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

text:
    JOSEPH SLEVIN, Respondent, v. MARGARET C. WALLACE, Individually and as Executrix and Trustee of FRANCIS B. WALLACE, Deceased, and Others, Appellants.

      Statute of frauds — joint adventure in purchasing lands — statements made to an agent and not communicated by him to his principal — res gestos

    A parol agreement between two parties for the purchase of certain real estate was entered into, it appeared, not as a joint adventure for the purposes of trade or speculation in lands, but rather for the purpose of investment. Property was purchased thereunder and the title thereto was held by one of them for many years. Extensive repairs were made, and different parcels were bought and grouped together in one improvement.
    In an action brought by one party for an accounting by the other party who had held the title to and managed the property:

      Held, that the interest acquired was an interest in lands which, under the statute of frauds, must be evidenced by a writing.
    In order to support the action a bookkeeper was called as a witness, and was allowed to testify that the plaintiff, upon the payment of certain moneys to him, had stated that he made the payment upon the purchase-price of the property in question. ■ It did not appear that the bookkeeper ever communicated this statement to the defendant.

      Held, even if the evidence as to the statement thus made were admissible as a part of the res gestos of the payment, that the defendant was not bound by it.
    Appeal by the defendant, Margaret C. Wallace, individually and as executrix and trustee of Francis B. Wallace, and others, from a judgment of the Supreme Court, entered in the clerk’s office of the city and county of New York on- the 10th day of September, 1891, upon the decision of a referee awarding a recovery to the plaintiff of $65,190.10 and costs.

      S. P. Nash, for the appellants.

      S. W. Fullerton, for the respondent.
   Yan Brunt, P. J.:

This action was brought for an accounting respecting the profits made on the purchase, renting and sale of certain real estate in the city of New York, the title to which real estate was taken by Francis B. Wallace (of whom the defendant Margaret O. Wallace is the executrix) in his individual name, and for the recovery of one-fourth part of such profits.

To maintain the action the plaintiff relied upon a parol contract alleged to have been made on or shortly prior to March 17, 1870, by virtue of which he claimed he was entitled to one-fourth of the net profits on the purchase, renting and sale of the entire parcel of real estate.

The defendant denied that there was any arrangement between the plaintiff and said Wallace that he should have an interest in the property, and also that there was any note or memorandum in writing of any such arrangement as was required by the statute, so that, even if made, it was void.

The referee found that there was such an arrangement as claimed by the plaintiff, but that there was no memorandum in writing in respect thereto, and reported in favor of the plaintiff; and from the judgment thereupon entered this appeal is taken.

The evidence offered upon the part of the plaintiff for the purpose of establishing the cause of action alleged in the complaint consisted chiefly of the testimony given by a bookkeeper of said Wallace in relation to certain conversations had between himself and the plaintiff, which were repeated to Wallace, and conversations with Wallace, the testimony of the plaintiff, and the evidence of certain witnesses in respect to admissions made by Wallace during his lifetime in respect to the interest of the plaintiff in the property in question.

From the evidence thus adduced, having come to the conclusion that an arrangement did exsist between the plaintiff and Wallace by which the plaintiff was to have an interest in the property in question, and that such arrangement did not come within the statute of frauds because it was a partnership adventure, and not an agreement for the sale of an interest in lands, the referee reported in favor of the plaintiff.

It is claimed, upon the part of the appellants, that there was no sufficient evidence to justify the findings of the referee of any agreement or arrangement between the plaintiff and Wallace; and that even if such an arrangement were made, it was not an arrangement for a joint adventure, but for the acquisition of an interest in lands; and also that the referee erred in the receipt of certain testimony during the progress of the trial.

There is no question that the principle is well established by the adjudications in this State, that where two or more parties enter into an agreement for the purchase of real estate as a joint adventure, and thereby a partnership is formed in that adventure, although the title is taken in the name of one, the others may, notwithstanding the statute, enforce their rights in respect thereto. But it seems to me, from a reading of the testimony in this case, that there is no evidence that this real estate was bought for the purpose of trading therein, or of speculating thereon. It was rather bought for the purpose of investment, undoubtedly in the hope that the property invested in would enhance in value. But there is no evidence justifying the finding that the property was bought for speculative purposes, or for the purpose of trade, and, therefore, the principle to which attention has been called has no application.

The plaintiff, according to the testimony, was to have an interest in the property. Nothing was said about an interest in the profits arising from the joint adventure. And if he was to have such an interest in the property, the payment of the money did not give him such an interest under the statute, unless there was some note or memorandum expressing the consideration and signed by the party sought to be charged.

The case at bar differs from all those which have been cited, in that no copartnership relations existed between the plaintiff and Wallace, which relation did exist between the parties in many of the other cases.

Neither, as already observed, is there anything tending to show that the interest which the plaintiff was to have, looked to an interest in the profits rather than an interest in the real estate itself. This view is emphasized by the language of the plaintiff to Mr. Wallace at the time of the alleged payment of the money where it is testified that he stated “ I have made that payment on account of the purchase of that property.”

That the purchase was not intended to be a temporary investment is shown by the evidence as to the manner in which the property was treated, both by the plaintiff and Wallace, for a large number of years. Extensive repairs were made, and different parcels bought and grouped together in one improvement, managed together and held in this way until the death of Wallace, occurring about the month of June, 1883, certainly a long period to await a realization upon a speculative investment.

There seems also to have been error in the admission of the testimony of the plaintiff in respect to a conversation had by him with Smith, the bookkeeper of Mr. Wallace, at the time of handing him the check, which it is admitted was received and credited to the plaintiff in the books of Mr. Wallace’s firm.

The plaintiff was allowed to go on and testify to that which he had stated to Smith in respect to his agreement with Wallace relating to the property in question. There is no evidence that a very material portion of such conversation was ever communicated to Wallace by Smith. If it is claimed that Smith testified that he stated to Wallace what had transpired between the plaintiff and himself, it is to be observed that that evidence related to what Smith had testified had occurred between the plaintiff and himself, in which testimony a material part of the conversation, as testified to by the plaintiff, does not appear.

It is undoubtedly claimed that the conversation was admissible in connection with the payment of the money as part of the res gestes; and the learned counsel for the appellant seems to some extent to recognize the admissibility of such evidence if it did actually take place at the time of the payment of the money. But he claims that there is no evidence that it did take place at that time, which seems to be the fact, as the witness was unable to testify with any degree of certainty whether it took place before, or after, or at the time. It is manifest that, unless such conversation did take place at the time of the payment, and was, therefore, part of the res gestes, it could not, under any circumstances, be admissible. But I fail to see, even if it did take place at the time of the payment of the money to the bookkeeper of Wallace, how it is admissible, unless it was communicated to Wallace. I fail to comprehend how, by the mere fact of a man stating to my employee that he pays money in pursuance of an agreement made by me that he shall thereby acquire an interest in my property (such conversation never having been communicated to me), any such interest is established. How, therefore, can such testimony be competent ?

This is precisely the position occupied by the plaintiff in respect to a material portion of this alleged conversation. One of the important features of the plaintiff’s case, and which, it is claimed, tends to support in a very remarkable degree the claim of the plaintiff, is the statement that the plaintiff made to Smith at the time of the payment of the money that he was to take charge of the property, rent it, collect, etc., which was never communicated to Wallace; and because the plaintiff did take charge of the property, rent it, collect, etc., after the purchase, it is urged that the truth of his claim is strongly supported.

It seems clear to me that evidence of this kind is incompetent. Otherwise, a principal may have a burden fixed upon his property in favor of a third party, because of a conversation by such third party with an employee at the time of the receipt of certain moneys, of which the principal has not the slightest conception or knowledge; and it only requires death to shut his mouth and the charge is complete. Such cannot be the rule of evidence. Agreements cannot be established in such a way; and the conversations between the plaintiff and the employee of Wallace were inadmissible, except so far as they were communicated to Wallace; and such communication must be established by proof and cannot rest upon conjecture. Error, therefore, was committed in permitting such evidence to be given; the question which led to the giving of such evidence having been duly objected to and exception taken to the overruling of such objection.

It does not seem necessary to consider the question of the weight of evidence which was urged to so great an extent by the learned counsel for the appellant on the argument, because for the reasons already pointed out it would seem that there should be a reversal.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event.

Andrews, J., concurred.

O’Brien, J.:

Had the contract alleged been proven by competent evidence, though made by parol, it could be enforced. An important part of the contract was that relating to plaintiff’s taking charge of the property. I agree, therefore, with the conclusion reached by Mr. Justice Yan Brunt and concur in his reasons as to the error committed in the reception of evidence given by plaintiff as to what he told the bookkeeper of Wallace in the absence of proof showing either that it was a conversation when the money was paid or was subsequently communicated to Wallace. I, therefore, concur with the presiding justice and in the result.

