author: Yan Brunt, P. J.:

text:
    PHILIP SCHUYLER, Respondent, v. ERNEST CURTIS and Others, Appellants.

      Project to erect a statue of a person against the wishes of her relatives — when equity will interfere to prevent its execution.

    An unincorporated society, calling itself the Women’s Memorial Fund Association, announced a project of placing a life-size statue of Mrs. G-. L. Schuyler, to be designated as the “Typical Philanthropist,” on public exhibition at the Columbian Exposition of 1893. The society stated that a contract had been made with a sculptor for the execution of the statue, and began raising funds for the purpose.
    Thereupon a nephew of Mrs. Schuyler, with the approval of all her nearest relatives, brought this action to restrain such action, and an injunction was granted.

      Held, that the action could be maintained.
    That the wishes of the near relatives of Mrs. Schuyler must control.
    That a stranger had no right to invade the right of privacy which attaches to a person when living, and to her memory when dead.
    That the fact that the plaintiff had suffered no pecuniary damages was not material, for equity will interfere to prevent wrongs where there is no remedy at law by damages.
    Appeal by the defendants, Ernest Curtís and others, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 19th day of October, 1891, continuing, during the pendency of this action, an injunction restraining the defendants from making or exhibiting a statute of Mary M. Hamilton Schuyler, or causing the same to be made and exhibited in any way; from soliciting or receiving subscriptions in any way for a statute of the said Mary M. Hamilton Schuyler, and from proceeding in any way with the execution of a project of the so-called “Woman’s Memorial Fund Association,” to make and exhibit a statute of the said Mary M. Hamilton Schuyler.

      Walter 8. Logan, for the appellants.

      J. P. Ludlow, for the respondent.
   Yan Brunt, P. J.:

The plaintiff is the nephew and stepson of one Mrs. G-. L. Schuyler, and the defendants, with the exception of the defendant Hartley, are the officers and members of an unincorporated association which they call the Womens’ Memorial Fund Association.

This association having announced the project of placing a life-size statue of Mrs. Schuyler, to be designated “ The Typical Philanthropist,” on public exhibition at the Columbian Exposition, to be held in Chicago in 1893; and having announced that a contract had been made with the defendant Hartley, a professional sculptor of some reputation, for the execution of this statue; and having undertaken to raise money by public subscription for this purpose, this action was brought by the plaintiff, representing and with the approval of all the nearest relatives of the said Mrs. Schuyler, to enjoin the execution of this project; and a motion was made for an injunction pendente lite, which was granted upon the ground that the said Mrs. Schuyler was not a public character; i. e., had not placed herself before the public, either in accepting public office or in becoming a candidate for office or as an artiste or litterateure, and from the order thereupon entered this appeal is taken.

While concurring with the conclusion arrived at by the learned justice below, I cannot subscribe to the doctrine which seems to pervade the opinion rendered upon the decision of the motion, that if Mrs. Schuyler had been a public character, as defined by him, this motion should have been denied.

The claim that a person who voluntarily places himself before the public, either by accepting public office or by becoming a candidate for office or as an artist or literary man, thereby surrenders his personality, while living and his memory when dead, to the public to be used or abused, as any one of that irresponsible body may see fit, cannot for a moment be entertained. It is undoubtedly true that by occupying a public position or by making an appeal to the public a person surrenders such part of his personality or privacy as pertains to and affects the position which he fills or seeks to occupy; but no further. And certainly his memory, when dead, does not necessarily thereby become public property.

It is urged upon, the part of the appellants that eveu if Mrs. Schuyler were alive, and had the same objection to the defendants’ proposed action that the plaintiff now has, she would be remediless and powerless. If such were the fact, it would certainly be a blot upon our boasted system of jurisprudence that the courts were powerless to prevent the unwarranted doing of things by persons who are mere volunteers, which would wound in the most cruel manner the feelings of many a sensitive nature.

It is further urged that the plaintiff has no standing in court, and that the fancied injury to the plaintiff complained of, if any such injury can be. in any way discovered, is certainly not such an injury as the court will grant an injunction to prevent, because it is not an injury to his person, to his estate, or to his good name, and is not a violation of his privacy or seclusion, and because the plaintiff stands in the same relation to the defendants and to their project as does all the rest of the world, and in no other relation.

The result of this claim is that when a person is dead there is no power in any court to protect his memory, no matter how outrageously it may be insulted. The feelings of relatives and friends may be outraged, and the memory of the deceased degraded with impunity by any person who' may desire thus to affect the living. It seems to us that such a proposition carries its own refutation with its statement. It cannot be that by death all protection to the reputation of the dead and the feelings of the living, in connection with the dead, has absolutely been lost. The memory of the deceased belongs to the surviving relatives and friends, and such relatives have a right to see that that which would not have been permitted in respect to the deceased when living shall not be done with impunity when the subject has become incapable of protecting himself. It is undoubtedly true that cases of the character now before the court are not to be found in the books. But it is probably the first time in the history of the world that the audacious claim which is here presented has ever been advanced. If it had, we have no doubt the books would have contained a record in connection with the same.

The fact that the plaintiff has suffered no pecuniary damage, redress for which is sought in this action, is no answer to the application, because one of the most important departments in the jurisdiction of courts of equity is the prevention of wrongs which would be otherwise irreparable because courts of law cannot afford any remedy in damages.

The order appealed from should be affirmed, with costs.

Barrett, J., concurred.

Order affirmed, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.: Barrett, J.:

license: Public Domain

text:
    BERNARD McKENNA, Respondent, v. ELLEN DUFFY and Others, Respondents. CHARLES SPENGLER, Purchaser, Appellant.

      Judicial sale — purchaser excused from completing his purchase — unauthorized appearance of an attorney — the shares of the proceeds of sale in partition should he directed to he paid to the parties, not to the attorneys.

    The plaintiff and several of the defendants in an action of partition were nonresidents of the United States. The non-resident defendants appeared by attorneys, but there was nothing in the judgment-roll showing the authority of such attorneys to appear for them.
    The plaintiff’s attorney died and an order was made substituting another attorney, but, so far as the record showed, without the consent of the plaintiff. This attorney died, and another attorney assumed to act for the plaintiff without any order of substitution.

      Held, that a purchaser upon the sale should not be compelled to take the title.
    That a judgment was irregular which provided that the share of a party in the proceeds of sale should be paid to the party or his attorney; section 1580 of the Code of Civil Procedure directing that the costs alone are to be paid to the attorney and the shares of the proceeds of the sale to the parties.
    Appeal by Charles Spengler, purchaser, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of March, 1892, denying his motion to be released from a sale under a judgment in partition.

      Reeves & Todd, for Charles Spengler, purchaser, appellant.

      J. Woolsey Shepard, for the plaintiff, respondent.

      Jeroloman & Arrowsmith, for the defendants, respondents.
   Yan Brunt, P. J.:

It appears that on the 26th of October, 1881, one John McKenna died intestate in the city of New York seized of the premises in question. He left a widow, but no issue; and his only lieirs-at-law were the plaintiff, two sisters and the children of two deceased sisters.

The plaintiff and several of the defendants are non-residents of the United States, and have never been served with process of any kind, the complaint being verified by the attorney of record. The non-resident defendants, however, appeared by attorney. The plaintiff’s attorney having died, an order was made substituting a new attorney without the consent of the plaintiff, as far as the record shows, in violation of the rules of the court.

It is true that the attorney desiring to be substituted stated that he had a cablegram from the plaintiff wherein he was directed to appear for him and be substituted as his attorney; but no such cablegram was produced, and if produced would not be a compliance with the rule. This attorney having died, another attorney assumed to appear for the plaintiff without even the formality of a substitution. It further appeared that certain proceedings had been taken to declare the plaintiff a lunatic, which, however, did not result in a final adjudication upon that subject. The purchaser upon examining the title refused to take because of the pendency of the proceedings against the plaintiff; and also because no authority for the attorneys to appear in the partition suit was shown, and the parties, being non-residents and not served with process, might come in and show an unauthorized appearance and overthrow the judgment; and that upon the record the then present plaintiff’s attorney had no authority to act.

Without at all discussing the validity of the objection in respect to the lunacy proceedings, it is sufficient to say that the objection to the title, because there is no evidence that the attorneys for the nonresidents had right to appear, is well taken. In the case of Vilas v. Plattsburgh and Montreal Railroad Company (123 N. Y., 440) the rule laid down in tliis court in the case of Nordlinger v. De Mier (54 Hun, 276) is expressly recognized, whfch was to the effect that a judgment obtained against a non-resident who has not been served with process, and has not authorized the appearance of an attorney, will be set aside as void.

The result, therefore, of compelling the appellant to take this title would be to throw upon him the-burden of establishing the authority of these various attorneys to appear. We do not think that he is bound to take any such risk.

If the parties desire to proceed in this irregular way, as far as nonresidents are concerned, they must put upon the record the evidence of the attorneys’ authority to act before a purchaser can be compelled to take the title. The purchaser at a partition sale is entitled to purchase under a judgment which is binding upon the parties to the action, and cannot be compelled to take title under a judgment which several of those parties might, as a matter of right, claim should be set aside. As far as this purchaser is concerned, the judgment has no more validity than if it had been entered without any proof of service of the summons or any appearance by attorney of the non-resident defendants.

There is another objection to the regularity of the decree entered in this action, which, although not taken by the appellant, yet it is proper that this court should take notice of the same;' and that is the direction in the judgment that the share of each party is to be paid to the party or to his attorney, evidently referring to his attorney of record.

