author: Wan Brunt, B. J.:

text:
    In the Matter of the Appraisal under the Legacy and Inheritance Tax Act of the Estate of Wilson G. Hunt, Deceased. Theodore F. Vail and Others, as Surviving Executors, etc., of Wilson G. Hunt, Deceased, Appellants; Ashbel P. Fitch, as Comptroller of the City of New York, Respondent.

      Inheritance tax — rrwtualVy-aclcnowledged relation of parent and child — applies only to illegitimate ahild/i'en.

    In section 2 of chapter 399 of the Laws of 1892. being an act to tax gifts, legacies and inheritances in certain cases, which directs that, where property or any beneficial interest therein passes by a transfer to or for the use of any person to whom the decedent, grantor, donor or vendor for not less than ten years prior to such transfer, stood in the mutually-acknowledged relation of a parent, or to any lineal descendant of such decedent, grantor, donor or vendor, born in lawful wedlock, such property shall not be taxable under said act unless it be personal property of the value of 810,000 or more, in which case it shall be taxable under said act at the rate of one per centum, the provision relating to persons to whom the decedent stood “in the mutually-acknowledged relation of a parent,” covers only the case where an illegitimate child has been recognized by its parent and such recognizance-has been mutual and has continued for ten years or more.
    Appeal by Theodore F.Yail and others, as surviving executors, etc., of Wilson G. Hunt, deceased, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 23d of January, 1895, which affirmed an order entered in said Surrogate’s Court on the 31st day of August, 1894, fixing the amount of the tax of the legacies bequeathed to Ellen D. Hunt by the. last will and testament and codicil of Wilson G. Hunt, deceased.

      The proceeding was instituted by the executors of the will and codicil of "Wilson G. Hunt for an appraisal of the property passing under the will and codicil of their testator which was subject to taxation under the act to tax gifts, legacies and inheritances in certain cases.

      JD. B. Ogden, for the appellants.

      Emmet B. Oleott and Edgar J. Levey, for the respondent.
   Wan Brunt, B. J.:

The legatee in this case was the niece of the testator. But it is •claimed upon the part of the appellants that the testator stood to her in the mutually-acknowledged relation of parent at the time of his •death; and that, therefore, the gift to her should be taxed at one per •cent instead of five per cent. The ■ surrogate in the court below ■assessed the tax at five per cent, and from the order thereupon ■entered this appeal is taken.

The section of the act which governs the question involved is section 2 of chapter 399 of the Laws of 1892, and so far as it affects the •question here, is as follows : When the property of any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow •of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of this State, of the decedent, grantor, donor or vendor, or to any person to whom any such decedent, grantor, donor or vendor for not less than ten years prior-to such transfer stood in the mutually-acknowledged relation of a parent, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of property shall not be taxable un’der this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.”

It is admitted that the legatee was not a child of the testator nor was she a child who had been legally adopted by the testator; but it is urged that she comes under the third class mentioned in the section Above quoted which refers to persons who, while neither actual children nor adopted children, have sustained to the testator such a relation that they are entitled to the same consideration in the eye of the law as if they had been of his flesh and blood. In other words, that a person who has been treated as a child by the testator — whether he or she has been adopted as provided by law, or whether he or she-is of the testator’s blood or not — is entitled to the benefit of the statute. It is urged that the legatee in the case at bar was treated by the testator as liis child, and that she lived with him as his daughter, and that, therefore, she is entitled to the exemption. Upon the other hand it is claimed upon the part of the respondent that she was not. acknowledged as liis daughter by the testator, but that he in his will speaks of her as his niece; and that whatever services were rendered by the legatee to the testator were not those rendered by a child to-a parent, but rather those of a relation who expected to be compensated by the last will and testament of her relative.

It seems to us, however, that an examination of the act clearly shows what the mutual acknowledgment of the relationship referred to in the act is intended to cover. First is mentioned the legitimate child, next is mentioned the adopted child, and next, we think, is intended to be mentioned the illegitimate child who has been for ten years acknowledged as the testator’s child, and such acknowledgment has been mutual. That the question of legitimacy was in the mind of the framers of the statute is manifest from the next clause of the section in question. It says: “ Or to any lineal descendant of such decedent, grantor, donor or vendor, born in lawful wedlock,” thereby excluding from lineal descendants any other person except those descending from the legitimate child. It is significant that the words “ lawful wedlock ” are used in respect to this matter of lineal descendants immediately after the mutual acknowledgment, and that it had not been at all considered necessary to refer to it when a child or children was spoken of in the previous part of the section. It is evident that it was intended to limit the exemption of illegitimate descendants to the child, and not to extend the same to the descendants of such child.

Furthermore, what do the words “ mutually acknowledged ” mean? The word “acknowledged” is never applied to the admission of a fiction. It is only used in relation to a fact. When a fact is spoken of as being acknowledged, it means that the fact exists,. and its existence is admitted. So wlien the statute speaks of parentage being acknowledged, or of relationship being acknowledged, it means that the relationship existed and has been openly acknowledged, and that yet the child acknowledged had not the rights of a child because born out of wedlock.

It is urged upon the part of the appellants that it seems clear that the only object the Legislature could have in view in providing that the relation must be one which is mutually acknowledged, was to declare the character and degree of evidence which the claimant must produce in order to sustain the claim that mutual acknowledgment does not create the relation, as it sometimes will the relation of husband and wife. The learned counsel is seemingly mistaken in regard to his assumption that dhe acknowledgment of the relation of husband and wife will create the same; whereas the law is well established that no amount of acknowledgment can make a contract of marriage. Such acknowledgment may be used as evidence for the purpose of establishing the fact that a contract of marriage had jjreviously been entered into, but it cannot create such contract. If such contract did not exist, no amount of acknowledgment could bring it into being. And this view is entirely applicable to the case at bar. If the relationship does not exist, no amount of acknowledgment can 'create it, and was not intended so to do by the statute. All that the clause in question seems to have been intended to cover was the case where an illegitimate child had been recognized by its parents, and such recognizance was mutual and had continued for ten years. In such a case it was intended that the legatee should have the benefit of the statute. We cannot imagine how it could have been the intent of the Legislature to have made it possible to acknowledge or recognize a relationship which had no foundation in fact.

One of the lexicographers, says: “ Acknowledge is opposed to keep back or conceal and supposes that something had been previously known to us, though perhaps not to others, which we now feel bound to lay open or make public. Thus a man acknowledges a secret marriage; one who has done wrong acknowledges his fault; an author acknowledges his obligations to those who have aided him.” So in the statute the parent acknowledges his illegitimate child and the child acknowledges his parent, and the mutual acknowledgment provided for by the statute takes' place.

The order should be affirmed, with costs.

Parker and O’Brien, JJ., concurred.

Order affirmed, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    Eliza Davis, Respondent, v. Bertha Koehler Myers, as Executrix, etc., of Hermann Koehler, Deceased, Appellant.
    Usury— deposit of money for investment at excessive interest — letter of the wife of the receiver of the deposit as evidence thereof — costs against an executrix.

    The deposit of money with another person, upon his statement that he could so invest it for the depositor that it would produce ten per cent per annum, does not necessarily present a case of the loan or forbearance of a sum of money at a rate of interest greater than the legal rate.
    In an action brought by a depositor of money against the legal representative of one Hermann Koehler, who received it from the depositor, promising to so invest it for the depositor that it would produce ten per cent per annum, it was shown that Koehler kept a hook in which there was an account acknowledging the receipt of the money, and showing the payment of interest upon it up to the time of his death. It further appeared that about the time of the deposit Mrs. Koehler wrote a letter to the depositor, stating, in substance, that her husband would receive and invest the money upon tbe terms stated.

