thereafter asserted, such action will operate to extinguish it.

In the case at bar, it having been found that the defendants’ railroad was constructed by virtue of a license from the original plaintiff’s predecessor in title, so far as it affected these easements, it was clearly an abandonment by the owner of such easements which have been acted upon by the defendants; and was, therefore, a license which was irrevocable.

It is true that, in the case of Wiseman v. Lucksinger (84 N. Y., 38), it was held that a right of drainage through the lands of another is an easement which, if created by parol license, may be revoked at any time, although a valuable consideration be paid therefor. But that decision was clearly based upon the principle that such an easement required for its enjoyment an interest in the lands which could not be conferred by parol license, and could only be granted by deed or conveyance in writing. The defendants are not seeking by reason of this license to establish any interest in lands. All that they claim is, that, so far as is necessary for the operation of their railroad, there has been an abandonment of the easement appurtenant to the premises in question by the then owner thereof, and that they have acted upon the same.

TJnder these circumstances, it seems to be clear that the right of revocation does not exist. It may be true that error was committed in admitting the evidence tending to interpret the language of the deed given of the premises in question; but a further reference to this point is not deemed necessary in view of the conclusion to which we have come upon the question already discussed. The claim that the defendants’ railroad is located on the central strip of South Fifth avenue, and that no rights of the plaintiffs are interfered with, cannot be sustained in view of the recent decisions of the Court of Appeals as to the rights of abutting owners upon streets.

The claim that the reservation in the deed in respect to the West Third street property precluded the plaintiff from maintaining this action as to these premises cannot be sustained. Although the parties may have agreed that the permanent damages might be considered in the action brought by the previous owner, yet the court having refused to submit any such question to the jury, and no such question having been submitted to them, it is difficult to see how anybody’s rights were precluded by a verdict in an action upon an issue which the record shows the court never submitted to the jury.

The parties stood, after this trial, precisely as though there had been no attempt to include permanent damages as part of the recovery in the action. Various exceptions to the admissibility of evidence were taken which it is not necessary to discuss, in view of the conclusion at which we have arrived in reference to the South Fifth avenue property.

We think, for the errors adverted to in respect to that property, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Brady and Daniels, JJ., concurred.

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


author: Macomber, J.:

text:
    WARREN BRYANT and Another, as Executors of and Trustees Under the Last Will of FRANCIS W. TRACY, Appellants, v. HARRIET F. TRACY THOMPSON and Others, Respondents.

      Will — a condition that if a beneficiary contests it he shall lose his bequest — is mid as to an infant contestant.

    A testator, by a codicil to his will, set apart and placed in the hands of his executors, as trustees, a sum of money, the income of which he directed should be paid to his daughter during life, the principal 'to be divided, at the time of her death, among her issue, if any; if none, then to become a part of the residuum otherwise disposed of.
    By another paragraph of the same codicil it was stated that if any beneficiary named in his will contested it, in person or by another, the testator revoked all provisions contained in said will in favor of the person contesting it; and that if such contestant should be his daughter, then he devised to his wife the sum above mentioned given to tmstees for the benefit of the said daughter.
    Upon the return day of the citation issued for the proof of the will, the surrogate, upon his own motion, appointed a guardian ad litem for the daughter, then an infant, and thereafter said guardian vigorously contested the probate of said will, all proceedings and appeals in regard thereto being concluded, however, before said daughter became of age.

      Held, that the contest must be deemed to have been made by the daughter, although the actual steps were taken by the guardian.

      That as the provisions of the will for the daughter constituted a conditional bequest to the executors, as trustees, determinable in the event that the daughter, in person or by another, contested the will, the action taken upon her part, had she been of age, would have forfeited the bequest.
    That as the daughter was an infant, and had in the first instance merely submitted her rights to the court, the provision of the will forfeiting the rights of a contestant was, as to her, an attempt to subvert the course of judicial proceedings, and to deprive the court of the right and duty imposed upon it by law, in all •cases, to institute, of its own motion, proper proceedings for the protection of infants, and that as to the daughter the condition was void as against public policy.
    Appeal by tbe jffaintiffs, Warren Bryant and John U. Wayland, as executors of and trustees under tbe last will and testament of Francis W. Tracy, deceased, from a judgment, entered in tbe cleric’s office of the county of Erie on tbe 13th day of Sejitember, 1890, in favor of tbe defendant Harriet F. Tracy Thompson after a trial at Special Term in said county.

      John G. Milburn, for the appellants.

      John E. Pa/rsons and Qhwles Pobmson Smith, for tbe respondents.
   Macomber, J.:

Tbe plaintiffs, with tbe defendant, Agnes Ethel Tracy, tbe latter declining, for reasons of her own, to join with tbe plaintiff in this action, are tbe executors of tbe last will and testament of Francis W. Tiacy, late of tbe city of Buffalo. Mr. Tracy died on tbe 15th ■day of April, 1886, leaving a last will, with four codicils thereto. 'The testator left him surviving Agnes Ethel Tracy, bis widow, and Harriet F. Tracy Thompson, bis only child and heir-at-law. Tbe latter was an infant, between eighteen and nineteen years of age, ¡at tbe time of tbe death of > her father. At bis death Mr. Tracy was ¡seized in fee of four valuable parcels of real estate in Buffalo and of a large amount of personal property. By tbe terms of tbe second article of tbe second codicil, tbe sum of $100,000 was set apart and placed in tbe bands of tbe executors, as trustees, tbe income of -which should be paid to tbe daughter, Harriet F. Tracy Thompson, during her lifetime, tbe principal to be divided at the time of her •death among her issue, if any; if none, then to become a part of tbe residuum otherwise disposed of. Upon tbe proceedings before the surrogate for tbe probate of such will, the special guardian, appointed by the surrogate, of the infant, Harriet F. Tracy Thompson, interposed an answer putting in issue the mental capacity of the testator to make the will and codicils, but the surrogate finally ¡sustained the will and admitted the same to probate. On appeal this decree was affirmed by the General Term of the Supreme Court. 'This action is brought for the purpose of determining the conflicting ■claims to this fund of $100,000.