This is in direct violation of the provisions of section 1580 of the Code. By section 1579 it is provided that where final judgment confirming a sale is rendered, the costs of each party to the action and the expenses of the sale must be deducted from the proceeds of sale, and each party’s costs must be paid to his attorney. But when it comes to the distribution of the proceeds of the sale after deducting the expenses and costs chargeable against them, a different provision is made by section 1580, which provides that the proceeds of the sale, after deducting therefrom the costs and expenses, must be awarded to the pa/rties whose rights and interests have been sold, in proportion thereto, and not to the party or his attorney.

The intention is manifest that the costs and expenses are to be paid to tlie attorney, and the balance of the proceeds to be paid to the parties, and must be so awarded by the final judgment or decree. In the case at bar the award is to the party or his attorney, no regard being had to the distinction made in the sections of the Code above referred to between costs and principal.

The order appealed from should, therefore, be reversed, with costs and disbursements of the appeal, and the motion granted, with costs.

O’Brien, J., concurred.

Barrett, J.:

The purchaser in his motion papers questioned the authority of the attorneys for the non-residents and stated that he had been unable to find any such authority. That, at least, put upon those seeking to uphold the judgment the burden of meeting such doubts by clear proof of authority, verified in such a manner as to furnish lasting evidence upon the record. ' It certainly was not the purchaser’s duty to go or send abroad to find and file such record proof.

I also feel that a purchaser should not be required to take title in a case where the plaintiff’s attorney was never apparently substituted by any order of the court, and where there is not the slightest record evidence of his right to enter the case at all.

Order reversed, with costs and disbursements of the appeal and the motion granted, with costs.


author: Barrett, J.: Yan Brunt, P. J.:

text:
    CHARLES F. GALL, Appellant, v. AMELIA GALL, Individually and as Administratrix of JOSEPH GALL, Deceased, and Others, Respondents.

      Specific performance — proof of an agreement to will one’s estate to another — effect of the subsequent man'riage and issue of the promisor.

    The complaint in an action for specific performance alleged that Charles Funkenstein entered into an agreement with Joseph Gall, his uncle, whereby he agreed to give up a valuable business in San Francisco, reside with Joseph Gall in New York city, enter his business and adopt his name; that, in consideration thereof, Joseph Gall, who was childless, agreed to leave to Charles Funkenstein by will the remainder of his estate after deducting certain proposed legacies; that Charles Funkenstein carried out the agreement upon his part; that Joseph Gall made a will in his favor, but that after the making of the agreement and of the will Joseph Gall married again and had issue.
    The complaint demanded certain specific relief.

      Held, that the action could not be maintained..
    That a contract of such a nature, which the court would enforce, must be .certain and definite in all its parts, mutual and founded upon an adequate consideration, proved by the clearest evidence, not unjust to innocent third parties nor contrary to public policy.
    That any contract interfering with the right to dispose of property by will was looked upon with suspicion.
    That there was no mutuality in the obligation of the contract in question, since the plaintiff might have left Joseph Gall at any time.
    That the second marriage and issue of Joseph Gall were fatal to the enforcement^ of the agreement, since an agreement which contemplated taking from a father' his entire estate, to the exclusion of his future wife and children, would be: against public policy.
    That whatever agreement was made must necessarily be subject to such possibilities, / and was limited by implication accordingly.
    Appeal by the plaintiff Charles F. Gall from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 14th day of May, 1891, dismissing the complaint upon the merits after a trial at the New York Special Term by the court.
    The action was brought to enforce the specific performance of an agreement under which the plaintiff was to give up business and reside with defendant’s intestate, who, in consideration thereof, was to make a will in plaintiff’s favor. Joseph' Gall (the intestate) was, at the time the agreement was made, and when his will was made on April 3, 1883, a widower and childless.

      Abram Kling, for the appellant.

      A. Simis, Jr., for Amelia Gall, respondent.

      B. F. Bla/i/r, for infants, defendants.
   Barrett, J.:

It is undoubtedly the settled law of this State that where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case free from all objections on account of the adequacy of the consideration or other circumstances rendering the claim inequitable, will compel a specific performance.” (Shakespeare v. Markham, 10 Hun, 322; affirmed, 72 N. Y., 406; Parsell v. Stryker, 41 id., 480.) Such a contract, however, especially when it is attempted to be established by parol, is regarded with suspicion. and not sustained, except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the decedent. (Waterman on Specific Performance, § 41.)

The cases in which performance of such contracts have been enforced in this State wex’e principally cases where specific property was agreed to be devised or bequeathed upon an adequate consideration. Such was the case of Parsell v. Stryker (above cited), where, indeed, the contract sought to be enforced was in writing and entix’ely specific.

The lands which were the subject of the agreement under consideration in Mutual Life Insurance Company v. Holloday (13 Abb. N. C., 16), consisted of a definite tract called “ Ophir Farm.” This was also the case in Sherman v. Scott (opinion of Rumsey, J., 13 Abb. N. C., 20, note; affirmed, 27 Hun, 149). In Matthews v. Matthews (62 Hun, 111), the agreement was a certain speoiñopart of the decedent’s premises and chattels. -

We have, howevei’, found no case in this State where an agreement 'to leave the whole of one’s estate, real and personal, to a pax’ticxxlar person has been enforced. On the contrary, there are cases where specific pex'formance of such a contract has been refused. It was refused in Lusk v. Sherman, referred to in the same case (25 Barb., 435), when, after the dismissal of the bill, an action was brought for money compensation. The refusal was based upon the xxncertainty which necessarily existed with regax’d to the subject-matter. This was recognized in Shakespeare v. Markham (supra), where Talcott, J., observed that “thex’e was no restraint by the sxxpposed contract upon the testator’s power to dispose of the same or any part thereof duxmg his life, and the amount which he should have at his death was, therefore, wholly uncertain. The contract, therefore, by x’eason of its uncertainty, was one which a court of equity would not be under the necessity of compelling performance of.”

The case of Lusk v. Sherman was approved of in the case last cited, both at General Term and in the Court of Appeals. Taloott, J., at General Term, said it was quite similar to the case then under consideration, as the agreement “ was that the plaintiff was to live with and take care of the testatrix as long as the latter lived, and at her death was to have all the property which the testatrix should have at her death.”

It is vitally important that the statute of wills should be maintained in its integrity; and the courts should not, by lessening or weakening the well-defined prerequisites to specific performancé, furnish a loop-hole for the evasion of its provisions. So important are these provisions with respect to testamentary disposition, that it has been doubted whether, in any case, especially when the contract is sought to be established by parol testimony, so patent a means for their evasion as bills for specific performance should have been allowed. (Shakespeare v. Markham, supra.) It is certain, however, that in this class of cases the ordinary rules which govern in actions to compel the specific performance of contracts, and which furnish reasonable safeguards against fraud, should be rigidly applied. These rules require that the contract be certain and definite in all its parts; that it be mutual and founded upon an adequate consideration ; and that it be established by the clearest and most convincing evidence. Even then, when the contract limits a man’§ right to dispose of his property by will, it is regarded with suspicion and enforced only when it is apparent that the hand of equity is required to prevent a fraud upon the promisee. There is another rule which should be strictly adhered to in this class of cases, and that is, that the remedy is a matter of judicial discretion, and that relief should be withheld where a decree for specific performance would work injustice to innocent third persons, or where it would be contrary to public policy. (Armstrong v. Armstrong, 1 N. Y. St. Rep., 531, and cases there cited.)

Applying these principles to the case under consideration, we think the judgment of the Special Term dismissing the complaint was correct. In the first place the contract was not established with reasonable certainty. It was not made with parents for the benefit of an infant, but directly with an adult. The proof rests entirely upon the declarations of the decedent. Some of these declarations were, it is true, made in the presence of the plaintiff, but they were not in the nature of a present bargain.

Many of these declarations were merely as to the decedent’s intention, while others were as to what had been done. He told some witnesses that he had made a will in the plaintiff’s favor, and that this was done in consideration of the plaintiff coming to the decedent’s home and living with him, and giving up his business and home in San Francisco. To another witness, he gave as a reason for making his will in plaintiff’s favor that he wanted to perpetuate his name and also his business. To still another, he said he had made his will, and had made Charlie (the plaintiff) his heir, as Charlie had given up his business interests in San Francisco and had taken his name to perpetuate his name and business. When the plaintiff, at decedent’s request, had his name changed to Gall, by a judicial order, the decedent told the attorney, who attended to the matter, that “ Charlie was to be his heir and assume his place in the business at his death.” To his niece Hebecca Funkenstein, he said that he had made an “agreement with Charlie, that if Charlie would leave his home and remained with him he would give him everything he possessed for changing his name, he would leave him his business, his property and everything he possessed, excepting some few legacies that he left to my sister and brother and the three cousins in New Zealand.” The plaintiff’s mother testified to the same effect.

It is quite uncertain from this testimony what precise agreement, if any, was ever made between the plaintiff and the decedent. If there was any actual agreement between them, it is impossible to say whether the consideration therefor was the change of name, or the care which was to be given to the decedent, or the sacrifice of the California business. Then, too, if an actual agreement on the decedent’s part is to be inferred from these declarations, such agreement was uncertain. There was a reservation of the right to make some legacies; and the complaint charges an undertaking “ to leave the remainder of his estate, both real and personal,” to the plaintiff. No specific property, it will be observed, but whatever he might happen to have, at the time of his death, without even a general statement as to its extent, character or value. How is it possible, under well-settled rules, to enforce such an agreement were it conclusively established ? And even if the consideration were clear, how can its adequacy be determined when the property to be ultimately realized therefor was necessarily unknown at the time the agreement was made ?