      EM, that the letter was competent evidence to show that Koehler received the money upon the terms stated, and that it was sufficiently connected with him; That the defendant could not be allowed as a payment upon tbe principal, the interest paid in excess of six per cent;
    That as the action was brought to recover the principal and interest at ten percent, and as a demand to that extent was made upon her and refused, and as after demand and refusal the claim became one for a breach of contract with liquidated damages, drawing only legal interest, the executrix was justified in contesting the claim;
    That as she had succeeded upon the trial to the extent of limiting the interest due after the demand to six per cent, she had not unreasonably neglected to pay the claim, and, therefore, should not be charged with costs.
    Appeal by the defendant, Bertha Koehler Myers, executrix of tbe last will and testament of Hermann Koeliler, deceased, from a judgment of tlie Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe comity of New York on the 22d day of January, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, witli notice of an intention to bring up for review upon such appeal an order made on the 9th day of January, 1895," and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes, and also an order made on the 18th day of January, 1895, allowing the plaintiff costs and an extra allowance.
    Upon the trial of the action the plaintiff testified that her money was in New York savings banks; that some of the money in question was drawn from that source; that about the time she made the first draft she received from Mrs. Koehler, the wife of Hermann, the following letter:
    “N. Y._, June 21, ’81.
    “ Mrs. Luise Davies :
    “ I have stated to Mr. Koehler about your money and he said that he would invested for you so that it will bring 10 % per cent, and that you could have it at any time by giving 30 days notice; should you wish to see me in regard to it, please call before "Wenesday, as I am about to leave for the country; your dresse I shall buy as soonest possible.
    “ Yours truly,
    “MRS. H. KOEHLER.”

      E. J. Myers, for the appellant.

      Geo. Putnam, Smith, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover from the defendant, as executrix of Hermann Koehler, deceased, the sum of $1,000, with dividends thereon, from the 1st of January, 1891, at the rate of ten per cent per annum. The evidence in this case showed that prior to June, 1881, the plaintiff had saved $1,000 and had deposited it in different savings banks in the city of New York; and that on the twenty-third of June she gave the money to Hermann Koehler upon the representation by said Koehler that he could invest it for her and it would bring ten per cent, and that she could have it at any time by giving thirty days’ notice. Subsequent to that time, and down to his death in April, 1889, the said Koehler paid to the plaintiff the sum of $100 per annum, and after his death the defendant continued such payments until the 1st of' January, 1891. The defendant then having refused to pay the claim of the plaintiff^ this action was brought; and the case being submitted to the jury they rendered a verdict in favor of the plaintiff, and the court granted costs and allowances; and from the judgment thereupon entered, and from an order denying a motion for a new trial, and also from an order granting such costs and allowances, this appeal is taken.

It is urged upon the part of the defendant that the transaction between the plaintiff and Koehler was only a loan or forbearance of a sum of money due with interest reserved at the rate of ten per cent per annum, and, therefore, usurious and void. "Ye think this question was properly submitted to the jury. There is no suggestion to the effect that usurious interest was to be paid, but the representation seems to have been that this money could be so invested by Koehler that it would earn ten per cent per annum for the plaintiff; and it was on this representation .that the plaintiff delivered the money to Koehler, and there was nothing to show but what the plaintiff believed this to have been the nature of the transaction. There .seems, therefore, to have been no reason for interfering with the finding of the jury upon this subject.

It is claimed that it was error to admit the letter of Mrs. Koehler, the defendant, without connecting it with the defendant’s testator by proof of authority or ratification. It seems to us that the record in this case contains ample evidence of ratification if not of authority. The plaintiff produced a book, the entries in which, except a few of the later ones, were made by Mr. Koehler himself. It is headed as follows : “ Iierrrnan Koehler in acct. with Miss Eliza Davis.” In this book he acknowledges to have received between the 23d of June, 1881, and the 10th of October, 1883, the sum of $4,000, and he pays her from that time down to his death ten per cent upon that amount, which clearly connects the letter of Mrs. Koehler to the .plaintiff with the transaction. It shows that Hermann Koehler received the money upon the terms stated in the letter. This seems to be ample evidence of ratification.

It is further urged that the court erred in not allowing as payment on account of the principal, the excessive interest paid above the lawful rate. It seems to be a sufficient answer to this proposition that as long as Mr. Koehler lived the plaintiff was under the impression that her money was invested and was yielding the amount . of income which Koehler paid to her. He had possession of that money under those circumstances, and it will not lie in his mouth to say that his statements in regard to the investment of the money were false, and, therefore, that he should be credited with the excess over legal interest. The same principle will apply to his executrix. She kept possession of the money, and paid the ten per cent to the plaintiff, leaving the latter to suppose that her money was still invested and yielding this income; and she cannot now be heard to say, as against this plaintiff, that her representation made by these payments, was false. If she has made excessive payments and has thereby rendered herself liable as executrix of the estate, she must settle it with her cestuis que i/rust. After having induced the plaintiff to leave the money with her under such a contract, she cannot now be heard to say that her representations of income were untrue.

It is further urged that the executrix was justified as matter of law in refusing to pay the claim made by the plaintiff. The action was brought to recover $4,000, with dividends at the rate of ten per cent. The recovery was for $4,000, with interest at six per cent. It seems to ns that the executrix would not have been justified in paying the claim as presented; because after a demand had been made for the money, and a refusal to .pay, there was simply a breach of contract with liquidated damages, which drew legal interest and nothing more. The claim being made for ten per cent, it became the duty of the executrix to defend; and she having partially succeeded, it is difficult to see how it could be said that she has unreasonably neglected to pay.

The question in regard to the presentation of the claim within the statutory time does not seem to be of - any moment, because, by reason of the payments which the executrix made on account of the money alleged to have been invested, there was a recognition of the claim which, until some question was raised, made it unnecessary for the plaintiff to take any steps as against the estate.

We think the judgment should be modified by striking therefrom the costs and allowances, and as modified affirmed, without costs.

Eollett and O’Brien, JJ., concurred.

■ Judgment modified by striking therefrom the costs and allowances, and as modified affirmed, without costs.


author: Per Curiam :

text:
    The People of the State of New York ex rel. The Central Stamping Company, Respondent, v. Edward P. Barker and Others, as Commissioners of Taxes and Assessments of the City and County of New York, Appellants.

      Taxation — New York city — increasing, without notice, am, assessment which has been reduced — 1882, chap. 410, § 819.
    Where the commissioners oí taxes and assessments for the city and county of New York have, upon the application of a taxpayer, reduced the valuation of its personal property, they have no power, hy the terms of section 819 of the Consolidation Act (Chap. 410 of 1882) relative to said city, thereafter to increase the valuation except upon twenty days' notice to the person or corporation.
    Appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, from an order, judgment or decree of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of January, 1895, adjudging that the proceedings of the appellants in regard to the assessment for taxation for the year 1894 of the petitioner herein upon its capital stock in increasing its assessment were illegal, erroneous and void, reversing such action and adjudging that its assessment be fixed at its former amount.
    The relator on the second Monday of January, 1894, was assessed upon its personal property upon a valuation of $500,000. Considering itself to be aggrieved thereby, the relator applied for a reduction, which was granted and declared on March 5, 1894, the assessment as reduced, being fixed at $221,153. The books of the commissioners of assessment and taxation were closed on May-1, 1894. Having reason to believe, from a return relating to taxation made by the relator in the State of New Jersey, that its statements made to the commissioners were false, the commissioners about or before May 31, 1894, without notice to the relator, increased the assessment to $351,468.13.
    Section 819 of the Consolidation Act ("Laws of 1882, chap. 410) is as follows: “ The commissioners may, at any time before the second day of April in each year, increase or may diminish, at any time before the closing of the books of annual record on the first day of May in each year, the assessed valuation of any real or personal estate in said city, as in their judgment may be necessary for the equalization of taxation, but they shall not increase such valuations after said books are open for correction and review except upon notice being given to the party affected by such increase twenty days before the closing of said books.”

      Dct/oid J. Dean, for the appellants.

      Charles H. Beckett and Henry M. Ward, for the respondent.
   Per Curiam :

It is conceded that after the assessment books were opened for correction and review the relator applied for a reduction of the assessment made against it, which was granted by the tax commissioners and the assessment reduced from $500,000 to $221,153. Subsequently, and without notice, and upon evidence satisfactory to them, the assessment was increased to $351,468.13. '

This we think was error, because, having corrected the assessment, they were without authority to thereafter increase it except upon ' twenty days’ notice to the relator. (Chap. 410, Laws of 1882, § 819.) x

The order should be affirmed, with ten dollars costs and printing disbursements.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    Mary Phillips, Appellant, v. Margaret Lewis, Respondent.

      Action for hoa/rd — questions as to tine of payment a/'e for the jury — Statute of Limitations.