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


source: Caselaw Access Project

author: O’Brien, J. Van Brunt, P. J.: Andrews, J.:

license: Public Domain

text:
    THE UNIVERSAL FASHION COMPANY, Appellant, v. JOHN SKINNER, Respondent.

      A written contract — stating that its stipulations contain the whole contract — false repesentations by an agent.

    A company, engaged in the manufacture of paper patterns for dresses, sued one Skinner for goods sold under a written contract which contained a clause stating that its stipulations contained the whole contract, and that any terms different therefrom or supplemental thereto should hind neither party. Skinner’s answer admitted the making of the contract, but alleged, in avoidance, the fraud of the company’s agent; in that the agent stated, that the goods were new to the city where they were to he sold; that they were to be merchantable, and that Skinner was to be the sole agent in that city, and that these representations were false.
    The company demurred to the answer.

      Meld, that, as by the demurrer it was admitted that the representations of the agent were false, the contract based upon them was void.
    "Where a party is induced to enter into a contract by the false representations of an agent, the principal cannot sustain a claim to enforce the contract freed from the representations. (Per Yan Brunt, P. J.)
    An agreement in which the principal stipulates that he shall not be liable for the fraud of his agent cannot be enforced. (Per Andrews, J.); O’Brien, J., dissenting.
    Appeal by the plaintiff, tbe Universal Fashion Company, from an order of the Supreme Court, dated December 7, 1891; and from a judgment of the said court, entered in the office of the clerk ■of the city and county of New York on the 26th day of February, 1892, overruling the plaintiff’s demurrer to the answer in this action and dismissing the complaint.
    The facts are stated in the dissenting opinion of O’Brien, J., and for that reason it is printed first.

      Raphael J. Moses, for the appellant.

      Vcm Alstyne db Hevenor, for the respondent.
   O’Brien, J.

(dissenting) :

The plaintiff sued upon a written contract to recover the price agreed for certain paper patterns for making dresses. Such contract contained a clause as follows: “'The above stipulations comprise-the entire contract between the parties which has been read over-by the purchaser before signing, and it is expressly agreed that no-terms or conditions different therefrom or supplemental thereto-shall be binding upon either party, and that all statements and representations not hereinbefore expressed in writing shall be absolutely inoperative to affect the right of either party hereto.” The answer admits the contract, and alleges fraud on the part of plaintiff in procuring its execution. The answer demurred to reads as follows r

That at and previous to the signing of the contract the said plaintiff, by their agent in that behalf, at the said city of Albany, with the intent and for the purpose of inducing the defendant to purchase from the plaintiff the paper patterns in the second count of said complaint and in said contract referred to, and to sign said contract,, did knowingly, falsely and fraudulently represent to this defendant that the paper patterns of said plaintiff, and all paper patterns which should be sold or furnished to the defendant by the plaintiff, under said contract, were and should be good,- merchantable and salable articles of merchandise ; that the patterns of said plaintiff had not been introduced in the Albany market; that the said patterns would be good, salable articles in said city of Albany; that the plaintiff had no agency and never had any agency for the sale of its patterns in the city of Albany, and was desirous of establishing such an agency in said city; and that the defendant would and should be the only agent of plaintiff in said city for the sale of its patterns, if he would purchase said patterns and accept such agency ; whereas, in truth and in fact, the paper patterns of the plaintiff, and especially those which the plaintiff afterwards furnished to the defendant, and referred to in the second and third counts of said complaint, were not good, merchantable and salable articles in said city of Albany; but, on the contrary, the patterns of said plaintiff, so furnished by it to said defendant,, were, at the time of being so purchased and delivered to him, poor, unmerchantable and unsalable articles of merchandise; and whereas, in truth and in fact, the patterns of said plaintiff had been introduced by them in the market of said city of Albany for several years before tbe making of said contract, and, as tbe defendant, ujion information and belief, avers, proved to be and were unsalable articles of merchandise therein; and whereas, in truth and in fact, the said plaintiffs, at the time of the making of said contract with this defendant, then had, and for several years previous thereto had had, divers agents in the said city of Albany for the sale of their patterns, all which agents, as the defendant upon information and belief avers, found the patterns of said plaintiff to be poor and unsalable articles of merchandise; all of which facts the said plaintiff well knew at the time it, for the purposes aforesaid, made such false and fraudulent representations to this defendant.

And this defendant further says: That, believing the truth of, and relying upon, the said false and fraudulent representations so made to him by said plaintiff, and believing that the paper patterns so to be furnished by the plaintiff to him were to be, and would be, good, merchantable and salable articles, and good, salable articles in said city of Albany, and that said plaintiff had not introduced its patterns in the market of said city; and that the plaintiff had no agency for the sale of its patterns in said city ; and that he would be the only agent for plaintiff in said city for the sale of its patterns, if he should purchase such patterns and accept such agency; he did sign the aforesaid paper.

There are two 'questions presented upon this appeal. The first is, whether the parol representations alleged in the answer are compe-, tent to vary the written contract; the second, if competent generally, whether, under the special circumstances of this case, where a stipulation is incorporated into a written contract “ that no terms or conditions different therefrom, or supplemental thereto, shall be binding upon either party, and that all statements and representations not hereinbefore expressed in writing shall be absolutely inoperative to affect the right of either party hereto,” the alleged parol false representations of an agent are competent to destroy the contract made by the principal.

As to the first, as to when contemporaneous oral agreements are admissible, two late cases, one in the United States Supreme Court, Seitz v. The Brewers’ Refrigerating Machine Company (reported in the Law Journal, Dec. 14,1891), and the other, Eighmie v. Taylor (98 N. Y., 288), are in point. In the latter case the rule is thus stated:

“ The writings which are protected from the effect of contemporaneous oral stipulations are those containing the terms of a contract between the parties and designed to be the repository and evidence of their final intentions. I-f, upon inspection and study of the writing, read, it may be, in the light of surrounding circumstances, in order to its proper understanding and interpretation, it appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract.”

Under this rule, where the parties themselves stipulate that the writing contains the entire contract, it is difficult to see upon what theory contemporaneous oral agreements or representations are admissible to vary a written contract. Apart, however, from the view which we take of the rule thus stated, which would be favorable' to appellant’s contention, we think, upon the second ground, that the demurrer should have been sustained.

It is not claimed that the representations charged to be false, and which the defendant alleges were the inducing cause to the contract, were made by the principal, but it is expressly alleged that they were made by an agent. There is no suggestion that defendant was not able to read and write, and in all respects able to understand his rights; nor is it claimed that he was in any way induced to sign this particular form of contract by fraud or concealment of its terms. By the fourth clause of the contract the limitations on the authority of the agent to bind the principal by any representations are distinctly stated; and in view of this fact we do not think it can be held that the statements of the agent can bind the company where a person who has dealt with such agent has actual notice that such agent had merely special powers, and had no power or authority whatever to make verbal contracts out of the written contract which he signed. It is not improper for the parties to stipulate, for the purpose of avoiding any doubt as to its terms, that their entire contract is expressed in writing, because in this they would be merely following the statute of frauds and the rules of prudence dictated by the courts and the experience of mankind.

We are not referred to any authority which has gone to the extent of holding that a principal may not limit the authority of the agent. And where one deals with such agent, with full knowledge of the extent of Ms power and authority, he cannot avail himself of any defense based upon any act exceeding such authority. ¥e are of opinion, therefore, that the defendant, in the face of the express stipulation that any representations, except those contained in the contract, should not be binding upon the parties, cannot, for the purpose of defeating a recovery upon such written contract, avail himself of representations made by the agent. Such representations being the only defense interposed to the complaint, and not being available to defendant, the plaintiff properly demurred thereto, and the demurrer should have been sustained.

We are of opinion that the judgment should be reversed, with costs to appellant to abide event, and with leave to the defendant to answer over.

Van Brunt, P. J.:

I cannot concur in this opinion. False and fraudulent representations, by which a party is induced to enter into a contract, always avoid the same.

The provisions of the fourth section of the contract adds nothing to its force, as the law implies the same. Whether upon the trial the proof will sustain the averments is one question, but the •demurrer admits that the defendant was induced to enter into the contracts by false and fraudulent representations. The fact of the Representations being made by an agent, and not by the principal, does not alter the question, as there is no proof that the agent was not authorized to make the representations, and, besides, if a party is induced to enter into a contract by false representations upon the part of an agent the principal cannot claim the contract freed from ■the representations.

The judgment should be affirmed, with -costs.