Further than this, there was no binding mutuality. The plaintiff could have left the decedent at any time without violating any engagement on his part. The observations made in the House of Lords of England, in Maddison v. Alderson (8 L. R., App. Cas., 467), are pertinent on this branch of the case. There the decedent induced a woman to serve him as housekeeper, without wages, for many years, and to give up other prospects of establishment in life, by a promise to make a will leaving her a life estate in land. He, in fact, signed the will, but unfortunately for the woman it was not duly attested. It was held that there was no valid or enforceable contract. One of the law lords said'that: The case thus presented was manifestly one of conduct on the part of the appellant (affecting her arrangements in life and pecuniary interests) induced by promises of her master to leave her a life estate in the Moulton Manor Farm by will, rather than one of definite cont/ract, for mutual considerations, made between herself and him at any particular time. There was certainly no contract on her part which she would have broken by voluntarily leaving his service at any time during his life, and I see no evidence of any agreement by her to serve without or to release her claim to wages. If there was a contract on his part, it was conditional upon, and in consideration of, a series of acts to be done by her, which she was at liberty to do, or not to do, as she thought fit; and, which if done, would extend over the whole remainder of his life.”

The present case is weaker for the appellant than that just cited, for here the plaintiff received a salary for his services in the decedent’s business, and lived with the decedent. Further doubt is thrown upon' the existence and precise nature of the alleged agreement by the affidavits upon which the application was made, in April, 1883, to change the plaintiff’s name. The plaintiff there states: That your petitioner’s reasons for assuming such name are, that your petitioner is a nephew of Joseph Gall of the city of New York; that said Gall is advanced in life, and has no wife or children, and is desirous that his. name be continued, and that your petitioner should take and bear his name, that it is the name of Gall; and that said Gall has expressed his intention to malee your petitioner a legatee under his, said Gaul’s, will, if your petitioner shall take and bear his name.”

The decedent, in his affidavit upon the same application, states:

“ That he has no wife or children, and is desirous that his said nephew should assume and bear his name, and that on the condition of his so doing it is his intention to make the said Charles Funkenstein a legatee under his will.”

Here we have an expression of intention, but not a word in either affidavit as to any agreement, much less an agreement to make the plaintiff his residuary legatee. Further, in the plaintiff’s affidavit of October 28, 1886, presented to the surrogate, he makes this statement:

“About November 10th, 1882, I took charge of my uncle’s interest in the Hnion Square business. I did so at the special instance and request of my uncle and aunt, who insisted that I should remain with them and give up my position in San Francisco, a/nd that if my conduct would merit it they would adopt me as their son, having no children, and thus perpetuate the name of Gall, of which name and his business the old gentleman was very proud.”

This statement was entirely inconsistent with the unconditional agreement set forth in the present complaint, and it throws additional doubt upon the existence of any such agreement.

These considerations would have sufficed to sustain the dismissal of the complaint, but they are reinforced by the fact of the decedent’s second marriage and the existence of lawful issue. The parties, whatever their original understanding, could never have contemplated a restriction upon the decedent’s right to marry or to provide for his children in case such marriage was fruitful. Nor could they have contemplated the taking, by the plaintiff, of the decedent’s entire estate to the exclusion of any such future wife or child. If such an agreement had been made, it certainly would have been against public policy and void. Whatever agreement was made was necessarily subject to such possibilities and was limited by implication accordingly.

It will not, therefore, be necessary to consider the question, with regard to the statute of frauds, as, for tbe reasons already given, the judgment should be affirmed, with costs.

O’Brien, J., concurred.

Yan Brunt, P. J.:

I concur in the result. I do not think that the courts will enforce a contract whereby a party deprives himself of all power to bequeath or devise, by will, the property of which he is the owner at death, except in cases of adoption, where the contract is made for the benefit of an infant, and not to the exclusion of children. It will certainly not do so in a ease where the agreement is unilateral and where it may be terminated by the other party at will.

Judgment affirmed, with costs.


author: O’Brien, J.:

text:
    THE SAN REMO HOTEL COMPANY, Respondent v. MICHAEL BRENNAN, Appellant.

      Landlord and tenant — apwrol agreement executed upon one side and inpa/rt upon the other — a defense in equity — proceedings to dispossess — injunction.
    Upon an appeal from an order continuing an injunction restraining Michael Brennan, landlord, from dispossessing his tenant, the San Remo Hotel Company, it appeared that the lease was under seal, and for a term of ten years from October 1,1891, at a rent of $6,000 per month for the first five years; that, as the company claimed, the property was to be ready for occupation on October 1, 1891, but, in fact, was then in part unfinished; that, in consideration of its releasing its claim for damages, Brennan agreed by parol to reduce the rent, up to October 1, 1892, to $3,500 per month.
    It appeared that Brennan, for several months of the first year, accepted $3,500 per month.

      Held, that as a parol agreement, though made upon a good consideration and in part executed, would not be a defense to proceedings at law to dispossess, it was proper for the company to go into equity for relief.
    That an injunction with adequate security was proper, pending the action, as dispossession would cause irreparable damage to the company.
    That where one enters into possession of a part of leased premises, all of which he has hired, he does not thereby release his right equitably to set ofE against the rent the value of the part withheld by reason of the landlord's failure to complete the premises for occupancy.

      That, in equity, a parol agreement, based upon a sufficient consideration made after a breach, executed by one party, and executed in part by the other, is ■ available to modify a lease under seal.
    That, in any event, a question so important should not be decided upon facts stated in affidavits, and that the case should be considered on a trial.
    Appeal by the defendant Michael Brennan from an order of the Supreme Court, made and entered on the 7th day of April, 1892, in the office of the clerk of the city and county of New York, restraining him from dispossessing the plaintiff from the premises in the city of New York, known as the Hotel San Remo, provided the plaintiff paid him $8,500 per month rent in advance, to and including September 1,1892, and gave a bond in the sum of $20,000 to indemnify the defendant for any damages he might sustain from the injunction should the court finally decide that the plaintiff was not entitled thereto.
    The premises in question had been leased by Brennan to Wilson C. Morris, who sub-let it to the plaintiff.

      James P. Oa/nvpbell, for the appellant.

      William D. Guthrie, for the respondent.
   O’Brien, J.:

This action was brought by the plaintiff, as lessor, against the defendant, its landlord, to restrain him from proceeding to dispossess it for the non-payment of rent.

The lease was made under seal on the 21st day of March, 1891, and was to run for the period of ten years from the 1st of October, 1891. The rental during the first five years was to be at the rate of $6,000 per month, and during the remaining five years at the rate of $7,000 per month. In addition to the rent the tenant agreed to pay the annual Croton water rates on or before August first of each year, and also to keep the premises, machinery, etc., in repair and running order at his own expense. The defendant never received the full rent reserved in his lease, but on October 10,1891, took $4,000 for October, and thereafter $3,000 for November rent, and each month subsequently, including February, $3,500. By the terms of the lease the premises were to be ready for occupation on October first.

The plaintiff insists that this covenant was violated in that a large number of the apartments, hall-ways and rooms were not completed and- ready, and that the steam-fitting, electric-light apparatus, etc., were unfinished and incomplete. On the other hand, the-defendant produces numerous affidavits tending to show that the hotel was finished and in good condition on the 1st of October, 1891. As the result of such failure to fully complete and have the entire premises ready for occupancy the plaintiff asserts that a loss resulted, and that it was damaged to the extent of $50,000, for which it would have had a good cause of action against the defendant. As a consideration for waiving this claim, plaintiff states that in December, 1891, an agreement was entered into between it and the defendant, by which the rent reserved in the lease should be reduced from $6,000 to $3,500 per month, which reduction was to be continued until October, 1892. Plaintiff’s claim, therefore, is that the rent-for the .first year had been reduced by parol agreement, executed on its part, founded on ample consideration, to $3,500 per month, and that it is ready and willing to pay that amount.

The defendant, insisting upon his right under the lease to the full rental of $6,000 per month for the balance of the first year, namely from March to October, 1891, had begun summary proceedings to dispossess the plaintiff at the time of the commencement of -this suit. The ground for relief prayed for by the plaintiff is, that, as the lease was under seal, it could not avail itself in the summary proceedings of the parol agreement reducing the rent during the balance of the first year, and that, consequently, it would be dispossessed and remediless unless a court of equity intervened by injunction.

The court below, until the trial of the action, continued a temporary injunction restraining and suspending the dispossess proceedings, upon condition of plaintiff’s giving a bond in the sum of $20,000, which latter condition has been complied with, but from the order continuing the injunction this appeal is taken.

In disposing of the motion, the learned justice delivered the following opinion: “After a careful examination of the voluminous papers submitted on this motion, I have reached the following conclusions:

“First. The assignment of the lease to the defendant was made with the consent of the defendant, and he cannot now be heard to complain of the same.

“ Second. Some portions of the hotel were unfinished and unfit for occupancy on the 1st of October, 1891, and for some time thereafter, and the plaintiff had a valid claim for damages because of such fact, and the waiver of such damages would be a sufficient consideration for an agreement on the part of the defendant to accept a reduced rent until the 1st of October, 1892.

Third. There can be no question that the defendant agreed to accept and did accept a reduced rent for several months in full payment of the rents reserved in the lease. Whether the defendant agreed to accept a reduced rent until the 1st of October, 1892, or whether he declined to make such agreement for any definite period and only agreed to take a less sum until times should be better, is in dispute, and it is impossible to determine that question upon ex parte affidavits.

Upon all the papers, the statement made on behalf of the plaintiff as to the agreement seems to me to be the more probable one, but it is for the trial court to determine what the actual fact was.

Fourth. If the plaintiff, upon the trial, shall prove that the agreement was such as it claims the agreement was, I think it probable that it will succeed in the action.

Fifth. If the injunction is continued until the trial, the defendant can be fully protected from all loss by a proper undertaking; whereas, if the injunction is dissolved, and the lease is terminated by dispossess proceedings, the plaintiff will suffer irreparable injury.

Sixth. The motion to continue the injunction should be granted on condition that the plaintiff give such undertaking.