The plaintiffs’ case rests upon the contention that the respondent, by reason of the contest to the probate of the will, which was made before the surrogate, and on the appeal to this court, forfeited' whatever bequest she would otherwise have received had not such contest been made by her, and that, consequently, under the provisions of the fifth article of the second codicil, the income of this trust fund belongs to Agnes Ethel Tracy, the widow.

The fifth paragraph of the second codicil is as follows:

Fifth. In case any beneficiary named in my said will and testament, whether a devisee, legatee or cestui que trust therein named, .shall, in person or by another, contest the jprobate of my said last will .and testament, or any codicil thereto, or shall institute any proceedings of any kind with a view to avoid or annul iny said last'will and testament, or any codicil thereto, or any provision in my said last will and testament, or in any such codicil contained, then, and in either •case, I do hereby revoke all provisions in my said last will and testament, or in any codicil thereto contained in favor of the person or •corporation contesting or seeking to avoid such last will and testament, or codicil or provision; and if such contestant shall be my daughter, then I give, devise and bequeath to my wife all the property which, in and by such last will and testament and the •codicils thereto, is or shall be given to my executors in trust for my .said daughter’s benefit. If my wife shall be such contestant, then I give, devise and bequeath to my executrix and executors all the property which is by my said last will and testament, or any codicil thereto, given to my wife, in trust for my daughter, and upon the same trusts in every particular as are specified in the second article •of this codicil.”

At the time the will was offered for probate, Harriet F. Tracy ‘Thompson was nearly, but not nineteen years of age. She had been separated from her father in early infancy, bad taken her mother’s family name of Robinson, and had resided with her mother’s relatives in and near the city of New York. The mother, having been estranged and divorced from her father, cherished bitter feelings towards him, which, to a considerable extent, had influenced the daughter also. The reasons assigned, however, by the testator for giving no larger portion of his estate to his daughter reflected in no respect upon her, but they are stated by him to be that her mother was possessed of an ample fortune, and in addition thereto a handsome provision had been made for her by the testator’s mother.

The respondent, upon the return day of the probate of the will, took no part, either personally or by a general guardian, in the selection of a special guardian who should appear for her in the proceedings in the Surrogate’s Court. The surrogate thereupon, of his own motion, in pursuance of section 2530 of the Code of Civil Procedure, appointed a competent and capable member of the bar as special guardian, by an order duly entered May 11, 1886. The guardian consented in writing thus to assume the duties of taking care of the interests of the infant. He took vigilant measures to possess himself of his ward’s case. He conferred, very properly, with her and the counsel who had previously been applied to by her and her maternal relatives, and subsequently filed an answer prepared by such counsel, submitting, in a general way, the rights of the infant to the court. The special guardian employed as counsel the same person that had been consulted by the infant and her relatives. Thé special guardian acted throughout in good faith and contested the probate of the will vigorously, upon the ground, generally, that the testator had not testamentary capacity at the time of the execution of the instrument; and to that end there were called by the surrogate, at the instance of the special guardian, in behalf of the contestant, thirty-six witnesses. The daughter herself was called as a witness by her special guardian, but not upon any subject material to the contest made to the probate of the will.

The surrogate, as stated above, finally admitted the will to probate and certified, in accordance with section 2623 of the Code of Civil Procedure, that the probate of the will had been contested.

The appeal to the General Term was also prosecuted by the same person wbo was appointed guardian ad litem of the infant for the pui’poses of such appeals, and was completed before the ward arrived at the age of twenty-one years. No step has been taken in the way of contesting the probate of the will, or in any appeal from such probate, or in defeating the testator’s declared intentions, since the daughter became twenty-one years of "age.

The second article of the second codicil must be construed in connection with the fifth article of such codicil. Taken together, as the learned justice at Special Term has decided, they constitute a conditional bequest to the executors, as trustees, determinable in the event that the daughter, in person or by another, contests the probate of such will. This is not an unlawful provision when contained in a last will and testament. The testator, having the right to say to whom his property shall be bequeathed and devised, had the right also to make it as a condition of any gift that the recipient thereof shall not contest the probate of the will. (Cooke v. Turner, 14 Simons, 493; S. C., 15 M. & W., 727 ; Evanturel v. Evanturel, 31 Law Times [N. S.], 105 ; L. R., 6 P. C., 1; Hogan v. Curtin, 88 N. Y. 162 ; 2 Jarman on Wills, 58; Schouler on Wills, 605.) Such contest, however, the Special Term held, was instituted and prosecuted by and in the name of the special guardian, and was not the contest of the daughter, in person or by another, within the fifth article of such second codicil. It seems to me, however, that such contest was the contest of the daughter,'and not of her special guardian. It is the infant who is always summoned and cited to appear in court, and who is 2-egarded as the real party. It is true that the infant answers in the Surrogate’s Court by special guardian, in the Supreme Court by guardian ad litem, but the answer is that of the infant party, and the judgment is in favor of or against the infant party, and not in favor of or against the person who is selected by-the court to take care of his interests. (Phillips v. Dusenberry, 8 Hun, 348; Mutual Life Ins. Co. v. Schwaner, 36 id., 373 ; Matter of Accounting of Hawley, 100 N. Y., 211.)