Andrews, J.:

If the construction of section 4, of the contract contended for by plaintiff’s counsel is correct, that section is an agreement that the plaintiff shall not be liable for the fraud of its own agent. Such an agreement cannot be enforced ; and I concur with the presiding justice that the judgment should be affirmed, with costs.

Judgment affirmed, with costs.


author: Andrews, J.

text:
    CHRISTIAN A. SCHMIDT, Plaintiff, v. THE GARFIELD NATIONAL BANK, Defendant.

      Principal and agent — action for conversion — demand—authority of a cleric to indorse checks — estoppel of principal — representations—negligence—credibility of plaintiff.

    Christian A. Schmidt, a New York merchant, who traveled somewhat in conducting his business affairs, left, in his absence, one McLane in charge of his business, who had authority to indorse checks and drafts for deposit. Schmidt kept his account in the Chemical National Bank, and had a stamp .which read, “For deposit in the Chemical National bank to the credit of..............,” which it was his custom to use in indorsing paper for deposit, and to place his signature under this indorsement.
    An employee, named Lingard, also had authority to use this stamp, sign Schmidt’s name under it, and deposit checks and drafts in said bank. Lingard, during Schmidt’s absence, indorsed a large amount of paper, “ C. A. Schmidt, Geo. Lingard,” not using the stamp, and deposited the paper to his own credit in the Garfield National Bank, from which he afterwards drew out the proceeds and converted them to his own use.
    In an action brought by Schmidt against the Garfield National Bank to recover the amount of such checks and drafts:

      Held, that he could recover.
    That, under a complaint which alleged that the defendant, without the authority of the plaintiff, obtained possession of the checks and drafts, Schmidt might show that his signature was forged or placed thereon without authority.
    That where the complaint alleged such unauthorized possession and a wrongful conversion it need not allege a demand.
    That authority to Lingard to use the stamp, with the restrictive indorsement for deposit in the Chemical National Bank, conferred no authority upon him to deposit the checks and drafts, indorsed as stated, in another bank to his own credit.
    That, upon the question of authority, there was nothing to submit to the jury, as there was nothing to show that Lingard was the authorized recipient of the checks or their proceeds, and that the evidence showed the contrary to be the fact.
    That as Lingard had no general power to indorse, his authority did not depend upon a fact, outside of the terms of the power, particularly within his knowledge, and, therefore, although false, binding on Schmidt by reason of Lingard’s representations in respect thereto.
    That as the plaintiff had never made to the defendant any representation whatever as to Lingard’s authority the defendant took the paper at its peril.
    That Schmidt was not guilty of any negligence, in failing to exercise a proper supervision over Lingard’s acts, which would work an estoppel.
    That as the jury could not have found that Lingard had authority to indorse and deposit the paper with the defendant, it was not error for the court to refuse to submit to it the question of Schmidt’s credibility.

      Exceptions of the defendant, the Garfield National Bank, directed to be heard in the first instance at General Term, taken upon a trial had at the New York Circuit before the court and a jury,- at which the plaintiff recovered a verdict for $11,528.26.
    The motion at the General Term' was for a new trial upon a case and exceptions.

      & Sanford, for the plaintiff.

      John J. Adams, for the defendant.
   Andrews, J.

The complaint in this action alleged, in substance, that the plaintiff was the owner and entitled to the possession of 171 bank checks and drafts, described in a schedule annexed to the complaint, of the aggregate value of $10,221.39; that the defendant, without the authority of the plaintiff, obtained possession of said checks and drafts and wrongfully disposed of and converted the same to its own use; and demanded judgment against the defendant for the sum of $10,221.39, with interest on the several amounts of the said checks and drafts from the days of the dates thereof, respectively. The answer was a general denial. Upon the trial several witnesses were called on behalf of the plaintiff, and one witness was called on behalf of the defendant. At the close of the testimony, on motion of plaintiff’s counsel, the court directed a verdict for the plaintiff for the full amount claimed, and that the exceptions taken during the trial, and the defendant’s exception to the direction of the court for a verdict in plaintiff’s favor, should be heard in - the first instance at the General Term.

At the commencement of the trial at circuit, defendant’s counsel moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied and defendant’s counsel excepted. It is now claimed that this exception, as well as exceptions to the rulings of the court, admitting evidence to prove the forgery of the plaintiff’s indorsements of said checks and drafts, were well taken.

We are unable to agree with the learned counsel for the defendant, and are of the opinion that the complaint was sufficient and that such evidence was properly admitted. The complaint alleged that the defendant, without the authority of the plaintiff, obtained possession of the checks and drafts; and if this statement, as to the manner in which the defendant obtained the checks and drafts, was regarded by defendant’s counsel as indefinite and uncertain, because it did not sufficiently appraise the defendant as to what was meant by the expression without the authority of the plaintiff,” he should have moved to make the complaint more definite and certain. The complaint certainly states a good cause of action, and evidence that the plaintiff’s name was forged, or was indorsed upon the checks and drafts without his authority, was certainly admissible.

It is also objected that a demand should have been alleged in the complaint. But such allegation was unnecessary, inasmuch as it was alleged that the defendant, having obtained possession of the checks and drafts without the authority of the plaintiff, had lyrongfully disposed of and converted them to its own use. (Saratoga, Gas and Electric-Light Company v. Hazard, 55 Hun, 251; Pease v. Smith, 61 N. Y., 481; Lafayette Co. Bank v. Metcalf, Moore and Co., 40 Mo. App., 502.)

It is also claimed on behalf of the defendant that the ruling of the court below in directing a verdict for the plaintiff was erroneous upon the following grounds:

First. That the checks in respect of which this suit is brought were indorsed by authority of the plaintiff.

Second. Lingard, the plaintiff’s employee, was the authorized recipient of the checks and proceeds thereof.

. Third. The plaintiff’s conduct estops him from denying either of the first two propositions.

Fourth. The credibility of the plaintiff as a witness in his own behalf should have been left to the jury.

The following facts are undisputed: The plaintiff carried on business in the city of New York for a long period as a manufacturer of upholstery and drapery trimming. He traveled upon his own business, and was absent from the city in 1889, from June eighth until July eighth, and in 1890, from April twenty-sixth until June third. When he was at home he took personal charge of the affairs of the office, receiving all letters, including those containing checks. His letters were brought upstairs to his office, from the letter-box down stairs, by one of the clerks. He opened the letters, took out the checks, entered them in a check-book, and stamped them, “For deposit in the Chemical National Bank to the credit of-,” and placed his signature under this stamping ; he then caused the checks to be deposited in the Chemical National Bank. During the plaintiff’s absence on the occasions above mentioned and others, checks were received at the plaintiff’s place of business drawn to his order. The checks and drafts in suit were received during the periods above mentioned, in the year 1889 and 1890, while the plaintiff was absent from the city or from his office, and all such checks and drafts were indorsed as follows: “C. A. Schmidt, Geo. Lingard.”

Such indorsements were made by one George Lingard, who was a bookkeeper employed by the plaintiff, and who deposited all of said checks in the defendant bank. The defendant bank thereupon collected all such checks, and placed the proceeds to the credit of said Lingard, who subsequently drew out the same and appropriated them to his own use.

The contention of the defendant’s counsel, as we understand it, is, that the above-recited facts, which are not in dispute, taken in connection with certain testimony given upon the trial, show that Lingard had authority to indorse the checks and drafts in suit, and, consequently, that Lingard’s culpability did not lie in the fact that he indorsed the checks and drafts, but that he misappropriated the proceeds thereof; that his indorsement was not a forgery, and, therefore, that, the defendant was not liable to the plaintiff, because Lingard, having indorsed the checks and drafts, subsequently misappropriated the proceeds.

"We have examined the record with care, but we do not think that the testimony in the case supports such claim of defendant’s counsel. There is some testimony in the case which tends to prove that Lingard did have authority to use the stamp above mentioned, and to write the plaintiff’s name below the stamping upon the checks and drafts, for the purpose of depositing the same in the Chemical National Bank, to the credit of the plaintiff. The plaintiff swore that when Jie was absent one McLane had charge of his business, and had authority to indorse checks and drafts for deposit. When first interrogated by defendant’s counsel he said that when he went away he did not leave anybody authority to indorse checks; but his subsequent testimony showed that he intended by this to state that he did not, upon each occasion when he went away, leave express authority to indorse checks. He was asked these questions:

“ Q. And did you suppose, as a business man, that your bookkeeper would hold those checks from the time you left the city until your return without indorsing them? A. No, sir.-

“ Q. What did you suppose ? A. I supposed Mr. McLane would attend to my business as he had done in the twenty years there; perhaps, in the twenty years.

“ Q. What did you suppose would have been done with the checks? A. Deposited in the Chemical National Bank to the credit of my account.”