“ The order will be settled on notice, and the amount of the undertaking will then be fixed.”

It will thus be seen that, upon the disputed question of fact, he has reached a conclusion favorable to the view advanced by plaintiff, leaving it, however, for the trial to determine finally the merits of the positions taken respectively by the parties. In the absence of any such preponderance of proof as would justify us in holding that the conclusions reached upon the facts by the learned judge were erroneous, we are not disposed, upon a motion of this kind, to disturb such conclusions.

The serious question presented, however, relates, not to the facts as concluded by the judge, but to the law as applicable thereto. This goes to the very foundation of the right of the plaintiff to maintain this action. The ground for the relief prayed for by plaintiff, as already stated, was the inability to avail itself of the agreement claimed to have been made, by which the rent was reduced, and which, in summary proceedings, would have been unavailing as a defense, for the reason that the original instrument of lease was under seal, and the effect would be to modify the same by a parol agreement.

It is insisted by appellant that the contract set forth in the complaint, being an oral one, intended to reduce the rent reserved in, and in that respect to modify, a lease for ten years, which by statute must be in writing, and to which the parties had affixed their seals, is void at law and may be repudiated by either party, so far as the oral modification remains unexecuted. In support of this proposition we are referred to the cases of Coe v. Hobby (72 N. Y., 141); Smith v. Kerr (108 id., 31); McKenzie v. Harrison (120 id., 260) and McCreery v. Day (119 id., 1).

In Coe v. Hobby, it was held that a contract or covenant under seal cannot be modified before breach by a parol executory contract. In Smith v. Kerr it was held that a simple executory agreement, without consideration, to alter the terms of an existing unexpired lease in which no breach had occurred, was void. In McKenzie v. Harrison (p. 263), the court said: “We shall not question the rule that a contract or covenant under seal cannot be modified by a parol unexecuted contract.” These cases, however, in no way destroy the force of the rule, sustained by many cases, that “after the breach of a sealed agreement, it may be modified in any respect, or wholly rescinded, by an executed parol agreement founded upon a sufficient consideration.” (Dodge v. Crandall, 30 N. Y., 294, 307.) A parol modification of a sealed instrument to be enforceable must be an executed, as distinguished from an executory, contract, and it must be a valid binding agreement, founded upon a sufficient consideration. Therefore, if the facts here had shown that the landlord had performed all the covenants on his part, and that thereafter the tenant, having entered into possession, had made an arrangement with the landlord for an abatement of the rent secured by a sealed' instrument with' respect to any portion of the term, notwithstanding such an arrangement an action would be maintainable for the amount stipulated in the sealed lease. This was the question which the Court of Appeals disposed of in McKenzie v. Harrison (120 N. Y., 260), where the landlord, after having reduced the rent and accepted payment of installments thereof in full “ until times are better,” sued for the balance of the installment under the lease for which they had receipted in full, and a verdict was directed in their favor. The court therein said: “Ye shall not question the rule that a contract or covenant under seal cannot be modified by a parol unexecuted contract. * *' * Neither shall we question the views of the court below, to the effect that the alleged oral agreement * * * was void and inoperative in so far as it remained unexecuted. The lessors had the right to repudiate it at any time and demand the full amount of rent provided for in the lease; but in so far as the oral agreement had become executed, as to the payments which had fallen due and had been paid and receipted in full as per the oral agreement, we think the rule invoked has no application.”

The question here presented is different from that decided in McKenzie v. Harrison (supra), in that, if the facts stated by the plaintiff can be proven upon a trial — that, having a valid claim for damages by reason of the breach of the covenant for occupation and enjoyment on and after October first, this claim was waived in consideration of the parol agreement to take a less rent for the first year — such an agreement executed on the part of the plaintiff, and partly performed by the defendant by the allowances made for the months of the year that have passed, we do not think could have been repudiated. And this, we think, will become apparent if for the purpose of disposing of the question we assume the plaintiff’s facts to be sustained by competent proof. Thus assumed; if the premises were not ready for occupancy on the 1st of October, 1891, and the tenant had gone into partial possession, it could have successfully defended an action for the rent or have brought a suit in equity for an apportionment. (Brown v. Wakeman, 42 N. Y. State Rep., 677; Kelly v. Miles, 48 Hun, 6.)

As said by Mr. Justice Daniels, writing the opinion in the case of Kelly v. Miles (supra): “ The occupancy assured to him ” (the tenant) by the lease was the consideration for his covenant to pay, and to the extent that he was deprived of the ability to occupy by the act of the owner under the authority and assent of the defendants, the plaintiff was entitled to an abatement and apportionment of the rent.”

These cases are authority for the position that one who enters into possession of part of premises, all of which has been hired by him, does not thereby waive his right to equitably set off against the rent reserved in the lease the value of the portion of the premises the possession of which may have been withheld by reason of the failure of the landloi’d to fulfill the agreement on his part to have them ready for occupancy. They are also authority for the maintenance of an action such as this, wherein it is sought to stay dispossess proceedings against the tenant, where the facts relied upon by the tenant are not available in such proceedings as a defense.

We are, therefore, of opinion that a parol agreement, such as is asserted by plaintiff and made the basis of his complaint, is not purely executory and one that, therefore, may be repudiated by either party. If, upon a trial, it can be shown that the premises were unfinished and unfit for occupancy on October first, and that thereby the plaintiff had a valid claim for damages as against the defendant, which, in consideration of waiving, was made the basis of an agreement by the defendant to take a less sum for the year ending October 1, 1892, then is presented, within the authorities, a case where a parol agreement, based upon a sufficient consideration, after a breach, has been established, which can be availed of to modify a lease under seal, and which cannot be repudiated if shown to have been executed by one of the parties and partially executed by the other. Even though this view should be in seeming conflict with some of the authorities, we think that the questions presented were serious enough to require their disposition in a more deliberate manner than by affidavits upon a motion, and that it was a proper case to continue the injunction until a trial could be had ; and this for the reason, well expressed by the learned judge, that “if the injunction is continued until the trial, the defendant can be fully protected from all loss by a proper undertaking; whereas, if the injunction is dissolved, and the lease is terminated by dispossess proceedings, the plaintiff will suffer irreparable injury.”

The only other question relates to the amount of the undertaking given by the plaintiff upon the injunction.

The difference between the rent reserved in the lease and the amount payable under the agreement, as claimed by plaintiff, would, on the 1st of October, 1892, should the defendant be successful, require the payment by plaintiff of the sum of $17,500. A bond, therefore, in the sum of $20,000 we think was sufficient. Should the trial not be had within a time that shall fully protect the defendant, or should any facts arise entitling the defendant to additional security, the opportunity is always present to obtain additional security upon application.

In respect to the claim that, in addition to the rent reserved, security should also have been given for the Croton water which the plaintiff had agreed to pay, it is sufficient to say that it is entirely independent of the question involved here as to the amount of rent; and this injunction in no way impairs the defendant’s right to insist upon the performance of this condition in the lease, or any other conditions or obligations, on the part of the plaintiff; the injunction itself being directed and limited to preventing the plaintiff being dispossessed by reason of a failure to pay the difference between $3,500 and the $6,000 reserved in the lease. For this difference, as already stated, $20,000 is ample security; and this, with the right which is given to defendant, should the trial of the case be unnecessarily delayed, to move for additional security, will amply protect him.

Upon an examination, therefore, of the record showing the reasons for the making of the order appealed from, we think the learned judge was right in giving the plaintiff an opportunity to have a trial where it could produce and examine its witnesses, and, if able, establish the good faith of its' claim that the hotel was not ready for occupancy at the date agreed upon, which resulted in damages to it, and which, in consideration of a reduction of the rent for the first year, it waived.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J.,'and Barrett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    CENTRAL NATIONAL BANK OF THE CITY OF NEW YORK and Others, Respondents, v. SIGMUND J. SELIGMAN and Others, Appellants.

      Assignment — different acts constituting one transaction — creditors fraudulently preferred must account for the whole amount received — effect of the appointment of a receiver — an unavoidable objection considered first on appeal.

    On July 2, 1888, the firm oí Seligman Bros. & Co. having made a general assignment, certain judgment-creditors of the firm brought an action, by a judgment in which, made January 23, 1889, the assignment was declared void and a receiver was appointed.
    Subsequently they brought an action upon the same, and upon other judgments held by them against the firm, to set aside the general assignment made by it and also to set aside judgments recovered against it by one Hertz and by one Moses, and an assignment of book accounts made by it to one Sonneborn, upon the ground that these acts constituted preferences exceeding in amount one-third of the assignor’s estate.
    As relief they demanded that the so-called preferred creditors pay over to them the sums which the creditors had collected.