    The complaint in an action brought to recover the agreed price for board for thirty-two and one-half weeks did not allege that such board was payable at any particular time. The action was commenced five years eleven months and twenty-two days after the time that defendant left the plaintiff’s house. On the trial the plaintiff testified, and was corroborated by three witnesses, to the effect that the agreement with the defendant was that said defendant was not .10']ta pay for lier board until the time when she should sell certain Mexican Land . Improvement bonds. This statement was denied by the defendant.
    'At tLe close of the evidence the plaintiff asked to go to the jury upon the ques-^(b$on' of fact raised by this testimony, which request the trial court refused, and held as a matter of law that the plaintiff was only entitled to recover the agreed price for one week’s board.

      Held, that the court erred in refusing to submit such question to the jury, and that the judgment should be reversed and a new trial granted.
    Appeal by tlie plaintiff, Mary Phillips, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of November, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on ‘.the 12th day of November, 1894, denying the plaintiff’s motion for ■a new trial.

      M. G. Milnor, for the appellant.

      John P. Herren, for the respondent.
   Per Curiam :

This action was begun April 23,1894, to recover the agreed price for board and a room from September 15, 1887, until May 1, 1888. The plaintiff claims for thirty-two and one-half weeks at the agreed price of $30 per week, $975, and admits a payment of $325, and demands a judgment of $650 with interest from May 1, 1888. The defendant asserts that she had a room and board for thirty-two weeks between September 15, 1887, and May 1, 1888, at the agreed price of $15 per week, amounting to $470, which sum she alleges she has paid, and also alleges that the six years’ Statute of Limitations is a bar to the action.

The action was begun five years eleven months and twenty-two days after May 1,1888, when it is agreed that the defendant left the plaintiff’s house. It is not alleged in the complaint or in the answer that the price agreed on, whatever it was (thirty dollars or fifteen dollars per week), was payable weekly or at any particular time. On the trial the plaintiff testified, and in this she ivas corroborated by three witnesses, that the agreement was that the •defendant was not to pay for her board until the time when she ■should sell certain Mexican Land Improvement bonds. The defendant denied that there was any such agreement. This evidence was admitted without objection on the part of the defendant that it was •not within the pleadings. No objection was raised to its admissibility. At the close of the evidence the plaintiff asked to go to the jury upon the question of fact raised by this testimony, which the court refused, and it was held as matter of law that the plaintiff was only entitled to recover the agreed price for one week’s board. The plaintiff asked to amend the. complaint so as to conform it to the facts proved. This motion was denied and an exception taken. It was not asserted on the trial that the defendant was taken by surprise by the evidence offered in behalf of the plaintiff.

We think that the court erred in refusing to submit the question to the jury, and that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

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


text:
    Cochrane Carpet Company, Respondent, v. Henry C. Howells, Jr., and Another, Appellants.

      Bsference in an action for goods sold, — examination of a long account.

    Where a complaint alleges a sale and delivery of goods at an agreed price, and the answer puts this allegation in issue, and it appears that the merchandise was sold on ten different dates, and consisted of 133 pieces of goods, a case is made for a compulsory reference upon the ground that the matter involves the examination of a long account.
    Appeal by the defendants, Henry C. Plowells, Jr., and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1895, directing a reference of the issues in this action.

      O. N. Bovee, for the appellants.

      J. J. Adams, for the respondent.
   Per Curiam :

It is alleged in tlie complaint that, between September 16, 1892, and Ajiril 8, 1893, plaintiff sold and delivered to the defendants goods, wares and merchandise, at the agreed price of $3,381.42. Upon the motion to refer it, it appeared by the affidavits served in behalf of the plaintiff that the merchandise was sold on ten different dates, and consisted of 133 pieces of goods. The defendants, by their answer, deny the allegation contained in the complaint that the goods and merchandise at the agreed price mentioned were sold and delivered. This presents a material issue. The defendants have not tendered a stipulation admitting that goods of the quantity and at the agreed price alleged in the complaint were sold and delivered. ITad this been done, or had they, by a stipulation, reduced the question to an issue over a single delivery, they -would have avoided the necessity for a reference. Under the decisions, an action involving an account with as many items as are directly put in issue by the answer, is referable.

The order should be affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Follbtt, JJ.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    Horace Anderson, as Trustee, etc., of Ramon Martinez Hernandez, Respondent, v. Isabell M. Blood and Another, Appellants, Impleaded with Others.

      Inadequacy of consideration■ — impeachment of the title to real estate therefor —judicial notice that the pur chasm’s purpose is to resell at an advance — want of time to consider suspicious circumstances.

    Where the plaintiff in an action seeks to impeach the sale of real estate on the ground of inadequacy of consideration, he is hound to establish the inadequacy of the consideration by at least credible testimony, and not by prevaricating witnesses. Interests of purchasers of real estate cannot be taken away from them by evidence of uncertain character.
    Quiere, whether, in an action brought to set aside conveyances as fraudulent and void, the defense of inadequacy of consideration can be made available.
    The court will take judicial notice that it is not an uncommon occurrence for a party to make a contract for the purchase of real estate, for the purpose of' reselling the same at a profit before he is obliged to complete his contract, and such a circumstance does not invalidate the sale of the real estate to him.
    The case distinguished where suspicious circumstances are brought to the attention of a purchaser only at the moment of closing a purchase of real estate, from one in which the purchaser has had an opportunity to ponder and deliberately consider them.
    Parker J., dissenting.
    Appeal oy the defendants, Isabell M. Blood and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of June, 1894, upon the decision of the court rendered after a trial at the New York Special Term setting aside deeds of certain premises, adjudicating as to the interests of the parties therein and directing an accounting.
    The facts in this case appear in the opinion of Parker, J.

      E. Ellery Anderson and John E. Parsons, for the appellants.

      Harold Swain, Francis L. Wellmcm and Alfred G. Reeves, for the respondent.
   Yan Brunt, P. J.:

I cannot concur in the conclusion arrived at by Mr. Justice Parker in this case. Conceding the law to be as stated by him, that actual notice to Mrs. Blood or her agents was not necessary,' but only the existence of such facts as would put them upon inquiry, it does not seem to me that such inquiry would have developed such a condition of affairs as would impeach her title.

It seems to me that the learned judge below arrived at the conclusion reached by him by considering the property to be of a value which is not established by the testimony, and by holding Mrs. Blood responsible for knowledge which might possibly have been acquired by a person not her agent. It is expressly stated by the learned justice that Mr. Waddell, who examined the title of this property upon a loan by his client thereon, was the attorney and agent of Mrs. Blood. An examination of the record shows that Mr. Waddell held no such relation to Mrs. Blood. He did not examine the title for her. It is true that she paid him his expenses and commissions on the examination of that title. But in such examination he was representing his client, the mortgagee, who proposed to loan the money upon the property, and not Mrs. Blood ; and he did not become her agent by reason of the fact that she was satisfied to take the property without any further examination by a lawyer employed by herself.

It further appeal’s that the learned trial justice found the value of this property at the time of this purchase by Mrs. Blood to have been the sum of $45,000; and that was considered a suspicious circumstance in that it was bought below the market price, and should have induced inquiry and excited suspicion. 1 have examined the record in vain to find any proof of any such value. It is true that a witness by the name of Yeoman swore this property to be of- the value of $52,500. But it is evident that this witness was perfectly willing to fulfill his contract of swearing to -the value of this property with or without any information on the subject, and with or without any foundation for his opinion. He shows upon his cross-examination that ho was ignorant of any transaction in respect to property in that neighborhood. He then testified that he made up his mind in regard to the value of the property because of his knowledge of the rental of the property and the taxes which were paid thereon — not the taxes which were paid in 1887 and 1888, but the taxes which were paid at the time at which he was testifying. He testifies that he was told that this property was rented for $4,000 or $4,500, and that the taxes at the present time were about .$500, and that it was upon this basis that he made up his valuation. But when he ascertains that'the rental of $4,000 or $4,500 was of a furnished house and not of a house unfurnished, he is entirely equal to the occasion. He says: “ I was not governed by that (the rental value) at all. I made my valuation independent of that ■— not governed by anything that he said ” in regard to the rent — exactly contrary to that which he had previously testified. And this witness, prevaricating as he evidently did, is considered to have established a foundation of value of this property, not of $52,500, but of $45,000 — a sort of half-way house between his estimate and that of a witness examined on the part of the defendant who had great experience in the sales of real estate as an auctioneer and real estate agent, and he testified that its value was $37,500, and that he had sold property equally good for that price.