I cannot regard the contest, as made before the surrogate, as that of the guardian, and not of the daughter. While it is true that the guardian, after his appointment, had, substantially, full control of all the procedings in court, yet the-contest, as carried on by him, was that of his ward, and not of his own.

I see no way, except as hereinafter stated, of relieving the infant from the palpable fact that there was a very serious contest made over her father’s will by another in her behalf. The action taken in sncli contest bound, so far as any decree of the surrogate could bind parties upon the question of the testamentary capacity of the testator, as completely as though she had been of full age and had the selection of the counsel who should conduct her defense to the probate of the will. Was it the intention of the testator to cover only the case where there was a personal and responsible act taken by one of the legatees against the will ? I think not. He intended to embrace all eases where a contest should be made to the probate of the will where, by the judgment rendered upon such contest, the provisions of the will might be defeated. In such a case it was his obvious purpose to deprive the party of any benefits under the provisions in the will.

It follows, therefore, as it seems to me, that the respondent failed to observe the condition upon which the bequest was made to her, and, consequently, that she cannot now, having been defeated in the probate, receive anything from the estate, unless the provision in question, when aimed at an infant, is to be deemed void as being against public policy. It may well be said that the public has no concern with the question whether the will of a certain person shall be denied probate upon the ground of want of testamentary capacity, and that, consequently, a bequest conditioned upon a party of full age not raising such a question may be deemed valid and may be defeated by the subsequent act of the party in violation of the condition upon which the bequest was made. Any reasonable condition may be contained in a will, but where the condition is such as to subvert the course of judicial proceedings and to deprive the court of the right and duty imposed upon it by law to institute, of its own motion, proper proceedings for the protection of the infant’s rights, the question immediately becomes one of public policy and brings into the discussion entirely new considerations. So far as I can ascertain, there has been no decision in the courts of this State directly upon the point. Woodward v. James (44 Hun, 95) contains a strong intimation which, if applied to this case, would tend to the conclusion that the respondent has not deprived herself from sharing in the property under her father’s will, because the'acts taken by her were'done while an infant, yet it can bardly be declared that that' decision distinctly so holds. While apparently acquiescing in the view taken by the trial judge in that action, the court proceeds to show that the principle sought to be invoked was not applicable, because, that action was brought for the-construction of the will, and not for the purpose of defeating any portion of the intention of the testator. The court there say: “ Had the action been based upon an allegation of undue influence in procuring the will, or of the mental incapacity in the testator, or of' duress, and the plaintiff had been defeated upon the issues, a different question would probably arise.”

Any provision in a will which, in its application, comes in conflict with the organic or statutory law of the State, by which it is made the duty of the courts to look after the rights of infants, irrespective of the fact whether they are of tender years or not, must be deemed to be illegal and void as being against public policy. A testator cannot be permitted thus to obstruct, by any clause in his will, the necessary steps prescribed by law for the conduct of judicial proceedings in the case of infants, where the paramount duty of the court is to act in behalf of its wards and for their best interests. No penalty or forfeiture can be worked against such a party who has done nothing more than to submit his rights to the adjudication of the courts. Any other rule as applicable to infants would work serious mischief. On the one hand, the court would be required, through its officers, to examine into and ascertain the rights of the infants and determine whether a contest by the ward should be made, and then, after so deciding, if the contest was had and it proved unsuccessful, by the judgment of the same or another court, the provisions of the will for the infant would become inoperative, though every step in the contest was taken intelligently and in good faith and without the consent of the infant. No such restraint upon the independence of officers chai’ged with a duty to their wards can safely be tolerated in last wills. With adults the case is different. They may give away their rights; they may waive the provisions made for them; they are at liberty to enter upon a contest of a will or not, at their pleasure; but with infants the case is otherwise. They have no voice in the matter. The court acts for them, and it would be against the policy of the State to permit its action to be stayed or trammeled by a testamentary paper imposing a forfeiture upon its ward in case it should exercise its -judicial functions in that particular instance.

For this reason I think the judgment appealed from should be ■affirmed.

Dwight, P. J., and Coelett, J., concurred.

Judgment appealed from affirmed, with costs to both parties, payable out of the estate.


text:
    GEORGE D. SMITH, Respondent, v. M. EDWIN SERVIS, Appellant.

      Costs — on taking the deposition of a party or witness under a stipulation— Code af Civil Procedure, sees. 879, 3351, sub. 3.
    Where the parties to an action, instead of taking the deposition of a party or of a witness under an order of the court, pursuant to sections 870 and 871 of the Code of Civil Procedure, stipulate in writing, under section 879 of said Code, that such depositions he taken before a judge or referee at a time and place specified in said stipulation, the successful party is entitled to tax ten dollars costs for each deposition so taken. (Code of Civil Pro., § 3351, sub. 3.)