      Held, that as it appeared that the assignment, the recovery of the judgments, and the assignment of the book accounts, were acts done within a few minutes of each other, they were properly regarded as one transaction, the effect of which was to give a fraudulent preference.
    That the fact that the assignment was filed a few minutes before the judgments were entered was not material.
    That as the preference thus secured was fraudulent, the creditors benefited thereby were not entitled to hold any part of the sums realized, not even to the extent of one-third of the assets assigned, but must account to the plaintiffs for the whole amount.
    That as, however, it appeared upon the trial that, in an action by the same plaintiffs , upon certain of the same judgments, a receiver had been appointed in that action, in which the assignment had been set aside, the right of action and of property, so far as concerned these judgments, was in him, and the only recovery permissible in this action must be upon the judgments not included in the former action.
    That as this objection went to the right of action and could not be remedied it was available on appeal, although it had not been pleaded and there was no allegation that the receiver was a necessary party.
    That as a receiver of the property of the firm was appointed in the former action, the court would not appoint another receiver of the same property in the present action.
    Appeal by the defendants, Sigmund J. Seligman, Philip Seligman, Abraham H. Hertz, Isaac H. Hertz, Benjamin Hertz, Moses Ii. Moses, Jonas Sonneborn and Simon Herman, as assignee of the firm of Seligman Bros. & Co., from a judgment of the Supreme Court entered in the office of the clerk of the city and county of New York, on the 10th day of June, 1891, in favor of the planitiffs, after a trial at the New York Special Term before the court, declaring void a general assignment, and also an assignment of book accounts made by Seligman Bros. & Co., and also certain judgments against that firm, and directing the judgment-creditors and the assignee of the book accounts to make certain transfers to a receiver appointed by the judgment, and directing payment by the receiver of the plaintiffs’ judgment from the moneys so received by him.
    Upon the trial the plaintiff _read in evidence a judgment of the Supreme Court made January 23,1889, in which the present plaintiffs were plaintiffs and the members of the firm of Seligman Bros. & Co. and their assignee, Simon Herman, were defendants. This judgment declared the assignment void. The. assignment was claimed to be defective in that it failed to statej in compliance with chapter 298 of the Laws of 1888, the residence and kind of business carried on by the debtor at the time of making the assignment and the place at which it was so carried on.
    The complaint in this action set up the same judgments which were set forth in the complaint in the prior action, the judgment in which was put in evidence, and also, in the casé of the Central National Bank, other subsequent judgments recovered by it.

      A. J. Dittenhoefer, for the appellants.

      Blummsteil & Hirseh, for the respondents.
   O’Brien, J.:

Certain of the defendants, composing the firm of Seligman Bros. & Co., made a general assignment on the 2d day of July, 1888. Thereafter the plaintiffs’ judgment-creditors commenced this action to set aside two judgments recovered by the defendants Hertz and Moses, respectively, and also an assignment of book accounts made to the defendant Sonneborn, upon the ground that they constitute preferences exceeding one-third of the assignor’s estate, in violation of chapter 13 of the Laws of 1889. The judgment demanded is that these so-called preferred creditors pay over to the plaintiffs the sums they have collected. From the judgment rendered in favor of plaintiffs this appeal is taken. The general assignment, each of the judgments and the transfer of accounts were created on the same day, July second; these various documents being drawn in the office of the counsel for the debtors.

' As indicative of the intent of the'parties, evidence was offered to show that the demand notes, upon which the judgments are based, were given so as to authorize suit in lieu. of other notes outstanding in the hands of creditors, none of which would mature until long after July second. The assignment and judgments were all filed within five minutes of each other, though appellants laid special stress upon the fact, it is true, that the judgments were not docketed until after the assignment was made and filed.

Under the executions immediately thereafter issued a levy was made by the sheriff, and subsequently, upon the latter being indemnified, nearly all of the assigned estate was taken and sold, except the account assigned to Sonneborn and about four thousand nine hundred dollars realized by the assignee. It is thus made to appear that although over thirty thousand dollars was realized out of the assets of the insolvent firm, by the creditors preferred, there came into the hands of a receiver, out of the $4,900 received by the assignee, a net surplus, after providing for expenditures, of about five hundred and forty-four dollars and eighty-one cents.

Although some question is made as to the total value of the debtors’ property, at the time of the assignment, and as to whether or not the prefei’ence exceeded one-third of the assets, the finding of the learned trial judge, we think, is amply supported, not only by the figures already given, but by the fact that the actual value of all the property, as scheduled, was but $35,621, while the liabilities, actual and contingent, were over three hundred thousand dollars, and, as we have already seen, the amount actually realized was less then the scheduled value of the property.

It is not necessary for us to go over in detail the evidence which warrants the conclusion reached by the trial court, that the judgments, executions, transfers of accounts, and the former assignment, constituted together the general assignment, which was made on July second. They" were all executed and carried into effect simultaneously, and the result was to dispose of all the property of the insolvent debtors to three or four preferred creditors, who were thus given not only more than one-third, but practically the entire assets of the insolvent firm.

As we have already stated, much emphasis has been placed upon the fact that they were entered' after the assignment, and evidence was presented tending to show that the assignors refused “ to allow these judgments to be entered before the assignment, or to give any preference by judgment.” Expressions, however, of this character, on the part of the assignors, cannot destroy the force and effect of their actions. The question presented was whether or not all these transactions were part of one scheme, the effect of which was to create forbidden preferences. If so, under the authorities the assignments and the judgment must be held to be fraudulent and void.

It is immaterial, as held in many cases, into how many parts the performance or execution of the scheme may be broken.

As said in White v. Cotzhausen (129 U. S., 329), the law will regard all acts having for their object and effect the disposition of the estate as parts of a single transaction. It can, therefore, make no difference whether the judgments precede or follow the assignments, if they are part of the single plan or scheme to give unlawful preferences. It is conceded that the general assignment was void on its face, and upon the entry of judgment the preferred judgment-creditors, as well as all the others, treated it as absolutely void, and proceeded to enforce their claims as though no assignment had been made.

As said in the case of the First National Bank v. Bard (32 N. Y. St. Rep., 1010), the single circumstance that a judgment was confessed, at or about the same time the debtor executes a general assignment, does not of itself, standing alone, and irrespective of other facts connected with the transaction, necessarily require the conclusion that the confessed judgment is a part of the assignment.

Here, also, the fact that the judgments were allowed to be taken on the same day, to be entered after the assignment, standing alone, so far as any presumption or inference of fraud to be drawn therefrom, would not be as strong in favor of attacking creditors as judgments upon which levies were made on the same day, but which were docketed prior to the assignment. The effect of the judgments are, however, to be considered, with all other circumstances, for the purpose of determining the intent of the parties; and where the manner in which the judgments are allowed, and subsequently enforced, are inconsistent with any other view than that they were part of the scheme to give an unlawful preference, the fact of whether such judgments were entered prior or subsequent to the assignment must be immaterial. It becomes, therefore, simply a question as to whether the evidence justified the conclusions of the learned trial judge, and, upon a review thereof, we find no ground which would justify the setting aside of the conclusions reached, that the judgments, transfers of accounts and general assignment were all part and parcel of one transaction or scheme, and that the defendant creditors knew that the assignment was contemplated, thus participating in the fraud.

The law, as to the effect upon the judgment, has already been settled by this court, upon the second appeal, in the case of the First National Bank v. Bard (59 Hun, 529). Excepting the fact of the judgments being entered subsequent instead of, as in that case, prior to the assignment, the facts in the two cases are very similar. The. learned trial judge was, therefore, right in holding, upon the findings and conclusions made, that the assignment and judgments were fraudulent and void. This brings us, however, to the question which was expressly reserved in the Bard case, as to what results flow in respect to the preferred creditors’ liability to account to the plaintiff in a creditor’s action, such as this, for the amount received by them respectively under their judgments. Here, therefore, the question is squarely presented as to whether or not the plaintiff can compel the defendant to account for such sums received under their judgments. Upon the part of the appellants it is contended that an action will not lie-by one creditor to compel another creditor to pay over to him moneys received by the latter in payment of a bona fide debt, even if they are the proceeds of an unlawful preference under a general assignment. As authority for this proposition, reference is made to the case of Knower et al. v. The Central National Bank (124 N. Y., 552) and the Leather Manufacturers’ Bank v. Halstead (Id., 674). These cases are undoubted authority for the doctrine that payment by an assignee to a preferred creditor * * * of a debt honestly due him, pursuant to the directions in the assignment, before any lien has been obtained upon the fund, is effectual to vest title in such creditor to the money so paid, although the assignment, in an action subsequently commenced, is adjudged fraudulent and void as against creditors.

We do not, however, regard these cases as being in point. A vast difference in principle exists between a case of an honest creditor, who, in payment of an honest debt, receives from an assignee, pursuant to directions in an assignment, the amount of a preferred claim, before the • lien of another creditor has attached thereto, and the case of a creditor who has obtained payment of his debt by means of a fraudulent scheme upon the part of the assignor to give a preference which is prohibited by the statute. This latter case, which is the one here presented in principle, more closely resembles the cases of Berger v. Varrelmann (127 N. Y., 281) and Manning v. Beck (decided December 1, 1891). The former (Berger v. Varrelmann) was a suit in aid of the assignment, and in that respect is to be distinguished from the one here brought, which is a creditor’s action to reach the property for the benefit of the plaintiffs. It was therein held that the provision of the act of 1887, limiting the amount of preference * * * is not confined to preferences in the assignment itself, but applies to those created by a separate instrument, in contemplation of the assignment; it includes all instrumentalities which the insolvent debtor, in contemplation of a general assignment, voluntarily employs to give a preference, and, it seems, the want of knowledge on the part of a creditor, so preferred, that an assignment was contemplated, will not avail to validate the preference^

In that casé, as in this, the question was also presented as to whether or not the preference should be scaled down to one-third so as to conform to the statute, or whether the preferred creditors were obliged to turn over the entire amount realized. Though there was a strong dissent, the opinion of the court was against the right of the preferred creditors under circumstances, where the judgment were set aside, to retain the proceeds of any preference, even to the extent of an amount not exceeding one-third of the estate of the assignors.

Manning v. Beds (supra) was, like this, a creditor’s action to reach the property for the benefit of the plaintiffs, and though the judgment in favor of the plaintiffs was reversed, because there was no finding that the- bill of sale attacked was executed in cohtemplation of making an assignment, the reasoning of the court would seemingly lead to the conclusion, and is, therefore, a strong argument in favor of plaintiffs’ view, that the effect of a determination that judgments are fraudulent and void is to deprive the creditors, so fraudulently preferred, of any benefit which they may have derived under such judgments. "W'e are of opinion, therefore, that creditors holding Iona fide debts, who secure illegal and fraudulent preferences, are not entitled to any benefit by reason thereof, and that where, as in this case, the preferences consist of judgments or an assigned account, that moneys realized thereunder cannot be retained by them.