If this plaintiff was seeking to impeach this sale on the ground of inadequacy of consideration, lie was bound to establish it by at least creditable testimony and ' not by prevaricating witnesses. Interests of purchasers of real estate cannot be taken away from them by evidence of such a character. It may be that inadequacy of consideration cannot be made available in an action of this character. (Truesdell v. Sarles, 104 N. Y. 164.)

But it must be borne in mind that the title of Mrs. Blood in respect to this real property cannot be impeached'unless the evidence requires the finding of an unlawful combination between the former trustee and Melliado in respect to this sale. It is not enough that the trustee has acted improvidently or has made a sale when the property was not in such condition that it would not bring its largest price because of leases thereon. But it must be found that there was an understanding, a fraudulent scheme between the trustee and the purchasers at the auction sale that it should be bid in for their benefit.

I have searched the record in vain for any evidence of any such scheme or understanding. The only possible particle of evidence is that the premises were struck off at the auction sale for $32,500, and were subsequently sold by the purchasers for $40,000. It is in evidence that the auction sale was fairly conducted. Publicity was given to the sale because it is in evidence that parties who had their eye on this property were present, evidently desirous of acquiring it, but not yet exactly ready to purchase. In fact the representative of the very purchasers whose contract to purchase with Mrs. Blood has brought about this litigation, was present at the sale and says that it was fairly conducted, that there was no secrecy, nothing in the world about it to excite suspicion, and the property was struck off in the usual way.

But it is said by the learned judge in the court below, that it is evident that the purchaser’s at the auction sale never intended to take the title and that they never did until they got a purchaser.. As it has been held by the Court of Appeals, in Frace v. N. Y., L. E. & W. R. R. Co. (143 N. Y. 182), that we may take judicial notice, of the fact that certain spark arresters are in common use upon engines or locomotives, I think the court may also take judicial notice that it is not an uncommon occurrence by any means for a. party to make a contract for the purchase of real estate, expecting; to resell tbe same at a profit, before lie is compelled to complete under liis contract. If such a circumstance is to invalidate transactions in real estate by means of suits brought years thereafter, there will not be much security in dealing in real estate in the city of New York.

The evidence shows that a reputable and careful attorney (Mr. Waddell) in the examination of this title saw nothing suspicious in regard to the circumstances attending it to call for special inquiry; and it should take no slight evidence to impeach the title of a purchaser who has paid a fair consideration for the property bought.

There is another feature in this case which seems to have been lost sight of. These suspicious circumstances, if any existed, in reference to this title, came to the knowledge of the agent of Mrs. Blood, if at all, at the moment of closing the title. They had no time to think about them, to cogitate over them, to come to conclusions after deliberation, and to study out the various suspicious points by means of which it is now sought to invalidate the title they then procured. They were first revealed then and there, and neither Mrs. Blood or her agents had any time to ponder over these things, and weigh them and determine as to whether they may have been suspicious or not. And yet the mental processes of these people are judged by what we say they should have been, we having had the opportunity to deliberate and ponder over the transaction. The very statement of the learned trial judge shows conclusively that the plaintiff was not entitled to a judgment. He, sitting as a judge, says at the end of the plaintiff’s case: “ It seems to me now that there is hardly proof enough here to show that this woman had reason to believe that there was any fraud going on against the oestuis quo trust.” Why should he expect these purchasers in the haste of closing the title to have come to the conclusion that such fraud existed ? Hearing the evidence, having his attention called to the fact that fraud was claimed, yet he is not so impressed by the evidence but that he states that he does not think that there is any proof showing that Mrs. Blood had any reason to believe that there was any fraud going on against the oestuis que trust. There was nothing developed on the defendants’ ease which strengthened the proof upon the part of the plaintiff; and it is only upon reflection and turning over and considering the facts that the judge comes to the conclusion that there was sufficient to put the purchaser upon inquiry. When did the purchaser have any time before closing this purchase to turn this over, to consider it, to place this and that fact together, and to form, a conclusion ?

It seems to me also that Mr. Justice Parker is in error in holding that because of the stipulation contained in the case, the question as to whether the conveyance by Mrs. Blood to Mrs. Koss, her daughter, on her approaching marriage, was for a good consideration, was eliminated from the case. The learned judge below found that the consideration for said conveyance was the consideration of blood relationship, and the approaching marriage of her said daughter to Charles E. Koss. The stipulation did not impeach this statement contained in the deed. The learned trial judge in making his ■findings did not so think. All that the stipulation amounted to was that Mrs. Koss did not pay any money for the property. It in no way affected the question presented as to a marriage settlement. But it is not necessary to discuss this proposition, because the plain■tiff entirely failed to make out a case. Indeed, the whole ground of this action rests upon the fact that a purchaser desirous of procuring this property for a particular purpose, was willing to pay an exorbitant price for the same, beyond all question far above its ordinary value. I do not think that this should justify the impeaching of this title years after it has been taken.

The judgment should be reversed and a new trial granted, with •costs to the appellants to abide the event.

O’Brien, J. :

While in the proper action the evidence might justify a recovery ■ against the trustee or the purchaser at the auction sale for the profits realized upon the sale to Mrs. Blood, it is insufficient to warrant the conclusions that Mrs. Blood was not a purchaser in good faith, for value, or that the title of Mrs. Koss, her daughter, was invalid as against the beneficiaries.

I, therefore, concur with the presiding justice for a reversal of the judgment.

Parker, J.

(dissenting):

The opinion of the learned judge at Special Term so well pre■sents the questions involved that we would not be justified in a further discussion, were it not that the appellants cite authorities which it is claimed establish a different rule than that of Williamson v. Brown (15 N. Y. 354), upon which the court relied as authority for the foundation proposition.

On the 29th day of November, 1887, the defendant Juan Ramon Martinez Hernandez, known also as John R. M. Hernz, acting as. trustee of the estate of his father, Ramon Martinez Hernandez, deceased, exposed the premises No. 11 East Twenty-ninth street in the city of New York for sale at public auction at the Exchange, and the same were struck down to Lloyd D. Waddell on a bid of $32,500. The terms of sale were signed for Waddell by Alexander Melliado, attorney. Waddell paid nothing upon his purchase and never received any deed. He was a friend and business associate-of the defendants Hernz and Melliado, and lived with Melhado. on said premises, 11 East Twenty-ninth street. On the day after the said auction sale, November 30, 1887, said premises were advertised by Melhado in the New York Herald for sale “ at a bargain to a quick buyer.”' Melhado and Iiernz were both lawyers;. were then and had been for many years previously intimate friends and associates; had had business transactions with each other; occupied the same suite of rooms for offices, to which one and the same door afforded a common entrance; Melliado had acted as attorney for beneficiaries of the estate of which iiernz was trustee, and also-for the defendant Hernz, and at one time prior to the- auction sale they had been associated in the active practice of law. Melhado■was not required to pay anything, and paid nothing to the trustee, until he himself had sold the property for $40,000, and himself received part payment from the defendant Blood on the 6th day of January, 1888.

At the time of the auction sale Melhado’s wife held a lease of the premises, which had nearly three years yet to run, and the existence of which not unlikely had a depressing effect upon the price of the property at the auction sale. At that time, also, she and her husband, Alexander Melhado, lived in the house as tenants, of Hernz. Before the sale by Melhado to Blood for $40,000, and before Melliado was required to pay anything upon the property, Hernz actively assisted Melhado in procuring a contract for a loan of $30,000 upon the property, in fixing adjournments of the closing of the title with 'Mrs. Blood, and in carrying through the negotiations for sale with Mrs. Blood and her agent and attorney.

• Hernz did not require W addell to complete his contract according to its terms, and waited for him and Melhado to advertise and effect a resale before demanding any payment whatever.

Hernz accounted to the estate of which he was trustee for only $32,500, being the amount bid at the auction sale. These and other' facts, which it is not necessary to allude to, induced the court to find that the transactions between Hernz, Waddell and Melhado relative to the premises in question, were canned on pursuant to a collusive and fraudulent design and conspiracy to cheat and defraud the Hernandez estate.” And liis conclusion is amply supported by the evidence.

The court properly held that Mrs. Blood was chargeable with knowledge of whatever facts her agents learned of while negotiating the purchase and investigating the title. (Holden v. N. Y. & Erie Bank, 72 N. Y. 286; Constant v. University of Rochester, 111 id. 604.) And charging her with knowledge of the facts which were brought to her attention and that of her agents, he found that she had knowledge of certain facts of which he made twenty-three specifications.

