author:
      Barbour, Ch. J.
      Jokes, J. (concurring).

text:
    WILLIAM GREGORY, Plaintiff and Respondent, v. SARAH GREGORY and CYRENUS BLOODGOOD, the Surviving Executors of the Last Will of John Gregory, Deceased, and the said SARAH GREGORY, the Widow, and SARAH JANE VAN SICLEN, Wife of George W. Van Siclen, and CATHERINE REBECCA GREGORY, Children, Heirs-at-Law, and Devisees of said John Gregory, Deceased, Defendants and Appellants.
    I. Reversal, effect of, on bringing another action. Where, in an action against several defendants, the plaintiff recovers judgment against some of the defendants, while the other defendants recover judgment against the plaintiff, of dismissal of the complaint on the merits, and on an appeal taken by the defendants against whom judgment was recovered (no other appeal being taken), the judgment is reversed, a subsequent action for the same cause and ' similar relief (not being an action in its nature of a bill of review), cannot be sustained by the same plaintiff against the same defendant, for,
    1. As to the appealing defendants,, the first action is still pending, and can be pleaded bv them in abatement of the second.

      2. As to the other defendants, the judgment either remains in full force unreversed as to them, in which case they can plead it in bar of the second action, or else that judgment is reversed as to them, also, in which case they can plead the first action in abatement of the second one.
    II. Injunction—Deceiver. When not granted.
    1. Will not be granted when it appears, on the motion, that there is no probability of plaintiffs succeeding in the action.
    2. When a Us pendens has been filed, the filing of which protects the plaintiff’s rights and interests, as effectually as an injunction or receiver would.
    m. Ids pendens. ■ When the filing interferes with the granting an injunction or receiver.
    See Injunction and Receiver, above.
    Before Barbour, Ch. J., Jones and Spencer, JJ.

      Decided February 4, 1871.
    William and John Gregory were brothers.
    John Gregory made his will, in and by which he provided and declared as follows : .
    “ Secondly. I give and bequeath all my real estate, leasehold estate, and personal property of every name, kind, and description, wheresoever the same may be situated, to my beloved wife, Sarah Gregory, and to my children, who may be living at the time of my decease ; subject, however, to the provisions made in the next succeeding section of this my will.

      “ Third. .It is my express wish and desire, that my brother William, shall, after my decease, be entitled to the one-third part of all-my tools and stock in my business, and the one-third part of the proceeds arising therefrom, he assuming the responsibility of the one-third part of the debts and liabilities thereof. He to continue to transact and carry on ■ such business as heretofore, for the benefit of himself, my said wife and children.
    • “ Fourth. It is my further will and desire, that my said executors, hereinafter named, or the survivors or last survivors of them, shall take and hold all of my said real estate and leasehold estate, in trust,- for the benefit of my said wife and children. And they are hereby duly authorized and empowered to sell and dispose of at public auction or private sale, if absolutely necessary to pay off any bond or bonds, mortgage or mortgages, which may be held against me or any part or parts of my real or leasehold estate, such portion or portions of my said estate, as they may deem proper, applying the surplus of such sale or sales, if any, to the liquidation of other bond or bonds, mortgage or mortgages, against me or against any part of my said estate, and to give the necessary deed or deeds of conveyance for the property so sold.
    “ Fifth. It is my further will and desire, that the income arising from my real and leasehold estate,after paying the current expenses attending the same, and allowing and paying to my said wife such sum or sums of money as may be necessary for the support and maintenance of my said wife and children, and for the education of my said children, shall be used by my said executors hereinafter named, and the survivors and last survivor of them toward the payment and liquidation of any of such bonds and mortgages.
    ' “Sixth. It is my further will and desire, that my said executors hereiuafter named, or the survivors or last survivor of them, shall, as soon as conveniently may be, after all my children then living shall have arrived at the full age of twenty-one years, divide all imy estate, both real and personal,, between my said wife and such of my said children then living, and the lawful issue of those who shall then be dead, in the manner following, that is to say : The one-third part thereof to my said wife, and the remaining two-third parts thereof, equally share and share alike, amongst my said children and the lawful issue of such of them as shall then be dead, and the lawful issue of each of such ►children as shall then be dead, to take such parts or portions as his, her, or their parent would have taken if then living. .To have and to hold the same to their sole and respective use, benefit, and behoof, and the use, benefit, and behoof of their respective heirs and assigns forever.