      Newman y. Qreiffif, Civ. Pro. R., 363), disapproved.
    Appeal by the defendant from an order made at Special Term, and entered in the office of the clerk of the county of Monroe on the 7th day of January, 1891, directing a retaxation of defendant’s costs, and that, upon such retaxation, the clerk strike from said •costs as taxed the items of ten dollars each for the depositions of the plaintiff and six others, amounting to seventy dollars.

      Arthwr E. Sutherland, for the appellant.

      George F. Yeoman, for the respondent.
   Macomber, J.:

On the taxation of the defendant’s costs objection was made to seven items of ten dollars each, for taking the depositions of the plaintiff and his six witnesses in the city of New York, but the objection was overruled by the taxing officer and such costs were taxed. Upon appeal to the Special Term for retaxation, that court directed that such items be struck out, and from the order entered thereon this appeal is taken.

The place of trial of this action was originally in the county of New York, but upon motion of the defendant it was changed to the county of Monroe. On the plaintiff’s appeal from that order to the General Term in the first department, the order was modified so as to require the defendant to stipulate that the evidence of the plaintiff and his witnesses should, at the election of the plaintiff, be taken before a referee in the city.of New York; accordingly a written stipulation was entered into by the attorneys for the respective parties for the taking of such testimony before a referee. The testimony of the plaintiff and his six witnesses was so taken in pursuance of the stipulation.

By subdivision 3 of section 3251 of the Code of Civil Procedure, the sum of ten dollars is given as costs “ for taking the deposition of a witness or of a party as prescribed in section 870, section 871, or .section 893 of this act.” No question is made but that the defendant is entitled to ten dollars costs for each of the seven witnesses so examined, if anything. By section 870 the deposition of a party may be taken at any time before the trial “ as prescribed in this article.” By section 871 the deposition of a person, not a party, may be taken “ as prescribed in this article.” The learned justice at the Special Term has apparently held that, where depositions are taken by stipulation, and not by order of the court, upon motion, such costs are not allowable. He has for the support of that conclusion the decision of the Special Term of the Superior Court of the city of New York, in the case of Newman v. Greiff (3 Civ. Pr. R.; 362), where it was held that there is no right given to costs to the prevailing party for taking a deposition pursuant to stipulation. "We cannot concur in this view of the construction of these several •sections of the Code.

By section 879 it is provided that “ the parties to an action may stipulate in writing that the deposition of a competept witness, to be used therein, may be taken before a judge or referee at a time and place specified in the stipulation, either orally or upon interrogatories to be agreed upon in like manner.”

Depositions taken under this section, by virtue of a stipulation,, ■come as clearly -within sections 870 and 871 as do those which are taken in pursuance of an order of the court under other sections of the same article of the Code. The testimony of the plaintiff was-taken as prescribed by section 870, and that of his several witnesses, as prescribed by section 871. These two sections relate to all cases where depositions of a party, or of persons not parties, may be taken under this article of the Code. They constitute the authority for this procedure, and the succeeding sections above referred to relate to the mode of adducing the testimony. They control equally the cases where witnesses are examined by virtue of a stipulation under section 879, as those taken in pursuance of an order of the court made upon affidavits under sections 872 and 873.

The order appealed from should be reversed, with ten dollar» costs and disbursements.

Dwight, P. J., and Corlett, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.


author: Maoomber, J.:

text:
    JONAS P. VARNUM, Administrator, with the Will Annexed, of CHARLES J. HAYDEN, Deceased, Appellant, v. JAMES W. TAYLOR, Respondent.

      Mcecutors and administrators — when they may sue as such for goods sold after the death of the decedent — an objection of want of legal capacity to sue must be taken by demurrer or by answer.

    'Where a testator, by his will, empowers his executors, in their discretion, to continue his business, and they do so, and subsequently resign, and an administrator,, with the will annexed, is appointed, such administrator may, in his representative capacity, sue the purchasers of goods, sold in the conduct of such business by the executors, to recover their price.
    Where such an action is brought, and all the facts bearing upon the capacity of the administrator, with the will annexed, to sue appear upon the face of the-complaint, the defendant must take an objection to the plaintiff’s suing in such capacity, by demurrer or by answer, otherwise it is waived. (Code of Civil Pro., §§ 488, 499.)
    Appeal by tlie plaintiff Jonas P. Yarnum, as administrator, with. tbe will annexed, of Charles J. Hayden, deceased, from a judgment of the Monroe County Court dismissing the plaintiff’s complaint,, entered in the clerk’s office of said county on the 9th day of June, 1890, in favor of the defendant, after a trial before the court and a jury, at which, on defendant’s motion upon the close of the plaintiff’s, case, a nonsuit was granted.

      ..Howard L. Osgood, for the appellant.

      W. Henry Davis, for the respondent.
   Maoomber, J.:

The plaintiff, who is the administrator, with the will annexed, of Charles J. Hayden, deceased, brings this action to recover a balance due the estate which he represents, arising out of dealings of the executors appointed by the will. One of the executors, Charles A. Hayden, was empowered by his associates to manage the business which had previously been conducted by the testator, and which, by the terms of the will, the executors were authorized to continue, in their discretion, after the decease of the testator. The indebtedness of the defendant was incurred between the 20th and 30th of August, 1888, being for merchandise of the estate, manufactured and sold by the acting executor, amounting in all to the sum of $317.50. Subsequently, and on the fourteenth day of September of that year, the executors were permitted to resign their trust, and this plaintiff was appointed by the surrogate of Monroe county in their place as administrator with the will annexed. On the 27th day of November, 1889, Charles A. Hayden, under whose management, the estate had been previously administered, assigned to the plaintiff, as administrator, with the will annexed, the claim in action, upon which, it was shown at the trial, there was unpaid at the time the action was begun the sum of $232.50, there having been previously paid by the defendant to Charles A. Hayden. the sum of one hundred dollars and fifteen dollars.