They need not be quoted at length for a summary of them will be sufficient to make it appear that the court was justified in holding that they bring this case within the rule in Williamson v. Brown. Such a summary is contained in the opinion of the Special Term, and we quote it: There was something more apparent to her than a mere sale, at an advanced price, by one who had himself purchased at public auction. She knew that the property had been owned by Hernz only as a trustee for others, and that, notwithstanding the public sale, he still held the title. It was apparent from the way the business was transacted with her, that although Waddell had bid off the property, neither he nor Melhado had made any payment on such purchase; that he expected to obtain the amount of the price so bid from the sale to herself, and that the trustee was holding the title, and waiting for his pay until a resale could be made. She knew that as soon as the property was bid off the purchaser at once put it on the market for a resale, with the offer to sell at a bargain to a quick buyer, and that the price that it had been bid off for was but ¿32,500. She knew, therefore, that Waddell or Melhado would take $7,500 out of the property, without advancing any money whatever. And she also knew that the trustee was not only aware of that fact, but was actually assisting them to do so. Moreover, she knew that both Melhado and Wad-dell were personal friends of the trustee. That the property, when sold at jrablic sale, was subject to an outstanding lease that was clearly calculated to lessen the price for which it could be so sold. And that such lease was promptly canceled in order to made a sale to her, and that the property was really worth more than the sum she was giving for it. Now, concede that she did not know that Melhado was the attorney for trustee or beneficiaries, or that he and the trustee had agreed before the public sale that the property should, if possible, be bid off by a friend of theirs at a low bargain, and resold at an advanced price for their mutual benefit, and that Melhado acquired his title only in pursuance of and for the purpose of carrying out such plan. Nevertheless, the facts of which she did have knowledge suggest just such a scheme. A trustee does not ordinarily allow his friend to bid off trust property at $7,500 less than its value, and wait for the first payment until he can advertise and negotiate a resale at an advanced juice. The sale to Waddell, and the conveyance subsequently to Melhado simultaneously with his conveyance to her, could not have ajDjjeared to Mrs. Blood and her agents as an ordinary business transaction, and certainly not one in which a trustee, acting in good faith would be likely to join. It certainly suggests the query : For what reason does the trustee force ujjon the market, at public sale, this property upon which there is an outstanding lease for three years ? And why does he allow those interested in the lease to bid it in at so inadequate a juice? And why, instead of comjielling them to perform their contract and close their bargain by December thirtieth, as under his bid Waddell was obliged to do, does he wait for him to make a resale at an advanced price ?' What are the necessities that require the trustee to sell the trust property in such a manner and at such a sacrifice ?

“ She made no inquiry whatever, but took the title offered her, and under such circumstances, in my judgment, she does not stand in the position of a purchaser in good faith.”

It seems to be apparent from this statement that the court was justified in holding that she had knowledge of such facts as to put her on inquiry as to the existence of some right or title in conflict with that she was about to purchase. That being so, Williamson v. Brown is authority for his further holding that she is presumed, either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to her claim to be considered a Iona fide purchaser.

The appellants, however, insist that as Mrs. Blood was a purchaser for value, her title can only be affected by proof of actual notice of an intent by Hernz and Melhado to defraud the trust estate. In other words, that the numerous authorities which prior to and since Williamson v. Brown have asserted that presumptive notice will operate to deprive the grantee of a fraudulent vendee of his purchase, have no application to a purchaser for value; that in such a case actual knowledge will alone suffice. The decisions, as we read them, with certain exceptions to which we shall advert,, establish on the contrary the general rule that the application of the doctrine of presumptive notice is not prevented by a valuable consideration. The fact that a valuable consideration has been paid is merely a circumstance tending to show that the purchaser did not have notice of the fraudulent intent of his grantor.

And it constitutes a circumstance to which much weight should be given in considering all of the facts and circumstances surrounding an alleged fraudulent transaction, because it is difficult to conceive that an ordinarily prudent person will pay all that a property is ivorth when he has reason to suspect some wrongdoing on the part of his grantor which may involve him in litigation and possibly lead to a loss of the property. But while it is evidence bearing upon the question of notice, it in no wise affects the legal consequence of taking title from a fraudulent grantor, whether the purchaser had conscious cognizance of the fraud or the established facts require the legal inference that he had notice.

For, in contemplation of law, a purchaser has notice not only of what is definitely communicated to him, but all that a proper use of that information Avould enable him to obtain, if of a character to attract the attention and stimulate inquiry on the part of an ordinarily prudent man.

Support for this'general proposition may be found in Williamson v. Brown (supra); Acer v. Westcott (46 N. Y. 384); Baker v. Bliss (39 id. 70); Reed v. Gannon (50 id. 345); Bennett v. Buchan (76 id. 386); Kirsch v. Tozier (143 id. 390).

The principal case relied upon by the appellants in support of their proposition, that a purchaser for value must have actual notice of the fraud of his grantor, is Stearns v. Gage (79 N. Y. 102), in which the rule of Williamson v. Brown is quoted with approval, as it has universally been by the courts of this State. The court, however, did say that when a valuable consideration has been paid, actual notice is required; that circumstances to put the purchaser on inquiry when full value has been paid are not sufficient.

The action was brought to set aside deeds of real estate, made hy an insolvent debtor, upon the ground that they were fraudulent as against creditors; and the court, after quoting the provision of the .statute relating-to fraudulent conveyances, asserted that “ this plainly means that actual notice shall be given of the fraudulent intent or knowledge of circumstances which are equivalent to such notice. Circumstances to put the purchaser on inquiry, where full value has been paid, are not sufficient.”

This decision seems to have been induced by the wording- of the statute, but however that may be, it created au exception to the general rule asserted by Williamson v. Brown.

That it was not intended to do more, appears not only from the fact of the citation of the rule of Williamson v. Brown in‘the opinion, but later on that court, speaking through, Judge Rapallo in Parker v. Conner (93 N. Y. 118), discussed both cases.

After citing the rule stated in Williamson v. Brown, and that case, among others, as authority for it, the court continued :

“ The questions in such cases are, first, whether the facts were sufficient to put the party on inquiry ? and, second, did he fail to exer. ■cise due diligence in making the inquiry ? An affirmative answer to these two questions charges the party with notice as matter of law; but the notice, in all such cases to be found in the books, relates to some actual outstanding title, lien or equitable interest. Such outstanding rights of third parties, though prior in point of time to the title acquired by a purchaser, are often cut off by the ■ operation of the recording acts, and the doctrine of constructive notice lias been most frequently applied to that class of cases, so as to deprive the purchaser of the protection which those acts afford to purchasers in good faith and without notice.
“We have not been referred to any case where the doctrine of constructive notice has been applied, so as to charge a purchaser of land, who has paid a valuable consideration, and was, in fact, innocent of any guilty knowledge, with notice that his grantor made the conveyance with intent to defraud creditors at large, having no special lien or equity.”

Thus, the court distinctly marked out the limitations of Stearns v. Gage and recognized Williamson v. Brown as authority for the general rule which includes cases like this, where an equitable interest is affected by the conveyance.

Farley v. Carpenter (27 Hun, 359) was within the exception and, therefore, governed by Stearns v. Gage.

Jacobs v. Morrison (136 N. Y. 101) was an action to recover a deposit of purchase money, on the ground that the proposed vendor’s title was affected by fraud against the general creditors of his vendor.

Naturally, therefore, Stearns v. Gage was invoked as authority for the legal proposition involved with its assertion that notice of fraud to be effectual to avoid the title must be actual.

But the learned judge who delivered the opinion of the court was careful to make clear that he intended it to be understood that the term actual notice ” was used in a sense broad enough to include presumptive notice, for he said : As well under the statute as at common law, circumstances to put the purchaser on inquiry, who pays full value, are insufficient to affect the title, unless they are equivalent to a notice of fraudulent intent.”

Bush v. Roberts (111 N. Y. 278) is the only other case cited by appellants where the controversy related to real property, and as it was an action by a creditor to set aside a conveyance on the ground that it was made with intent to defraud the creditors, it was within the exception created by Stearns v. Gage.

It follows that the Special Term did not err in invoking the rule of Williamson v. Brown.

It is suggested, rather than insisted upon, that the proceedings, had on the compulsory accounting of the trustee, are res judieata of tlie matter involved in tlie present issue. There are several reasons why that adjudication is not a bar to this action.