This, however,brings us to what maybe regarded as the most serious question in the case. The assignment having been set aside in a prior action, instituted by these same plaintiffs, and a receiver appointed, the question is presented whether or not the title to all of the debtor’s property did not pass to such receiver, and to him alone, and as to whether the plaintiffs here have any standing to recover from the defendant judgment-creditors the moneys they received.

It is insisted by respondents that this objection is not available for the reason that it is not set up in the answer, nor is any defense interposed that the receiver is a necessary party. It must be remembered, however, that this objection is not simply that the proceedings are irregular, but that the plaintiffs have failed to establish a cause of action, and have, by the introduction of the decree appointing the receiver, shown that they have no standing in court. "Where, therefore, this objection is not taken by the answer, the question still remains whether this failure to set up that the right of action exists in another person, operates to make the defendant liable to an improper plaintiff, or to give to such plaintiff the cause of action that exists in favor of another.

We are of opinion that whereas in this case-a decree was offered by the plaintiff and admitted in evidence, showing that, with respect to certain of the judgments, which are included with others and made the basis of this action, such judgments were in a former action also used for the purpose of' setting aside the general assignment, which resulted favorably to the plaintiff, and in which action a receiver was appointed, such judgments are not again available in another action. And though the objection is not taken by answer it may be raised for the first time upon appeal, it being clear that the objection, even though attention had been called to it upon the trial, could not have been obviated.

In this connection it should be remembered that the complaint did not allege the former decree nor did it contain any reference to the former action; and, therefore, there was nothing in reference thereto which could have been denied by the answer. Where, therefore, as here, in an equity action, during the progress of the trial, facts are presented to the court showing that the plaintiff has no standing in court or that the right which he seeks to enforce is one that exists in favor of another person, it becomes the duty of the court to dismiss the complaint; and where this is not done such an objection is available upon appeal where it is shown that it could not have been obviated by other proof.

The rule as -laid down in Passavent v. Bowdoin (15 N. Y. Supp., 8), is thus stated: “If the plaintiffs have such a judgment (a prior judgment setting aside the assignment), then they cannot bring this action based upon the same judgments which formed the basis of that decree to again have the assignment set aside; and, so far as their complaint is concerned, seeking to get a decree setting aside this assignment upon its face establishes no cause of action, it appearing that they have thereby obtained such relief on behalf of the very judgments upon which this action was based. It further appears that for the protection of this very judgment, in the action in which the decree was entered declaring this assignment to be null and void, they have had a receiver appointed of all the assigned estate. Our attention has not been called to any principle by which a judgment-creditor, after having set aside an assignment upon the ground of fraud, can maintain an action as such judgment-creditor for the purpose of collecting the assets belonging to the estate, a receiver thereof upon behalf of such judgment-creditor having been appointed.”

The application of this rule to the facts here presented will require that the judgment appealed from should be modified by omitting the judgments which were included in the former action, and which the decree identifies as follows:

The judgments entered in favor of the Central National Bank, bn July thirty-first, for $4,154 and $4,255 respectively, and on August third, for $4,330.01 in addition to all the judgments in favor of Yietor and Achelis, which are three in number, and are set forth in the complaint and decree herein. The decree as modified should require that as to all of these judgments enumerated the complaint should be dismissed.

So far, however, as the other'judgments included in the complaint are concerned, and which were not included in the former action, the plaintiffs being entitled to relief herein, the decree should be affirmed

In one other respect we are also of opinion that the decree should be modified, and that has reference to the selection of a new receiver.

It is evident that by reason of the way in which the matter was presented, no attention having been particularly called to the proceedings in the former action in which a receiver was appointed, the learned trial judge felt at liberty to designate' another receiver. The effect, however, of the existence of two receivers of the property of the same defendants would result in confusion, and possibly litigation to determine their respective rights to the fund, which, under the decree, is required to be paid -over by the defendants. Under such circumstances, the receiver first appointed, unless he has been discharged, should have possession of the property. Our conclusion, therefore, is that the judgment should be modified as directed, and, as so modified, should be affirmed, without costs.

Yan Bjbunt, P. J., and Patterson, J., concurred.

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

EEEATA. 9 On page 616, volume 64 Hun, chapter “ 298 of the Laws of 1888,” should read “294 of the Laws of 1888,” and chapter “18 of the Laws of 1889,” should read “ 503 of the Laws of 1887.”

      EEEATA. 9 On page 616, volume 64 Hun, chapter “ 298 of the Laws of 1888,” should read “294 of the Laws of 1888,” and chapter “18 of the Laws of 1889,” should read “ 503 of the Laws of 1887.”


text:
    CHARLES E. O’CONNER, as Receiver, etc., of HERBERT F. BEECHER, Respondent, v. THE MERCHANTS’ BANK, Appellant.

      Receiver — liability of the judgment-creditor for costs recovered against the receiver — right of a pa/i'ty, indebted to the judgment-debtor, who has talcen an assignment of the judgment for costs.

    Where an action is brought at the request of the judgment-creditor, by a receiver appointed in proceedings supplementary to execution, to recover moneys alleged to be due to the judgment-debtor from a third person, and the receiver is defeated in the action, the judgment-creditor is liable to the defendant for the costs recovered by him against the receiver.
    The fact that the receiver has instituted proceedings in another court, against the assignee of the judgment for costs against such receiver, is no reason why the enforcement of the judgment for costs should be postponed until the question in such action against the assignee has been decided.
    That such assignee of the judgment for costs, upon tendering to the receiver the amount of the indebtedness of the assignee to the judgment-debtor, less the amount of the judgment for costs against the receiver, has entirely discharged his duty and obligation in the premises.
    Appeal by William C. Beecber, Henry B.' Beecber and Samuel Scoville, as executors of tbe estate of Henry Ward Beecber, deceased, from so much of an order of the Supreme Court, dated April 21, 1892, and entered in tbe office of tbe clerk of the county of New York, as denies their motion to compel Lewis S. Chase, tbe judgment-creditor on whose application tbe receiver in tbe above-entitled action was appointed to pay tbe costs of said action.

      W. O. Beecher, for tbe appellants.

      Edwvn R. .Lernitt, for tbe respondent.
   O’Brien, J.:

In April, 1886, Lewis S. Chase recovered a judgment against Herbert F. Beecber, and in proceedings supplementary to execution the plaintiff was appointed receiver of tbe property of tbe judgment-debtor. Thereafter, upon tbe written request of Chase, and solely for bis benefit, tbe plaintiff, as receiver, brought suit against the Mechanics’ Bank of Brooklyn to recover tbe amount of a certain check which bad been drawn by the executors of the estate of Henry Ward Beecher, deceased, upon the bank to the order of the judgment-debtor. In this action, after two trials, the plaintiff was defeated, and a judgment for costs was entered in favor of the defendant. This judgment for costs was assigned to the executors of Beecher, and they make this motion to compel the judgment-creditor Chase to pay the costs awarded by the judgment; and from the order refusing to grant such motion this appeal is taken.

In Ward v. Roy (69 N. Y., 99) it is held: “ If a creditor, at whose instance a receiver has been appointed, and especially if he is solely interested, instigates and conducts a prosecution for his own benefit through the receiver, the obligation to pay costs created by the statute is equitably as binding upon him as if the legal machinery was not employed.”

We do not understand that any fault is found with this rule, which, in the absence of other facts, would require that Chase, the judgment-creditor, who instigated the suit which was brought by the receiver against the bank, should pay such costs. Had this motion been made by the bank, therefore, we fail to see what defense or reason could have been interposed against the granting of the motion. The question, however, is presented as to whether the assignee of a judgment for costs is in any worse position, or whether the circumstance that the assignees in this case happen to be the executors of Beecher, deceased, in any way militates against or destroys the rights which otherwise the assignee of a judgment would acquire by virtue of the assignment of such judgment to him.

As we understand, the respondent, while admitting, if the receiver had now in his hands sufficient funds belonging to his receivership wherewith to pay these costs, that he would be obliged to pay them, or if the receiver had no funds, that then, under Ward v. Roy (supra), the defendant might resort to the creditor, still, such a motion should not be granted until it should finally appear that the receiver would not be able to pay such costs. In other words, respondent’s position is that, inasmuch as certain proceedings have been taken by the receiver in the Sui'rogate’s Court which may eventually result in placing in the hands of the x’eceiver an amount sufficient not only to pay these costs, bxxt also the judgment of the creditor Chase, this motion is premature and should not be gx’anted until proper opportunity and time are afforded the receiver, and all efforts have been exhausted, to collect an amount sufficient to pay the judgment for costs out of the judgment-debtor. This assumes that, as against the judgment-debtor, the plaintiff is entitled to receive not only an amount sufficient to pay the judgment which has been obtained against the debtor, but also an amount sufficient to pay the costs of an unsuccessful litigation waged by the receiver against a third party without the consent or knowledge of the judgment-debtor.

It seems to us reasonably clear that, in a case like this, where no other than the creditor Chase is interested in the receivership, the judgment-debtor would have a right, on offering the amount of the judgment obtained against him, together with interest and costs, to have the same satisfied and the receiver discharged. This would not include, nor could the receiver insist upon the judgment-debtor paying, in addition, the costs of an unsuccessful litigation waged against a third party in an action to which the judgment-debtor was in no sense a party, and of which he had no notice. We do not think that any distinction can be made between the rights which the defendant, the Mechanics’ JBank, had and those which flowed to the executors to whom the judgment for costs was assigned; and, therefore, they are in the same position to enforce the judgment for costs as the bank would have been in had not the assignment of the judgment been made.