Upon the trial the special county judge, at the close of the evidence, nonsuited the plaintiff upon the ground, as stated in the case, that the plaintiff, as the administrator, with the will annexed, of Charles J. Hayden, was not the real party in interest. This direction of the court was erroneous. Under the allegations and the proofs the defendant was indebted to the estate represented by the executors •of the decedent, which indebtedness was incurred under lawful power contained in the will, by which the business theretofore ■carried on by the testator might be continued by the executors in ■their representative capacity.

By reason of such authorization in the will, followed, as it was, by the approval of the Surrogate’s Court, the indebtedness which the defendant incurred was owing to the executors in their representative capacity, and an action might be maintained therefor by them or their successor.

But there is another reason why this judgment should be reversed, and that is, that the objection to the maintenance 'of this action by ■the plaintiff was not taken by the defendant either by demurrer or by answer. All of the facts disclosing any objection which might be taken to the capacity of the plaintiff to sue appeared in the ■complaint, and if it was intended to raise the objection that the plaintiff, as the administrator with the will annexed, could not maintain the action, it was incumbent upon the defendant to demur, to the complaint, or, if it was deemed doubtful whether the facts were ■all disclosed in the complaint, to allege in his answer that the plaintiff had not legal capacity to sue. The failure either to demur or to answer precluded the defendant from raising the question at the trial. Section 488 of the Code of Civil Procedure provides that the defendant may demur where it appears upon the face of ■the complaint that the plaintiff has not legal capacity to sue. By section 499 of that Code, if such objection is not taken either by ■demurrer or answer, the defendant is deemed to have waived it. This is distinctly so decided in the case of Nanz v. Oakley (122 N. Y., 631; 19 Civ. Pro. R., 246). This principle is in accordance •also with the case of Wright v. Wright (54 N. Y., 437), where it is held that the objection to the ability of the plaintiff to bring suit in the form adopted is in the nature of a dilatory plea, and to be made available it must be strictly pleaded.

The judgment appealed from should be reversed and a new trial ■granted, with costs to the appellant to abide the event.

Dwight, P. J., and Coblett, J., concurred.

Judgment reversed and a new trial granted, with costs to abide ■the event.


text:
    In the Matter of the Application of ELIZA W. CLARKE, Administratrix, with the will Annexed, of DAVID CLARKE, to Mortgage Real Estate.

      trustee — what “estate” he is authorised to mortgage or sell bt/ chapter 257, Laws-of 1886 — grounds for the application.

    Tlie “ estate ” referred to in chapter 257, Laws of 1886, providing that the Supreme Court shall have power to authorize a trustee to mortgage or sell real estate, held in trust hy him, whenever it shall appear to the satisfaction of the court or judge “ that it is for the hest interest of said estate so to do, and that it is necessary and ■for the benefit of the estate to raise by mortgage thereon, or by a sale thereof, funds for the purpose of preserving or improving such estate,” is not the general estate of the decedent or creator of the trust, but only such estate as is held by the trustee under the provisions of the trust.
    Upon such an application by a testator’s widow to mortgage real property, it -.appeared that the money to be raised by the mortgage was desired to pay ■ taxes and assessments thereafter to be levied, and to pay to the petitioner an annuity in arrears, which was alleged to be charged upon .the testator’s- - real estate.

      Held, that no grounds were shown justifying the application.
    Appeal by Louis C. Bush, Rhoda Bain, Melitta S. Pratt, M. W. Clarke, Sarah E. Clarke, Elvira Thomson, Howard Clarke, Elisha B. Clarke, Jane L. Colby, Ellen A. Clarke, Mary B. Saxe Olay and Ann Melia Hall, contestants, from an order made at a Special Term, and entered in the Monroe county clerk’s office on the 17th day of July, 1890, granting leave to mortgage the real estate described in said order.

      W. F. Funmore, for Louis C. Bush and others, heirs-at-law of David Clarke, appellants.

      G. M. Williams, for the petitioner, respondent.
   Maoomber, J.:

. This appeal is brought by the heirs-at-law of David Clarke, the testator, from an order of the- Special Term directing a mortgage to be executed in the sum of $5,000 upon the real estate left by the testator, for the purpose of preserving and improving the estate in the manner alleged in the petition, and for the payment of any taxes or assessments due or to become due on the premises, and to redeem •the premises from any tax sales, and to pay the attorneys of the petitioner a certain sum for their costs, and also for the payment to the widow of David Clarke, who is the petitioner, the amount of her annuity of $400, given to her by the will. The order also •directed that the administratrix, with the will annexed, acting as trustee under the will, should hold the balance of the proceeds of the mortgage upon the same trusts as were created by the last will, and that she pay from the proceeds of the mortgage the interest coming •due on the mortgage from time to time, and also her annuity and taxes aforesaid as they respectively mature.