      “And' lastly., I do hereby nominate, constitute and appoint my said wife, Sarah Gregory, executrix, and my brother, Robert A. Gregory, and my brother-in-law, Cyrenus Bloodgood, executors of this my last will and testament, hereby revoking all former and other wills, if any, by me made.”
    John Gregory died, leaving the foregoing will in full force, and leaving him surviving Sarah, his widow, Rebecca, Emma, Amanda, and Clara, his only surviving children, and his only heirs-at-law.
    The will was proved April 28, 1858, as a will of real and personal estate, and letters testamentary were issued to Sarah Gregory, as executrix, and Cyrenus Bloodgood and Robert A. Gregory, as executors.
    After John’s death, and on August 14,1858, William Gregory commenced an action against the executrix and executors of the will of his brother John, and his widow and children.
    In his complaint he alleged, that in April, 1837, he and his brother entered into business together as co-partners in the business of tin and coppersmiths, and dealers in stoves and tin and sheet iron wares, and iron and tin kitchen and household utensils, and furniture ; that the partnership continued until the death of said John, and the business thereof was during the whole time prosperous; that its success was such, and the profits thereof so accumulated, that in November, 1845,/ he and the said John determined to invest in real estate ; a portion of the surplus profit not required in carrying ' on the said business; that the course of the business of the said partnership was such, that in order to secure the tin work of buildings about to be erected, it was often advisable to take an interest in one or more such buildings, and thereby the funds and profits of the said partnership became invested in such real estate ; that purchases of real estate were made in this way and otherwise by him and his said brother, out of the proceeds and profits of the said business and of the income and avails of previous purchases from the time of the first purchase of such real estate, at intervals, down to the time of the death of the said John Gregory ; that the deeds and title to all the real estate so purchased were taken by the mutual consent and understanding of him and his brother, in the name of the said John Gregory, and the legal estate and title to the same were, at the time of the death of said John, vested in and stood in the name of the said John Gregory; that the real estate so purchased by the said firm with and out of the avails and profits of the said partnership business, and its increase, and justly and equitatably belonging to him and the said John Gregory jointly¿ in equal moieties, at the time of the death of the said John, is located in the city of New York, and consisted, at the time of the death of said John, of certain lots, particularly described in the complaint, among them, premises 330 Eighth-avenue.
    He .further alleged, that all the said real estate, although the title thereto stood in the name of the said John Gregory, was in truth and in fact the joint property of him and the said John ; that the said real estate had all been acquired by the joint and equal industry and perseverance, and was purchased in all cases with the money and by the mutual counsel and advice of him and his said brother, and in due course of their business as such partners as aforesaid; that the said John, after the commencement of the partnership business,- when his whole property consisted of the sum

      of two hundred and fifty dollars, contributed by him to the capital stoclc of the said copartnership, never had or acquired any property or money either from any other business, or by way of gift, wager, prize, devise, descent, legacy, or in "any manner or way whatsoever other than by means of the said copartnership and its avails and profits ; and that he, said William, contributed, equally with the said John, his time, labor, skill, judgment and experience, to the creation and advancement of the said business, the increase of its profits, and the management of its affairs, and devoted his whole time and attention, equally with the said John, to the interests of the said business, and to the acquisition of the property which stood in the name of the said John at the time of his death; that each of the said copartners drew from the funds of said business such moneys as were necessary for his support and the support and maintenance of his family, but that no settlement of the accounts of the said business took place between the said John and him, William, in the lifetime of the said John ; that the sums so drawn out by him, said William, were of very limited amount, not exceeding the average sum of four hundred dollars per year, and were much less than the sums so drawn out by said John; that the very limited amount drawn out by him, said William, constituted his whole receipts and income from said business, or from any other source whatever; that he, said William, did not accumulate anything whatever from said business besides his just and equitable share and interest in the property of said copartnership, and in the investments aforesaid in real estate of the profits of said business, and their avails and increase standing' as aforesaid-in the name of the said John.