The plaintiff also testified that Lingard did not have authority from him to indorse his name upon checks and drafts. It appeared, however, that during the plaintiff’s absence from the city Lingard had indorsed the plaintiff’s name upon some 207 checks, which were deposited in the Chemical National Bank, and that the plaintiff never raised any question as to the right of Lingard to make such indorsements. It also appeared that, in point of fact, McLane did not indorse any checks for deposit during the plaintiff’s absence, but that Lingard did the indorsing. It also appeared that on July 31, 1890, plaintiff had an interview with the president of the defendant, and that on August 1,1890, he made a written memorandum of the conversation between himself and Cheney. This memorandum was put in evidence upon the trial; it contained, among other things, the following:

“ Whoever prepared the deposits, either Mr. McLane or- Mr. Lingard, signed for deposit in the Chemical National Bank. They had to use my regular deposit stamp, £ For deposit with the Chemical National Bank to the credit of; ’ and the one preparing the deposit should have written under the deposit stamp my name in his usual handwriting, writing under it his special initials. No special authority had been given to either of them for it.”

As above stated, this testimony, and some other testimony given upon the trial, did tend to prove that Lingard had authority to use the stamp and to sign the plaintiff’s name under the stamping upon the checks and. drafts; adding his own initials, thereto, and thereupon to cause the checks and drafts bearing such restricted indorsement to be deposited in the Chemical National Bank, to the credit of the .plaintiff. But such authority gave Lingard no right to indorse the plaintiff’s name, except in connection with a restricted indorsement made by stamping the checks and drafts with the stamp provided for that purpose by the plaintiff; nor did it confer the slightest right upon Lingard to deposit the checks, when indorsed, to the credit of his own account in the Garfield National Bank. Assuming that he had authority to use the stamp and sign the plaintiff’s name in connection with the use thereof, and then cause the checks and drafts to be deposited to the plaintiff’s account in the Chemical Bank, his action in indorsing the checks with the plaintiff’s name without using the stamp, and depositing such checks and drafts to his own account in the Garfield National Bank, was absolutely without any authority or justification whatever. There was, therefore, not only no testimony which would justify the court in holding that Lingard had authority to indorse the checks and drafts in the manner in which he did, but there was no conflict in the testimony which required the court to submit, or would have justified it in submitting, the question to the jury, as to whether Lingard had authority to indorse the checks in the manner in which he did.

The second ground upon which defendant’s counsel claims that the court erred in directing a verdict for the plaintiff is, that Lingard, the plaintiff’s employee, was the authorized recipient of the checks and the proceeds thereof. ¥e are not quite certain that we understand the argument of defendant’s counsel under this head, but we suppose that the gist of it is contained in the following paragraph:

“ But we contend that the evidence establishes that the plaintiff reposed absolute confidence in Lingard; that, in view of all the circumstances, the defendant was well warranted in cashing checks indorsed by the latter in the name of his employer, for was he not the authorized recipient during his employer’s absence of all remittances?” .

There is not a scintilla of evidence in the case which tends to prove that Lingard was the authorized recipient of the proceeds of checks received during the plaintiffs absence. As abo ve stated, there is some evidence tending to show that he did have authority to use the stamp above mentioned, and place a restricted indorsement upon the checks, and then to deposit them to the plaintiffs account in the Chemical Bank ; but there is no evidence that he had any authority whatever to present the checks at the Chemical Bank, or any other bank, for payment, or to receive the proceeds of such checks in cash; and if some officer of the defendant bank had taken the trouble to go, or to send to plaintiff’s place of business, and make inquiry of McLane, who had heen left in charge of plaintiff’s affairs, he woidd undoubtedly have ascertained that Lingard had no such authority. It does not appear by the evidence that any such inquiry was made; but if inquiry had been made, and the defendant’s officers had been informed that Lingard did have authority, or at any rate exercised the authority, to open letters addressed to plaintiff, and to place a restricted indorsement upon the checks, for the purpose of having the same deposited in the Chemical National Bank, we are at loss to understand how the knowledge of these facts would have justified the defendant bank in cashing the checks deposited with it by Lingard.

The third ground upon which it is claimed that the ruling of the court directing a verdict for the plaintiff was erroneous is, that the plaintiff’s conduct estops him from recovering in this action, because, first, the alleged restriction upon the authority conferred upon Lingard to indorse the checks was not within defendant’s knowledge, and did not appear upon the checks themselves; secondly, the plaintiff is estopped by his negligence.

Defendant’s counsel states that the principle upon which the first proposition involved in this point is based is stated by Selben, J., in New York and New Haven Railroad Company v. Schuyler (34 N. Y., 68) as follows: “ Where the authority of an agent depends Upon some fact outside the terms of his power, and which from its nature rests particularly within his knowledge, the principal is bound by the representation of the agent, although false, as to the existence of such fact.”

Defendant’s counsel also states that the same principle is stated in another form in Griswold v. Haven (25 N. Y., 598), as follows: “ The principal is responsible for a false representation 'by his agent not authorized, by or known to the principal, if such representation is made in connection with an act which the principal has authorized.” Counsel then applies this principle to the case at bar in the following manner:

“ Lingard had authority to indorse the plaintiff’s checks. The defendant was warranted in resting there without taking pains to ascertain whether or not the authority was in any manner restricted; the act of indorsing being authorized, the plaintiff was bound by his agent’s unauthorized act in collecting the check so authoritatively indorsed.”

The fallacy of this argument is that it is based upon an assumption, which is not warranted by the evidence given upon the trial, viz.,- that Lingard had authority to indorse the plaintiff’s checks. As already shown, there is no evidence whatever that Lingard had a general authority to indorse checks. If he had any authority at all, it was merely by the use of the stamp to indorse the checks for deposit in the Chemical Bank, and then write the plaintiff’s name under such indorsement. The authority of Lingard to collect the proceeds' of the checks did not depend upon any fact outside the terms of his power, because he had no general power to indorse; and the plaintiff was no more bound by Lingard’s representation that he had authority to collect the proceeds than he was by Lingard’s representation that he had authority to indorse generally; nor was Lingard’s representation, to the effect that he had authority to collect the proceeds of the checks made in connection with an act which the plaintiff had authorized, because the plaintiff had never authorized him to indorse the checks in the manner in which he did. The checks and drafts were all drawn payable to the order of the plaintiff; and when deposited by Lingard in the defendant bank, they were indorsed with the names of the plaintiff and of Lingard, in Lingard’s handwriting. The officers of the bank, therefore, knew that the plaintiff’s name had not been indorsed upon the checks and drafts by the plaintiff, but had been indorsed by Lingard. In receiving the checks and paying the proceeds thereof to Lingard the officers of the bank acted at their peril; they knew that Lingard had indorsed the checks with the plaintiff’s name, and, unless they were satisfied to take the risk of paying the proceeds to Lingard, they were bound to make inquiry as to tlie extent of liis authority. The fact that the plaintiff was absent from the city, as suggested by defendant’s counsel, can make no difference. As above suggested, McLane was left in charge of plaintiff’s affairs, and if the officers of the defendant bank had made inquiry of him, they would doubtless have discovered at once that Lingard had no authority to indorse the checks in the manner he did, and collect the proceeds for his own use through the defendant bank. Moreover, as the plaintiff himself had made no representation whatever to the bank as to Lingard’s authority, even if such information could not have been obtained from McLane, the bank could not, with safety, have received the checks on deposit, and paid the proceeds to Lingard, until it had ascertained from the plaintiff, or some one authorized to speak for him, what Lingard’s authority was in the premises.

"With regard to the second proposition, that the plaintiff is estopped by his negligence, we are of opinion that the learned counsel for the defendant misapprehends the law upon this subject. Iiis argument appears to be that if the plaintiff had exercised a proper supervision over the acts of Lingard, the latter would not have been able to perpetrate the frauds which he did, and that, therefore, the plaintiff was “ the author of his own misfortune,” and should be estopped to deny the authority of Lingard to do the acts which caused the misfortune.