This proceeding is brought under chapter 257 of the Laws of 1886, amending section 65 of part 2 of chapter 1, title 2, article 2 ■of the Revised Statutes, relating to uses and trusts, for the purpose ■of paying an annuity given to the widow of the decedent by the will, and for raising money to pay future taxes as well as taxes then .assessed, though not due at the time of the beginning of the proceeding.

The will, after making a provision of a bequest of $700 to the widow, which is stated to be in lieu of dower, provided, besides the use of the house, for an annuity to her of $400, payable quarterly. The testator died on the 31st day of December, 1874, and his will was admitted to probate on the 12th day of March, 1875, and letters testamentary thereon were issued to the executor therein named, who continued in the discharge of his duties until the 28th day of December, 1878, when he was, by a decree of the surrogate of Monroe county, removed, his letters revoked, and the administratrix with the will annexed substituted in his place. The amount of the personal property left by the testator was $8,423.99 ; the value of the real estate about $ 10,000. A judicial settlement of the accounts of the former executor and trustee was had on the 30th day of December, 1878, when it was found that the sum of $3,810.91 was in his hands, which subsequently was paid over to the present administratrix. A legacy of $1,000 was paid, together with the interest thereon, to one Lewis Olarke in his lifetime. No accounting has been had by the present administratrix with the will annexed, but it was found by the referee that she had paid out the moneys which she had received in behalf of the estate, but for what particular purposes was not disclosed by the report.

When the petition-herein was filed there were remaining unpaid no taxes or assessments or other liens lipón the property, unless the annuity of $400 given 'to the widow was such a lien. But in the view which we take of the case it is not necessary to determine the latter question. By the amendment of 1886 (chap. 257) it is provided: That the Supreme Court shall have power, upon such terms and conditions as to the court shall seem just and proper, in any case, to authorize any such trustee to mortgage or sell any such real estate whenever it shall appear to the satisfaction of said court, ór a judge thereof, that it is for the best interest of said estate so to do, and that it is necessary and for the benefit of the estate, to raise, by mortgage thereon, or by a sale thereof, funds for' the purpose of preserving or improving such estate.”

In order to support the petition in this case, it must be shown that the will of David Clarke created a trust in the real estate left by him, and in this respect we think the petitioner has wholly failed to make out a case. The use of the real estate mentioned in the petition, together with the household furniture, was given to the widow during her lifetime, unconditionally. She was not to receive the same by the hands of the executor or trustee of the will, but was entitled to the same directly. No duty was imposed upon the trustee to collect the rents and profits, and, consequently, no title to the real estate vested in him. (1 R. S., 727, § 47; id., 729, §§ 58, 59, 60 ; Clift v. Moses, 116 N. Y., 144; Chamberlain v. Taylor, 105 id., 185; Cooke v. Platt, 98 id., 35 ; Robert v. Corning, 89 id., 225 ; Stevenson v. Lesley, 70 id., 512; Embury v. Sheldon, 68 id., 227; Brill v. Wright, 112 id., 129; Briggs v. Carroll, 117 id., 288.)

But there is another fatal objection to this 'proceeding, and that is, that the statute under which it is brought does not authorize the sale or mortgaging of lands for the purposes mentioned in the petition and in the order. At the time the petition was filed no taxes or liens by assessments or other liens existed upon the property. It appeared at the time of the hearing that there was due and unpaid to the widow the sum of $600 of annuities. In reality, therefore, the only ground upon which the prayer of the petition was based at the time this proceeding was begun and upon which it has been granted, is this outstanding indebtedness to the widow. It does not appear but that the remaindermen are able to and will pay all taxes and assessments which may be laid upon the property. No necessity for making repairs is shown. Even if the annuity was a charge against the real estate under the will, within the decision of Hoyt v. Hoyt (85 N. Y., 142), cited by the learned judge at the Special Term, still such charge could not be worked out under the provisions of this act by an application to the court by the so-called trustee. By the amendment introduced by the act of 1886, authorization to the trustee to mortgage or sell the real estate, the title of which he holds, can be made only when it is shown that such sale or mortgage will be for the benefit of the estate, and that such funds are necessary for the purpose of preserving or improving the real estate. The language of the statute is plain and its application certain, in the Matter of Roe (119 N. Y., 509) it was held that, to justify an order of sale some necessity must be shown to exist for the use of the money in the preservation or improvement of the property, which the estate is not in a condition to supply, and which could only be supplied by borrowing upon a mortgage or selling a part and using the proceeds, and that a sale could not be ordered for the purpose of reinvestment and with a view only to increase the income, even though the real estate be unproductive; that the improvements contemplated by the statute were not for the purpose of supplying funds to the trustees or for the purpose of increasing the trust funds, but for the purpose of the improvement of the real estate and saving it.

The estate referred to in the statute is not the general estate of the decedent, but only such as is held by the trustee under the provisions of the trust. 'When, therefore, the statute speaks of the improvement or preserving of such estate it does not mean the estate at lai-ge, but the particular real estate held by the trustee under the statute.

The order appealed from should be reversed, with costs, and the application denied, with costs.

Dwight, P. J., and Ooblett, J., concurred.

Order appealed from reversed, with costs, and the motion denied, with costs.


author: Macombee, J.:

text:
    THE CRAIG MEDICINE COMPANY, Respondent, v. THE MERCHANTS’ BANK OF ROCHESTER, Appellant.