It is true that objections were made on the accounting that. Ilernz, in violation of his duties as trustee, had permitted this property to be sold at much less than its actual value, and that they were subsequently, but after evidence had been taken, withdrawn. But the remaindermen were not represented on the accounting. Neither of the defendants Blood or Koss was a party to the proceeding, nor in any way in privity, as to the matters therein adjudicated, with any of those who were parties; and necessarily the effect of the alleged fraud upon the title of Mrs. Blood and her vendee was not adjudicated.

Fannie K. Koss, the present holder of the legal title, was a daughter of Mrs. Blood, and as she did not pay any money for the property, the court held that her title was no better than that of her grantor, because not a purchaser for value. The trial court, however, found, at the defendants’ request, that the consideration for the said conveyance was the consideration of blood relationship and the approaching marriage of her said daughter to Charles G. Koss.”

If the record was otherwise silent upon this subject an interesting question would be presented, whether Mrs. Koss should not be held to be a purchaser for value. Marriage is a valuable consideration, and it has been held that a voluntary conveyance, intended as a settlement for a child of the grantor, which is, as against a subsequent purchaser, void, may be validated by a valuable consideration intervening, and that such consideration is furnished if a person be induced to marry her on account of the provisions made for her in the deed. (Sterry v. Arden, 1 Johns. Ch. 261.)

An ante-nuptial settlement of lands, though made by the settler with the design of defrauding his creditors, will not be set aside in the absence of the clearest proof of his intended wife’s participation in the fraud. (Prewit v. Wilson, 103 U. S. 22.)

Other cases illustrative of the general proposition that marriage constitutes a valuable consideration are Peck v. Vandemark (99 N. Y. 29) and Wright v. Wright (54 id. 437.)

But there stands in the way of a consideration of this question the fact that this finding constitutes an exception to the general rule, which requires appellate courts to be governed by the findings made, unless they are against the weight of evidence. The record discloses that in the early pai't of the trial certain questions relating to the admissibility of testimony were raised, which led to a discussion between court and counsel whether Mrs. Koss was a bona fide purchaser for value. And one of the results of that discussion was the following admission, which was placed upon the record: “It is admitted that Miss .Fogg (now Mrs. Koss) has the title by gift for’good consideration, she being the daughter, and the consideration one of blood instead of money.”

By this admission the element of marriage was entirely eliminated from the question of consideration, and it was conceded that the only consideration was one of blood. This admission the plaintiff had a right to rely upon, and he did, offering no further evidence upon the subject. The defendants apparently had no thought of changing their position during the progress of the trial, for we find no request to change the form of the admission, which they had formally made in open court, nor do we find from the oral testimony of witnesses that any open effort was made to inject into the record a further element of consideration.

Under such circumstances the party making the admission is bound by it, and cannot thereafter contest it in the action.

An appeal to findings of fact by the court, which seem to contradict, qualify or limit the admission made, will not avail him. (Oliver v. Bennett, 65 N. Y. 559.)

As the judgment requires the jflaintiff to reimburse the defendants Blood and Koss for the moneys invested by them, and to place them in statu quo they have no just ground of complaint.

I advise an affirmance of the judgment.

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


author: Yan Brunt, P. J.:

text:
    James S. Bearns, Respondent, v. Howard K. Burras, Appellant.

      Discovery of firm books — insufficient grounds of an application therefor — hostile relations between the pu/l'ties.

    A partner has the right, notwithstanding the dissolution of the partnership, to examine the books of the firm at any reasonable time and place.
    "Where, however, one partner offered to allow the other partner to examine the books of the firm either at his office or at the office of his counsel, which •offer was refused upon the ground that the relations between the parties wrere not of a character which would permit of the examination of such books with comfort, a sufficient excuse is not given for an application to the court for an order for the examination of such books.
    Appeal by the defendant, Howard K. Burras, from an order of the Supreme Court, granted at the New York Special Term and entered in the clerk’s office of the county of New York on the 20th day of February, 1895, denying the application of the defendant for an inspection and discovery of books and papers.

      C. JE. O’ Connor, for the appellant.

      John R. Dos Passos, for the respondent.
   Yan Brunt, P. J.:

A partner has the right undoubtedly, notwithstanding the dissolution of the partnership, t,o examine the books of the concern at any reasonable time and place, because they are as much his property as that of his co-partner, and if there had been a refusal upon the part of the co-partner to allow the moving party in this action to examine the books, it would have been the duty of tllis court to have afforded him facility for so doing. But it appears that the party moved against offered to allow the moving party to examine the books in question either at his office or at the office of his counsel, which offer the moving party refused upon the ground that the relations between the plaintiff and the defendant and between the plaintiff’s attorney and the defendant are not of a character which would permit the defendant with comfort to accept the courtesies which might be extended to him by either office, and that the plaintiff’s attorneys were well aware of this fact. ~We do not think that this is any sufficient excuse for coming to the court and presenting an application as a matter of right for an examination of the books. There is no ground except a mere matter of punctilio at the foundation of this motion. The courts liare sufficient serious business to engross tlieir time, and cannot permit a party, simply for the purpose of gratifying his fancy, to call upon its power to get in some way more pleasing to him that which is freely offered to him. We think, therefore, that the court below was justified in denying the motion as being entirely unnecessary and without merit.

The order should be affirmed, with ten dollars costs and disbursements.

Follett and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements..


author: Van Brunt, P. J. :

text:
    Henry C. Valentine, Plaintiff, v. Warren M. Healey and Another, Defendants.

      Landlord and, tenant — an owner in fee of an undivided portion of premises, under a lease from himself and his co-owner, holding over as a tenant.

    Upon the trial of an action it appeared that the plaintiff Yalentine and the defendant Healey were the owners of certain premises in the city of New York, which they leased to a firm, of which Healey was a member, by a written lease for the term of one year, at a yearly rent therein reserved, with the privilege of renewal for two years. Healey & Co. went into possession under said lease, and continued in possession of the premises for some time after the termination of the lease, although the lease was not renewed.
    In an action brought by Yalentine to recover rent which accrued after the termination of said lease,

      Held, that although Healey was a part owner of the premises it was not to be presumed that he remained in possession as a part owner, and not as lessee, and that the plaintiff was entitled to treat the lease as renewed.
    Motion by the plaintiff, Henry C. Valentine, fora new trial upon a case containing exceptions ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint directed by tha court after a trial at the New York Circuit before the court and a jury on the 21th day of January, 1895.

      William A. Butler, for the plaintiff.

      Robert Thorne, for the defendants.
   Van Brunt, P. J. :

The plaintiff and the defendant Healey are the owners of premises, situated in West Forty-third street in the city of New York, as tenants in common, the plaintiff being the owner of three undivided fourths thereof and the defendant Healey being the owner of one undivided fourth.

In May, 1891, the defendants Iiealey and Zabriskie were co-partners in business under the firm name of Healey & Co. in a limited partnership, the said defendants being the general partners and one Williams the special partner. In said month the plaintiff and the defendant Healey as parties of the first part leased the premises in question to said firm of Healey & Co. by an indenture of lease under seal for the term of one year from the 1st of May, 1891, at the yearly rent of $8,500, payable quarterly as follows, namely : To the plaintiff $1,593.75 and to the defendant Healey $531.25, with privilege of renewal for two years at $7,000 per year. The lease contained the usual covenant that at the expiration thereof the lessees would quit and surrender the premises in good order. Healey & Co. went into -possession under said lease, but did not quit the premises on the 1st of May, 1892; nor was the lease renewed, but they held over and remained in possession for some time thereafter.

This action was subsequently brought to recover a quarter’s rent as falling due on the 1st of August, 1892, the plaintiff claiming that by such holding over the defendants had elected to continue their tenancy for another year. Upon the trial the court held that the defendant Healey being a part owner of the premises, it was to be presumed that he remained in possession with his partner as owner and not as lessee, and that, therefore, the remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year, and dismissed the complaint.

This ruling of the court is claimed to be supported by the cases of Mumford v. Brown (1 Wend. 53); McKay v. E. & W. Mumford (10 id. 351); Dresser v. Dresser (40 Barb. 300) and Wilcox v. Wilcox (48 id. 329). The tenor of these cases seems to be that where a tenant in common is in exclusive possession of the common property by virtue of his own title, unless he actually excludes his co-tenant, he is not liable to such co-tenant even for use and occupation. Thus, when a tenant in common had accepted a lease from liis co-tenant of sucli co-tenant’s interest in the property and held possession of the whole property after the expiration of the lease, he is to be deemed in possession by virtue of his own title rather than to be in possession as holding over under the lease.