The best answer to this proposition is to be found in the opinion of Earl, J., delivered in the case of the People v. Bank of North America (75 N. Y., 561), and is as follows:

“The referee found that the acts of Phelps in indorsing and diverting from their proper use the drafts in suit were such that the exercise of ordinary care on the part of the treasurer would have discovered and prevented them, and upon this finding the defendant seeks to base an estoppel against the plaintiffs. It certainly is not a general rule of law that a person can be deprived of his property by an unauthorized transfer thereof, simply because he has not exercised ordinary care to prevent such transfer. I may carelessly intrust a dishonest person with my personal property, and thus put it in his power to sell it; and yet it has never been held that, in such case, my carelessness will deprive me of the right to reclaim my property, the person thus intrusted having neither the real nor apparent power to sell it. I may place my unindorsed bills in tbe hands of an agent, and thus place it in his power to forge an indorsement ; and yet the indorsement would not bind .me. The principle that when one of two persons, equally innocent, must suffer a loss by the act of a third person, he shall bear the loss who placed it in the power of such third person to perpetrate the act, does not apply to such cases. Where it is said in the books that one is estopped by his negligence as to the acts of another who has assumed to act for him, or to deal in his property, the neligence meant is that of permitting such other person to clothe himself, or to be clothed, with apparent authority to act, and then the person who has been induced to rely and act upon the appearances can invoke the estoppel; and such was the case of The New York and New Haven Railroad Company v. Schuyler (34 N. Y., 30) in which the doctrine of estoppel by negligence is more fully discussed than in any other case. Here there was no negligence of Raines in clothing Phelps with apparent authority to indorse, or in causing or permitting any appearances which caused the defendant to rely upon the indorsements. The negligence alleged is simply that Raines did not use ordinary care to discover and prevent the frauds of Phelps; and there is no authority for holding, that such negligence can .work an estoppel. If it could, merchants, bankers and other business men, having numerous clerks, would frequently hold their property by a precarious tenure.”

The last ground upon which it is claimed that the ruling of the court in directing a verdict for the 'plaintiff is erroneous is, that the credibility of the plaintiff as a witness in his own behalf should have been left to the jury.

There was no occasion to submit the question of the credibility of the plaintiff to the jury, because, as has already been shown, there was no view of the evidence given by the plaintiff, or by the other witnesses in the case, under which the jury could possibly have found that Lingard had authority to indorse the checks in the manner in which he did, and to deposit the same to his own account with the defendant bank. The most that can be said about the testimony is that a jury might possibly have found that Lingard did have authority to use the stamp, and wrrite the plaintiff’s name under the stamping upon the checks and drafts, for the purpose of depositing the same in the Chemical National Bank; but if the views hereinbefore expressed are correct, such a finding by the jury would not have-justified a verdict for the defendant.

Various exceptions were taken during the trial to the-admission and exclusion of evidence, but none of them appears to us to have been well taken.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Andrews, J.:

text:
    MARIA ANNA VOGEL, Respondent, v. MARIA LUCIA LEHRITTER and Others, Respondents, and CHARLES LEHRITTER, Appellant.

      Will — execution thereof in Barm'ia before a royal nota/iy — acknowledgment befoi'e and certification by others, when insufficient — which of the papers constitute part of the will.

    Maria Anna Lehritter, a citizen of the State of New York, owned property in New York city when, in 1890, she died at Wuerzburg, Bavaria. She had resided in Wuerzburg for many years, and, in October, 1883, made a will there, prepared by a royal notary named Huth, which was signed by her at the end in the presence of Huth only, and placed it in an envelope, sealed with her seal containing her initials. This execution was in due legal form under the Bavarian law.
    Immediately afterwards Huth wrote upon the envelope a certificate that, according to the oral declaration of the testatrix, the envelope contained her will. This he read aloud to her, and to two witnesses whom he summoned.
    Immediately afterwards, and in the presence of the two witnesses, the testatrix handed the envelope to Huth, at the same time declaring that it contained her last will; that if not valid as a will she wished it to be carried out in any legal way possible, and that she revoked all former wills. Thereupon Huth and the witnesses signed the certificate on the envelope.
    Immediately afterwards, and in the presence of all these -persons, Huth drew up an instrument upon another piece of paper, stating that the testatrix had appeared before him and had requested him to receive her will; he then recited, in substance, the above proceedings, and concluded by stating that he had read the instrument to all the parties. All then signed it. This instrument was then folded, and the envelope containing the will was placed loosely between the leaves, and the notary deposited it among his records.

      In an action o£ partition the plaintiff, an heir-at-law, alleged that the apparent devise created hy this will was void’ and that Maria Anna Lehritter died intestate as to the real property situated in the State of New York.

      Held, that the lex loci rei sites controlled.
    That the instrument first signed by the testatrix, being witnessed by Huth only, was not properly executed.
    That subsequent declarations by the testatrix to witnesses, who, as the paper was sealed up, could not see her signature, were of no avail.
    That the papers signed by the witnesses- summoned by Huth did not constitute part of the will.
    That the witnesses subsequently summoned by Huth were not summoned to attest the execution of the will, but its deposit after execution with the notary.

      .Semble, that the law does not require that the several pieces of paper constituting a will should be attached together.
    Appeal by the defendant Charles Lehritter from an interlocutory judgment of the Supreme Court, entered in the office of the clerk ■of the city and county of New York on the 3d day of February, 1892, confirming the report of a referee and directing a sale of certain premises.
    Also notice that said defendant would move the General Term for a new trial on the exceptions filed on behalf of said defendant to the report of the referee, to whom the issues were referred to Lear and determine the same.

      Robert. E. Deyo, for the defendant, appellant.

      Frederick W. Holts, for the plaintiff, respondent.

      Richard M. Bruno, for the defendants, respondents Hoor.

      Emile Schultze, Jr., for the defendants, respondents, M. L. Lehi'itter and O. A. Vogel. \
   Andrews, J.:

This action is brought for the partition and sale of certain real property situated in the city of New York. The complaint alleges that an apparent devise made by one Maria Anna Lehritter is void, and that said Maria died intestate as to said realty, and that it descended to her heirs at law and their grantees, the plaintiff and the defendants. The defendants, respondents, make substantially the same claim. The defendant, appellant, Charles Lehritter claims that certain paper writings constitute a valid will of the said real property, and that they contained a valid devise thereof to him, and he seeks to establish such paper writings as a valid will of real property. The issues were referred to Hamilton Odell, Esq., who reported in favor of the plaintiff, and the defendants, respondents, and against the defendant, appellant, Charles Lehritter, sustaining the material allegations of the complaint, and refusing to establish the writings, as a will of real property. An interlocutory judgment was entered pursuant to such report; and this is a motion for a new trial on the-case and exceptions, and an appeal from said interlocutory judgment, taken by the defendant Charles Lehritter.

The opinion rendered by the referee w'as as follows: This action, is brought for the partition of certain real estate, known as numbers. 307 and 309 West Thirty-eighth street, in- the city of New York, which was owned by Maria Anna Lehritter at the time of her death, on the 25th of January, 1890. The plaintiff alleges that as to such real estate the said Maria Anna Lehritter died intestate, and she-claims title to an undivided one-third interest therein as grantee of' certain next of kin and heirs-at-law of the said deceased. The defendant Charles Lehritter denies the allegation of intestacy, and claims the entire premises under certain writings executed bj>- the-said Maria Anna Lehritter, at Wuerzburg, in Bavaria, on the 13th of October, 1882, which it is contended constitute a valid last will and testament. The sufficiency of such writings as a will of real property situated within this State is the question submitted for-decision.

Mrs. Lehritter was a citizen of the State of Newr York, but for many years prior to her death had resided in Wuerzburg, where she-died. It is a stipulated fact that on October 13,1882, at her request,, one Ulrich Huth, Royal Bavarian notary, formulated in the German language a paper writing, which have been read to and understood by her, she thereupon subscribed her signature thereto at the-end of the said paper writing in the presence of the said Huth only.” Thereby she appointed the plaintiff, then Maria Anna Lehritter, her sole and universal heir and legatee; ” but it was provided that the-said legatee should be bound to pay certain specified legacies, and that the defendant, Charles Lehritter, should receive the two-houses and lots in-West Thirty-eighth street above referred to. The writing concluded with these words: .This is my free, well considered last will, which I have myself read and signed in execution. Wuerzburg, the thirteenth day of October, one thousand eight hundred and eiglity-two. Maria Anna Lehritter.” Immediately after the said writing was so subscribed by Mrs. Lehritter, it was placed by her in an envelope, which was sealed by her with her private seal, which bore the letters “ M. A. L., New York.” Thereupon the said Huth, in her presence, wrote upon the outside of the envelope as follows: £‘ Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here. The undersigned royal notary hereby certifies by his signature and that of the two witnesses who were called in, with the addition of his official seal, that, according to the oral declaration of Mrs. Maria Anna Lehritter, there is contained in this envelope her last will. Wuerzburg, the 13th of October, 1882.” Immediately thereafter the words so written upon the envelope were read aloud to the said Maria Anna Lehritter and to two competent witnesses (Johann Georg Gutbrod and Franz Jaeger) called in by the said Huth, and in the presence of said witnesses the said envelope, containing the said paper writing, was handed to the said Huth by Mrs. Lehritter, she at the same time making this declaration : “ In the envelope which I have just handed you there is contained my last will. In case this should not be legal as a last will and testament, I wish to have it carried into effect as a codicil, gift causa mortis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary on the fourteenth day of August, one thousand eight hundred and seventy-five, and declare the same to be revoked and null and void.” And then, at Mrs. Lehritter’s request, and in her presence, and in the presence of each other, the said Huth, Gutbrod and Jaeger signed their names as witnesses on the said envelope at the end of the statement which had been written thereon by the said Huth after the said envelope had been sealed as above narrated, the said Huth accompanying his signature with his official seal. The said envelope contained nothing but the said paper writing formulated by Huth and subscribed by Mrs. Lehritter as her ££ free, well considered last will,” and bore no indorsement or inscription except the statement written thereon by the said Huth and attested by the signatures of himself and the two other witnesses.