      Corporation — authority to sign the corporate.name — estoppel — a trustee or director of a corporation cannot vote by proxy at a meeting of trustees or directors.

    Where a person lias been permitted by the officers of a corporation to carry on its business, his acts must be deemed binding upon it in all cases where the parties, dealing with him have not notice or knowledge of his want of actual authority..
    No director or trustee of a corporation can vote at a meeting of a board of directors, . or trustees by proxy. It is a general rule, in regard to all corporations, that a quorum must be' present to transact business, and unless a statute otherwise directs this consists of a majority of the whole board.
    Right of a general manager or a director of a corporation to sign its corporate name upon negotiable -paper,- for its collection, in the absence of a legally authorized treasurer. ,.
    Appeal by tbe defendant, tbe Merchants’ Bank of Rochester, from a judgment of tbe Monroe County Court, entered in the clerk’s office of said county on tbe 11th day of November, 1890, in favor of tbe plaintiff, after a trial before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $223.02; and also-from an order denying defendant’s motion for a new trial, entered in said clerk’s office on the 11th day of November, 1890, as amended by an order entered in said office on the 24th day of November, 1890.

      W. W. Mum,ford, for the appellant.

      John A. Barhite, for the respondent.
   Macombee, J.:

None of the facts of this case are seriously in dispute. The action was brought to recover the proceeds of two checks of $345.76 each, dated, respectively, March 21 and 22,1890, sent by merchants from Portland, Maine, to Dr. Charles Craig, at Passaic, New Jersey, and by the postmaster there forwarded, at the request of Dr. Craig, to him at Rochester, N. Y. Dr. Craig, being ill at the time the inclosures were received by him at Rochester, directed Agnes J. Craig to indorse the cheeks in the name of the payee, the Craig Medicine Company, and deposit them in the bank for collection, which was accordingly done, she writing thereon “ The Craig Medicine Company, per A. J. Craig.” Dr. Craig, to whom the collections were afterwards fully paid by the bank, turned over to the company only $475 thereof; and this action is brought to recover the balance. In the Municipal Court of the city of Rochester judgment was awarded to the plaintiff for the amount claimed, and upon appeal to the County Court the verdict of the jury was likewise in favor of the plaintiff, and from the judgment entered thereon, and from an order of the County Court refusing the defendant’s motion for a new trial, this appeal has been taken.

The plaintiff alleges that the defendant wrongfully converted the ■checks to its own use at the time they were delivered to it by Miss Craig. There is, however, no evidence to show that the defendant did not act in perfect good faith in receiving this paper for collection, and in turning over the proceeds to the party who had directed the checks to be left at the bank. Miss Craig was a daughter of Dr. Craig, and was actually a director of the plaintiff. Dr. Craig had the general management of the business; was in the habit of collecting bills and paying debts, but he had not, so far as the case discloses the fact to be, any special authorization to sign the plaintiff’s name upon commercial paper, even for the purpose of collection, he being neither an officer nor a director of the corporation.

The plaintiff’s right of action is based upon the proposition that •one George W. Hicks was the treasurer, as well as the President, of the plaintiff, and that no person but himself had the right or authority to sign the company’s name. It is shown, however, that he did not remain at the principal office, which was at Passaic, New Jersey, but was rather the traveling man for the corporation, and, ■at or about the time of the giving of these checks, he was engaged as such traveling representative in New England.

The contention made by the appellant’s counsel that the plaintiff is not a corporation, and, therefore, cannot maintain this action, is not tenable. The name, as it appeared as the payee in the checks ■and as indorsed thereon, indicated that it was a corporation. The defendant, in receiving and collecting the checks in that name, is ■estopped to deny the corporate character of the plaintiff in an action to recover the proceeds of the checks. Even though, under the laws of New. Jersey, there was some omission of a technical character in the organization of' the plaintiff, that omission cannot be. made available to the appellant in this transaction, inasmuch as under cover of that name it became possessed of these moneys.

The principal contention of fact upon the trial related to the authority of Dr. Craig or Miss Craig to sign the name of the corporation to these checks and to collect and receive money thereon. The corporation was named for Dr. Craig, and he was the only person known by the officers of the bank to be connected with its operations. If, therefore, the indorsements of the checks were made in pursuance of any implied, authority given to Dr. Craig, this action cannot be maintained. The evidence of Dr. Craig was to the effect that Mr. Hicks knew that he was receiving and paying out moneys and that he made no objections thereto; .that he received from Mr. Hicks moneys, realized from medicines sold, which were'sent by express to him, and that such moneys were expended by him for the pay of help and otherwise; that he had bought at the defendant’s bank drafts on New York to pay debts owing by the company; that all of this was done with the full knowledge of Mr. Hicks, who claims now to be the sole financial representative of the corporation. Beyond doubt, if Dr. Craig had exercised these functions with the consent of the managers or officers or directors of the corporation, the plaintiff would be estopped now to deny that in this particular instance he had such power or right. The County Court was accordingly asked by the defendant’s counsel to charge the. jury as follows: “ I ask the court to charge the jury that if the jury shall find that, by the consent of the plaintiff, Dr. Craig had conducted the plaintiff’s business, had paid bills, sold goods, received and paid out money for the plaintiff, and was, in fact, ostensibly in charge of the Business, then, Dr. Craig had apparent authority to indorse the drafts in question and receive the money in question, and it is immaterial whether or not he had actual authority.” The court declined so to charge and exception was taken thereto. This, we think, was such an error as to lead to a reversal of the judgment and a new trial.