A different rule seems to have been established in England. (Leigh v. Dickeson, L. R. [12 Q. B. Div.] 194.) In that case and the cases therein cited it seems to be expressly held that a tenant in common may maintain an action for use and occupation against his co-tenant where the obligation to pay rent has been created by a lease.

We think, however, that the authorities cited from this State are . opposed to this rule, and they, of course, must be followed. No case, ho weveiyhas been cited where a party has gone into possession under a lease of the whole of the premises, including his share and that of his co-tenant, and he has held over, which decides that he is to be deemed to be in possession because of his own title and not under the lease. The lease in question in the case at bar was of the whole of the premises, executed by both tenants to a firm, and such firm, including the tenant in common, admit that they went into possession under that lease and held possession under that lease. There was no claim or pretense of going into possession because of any title, except that derived from the lease. Now, it being conceded and admitted by the pleadings that the possession was of this character, where is there any room for an assumption when the tenants hold over, 'that they are in possession because of any other title than that of lessees ? There is no pretense that any other title has been acquired since the execution of the lease, or that any other rights have devolved upon the defendants or either of them. It would seem, under such circumstances, that the ordinary rule in reference to holding over must necessarily apply. It would have been entirely different if Healey or his firm had accepted a lease of only the plaintiff’s interest in this real estate, and if Healey had been in possession of the real estate because of his own title, and had not entered under the lease. In the case at bar, however, it would seem that possession was acquired under the lease and the premises were held under the lease, and no part of the same were claimed by the defendant Healey because of his ownership. We think that this fact calls for the application of the ordinary rule obtaining in those cases where a tenant holds over, and that the distinction to which attention lias been called between the case at bar and the cases cited to support the ruling of the court below is substantial, and should not be overlooked.

We think, therefore, that the exceptions should be sustained and a new trial granted, with -costs to the plaintiff to abide the event.

Eollett and O’Brien, JJ., concurred.

Exceptions sustained, new trial granted, with costs to plaintiff to abide event.


text:
    Morris Frohmann, Respondent, v. The Manhattan Railway Company and Another, Appellants.

      Damages for easements — excessiw coward — when reduced.

    Where it is apparent from the evidence, in an action brought against an elevated railroad to recover compensation for the fee value of the easements taken and for past damages, that the valuation placed upon the premises in question by the expert on the part of the plaintiff does not at all coincide with the proofs as to the rentals received or with the ratio sworn to by such expert between the rental and fee value, such award will be reduced on appeal so as to coincide with the evidence.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      Julien T. Davies and F. Allis, for the appellants.

      Leo 0. Dessar and F. M. Felt, for the respondent.
   Per Curiam :

This action was brought to recover compensation for the fee value of the easements of light, air and access pertaining to premises No. 725 Third avenue and for past damages. The plaintiff’s property consists of a house and lot on the east side of Third avenue at Forty-fifth street. The lot is nineteen feet ten inches in front by forty-five feet in depth. The house is an old-fashioned five-story brick building erected in 1866 or 1867 with a store on the ground floor and a suite of apartments on each of the upper floors. The plaintiff purchased the premises in April, 1889. The court awarded $1,500 as compensation for the fee damage, and $500 for rental damages from April, 1869, to June 30, 1893.

It is apparent upon an investigation of the evidence in this case that these awards were excessive. The valuation placed upon the premises in question by the expert upon the part of the plaintiff does not at all coincide with the proofs offered by the rentals received or with the ratio sworn to by this witness between rental and fee value.

The premises have undoubtedly to some extent been damnified by the presence of the elevated railroad, both in rental and fee value. "We think that the fee damages should have been awarded at the sum of $900, and the rental damages at $300; and that the judgment should be reduced to those figures, and the extra allowance proportionately reduced; and as modified the judgment should be affirmed, without costs.

Present — Yan Brunt, P. J"., O’Brien and Parker, JJ.

Judgment modified as directed in opinion and affirmed as modified, without costs.


text:
    Ernest Plath, Respondent, v. The Manhattan Railway Company and Another, Appellants.

      Damages for easements — award of Special Term, when affirmed.

    In an action in equity against an elevated railroad to enjoin the use by it of the; plaintiffs easements of light, air and access, and for the recovery of past damages caused thereby, where there is testimony to support the award made by the Special Term, the judgment entered thereon will be affirmed.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Yorlc on tlie 20th day of July, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      Juliem, T. Ernies and James G. EusKby, for the appellants.

      Eeo O. Eessa/r and Edwin M. Felt, for the respondent.
   Per Curiam :

This is the usual action in equity to enjoin the use by defendants •of plaintiff’s easements of light, air and access, and for the recovery of past damages caused thereby. The premises in suit are known as No. 283 Bowery, and are located on the eastern side of that street, twenty-three feet north of the corner of Houston street. The lot is twenty-six feet ten inches in width front and rear, and seventy-five feet in depth. Hpon it is a brick building sixty feet deep, with five stories and basement, having a store on the first floor, and four floors over the store. The basement is used as a barber shop, the .•store as a wholesale and retail cigar store, and the four upper floors as a lodging house. This building was placed there by the plaintiff .and his brother in 1883, at a cost of $25,000, which, together with the sum of $34,000 paid for the lot, would make the cost of the premises in 1883 $59,000. There was testimony given showing the rental history of the building and the fee values of the property, and after weighing all the considerations in favor of and against an award, the judge at Special Term fixed the rental damage at the rate of $200 per year for a little over four years, and the lessened value of the premises at $3,500.

We think that there was testimony to support the awards thus made, and there being no other questions than such as have been frequently disposed of, it remains but to affirm the judgment, with costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.


text:
    Edward H. Swan, Jr., Respondent, v. The Long Island Railroad Company, Appellant.

      Second excessive damages — judgment set aside.

    Upon tie trial of an action the jury rendered a verdict for the plaintiff for §12,500 damages, the judgment entered upon which was reversed upon appeal as excessive. Upon a retrial the jury rendered a verdict for §20,538.07, upon which judgment was rendered in favor of the plaintiff.
    Upon an appeal by the defendant from this judgment it was not claimed by the respondent that the case on the second trial in any of its essential features was stronger in favor of the plaintiff upon the question of damages than it was on the first trial.

      Held, that consistency required that the judgment should not be affirmed.
    Appeal by the defendant, Tlie Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of New York on the 26th day of December, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an ■order entered in said clerk’s office on the 28th day of December, 1894, denying the defendant’s motion for a new trial.

      W. G. Beecher, for the appellant.

      Wilhebnus Mynderse, for the respondent.
   Per Curiam :

Upon this last trial plaintiff recovered a verdict for $20,538.07. On the former trial the jury awarded the plaintiff $12,500, and this ■court decided that that was excessive. (Swan v. L. I. R. R. Co., 61 N. Y. St. Repr. 28; 79 Hun, 612.) It is not claimed by the respondent that the present case in any of its essential features is stronger in favor of the plaintiff upon the question of damages than that presented by the former record on appeal, and while an examination of the record confirms the claim, by reason of the time that has elapsed, that the injuries were serious, we regard the case as not quite so strong for plaintiff as upon the first trial. Upon the second trial no evidence was given of doctors’ bills, nor was there anything to show how plaintiff’s injuries had affected his ability to get about and enjoy himself, upon both of which points evidence was presented at the former trial. In this state of the record consistency requires that the judgment, which upon similar evidence is almost double the one that was set aside as excessive, should not be affirmed.

Unless, therefore, the plaintiff will stipulate to reduce the verdict to $10,000, it should be reversed and a new trial ordered, with costs, to abide the event.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulate to reduce the verdict to $10,000, in which event judgment as so reduced affirmed, without costs.


text:
    Alphonse Kloh, Respondent, v. New York Fertilizer Company, Appellant, Impleaded with Another.

      Vacation of an attachment for irregularity — • the irregularities should be specified in the notice of motion.

    Defects in tlie affidavits, used on an application for an attachment, which are not specified in the notice of motion to set aside the attachment, or in an order to. show cause why such attachment should not he set aside, cannot he relied upon in support of the motion for that purpose.
    Appeal by the defendant,' the New York Fertilizer Company, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1895, denying the motion of said defendant to vacate a warrant of attachment.

      Hugh A. McTerncm, for the appellant.