The said statement having been so attested, the following took place (I quote the entire ninth section of the stipulation):

“ Immediately thereafter, and in the presence of all the persons before named, the said notary drew the following instrument:

“ To-day, on the thirteenth day of October, one thousand eight hundred and eighty-two, there appeared before me, Ulrich Huth, Royal Bavarian Notary, with an office at Wuerzburg, in my office in this place, Mrs. Maria Anna Lehritter, born Boetzel, known to me with respect to her name, position and residence, and requested me to receive upon deposit her last will. After I had then procured two documentary witnesses in the persons of two men known to me with respect to their names, position and residence — 1. Johann Gutbrod, grinder. 2. Franz Jaeger, blacksmith — both of this place, against whom there were, according to their own statements, no objections which made them incapable of being witnesses, and had also convinced myself by a suitable conversation with Mrs. Maria Anna Lehritter of her intellectual capacity to dispose of her property. Mrs. Maria Anna Lehritter handed to me an envelope with the superscription: Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here, sealed once with a private seal which bore the letters, M. A. L., New York; and thereupon declared orally: ‘ In the envelope which I have just handed you there is contained my last will. In case this should not be legal, I wish to have it carried into effect as a codicil, gift ccmsa, mortis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary, on the fourteenth day of August, one thousand eight hundred and seventy-five, and declare the same to be revoked and null and void.5

Thereupon, I, the notary, through my signature with the above, the witnesses, and with the addition of my official seal upon the envelope, did certify that, according to the oral declaration of Maria Anna Lehritter, in this envelope there is contained her last will, and have received it among my official documents. About these proceedings, I, the notary, have drawn this present document, read it to Mrs. Maria Anna Lehritter and both the witnesses, in the uninterrupted presence of all of whom, with me, the notary, all these proceedings had taken place, and have signed it in company with all.

“ In testimony thereof,

“MARIA ANNA LEHRITTER.

“ Joh. George Gutbrod,

“Franz Jaeger.

“ [l. s.] Huth,

Royal Notary.”

This instrument was written upon a separate piece of paper and was never, at any time, attached mechanically to the said sealed envelope ; but the said paper was folded in the middle and then, in the presence of all the parties named, the said sealed envelope was, by the said Huth, placed loosely between the leaves of the folded paper and .deposited by him “ among his official documents in a place in the office of the said notary, kept for that purpose, where •all the said papers remained undisturbed until after the death of the testatrix.” After her death the said notary deposited a certified copy of the said instrument, together with the said sealed envelope containing the paper writing first above mentioned, with the Royal District Court, Number 1, in "Wuerzburg, but the instrument itself he retained in his own possession.

It is admitted that the several acts above recited as having been performed on the thirteenth of October were, pursuant to and in compliance with the provisions of Bavarian law, and that a valid will for the passing of title to real estate situated in Bavaria was thereby made. This fact, however, is not important, except as an explanation of the rather novel proceedings of the royal notary, for it is a setted rule that to make a valid disposition of immovable property, by deed or by a last will and testament, the lex looi rei sitae must govern, and the instrument must be executed in conformity to that law. (Moultrie v. Hunt, 23 N. Y., 410; White v. Howard, 46 id., 159.)

The formalities required in the execution of a will are prescribed by the statute, and they must be substantially complied with or the instrument has no validity. (Lewis v. Lewis, 11 N. Y., 220.) There must be a subscription by the testator at the end of the will, made in the presence of two attesting witnesses or acknowledged by him to each of the witnesses to have been so made; a declaration, by him, at the time of the subscription or the acknowledgment, that the instrument subscribed by him is his last will and testament; and the witnesses must sign, as such, at the end of the will at his request. There is no valid execution of a will unless the witnesses see the signature of the testator. His declaration that the instrument which he requests them to attest is his last will is not sufficient if his signature thereto is not exhibited. (Matter of Mackay, 110 N. Y., 611.) Such a declaration is not an acknowledgment of his subscription within the meaning of the statute. (Mitchell v. Mitchell, 16 Hun, 97; affirmed, 77 N. Y., 596.) Subscription and publication are distinct acts. If either is omitted, the omission is fatal to the validity of the instrument. (Lewis v. Lewis, supra; Baskin v. Baskin, 36 N. Y., 416.) And both the testator and the witnesses.must sign at the end of the will. “Wherever the will ends there the signatures must be found; and one place cannot be the place for the purpose of subscribing by the testator and another place be the end for the purpose of signing by the witnesses.” (Matter of Hewitt, 91 N. Y., 261.)

The learned counsel for the defendant Charles Lehritter concedes the correctness of these rules, and claims that they were all observed, and that all the requirements of the statute were complied with on the occasion of the execution of the several writings above referred to. His contention is that these several writings, having been executed at the same time and in furtherance of a declared purpose, and that purpose the testamentary disposition by Mrs. Lehritter of all her estate, real and personal, wherever situated, must be taken and construed together as constituting a single instrument; that the indorsement on the envelope and the final certificate of the notary (subscribed also by Mrs. Lehritter and the two witnesses), are to be regarded as continuations of the incomplete testamentary writing contained in the sealed envelope; that the end of the will, therefore, is the end of the notary’s certificate; where the testatrix and the witnesses set their names in the presence of each other, the witnesses signing at Mrs. Lehritter’s request, and after her oral declaration to them or in their presence, that the envelope delivered by her to the notary contained her will; and that the fact that the said certificate was not attached mechanically to the envelope is of no materiality, the law not requiring the several pieces of paper on which a will may be written to be so attached.

The last proposition may be accepted as true. In Ela v. Edwards (16 Gray, 91), cited by the counsel, the court approved the rule laid down in Bond v. Seawell (3 Burr., 1773), and followed in other cases, where all that was required was that “ all the separate sheets of paper must be in the room and in the presence of the attesting witnesses.” It is doubtful whether, within that rule, a paper enclosed in a sealed envelope can properly be said to be in the presence of the witnesses, although the envelope be produced and exhibited to them. The point, however, is not material, for the controlling question is whether the certificate which the notary prepared and sealed, and which was subscribed by all the parties, and to which Gutbrod and Jaeger affixed their signatures at Mrs. Lehritter’s request, is to^ be accepted as a part of the will which she executed that day, and by which she intended and attempted to dispose of her entire estate. A careful consideration of all the facts has convinced me that that question should be answered in the negative.

Three papers or writings are mentioned in the stipulation. The first is the instrument in which Mrs. Lehritter directed how her estate should be disposed of and distributed. She entitled it her “ last will.” In it she declared “ this is my free, well considered, last will which I have myself read and signed in execution.” It is the paper to which her signature was affixed in the presence of the notary only, and which she then enclosed in an envelope which she sealed with her private seal. "When she delivered the envelope to Huth, in the presence of the witnesses, she said: In the envelope which I have just handed you is contained my last will.” By the indorsement written upon the envelope, the notary and the two witnesses certified that it contained the last will of Mrs. Lehritter according to her oral declaration.” This statement is repeated in the third writing; the separate instrument which was signed by all the parties and sealed by Huth with his notarial seal.

As I understand the facts, the first paper writing was completed when it was subscribed by Mrs. Lehritter. It was not afterwards changed in either oí its provisions, nor was it re-subscribed or re-executed by her. The two witnesses who were called in by Huth were not summoned to attest the execution of a will by Mrs. Lehritter,, but to attest the deposit of her executed will in the office of the royal notary. This plainly appears from the third and final writing, which sets forth that, on the thirteenth of October, Mrs. Lehritter appeared before the notary, in his office in Wuerzburg, and requested him “ to receive upon deposit her last will.” It had been already drawn up and subscribed, and inclosed in a sealed envelope as before stated. Then Gutbrod and Jaeger were called in, the envelope was produced by Mrs. Lehritter and delivered unopened to the notary; the declaration was made by her that the envelope contained her will; the certificate written upon the envelope was signed and sealed, and the notary received the will “ among his official documents.” The final writing certifies to the formalities which attended the identification of the will, after execution and its deposit in a public office, and to nothing more. By no ingenuity of reasoning can it be converted into a component part of the will of which it speaks. It is an admitted fact that the several acts performed by the notary, as recited in the stipulation, were “ in compliance with the laws of Bavaria in relation to the execution, custody, authentication and proof of wills and papers relating thereto.” According to those laws a will may be inoperative and worthless unless identified and authenticated in a formal manner and deposited in a public office; but the writing by which it is authenticated is not incorporated into the will and made a part of it, nor is the execution and attestation of such a writing the execution and attestation of the will itself.