It has been made to appear that the receiver is now engaged in an endeavor to recover from the executors the amount of the judgment out of the property of the judgment-debtor now in their hands. If successful in discovering such property, and in obtaining an order from the surrogate or - otherwise that the amount of the judgment should be paid by the executors out of the property of the judgment-debtor, they would, in some form, undoubtedly, be entitled to offset or deduct from such recovery the amount of the judgment for costs which they now hold by assignment against the plaintiff.

The executors have, in open court, offered to pay the difference between the judgment for costs assigned to them and the amount of the Chase judgment, the payment of which -the receiver is seeking to enforce against the property of the judgment-debtor. We regard this proposition as eminently fair, and as giving him all that he could obtain as the result of prolonged proceedings. If the receiver thinks that some law can be found to sustain his position that he is eventually entitled to recover from the judgment-debtor, not only the amount of the Chase judgment, but also the costs of the unsuccessful action against the Mechanics’ Bank, no good reason is presented why, in the meantime, the executors should be prevented from receiving the amount due them by reason of the claim which they have against Chase by virtue of the assignment of the judgment from the bank.

We are of opinion, therefore, that .the proposition is eminently fair and just which is made by the appellant, to offset the judgment for costs against the Chase judgment, the executors paying the difference and holding their claim as against the judgment-debtor; and that, upon the failure to accept this proposition, the executors are entitled to the order applied'for, requiring the judgment-creditor, who was unsuccessful in a litigation against a third party, to pay the costs thereby resulting, where it has been shown, as here, that the receiver is unable to pay them.

We think, therefore, that the order appealed from should be reversed, and, unless the respondent accepts the offer of the appellant in regard to offsetting the claims, that the motion should be granted.

YaN BjíuNt, P. J., and Barrett, J., concurred.

Order reversed accordingly, with ten dollars costs and disbursements, and motion granted, with costs.


text:
    JAMES BAKER, as Executor, etc., Respondent, v. EDWARD F. BROWN, Appellant, Impleaded with PETER BOWE, late Sheriff, etc.

      Inteipleader by an executor — barred by an adjudication in the Surrogate’s Court passing his accounts and distributing the estate.

    Where an executor, holding a fund to which there are rival claimants, has filed in the Surrogate's Court a final account covering such fund, and a decree has been entered directing the disposition to he made thereof by him, he is not in a position to bring an action setting up the fact that there are rival claimants to the fund, and that he himself makes no claim thereto, and asking that such claimants be interpleaded.

      ' Semble, that it is the duty of an executor, under such circumstances, in presenting the matter to the ¡Surrogate’s Court, to bring to the attention of that court the fact that there are adverse claims upon the fund, and to make parties to such proceedings the claimants of the fund so that an adjudication may be had in respect to their rights therein.
    Appeal by tbe defendant Edward F. Brown from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York, nunc pro tunc, as of 'the 6th day of April, 1892, with notice of an intention to bring up for review upon such appeal an order, dated March 30, 1892, overruling the demurrer of the defendant.

      G. 8. HamUn, for the appellant.

      A. S. Hutchins, for the respondent.
   Yan Brunt, P. J.:

The complaint alleges that in or about the year 1882, in an action then pending in the Supreme Court, in which one Joseph E. Dewey was plaintiff and one Harriet C. Gilbert and another were defendants, an attachment was duly issued out of the Supreme Court, directed to the defendant Peter Bowe. as sheriff of the city and county of New York, directing and requiring him to attach the property of the defendants, which attachment was duly served upon this plaintiff; that at the time of the issuing and serving of said attachment the said Gilbert was interested in the estate of one James Baker, deceased, as one of the legatees under his will, and that at that time there was in the hands of the plaintiff certain moneys and property to which she was entitled as such legatee, which moneys and property were the property attached ; that thereafter, in March, 1886, Dewey duly recovered a judgment against the defendants, Gilbert and another, for the sum of $3,758.23, which was duly docketed and an execution duly issued directed to the sheriff, which execution was duly served upon the plaintiff, who thereupon paid to said sheriff, in partial satisfaction of said judgment, the sum of $691.64, being the amount of money forming part of said estate then in his hands, to which said Gilbert was entitled as legatee, and that the said attachment has never been vacated by the cancellation theréof, nor has the interest of said Gilbert in the estate of James Baker, deceased, been released from the operation thereof; that afterwards, and before the final accounting of the plaintiff, as executor, the said Gilbert died and one II. C. Ditmar was duly appointed administrator, with the will annexed, of said Gilbert, by a court having jurisdiction thereof, in the county of Fond du Lac, in the State of Wisconsin, and thereafter, upon the application of said Ditmar, ancillary letters of administration were duly issued to said Ditmar by the surrogate of the city and county of New York.

The complaint further alleged that on the 24th of March, 1891, the plaintiff, as sole surviving executor and trustee of said Baker, deceased, made and filed in the office of the surrogate of the city and county of New York his final account; and that thereafter such proceedings were had that an order was entered in said court whereby his accounts, as such executor and trustee, were finally settled and allowed, and in and by said order it was decreed that out of the moneys then remaining in his hands as such executor the sum of $589.76 should be paid to said Ditmar, as administrator, with the will annexed of said Gilbert, deceased.

• The complaint further alleged that the defendant Edward F. Brown claims said sum as assignee of said Ditmar, and that for the purpose of enforcing payment to him of said sum has caused to be issued out of the Surrogate’s Court an execution directed to the sheriff, etc., requiring him to levy and collect the same out of the property of the plaintiff in this county.

The complaint further alleges that the defendant Peter Bowe, as late sheriff, etc., to whom said warrant of attachment was issued and directed, also claims the said sum of $589.76 and demands that the same shall be paid to him upon the execution issued to satisfy the aforesaid judgment in favor of said Dewey.

The complaint then alleges that the plaintiff is ignorant of the respective rights of the defendants; has no claim upon such money, and is ready to deliver it to such persons as the court shall direct; and that the action has not been brought by collusion with the defendants; and prays judgment that defendants be restrained by injunction from taking any proceedings against plaintiff in relation thereto; that the defendants be required to interplead and that the plaintiff be permitted to pay the money into court, and upon payment thereof into court he be discharged from all liability.

To this complaint the defendant Brown demurred upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It is urged, upon the part of the respondent, that there being rival claims to the fund, and the respondent being liable to be doubly vexed, and in danger of double payment, and himself making no claim to the fund in dispute, a proper case for an interpleader, is presented.

This undoubtedly would be true had it not been adjudicated by a court of competent jurisdiction as to how the money in the hands of the plaintiff as executor and trustee should be paid. Upon an accounting before the surrogate, with the attachment and execution held by the defendant Bowe existing, an adjudication has been made that the executor pay to the administrator of Gilbert, deceased, the said sum of money.

Under these circumstances, we do not see how a bill of inter-pleader can lie. If the executor intended to dispute the right of the administrator of Gilbert to receive the money in question, he was hound to present the claim there and have it adjudicated upon. He was aware of the circumstances of this attachment, the fact of its existence, of its levy, of the claim made by the sheriff; and these facts he should have presented to the surrogate in order that the surrogate might have made the proper order.' But instead of that, as far as this record shows, a décree has been permitted to be entered, directing the payment of this money, and the surrogate has directed an execution to issue for its collection.

It seems to us that it is too late, after judgment and execution, to ask for an interpleader; and that is the position of the plaintiff in this action. It does not appear that any attempt whatever was made, upon the part of this executor, to bring in the other claimant of the fund adjudged to belong to the administrator of Gilbert. But, with full knowledge of the facts and of the claim made upon the part of the sheriff to this fund in hostility to the representatives of Gilbert, he has permitted the surrogate to make his decree directing its payment to such representatives. We are of opinion, therefore, that there having been an adjudication as to the persons to whom this share was to be paid, it is binding upon the plaintiff and he cannot now seek an interpleader.

The judgment and order appealed from should be reversed and the demurrer sustained, with leave to the plaintiff to amend his complaint upon payment of the costs of this appeal and of the court below.

Barrett and O’Brien, JJ., concurred.

Judgment and order reversed and the demurrer sustained, with leave to the plaintiff to amend his complaint upon payment of the costs of this appeal and of the court below.


author: Ingraham, J.

text:
    Charles Robinson, Appellant, v. Hugh J. Jewett, as Receiver, etc., Respondent.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Ingraham, J.


author: Ingraham, J., and Van Brunt, P J.

text:
    Florence May Lane and others, Infants, etc., Respondents, v. Franklin Moss and others, as Executors, etc., Appellants, Impleaded, etc.
   Judgment affirmed, with costs, with leave to defendant to withdraw the demurrer and answer over on payment of costs in this court and court below. Opinions by

Ingraham, J., and Van Brunt, P J.


author: O’Brien, J,

text:
    Jacob Rauth, Respondent, v. William B. Davenport, as Executor etc., Appellant.
   Order and so much of judgment appealed from reversed, without costs. Opinion by

O’Brien, J,


author: O’Brien, J.; Van Brunt, P. J.

text:
    John A. Nichols, Respondent, v. The Scranton Steel Company, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.;

dissenting opinion by

Van Brunt, P. J.


author: Van Brunt, P. J.

text:
    Edgar Saltus, Respondent, v. Belford Company, Appellant.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Per Curiam.

text:
    James I. Raymond, Appellant, v. Michael Ganss and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Alexander Gribbon, Appellant, v. Michael Ganss and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements, Opinion

Per Curiam.


text:
    Michael Valentine, Appellant, v. Wilhelmina Juch, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    The People of the State of New York ex rel. James W. Ketcham, Appellant, v. The Excise Commissioners of the City of New York, Respondents.
   Order affirmed on the opinion of the court below, with costs. Opinion

Per Curiam.