Corporations can act only through their officers and agents; and if a person has been intrusted by the officers to carry on the business, the acts of that person must be deemed to be binding upon the corporation in all cases where the parties dealing with him have not notice or knowledge of his want of actual authority.

But there is another reason more radical in its character why a new trial should be granted, and why this action cannot be maintained. As stated above, the plaintiff claims that the only person who had the right to use the plaintiff’s name in financial matters was George W. Hicks, as he was the one designated, as is claimed, by the corporation, to fill the duties of that office. There were four persons who constituted this corporation, namely, George W. Hicks,. Lizzie M. Hicks, Agnes J. Craig and C. O. Craig, Jr. The last three persons executed and acknowledged at Rochester, N. Y., and delivered to George W. Hicks the following proxy: “ Whereas, George W. Hicks, Lizzie M. Hicks, Charles Craig, Jr., and Agnes. Craig are to organize a corporation in the State of New Jersey, known as the Craig Medicine Company, of which corporation each, of the above parties are to be stockholders; and, whereas, it is inconvenient for the said Charles Craig, Jr., Agnes Craig and Lizzie M. Hicks to attend the first meeting of stockholders for the election of officers; now, therefore, we, the said Charles Craig, Jr., Agnes Craig and Lizzie M. Hicks, each of us hereby authorize the. said George W. Hicks, in our place and stead, to vote upon five-hundred shares of the stock of said corporation owned by each of us, at the first meeting of the stockholders whenever it shall be held for the election of officers. Dated October 5th, 1889.”

The learned cpunty judge has construed this instrument so as to-include the right of George W. Hicks not only to vote upon the-stock of the persons signing it at the meeting of the stockholders, but so as also to permit him, after the election of the directors, to-vote in the place and stead of these persons as directors at any meeting which should be held by them for the election of officers. The fact is shown to be that, at the stockholders’ meeting, which is claimed to have been held November 1, 1889, at Passaic, New Jersey, there was present only one person, George W. Hicks. The minutes of that meeting show that Hicks was called to the chair, and that he thereupon called the meeting to order; that a motion was made and seconded that the election of directors take place, which was-carried unanimously; that on motion of Agnes J. Craig, and seconded by Charles Craig, Jr. (all speaking by George W. Hicks), Mr. Hicks was nominated and elected director unanimously; that on motion of the same person, both still speaking by Mr. Hicks, Agnes J. •Craig was nominated and elected a director unanimously; upon the same nomination Charles Craig, Jr., was nominated and elected a director, and thereupon the meeting adjourned. There was present, as stated before, but one person, and that was George W. Hicks. On the same day the following proceedings were had, as disclosed by the minutes of this corporation, there still being present but one person, George W. Hicks:

“ Present — The full board of directors. On motion of Charles Craig, Jr., G. W. Hicks was nominated for president and "'treasurer, seconded by Agnes J. Craig, and carried unanimously. George W. Hicks took the chair. On motion made by the chairman, George W. Wheaton, Jr., was nominated for the office of secretary; same was seconded and carried unanimously. On motion of Charles Craig, Jr., seconded by Agnes J. Craig, that the by-laws governing the company be read by the secretary. Carried. The by-laws having been read by the secretary, motion was made by Agnes J. Craig, and seconded by G. W. Hicks, that the same be adopted. Motion • was put and carried unanimously.

■ “ On motion made by chairman that the meeting adjourn, the same was seconded by Agnes J. Craig, and carried.

(Signed.) “ GEORGE W. WHEATON. Je.,

“ Secretary?

We know of no principle, applicable to the discharge of corporate functions, by which directors or trustees of the corporation can vote at the meeting of the board of directors or trustees by proxy. Hnder the act of this State (chap. 40, Laws of 1848) for the organization of companies for manufacturing, mining, mechanical or chemical purposes, stockholders may, at the meeting of the stockholders for the election of the directors, vote when absent by giving a written proxy .to some other person. This, is also true of the •statutes of New Jersey, put in evidence, but there is no law in New Jersey that permits a director to vote by proxy at board meetings. The general rule there, as in this State, and universally, is, that it requires a quorum of directors or managers or trustees of a corporation to transact business; and that in the absence of a statute making a different number sucb quorum, a majority of the whole board is required. The principal claim, therefore, made by the plaintiff, that it had a legally elected treasurer who alone could transact business of the corporation of this character, cannot be main, tained. The proxy or power of attorney put in evidence did not give Mr. Hicks the right to vote in the name of the directors who should' be chosen at the stockholders’ meeting; and if it had it would have been utterly void. It was not known, indeed, who the directors would be. Under the power of attorney Hicks had the right to elect other persons. than those whom he did, in fact, designate as directors.

In the absence, therefore, of a legally authorized treasurer, any person in the position of Hr. Craig, who had general management of the business, or any director, as Miss Craig is shown to be, had the power to indorse the corporation’s name for the purpose of collecting commercial paper made payable to its order. The defendant having acted in perfect good faith, has turned its collections over to the proper person representing the corporation. There being no treasurer by election of the directors, and none, in fact, by the usual conduct of the business, except the person acting for the plaintiff in this instance, it follows that the manager or any director of the corporation could, in the absence of a positive statute, sign the corporation’s name for the purposes of the collecting of commercial paper.

The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Corlett, J., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.