My conclusion is that Mrs. Lehritter left no will executed as our statute demands, and that as to the real estate in question she died intestate.”

We are of the opinion that the conclusion reached by the referee was correct, and we do not see that anything can be added to his opinion. The facts were not in dispute, and they are fully and accurately set forth in such opinion. The rules of law as to the formalities to be observed in the execution of wills of real property in this State are correctly stated, with full citations of decisions of the court of last resort supporting the same. Such rules of law are then applied to the admitted facts, and the conclusion is reached, from which we can see no escape, that the paper writings in question do not constitute a valid will of real property situated in this State.

"We are of the opinion that the judgment should be affirmed upon the opinion of the referee.

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

Judgment affirmed.


author: O’Brien, J.

text:
    In the Matter of the Application to Compel the Final Judicial Settlement of the Accounts of JAMES NEALE PLUMB, as Guardian of the Person and Estate of MARIE JEANNETTE PLUMB, an Infant.

      Surrogate’s Court — power to issue a commission to examine witnesses without the State.

    Section 2538 of the Code of Civil Procedure, making sections 887 and 888 thereof applicable “ to Surrogates’ Courts, and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form,” gives a surrogate power to issue a commission’to take the testimony of witnesses in a foreign country in a proceeding pending in his court.
    Appeal by James Neale Plumb, as general guardian of the person and estate of Marie Jeannette Plumb, formerly an infant, from an order, entered in the office of the surrogate of the county of New York on the 30th day of December, 1891, directing that a commission issue to examine certain witnesses in London, England, on behalf of Marie Jeannette Plumb, upon interrogatories and cross-interrogatories annexed thereto.

      Henry Thompson, for James Neale Plumb, general guardian, etc., appellant.

      David MoOhtre, for Marie Jeannette Plumb, respondent.
   O’Brien, J.

The appellant claims that, upon the law and upon the facts used as the basis of the application for a commission, the order made by the surrogate should not have been granted.

In determining whether the facts upon the application would justify the granting of the order, we think the true test to apply would be to consider what, in the absence of any opposing affidavits by the appellant, would have been the duty of the surrogate. Applying this test, we think there was sufficient to justify the order. The presentation of the opposing affidavits, while we may concede that they destroyed the force and effect of all or nearly all the statements contained in the affidavits used to support the application for a commission, left the subject in a position where it became necessary for the surrogate to determine as to the credibility and weight to be attached to the conflicting affidavits, and upon motions of this character where the judgment of the court below is to be exercised, and the matter to a great extent is within its discretion, the conclusion reached will not be disturbed except in cases where it can be seen that the discretion has been illegally or arbitrarily exercised in favor of granting or denying the application. With this rule in mind, we have examined the papers presented, and do not feel that we would be justified in reversing the conclusion reached by the surrogate upon conflicting affidavits.

The serious and important question, however, raised by this appeal relates to the question of whether under the law the surrogate has any power to issue a commission at all. The effect of a decision as contended for by appellant would be to deprive the surrogate of all power in any proceeding pending before him- to issue a commission, and in view of the serious results that would follow from such a conclusion, it should not be adopted unless the law demands it.

There can be no question but that, prior to its repeal in 1880 (Laws of 1880, chap. 245, § 1) the surrogate had power to issue a commission, such power having been expressly conferred by chapter 460 of the Laws of 1837, section 77.

Since the repeal of the act of 1837, by the general repeal of the act of 1880, the subject of granting commissions is regulated by the Code of Civil Procedure. The provisions of the Code applicable to the present discussion are to be found in sections 887 and 888, -which latter section states in what cases a commission may be issued. Appellant insists, and in this insistence is supported by authority, that this section 888 is applicable only to actions, and has no application to special proceedings. This concession, however, while it applies to the Supreme Court and other courts of record, would be equally applicable to the Surrogate’s Court, were it not that by another section of the Code (§ 2538), the provisions of section. 888 have been extended to apply to the Surrogate’s Court. By this section, it is provided that certain provisions, which include section 888,shall be applicable to “Surrogates’ Courts, and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form.”

When we recall the fact that all forms of procedure in the Surrogate’s Court are special proceedings, and not actions, section 2538 so far as making applicable the provisions of sections 887 and 888, in regard to taking depositions without the State, on a commission would be meaningless as applied to the Surrogate’s Court, were we to hold that it was only in an action in the Surrogate’s Court that the surrogate would have the power to issue a commission. Such a construction would be to hold, in effect, that though the Legislature intended to confer the power upon the Surrogate’s Court, that such power could not be exercised, because no action could be brought in the Surrogate’s Court, and the provisions relating to the taking of depositions are confined to actions. We do not think that such a construction, rendering meaningless the statute, is warranted by the language used. The legislature in enacting section 2538 had undoubtedly in view the difference that exists between courts wherein actions may be brought and the Surrogate’s Court which •deals solely with special proceedings, and hence, in making applicable the other provisions of the Code to the Surrogate’s Court, we find that in reference thereto the language used is that such provisions are made applicable “ to the proceedings therein so far as they can be applied to the substance and subject-matter of a proceeding without regard to its form.”

While the question of the surrogate’s jmisdiction doos not seem to have been raised in any of the reported cases, we have many instances where it has been exercised, and where the surrogate has issued a commission basing his authority upon the general provisions of the Code. (Bristed v. Weeks, 5 Redf., 529; Cadmus v. Oakley, 2 Dem., 298; Henry v. Henry, 4 id., 253; Bull v. Kendrick, 4 id., 330.)

The commissions issued in these cases related entirely to will contests, and from this circumstance the appellant seeks to justify a distinction between such a proceeding and other proceedings pending in the Surrogate’s Court.

It is true that upon ^contest over the probate of a will an issue of fact is raised by tbe petition and answer, yet tbe fact remains that it is not an action, but a special proceeding, and like in character to other proceedings over which the surrogate has jurisdiction. In the absence, therefore, of any special provision conferring jurisdiction upon the surrogate to issue a commission in a contested will case, if he has the right which has been constantly exercised, of issuing a commission in such cases, his power'is derived solely from the provisions of the Code already referred to, and if thereby sustained would be equal authority for the exercise of such jurisdiction in a case like the present. In other words, there is no distinction between a will contest and a contested accounting before the surrogate, both being special proceedings; and if it were held that a commission could only issue in an action, and it being clear that no action arises in a Surrogate’s Court, the denial of jurisdiction, in a case like the present, would be equal authorityfor a denial of such jurisdiction in a contested will case. As we have already seen, however, though the question does not appear to have been raised, such jurisdiction has been exercised and commissions have been issued, and,*as we think, rightly, under the provisions of sections 887 and 888 of the Code, which, by section 2538, so far “ as they can be applied to the substance and subject-matter of a proceeding, without regard to its form,” were made applicable to Surrogates’ Courts.

"We, therefore, think that the order appealed from should, in all respects, be affirmed, with costs.

Andrews, J., concurred; Yan Brunt, P. J., concurred in the result.

Order affirmed, with costs.


author: Mayham, P. J:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. A. FILKINS HOSE COMPANY No. 6, of the City of Amsterdam, and Others, Appellants, v. WILLIAM H. SON, as Treasurer of the Fire Department of the City of Amsterdam, Respondent.

      Fire department — apportionment of insurance premiums — a resolution of village trustees determining tlieir disposition — it is not rescinded when the village became a city — Lams of 1854, chap 389; 1875, chap. 582; 1885, chap. 131.
    Chapter 465 of the Laws of 1875, as amended, makes it the duty of a Are insurance agent to pay a certain percentage of the premiums received for insurance on the property of the city or village in which he transacts business to the treasurer of the Are department of such city or village.
    Under the charter of the village of Amsterdam, authorizing its trustees to organize a Are department, and to prescribe the powers and duties of its companies, the treasurer of its Are department was made an officer of the village, and was authorized to receive all moneys belonging to the department, and to pay over the same to the several companies composing said Are department as they shall be entitled to the same. The trustees by resolution determined that the moneys accruing from the percentage paid on ffre insurance premiums should be distributed among the companies in proportion to their maximum numbers as Axed by the trustees, the different companies differing in the number of members in each.
    In 1885 Amsterdam was incorporated as a city, and by the charter the village department became that of the city, and the existing resolutions of the trustees, including the resolution in question, were continued in force.