      Robert L. /Stcmton, for the respondent.
   Per Curiam :

The order to show cause did not state the grounds nor the irregularity complained of upon which the motion to vacate the attachment was to be made. Under rule 31 of the General Rules of Practice it is provided that “ when the motion is for irregularity the notice or order shall specify the irregularity complained of.” In the case of Stevens v. Middleton (14 N. Y. Wkly. Dig. 126) it was held that “ defects in the affidavits used on application for an attachment which are not specified in a notice of motion to set aside the attachment cannot be relied upon in support of the motion.” The order should be affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: PaeKee, J.:

text:
    In the Matter of the Application of The Board of Street Opening and Improvement of the City of New York, etc., to Acquire Title to Audubon Avenue between One Hundred and Sixty-fifth and One Hundred and Seventy-fifth Streets. The New York Institution for the Blind, Appellant; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Assessments — in the city of Nexo York above One Hundred and Fifty-fifth street — Laxos of 1865, chap. 565, § 4; 1882, ch'ap. 410, § 1008.
    Section 4 of chapter 565 of the Laws of 1865, providing that when a street in the city of New York shall he laid out north of the southerly line of One Hundred and Fifty-fifth street, if the street shall-he more than a mile in length, not more than one-half of the expense shall he assessed upon the property holders, is not now in force.
    Said section 4 was not saved hy section 1008 of chapter 410 of the Laws of 1882, known as the Consolidation .Act, which enacted that “Nothing contained in this title shall he construed as affecting any provision of special acts relating to particular districts or portions of the city, so far as such provisions are inconsistent with the provisions of this title.”
    The history of section 4 and analogous sections stated and reviewed.
    Appeal by the objector, The New York Institution for tlie Blind, from an order of tlie Supreme Court, made at be New York Special Term and entered in tlie office of tlie clerk of tlie county of New York on tlie 19tb day of January, 1895, confirming tlie report of commissioners of estimate and assessment' in this matter.

      James A. Jeering, for tlie New York Institution for tlie Blind, appellant.

      Francis M. Scott and John P. Junn, for the mayor, etc., of New York, respondent.
   PaeKee, J.:

The question presented on this appeal is, whether section 4 of chapter 565 of the Laws of 1865 is still in force % If it is, the commissioners of estimate and apportionment erred in assessing the total expense of acquiring title to Audubon avenue upon the property benefited, for that section provides that when a street shall be laid out north of the southerly line of One Hundred and Fifty-fifth street, if the street be more than a mile in length, not more than one-lialf of the expense shall be assessed on property owners. Audubon avenue is more than a mile in length.

The Consolidation Act (Ohap. 410, Laws of 1882) contains many of the provisions of chapter 565 of the Laws of 1865, and it is conceded that such provisions of tlie latter act, as were in substance incorporated into the Consolidation Act, superseded and operated to repeal such of the provisions of the act of 1865 as relate to the same subject. But, as tlie act of 1865 was not expressly repealed, it is contended that section 1008 of the Consolidation Act kept in force such of the provisions of the former act as were neither in direct conflict with, nor in substance like, provisions of the Consolidation Act.

Section 1008 reads as follows : “ Nothing contained in this title shall be construed as affecting any provision of special acts relating to particular districts or portions of the city, so far as such provisions are inconsistent with the provisions of this title.”

It is conceded that but for this section, the decision in Matter of N. Y. Institution (121 N. Y. 234) would require the court to hold that the section in question, as well as the entire act of 1865, is no longer in force. The argument, however, in .that case as well as in Matter of Wheelock (21 N. Y. St. Repr. 371), seems to us to call for a determination that section 4 is no longer operative.

In the first case the court, speaking of the Consolidation Act, and how it should be construed, said : “ It was the manifest intention of the Legislature that it should take the place of the numerous special and local acts applicable to the city of New York, which bad been enacted for more than a century, and to rescue them from the obscurity, uncertainty and difficulty caused by their scattered condition, and that intention should have effect.”

Granting that such was the object of the enactment, nevertheless, urges the appellant, a failure to repeal in terms the act of 1865, considered in connection with the saving clause contained in section 1008, should satisfy the court that section 4 of the act of 1865 was intentionally reserved from the operations of the Consolidation Act. And appellant insists that the course of legislation on that general subject constitutes a forceful argument in favor of its position. But it does not so impress us. By chapter 536 of the Laws of 1879, commissioners were appointed to compile and revise all special or local laws affecting local interests in the city of New York, and to report at the succeeding Legislature.

Their report, containing nearly 2,200 pages, and entitled “ A Compilation,” was declared to contain presumptively all special and local laws affecting public interests in the city of New York, and included in it was chapter 565 of the Laws of 1865.

By chapter 594 of the Laws of 1880, passed subsequently to the submission of the compilation to the Legislature, the same persons were constituted commissioners to revise all the special or local laws affecting public interests in the city of New York which should be in force at the time such commissioners should make their final report/ or at such time prior thereto as such commissioners should deem advisable.

The statute further directed that the commissioners should not make any change in the meaning of existing laws, but seek to simplify and mould into consistent acts all existing statutes upon matters embraced in such special or local laws. Thereupon they prepared what 'is known as the “ Consolidation Act,” which was> presented to the Legislature, where it passed and became chapter 410 of the Laws of 1882. At the same time the commissioners submitted an act expressly repealing a number of acts, which they deemed to be repealed or covered by the Consolidation Act, which did not include the act of 1865. The commissioners’ reasons for this may be found in their note to chapter 13 of their final report, in which it is stated that chapter 565 (of the Laws of 1865), Comp. 998, superseded by 1871, chapter 534, and 1874, chapter 604.” It is apparent that the act of 1865 was not overlooked by the commissioners, for it not only appeared in the first compilation, but in their further report submitting the Consolidation Act it was asserted to be their understanding that it was superseded by the statutes to which they referred. It is evident, therefore, that the commissioners did not intend that section 1008 should operate to continue in force section 4 of that act.

The title of the act of 1874 was substantially like that of 1865, and many of its provisions were of the same general character, although the act of 1874 conferred exclusive power upon the department of public parks to lay out all streets north of One Hundred and Fifty-fifth street, while under the act of 1865 that power was vested in the commissioners of the Central Park.

In The Matter of New York Institution (supra) the court held that section 8 of the act of 1865 was not repealed or superseded by the act of 1874, because the latter act was in no wise inconsistent with that section, nor did it relate to the subject embraced therein, to wit, the improvement of streets opened.

The court then considered the question whether it was repealed or superseded by the Consolidation Act. It observed that the provisions of section 8 of the act of 1865 were not embraced therein, but that other provisions of the act of 1865, so far as they were re-enacted in the act of 1874, were.

As section 8 was omitted from the act, which, however, did contain certain general provisions for regulating, grading and improving streets, “ We have not, therefore (said the court), a case where some prior statute has been wholly omitted, and no provision of any kind substituted in its place. But this is a case where the prior provision of law has been entirely dropped, and provisions upon the •same general subject are found in the new act.” And the conclusion was reached that the effect of the Consolidation Act was to repeal section 8 of the act of 1865.

It seems to us that the argument of the court, upon which is based its determination that section 8 of the act of 1865 was superseded by the Consolidation Act, is clearly applicable to section 4 of ■that act.

Section 4 of the act of 1874, which the commissioners assumed had superseded the act of 1865, contained substantially the same provisions as to assessments for benefit as section 4 of the latter act, with reference to that part of the city north of One Hundred and Fifty-fifth street, except that it limited its operations to the twenty-third and twenty-fourth wards. And the provisions of section 4 pf the act of 1874 were re-enacted in section 677 of the Consolidation Act, in the chapter relating to tlie department of public parks, and also in section 958, under the chapter relating to street openings.

And upon tlie question o’f intent it is worthy of note that no part of the act of 1865, except so far as re-enacted by chapter 604 of the Laws of 1874, was incorporated in the Consolidation Act, and yet we have before us the evidence that tlie act was brought to the attention of the commissioners, for it was quoted entirely in their first compilation and referred to in a note in their revision as superseded by the act of 1874.

The .decision of the Special Term seems to us in line with the construction adopted in Matter of Wheelock and Matter of New York Institution (supra), and justified by the provision of the several statutes to which we have referred, considered in connection with the history of their enactment.

The order should be affirmed, with ten dollars costs and printing disbursements.

Van Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with ten dollars costs' and disbursements.