text:
    Joseph F. Buckley and others, Appellants, v. Mary Buckley and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of Ladislas Karge.
   Order affirmed,’ with costs. Opinion

Per Curiam.


text:
    The People of the State of New York ex rel. George Le Boutillier, Appellant, v. Thomas F. Gilroy, Commissioner, etc., Respondent
   Order modified as to movables within street lines and affirmed as to stoop and area.


text:
    In the Matter of the Petition of Julia Blewitt, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of the Application of the Mayor, etc., in respect to land between Thirty-fourth and Thirty-fifth streets.
   Order affirmed.


text:
    In the Matter of the Application of the Mayor, etc., in respect to land between Thirty-fifth and Thirty-sixth streets.
   Order affirmed.


text:
    In the Matter of Opening Lexington Avenue. In re John Schreyer.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    The Bank of Pittsburgh, Respondent, v. Charles C. Murphy, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Bernard Schwerin, Appellant, v. New York Elevated Railway Company and others, Respondents.
   Order reversed, with ten dollars costs and disbursements.


text:
    Henry W. Peabody, Respondent, v. Emero Cortada and others, Appellants.
   Order modified as directed by opinion, and as modified affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of Catharine R. Smyley and others.
   Reargument ordered.


text:
    James W. Halloway, Respondent, v. Charles F. Southmayd, Appellant.
   Judgment reversed and new trial ordered with costs to the appellant to abide the event. Opinion by

Ingraham, J.


text:
    James W. Halloway, Respondent, v. Charles F. Southmayd, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Ingraham, J.


author: Hardin, P. J.

text:
    J. Henry Hallock, Respondent, v. Etta D. Bacon and another, Executors, etc., Appellants.
   Judgment modified by striking therefrom the costs (other than the disbursements), and as so modified affirmed, with costs of the appeal to the respondent. Opinion by

Hardin, P. J.


author: Merwin, J.;

text:
    William Furlong, Respondent, v. Agricultural Insurance Company, Appellant.
   Judgment and order reversed upon tho law and facts and a new trial ordered, with costs to abide the event Opinion by

Merwin, J.;

Hardin, P. J,, not sitting


author: Merwin, J.

text:
    Caroline Leach and others, Executors, etc., Appellants, v. John Newell Vining and others, Respondents.
   Judgment modified by reducing the recovery, as stated in the judgment, from the sum of $802.13 to the sum of $254.25, and as modified affirmed, without costs of this appeal to either party. Opinion by

Merwin, J.


author: Hardin, P. J.;

text:
    Martha E Seymour, Respondent, v. The Spring Forest Cemetery Association and others, Appellants.
   Motion denied, order settling the interlocutory judgment, and the interlocutory judgment modified in accordance with the opinion, and as modified affirmed, with costs of this appeal. Opinion by

Hardin, P. J.;

Martin, J., not sitting.


author: Martin, J.

text:
    Andrewette La Tourette and others, Respondents v. Angeline Decker, Appellant.
   Judgment affirmed, with costs. Opinion by

Martin, J.


text:
    Harry W. Link, by Guardian, Respondent, v. Jay W. Sheldon and others, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Merwin, J.


text:
    Patrick Aherin, Respondent, v. John J. O’Brien, Appellant.
   Judgment of the County Court and of the Justice’s Court reversed, with costs. Opinion by

Martin, J.


text:
    William W. Armfield, Respondent, v. The Town of Solon, Appellant.
   Judgment affirmed, with costs. Mem. by

Martin, J.


text:
    William H. Chapman, Respondent, v. The Town of Taylor, Appellant.
   Judgment affirmed, with costs. Mem. by

Merwin, J.


text:
    Charles H. Stanton, Respondent, v. The Town of Taylor, Appellant.
   Judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Theodore F. Butterfield, Executor, etc., Respondent, v. Henry F. Oppenheimer and others, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    James Dougherty, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with co’sts. Opinion by

Merwin, J.


text:
    James M. Angell, Appellant, v. Barnet N. Hill, Respondent.
   Judgment of the County Court, reversed and judgment of the justice affirmed, with costs to the appellant. Opinion by

Martin, J.


text:
    William Austin, Respondent, v. James M. Rappleye, Appellant.
   Judgment affirmed, with costs Opinion by

Hardin, P. J.


text:
    Emma F. Roberts v. Johnstown Bank and others.
   Motion for re-argument denied.


text:
    Edward O’Connor, Respondent, v. Willis Sherman, Appellant.
   Motion granted dismissing the appeal, with ten dollars costs.


text:
    The Village of Stamford, Appellant, v. John H. Fisher, Respondent.
   Motion for leave to appeal to the Court of Appeals granted, as the case involves a question of law that ought to be reviewed by that court.


text:
    Harry F. Bowler. Respondent, v. Frank E. Wilcox, Appellant.
   Order reversed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. H. Corydon Brown, Appellant, v. The Board of Trustees of the Village of Owego, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


author: Ter Curiam.

text:
    The People of the State of New York, Respondent, v. Dwight W. Stoddard, Appellant.
   Conviction, orders and judgment reversed, and the clerk directed to enter judgment and remit a certified copy thereof with the return and decision of this court to the Court of Sessions of Herkimer county pursuant to section 547 and 548 of the Code of Criminal Procedure. Opinion

Ter Curiam.


text:
    In the Matter of the Last Will and Testament of Esther Thompson, deceased. Allen W. Reynolds and others, Appellants, v. Harriet S. Thompson, Executrix, etc. Respondent.
   Decree of the Surrogate's Court affirmed, with costs.


text:
    John J. Ahearn, Respondent, v. Revillo H. Molyneaux,Appellant.
   Judgmentreversed and new trial ordered, with costs to abide the event.

Held (1), That the claim of sale of goods is not entirely, satisfactorily proven. (2). That the claim for over-time is unsupported by the evidence.


text:
    Norris Winslow, as Trustee, etc., Appellant, v. The Carthage, Sacketts Harbor and Watertown Railroad Company and others, Respondents.
   Order reversed, with ten dollars costs and disbursements.

Held (1), That an order on motion of one of several defendants directing a discontinuance of an action based upon conflicting affidavits is irregular. (2) Whether the tender was good and effectual should not be determined upon conflicting affidavits.


text:
    Aaron Mogg, Respondent, v. John Young, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    The Town of Salina, Respondent, v. Cornelius E. Stephens, Appellant.
   Judgment reversed on the facts anda new trial ordered, with costs to abide the event.


text:
    Joseph A. Vega and others, Respondents, v. Thomas Wheeler, as Sheriff of Oneida County, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Held, that it was error to charge the jury u that if, at the time of the purchase, Sherwood & Hammans were insolvent, and knew that the plaintiff relied upon their solvency, that was a fraud, and the sales were void.” (See Hotchkin v. Third National Bank, 127 N. Y., 329.)


text:
    Samuel Silverman, Respondent, v. The Supreme Council of the Society of Select Guardians, Appellant.
   Judgment and order affirmed, with costs.


text:
    Malinda Hall, Respondent, v. London Assurance Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    M. Ella Shepard, as Administratrix, etc., Appellant, v. Hiram Hardin, Respondent.
   Judgment of the County Court reversed, and the judgment of the Justice’s Court affirmed, with costs.


text:
    Hiram L. Wait, Appellant, v. Alfred P. Roth and another, Respondent.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Andrew J. Feek, Respondent, v. John Manley, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Held (1), that whether there was a conversion of the sulky by the defendant should have been submitted to the jury. (2.) It was error to exclude the opinion of the witness Sandold as to the value of the sulky.


text:
    Ralph S. Lumbard, Respondent, v. Phineas M. Miller, Appellant.
   Judgment affirmed, with costs.


text:
    Daniel H. Smith, Appellant, v. Joseph Dresser, Respondent.
   Judgment of the County Court affirmed, with costs.


text:
    Solomon Hess, Respondent, v. The United Life and Accident Insurance Association.
   Judgment and order affirmed, with costs.


text:
    Eliza A. Martin, Appellant, v. Manufacturers’ Accident Indemnity Company, Respondent.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    John R. Young and another, Appellants, v. Winfield S. Stone, as Sheriff, Respondent.
   Order reversed, with ten dollars costs and disbursements.


author: Per Curiam. (Mem.)

text:
    In the Matter of Jemima Lowe, an Alleged Lunatic, for the Removal of the Committee.
   Order reversed, with costs.

Per Curiam. (Mem.)


text:
    Ellen Kennedy, Respondent, v. Thomas McNamara, Appellant.
   Judgment affirmed, with costs.


text:
    Nathaniel T. Bacon, Respondent, v. Margaret T. Rood, Appellant.
   Judgment and order affirmed, with costs.


text:
    James Long, Respondent, v. Charles Herring, Appellant.
   Judgment affirmed, with costs.


text:
    John Sheldon, Appellant, v. Martin Barney, Respondent.
   Judgment and order affirmed, with costs. (See Gillespie v. Brown et al., 16 Nebraska Rep., 457.)


text:
    Cornelia Brown, as Administratrix, etc.. Respondent, v. Frank Herrick, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    James Gallup, Respondent, v. Selah M. Bronson, Appellant.
   Judgment and order affirmed, with costs.


author: Barnard, P. J., and Pratt, J.;

text:
    Joseph Husson, Respondent, v. Jacob Oppenhelmer, Appellant.
   Order affirmed, with costs and disbursements. Opinions by

Barnard, P. J., and Pratt, J.;

Dykman, J., not sitting


author: Dykman. J.;

text:
    Catharine C. Ferris v. Mary C. D. Fisher.
   Order affirmed, with costs and disbursements; costs to be paid by referee out of defendant’s portion of the proceeds of sale. Opinion by

Dykman. J.;

Barnard, P. J., not sitting.