      Upon an application by the hose companies, which contained the smaller numbers of men, to share equally with the others in the fund:

      Held, that the Are department was a subordinate governmental agency of the village, and subsequently of the city, and as such was subject to the action of the trustees.
    That as their resolution was a proper exercise of authority on their part, and had never been rescinded by the common council, the disposition of the money directed by it must stand as a proper exercise of power.
    Appeal by tbe relators, A. Filkins Hose Company No. 6, Emerald Hose Company No. 5, The Eckford Hook and Ladder Company No. 1 and J. J. Gray Hose Company No. 7, all of tbe city of Amsterdam, from an order of tbe Supreme Court, entered in the office of tbe clerk of tbe county of Montgomery on the 24th day of February, 1892, denying a motion for a peremptory writ of mandamus and dismissing a writ of alternative mandamus requiring "William H. Son, treasurer of tbe fire department of tbe city of Amsterdam, to pay to each of tbe relators $113 for its share of certain insurance moneys or to show cause to tbe contrary.

      Ecbward J. Maxwell, for tbe appellants.

      G. 8. Nisbet, for tbe respondent.
   Mayham, P. J:

Tbe contest in this case arises out of a disagreement as to tbe proper division and distribution of tbe funds received by tbe respondent as treasurer of tbe fire department of tbe city of Amsterdam, from the agents of insurance companies, under tbe provisions of chapter 465 of tbe Laws of 1875, and tbe various, amendments thereto.

That act makes it tbe duty of every agent doing a fire insurance business within tbe limits of any city or incorporated village to annually pay to the treasurer of the fire department of such city or village two dollars on every hundred dollars of premiums received for insurance on property located in such city or village. Tbe defendant, as such treasurer, received tbe sum in controversy under that law, and tbe relators insist that they, consisting of tbe various hose and book and ladder companies of tbe city, shall each share that fund equally with all other engine and fire companies in tbe city.

The statute under which this money is required to be paid to the treasurer of the fire department or to the treasurer of the village or city, when the fire department has no treasurer, does not indicate or direct how this fund shall be distributed among, or be used by the fire companies constituting the fire department of the cities or villages to whose treasurer it is required to be paid. ¥e must, therefore, look to the city or village charter or to the authorized acts of the city government, or the fire department for some ordinance, resolution, rule or custom, for the distribution of this fund.

The answer to the alternative writ denies that all of the relators are members of or constitute a part of the fire department of the city of Amsterdam, and alleges that of the relators, who are duly incorporated and do constitute a part of the fire department, they are not as companies to share equally in such fund with all the other fire or engine or steamer companies, and that such fund is not to be divided equally by companies, but per capita in proportion to the maximum number of men in each company; and that by regulation long established, and acted upon by the village of Amsterdam, and since its incorporation as a city, acquiesced in and adopted by it, the maximum membership of a steamer and hose company was and is one hundred men, and of each hose company thirty men, and of each hook and ladder company forty men, and this fund has, by resolution of the department and uniform usage, been distributed to the companies in proportion to their respective number of members. Upon the issue thus framed, the referee to whom it was referred found as facts, that all of the organizations named as relators are members of the fire department; and that the fire department was originally established by the board of trustees of the village of Amsterdam, who fixed by resolution, some time prior to the year 1875, the maximum number of the several companies to consist of a hundred men to each steamer and hose company, thirty men to each hose company and forty men to each hook and ladder company; and that the fire department of the village became the fire department of the city of Amsterdam on its incorporation.

The referee also found as a fact that the board of trustees of the village of Amsterdam, by resolution, directed that the moneys received from foreign insurance companies be divided among the several companies composing the fire department jjw rata, in proportion to the number of members of said companies as fixed by the board of trustees; and that such resolution has never been rescinded by the board of trustees or the common council of the city of Amsterdam.

•’ The referee also found that, prior to the commencement of this action, the firemen, at an annual meeting, voted to rescind a resolution that had been passed by them in 1888, providing that the insurance moneys be divided pro rata among the several companies in proportion to their number of members.

The referee found, upon the facts of this case, that, as matter of law, the trustees of the village and the common council of the city of Amsterdam had authority to regulate the number of members of the various fire companies in the village and city, and to apportion and distribute this insurance fund ; and that the fire department had no power or authority to apportion this fund among the various companies composing the fire department; and held that the relators •were not entitled to a peremptory mandamus, and that the defendant was entitled to judgment dismissing the alternative wilt.

By the charter of the village of Amsterdam (chap. 889, Laws of 1851) the trustees of the village were authorized to organize and establish a fire department. Subdivision 33 of section 3 of title 3 of the charter provides as follows: The board of trustees are authorized to organize and establish a fire department, to be composed of one or more fire, hook and ladder, bucket and hose companies in said village * * * and to prescribe the powers and duties of each of said companies and of all the members thereof.” It is true' that by this subdivision the maximum in each company was not to exceed sixty men, and we have not been referred to any statutory authority conferred upon the board of trustees to increase the number in any case to 100.

By chapter 582 of the Laws of 1875, the treasurer of the fire department of the village of Amsterdam was made one of the officers of such village, and by section 3 of that act he was authorized to collect and receive all moneys belonging to, or that may grow due to that department, and pay the same over to the several companies composing said fire department as they shall be entitled to the same.

As there is no statute definitely defining the methods of distribution of this insurance fund, and as the fire department was the creation of the board of trustees, which, by the statute above referred to, had authority to prescribe the powers and duties of each of said companies and all the members thereof, it was but a reasonable exercise, of that power to direct the manner in which a subordinate ■officer of the village should distribute that fund.

As we have seen, the referee finds, as a fact, that the board of village trustees assumed to and did exercise that power, and bv resolution directed the payment of such money to the companies in proportion to their maximum members as fixed by such board, and that method of distribution was for some time followed and acquiesced in by the members of the fire department and was in operation at the time of the adoption of the city charter in 1885.

By that charter the common council took the place of the village trustees, with the same or increased powers conferred by statute, and it was, by section 104 of that charter, empowered to establish and maintain an efficient fire department and make all necessary rules and regulations for the government and discipline of the same, and by section 108 of the charter the fire department of the village of Amsterdam became the fire department of the city.

The common council have never rescinded the resolution of the hoard of trustees in relation to the distribution of this fund, and if that resolution was authorized and valid it is by the express terms of the charter still operative. Section 128 of the charter (chap. 131, Laws of 1885), provides that “The existing ordinances, by-laws, resolutions and regulations of the trustees of the village of Amsterdam, as the same shall be in force when this act shall take effect, shall be and continue in force, and shall have the same force and effect * * * as if duly adopted, passed and published by the •common council of said city, until the same shall be repealed by the common council of said city.”

If we . are right in our construction that the board of village trustees, under its general supervisory power of the fire department, could regulate the distribution of this fund, so long as they acted in harmony with the general scope and purpose for which this money was given, which, manifestly, was to improve the efficiency of the various fire departments of the cities and villages of this State, then it follows that the resolution passed by that board must remain operative until the same is repealed, either by them or their successors in authority, the common council of this city. It has been held that the treasurer of the fire department should, under the directions of the trustees of the village or common council of the city, pay over all the moneys received or recovered under the first, second and third sections of chapter 465 of the Laws of 1875, to the fire department of the city or incorporated village in which the department is located. (Trustees of Exempt Firemen's Fund v. Roome, 29 Hun, 396.) And in this case, on appeal to the Court of Appeals, that court, in discussing the relation which a fire department in a city or village bears to the municipality, use this language in speaking of firemen and fire companies: “ Their duties were public duties; the service they rendered was a public service; their appointment came from the common council * * * they were liable to removal by the authority which appointed them, and were intrusted with the care and management of the apparatus owned by the city. They were at least a public body, and, perhaps, are best described as a subordinate governmental agency.” (93 N. Y., 319.)

Tested by these reasons, we see no ground for holding in this case that the board of trustees of the village did not possess the power to make the order they did, in relation to the distribution of these funds; and, as that order has not been revoked or modified by the common council, it must be regarded as still in force, and the money should be disposed of by the defendant under its directions.

Having reached this conclusion, it is unnecessary to determine whether or not proceeding by mandamus was the proper remedy for the relators.

The order denying the peremptory writ’of mandamus and quashing the alternative writ must be affirmed, with fifty dollars costs and disbursements.

Putnam, J., concurred; Heerick, J., concurred in result.

Order affirmed, with fifty dollars costs and disbursements.