      He further alleged, that from October, 1850, up to the death of said John, he and the said John occupied the store in said number 230 Eighth-avenue, as their

      manufactory and workshop and place of carrying on their aforesaid business; that during the same period the upper part of said building was occupied as the dwelling-house of the said John and his family, and that since Johrús death his widow and children continued to reside therein; that he (the plaintiff), after Johrús death, continued to occupy the said store and to carry on the said business as previously, until June, 1858, when the executrix and one of the executors of the will of .the said John took possession of said store and the tools and stock of goods, and refused any longer to allow the plaintiff to have the possession thereof or to conduct or wind up the said business ; that he is entitled as surviving partner of said John to the possession of said store and workshop and tools and stock of goods, and to collect the debts and accounts due to the said copartnership, and that he is bound out of the partnership property to pay its debts, and that he is entitled to settle and. wind up its affairs rendering an account thereof to the personal representatives of said John.

    - ■ He further alleged, that the partnership property, after allowing for all mortgages, liens and incumbrances thereon, at the time of the death óf said John, was of the value of seventy-five thousand dollars ; the one-half part whereof lawfully and equitably belonged and belongs to him as partner of said John.
    He then sets forth'in said complaint the death of said John, the fact of his leaving a will, and the above recited provisions. of the will, the qualification of the executors and executrix, and the names of the children and widow, who with the executors and executrix were made defendants. ■
    . He further alleged in said complaint, that by virtue of the third clause of the said will, of said John, he is entitled to the possession of said store, tools, and stock of goods, at 230 Eighth-avenue, and to transact

      and carry on the said business for his own benefit and that of the widow and children of said John; that the defendant Sarah Gregory, the executrix, and Cyrenus Bloodgood, one of the executors of said John, had denied his rights as surviving partner as aforesaid of his brother John, and had as aforesaid deprived 'him of the possession of the store and stock of goods of said copartnership, and had prevented him from transacting and carrying on the said business as in the lifetime of the said John, for the. benefit of the widow and children of the said deceased, and had taken measures to collect the debts due to said copartnership and to settle up its affairs, pretending and declaring that he was not the copartner of the said John; that they also pretend and maintain that he has not any other interest in or right or claim to the aforesaid property and estate standing in the name of the said John, at the time of his death, except such as is given to him by the third clause of the said will of the said John, and that under that clause his whole interest consists of the one-third part of the tools and stock in the business aforesaid, he assuming the responsibility of one-third part of the debts and liabilities, and that so much of the said third clause of said will as authorizes him to continue to transact and carry on business as theretofore is nugatory, void, and of no effect; that said executrix and executor, after having taken possession of the store and workshops aforesaid, and of the said tools and stock in said business, had accordingly offered and advertised the same for sale, and were about to sell the same in violation of his rights as such survivingpa/rtner as aforesaid, and of his rights under and by virtue of said third clause of said will; that he was desirous of having his rights and interests in the property left standing in the name of the said John, at the time of his death, declared and established, and

      that his equitable equal half right and interest in said real estate, as well as in said stock in business, might be so adjudged and determined, and that a partition might be had of said real estate.

    The prayer of his complaint was : that he might by the judgment of the court be declared to have been the equal copartner of said John in the said iron and tin ware, stove and kitchen and housefurnishing business, at No. 173, afterward No. 200 Eighth-avenue, at No. 245, afterward at No. 253 Bleeclcer-street, and at No. 230 Eighth-avenue, on the corner of Twenty-second-street, in the city of New York, from the time of the commencement of the said business, in the month of April, in the year one thousand eight hundred and thirty-seven, down to the time of the death of the said John Gregory, and in all investments by the said co-partners, whether in real estate or otherwise, of the profits and avails of the said business. That he might in like manner be declared to have been in lifetime of said John Gregory, and at the time of the death of the said John Gregory, the equitable equal joint owner with the said John Gregory, of. the aforesaid herein-above described real estate, the legal estate and title to which stood, at the time of his death, in the name of the said John Gregory¡ and that he is now the equitable, equal joint owner with the widow and children, devisees and heirs-at-law aforesaid, of the said John Gregory, deceased, of the said real estate. That the said Sarah Gregory, the executrix, and the said Cyrenus Bloodgood and Robert A. Gregory, the executors of the last will and testament of the said John Gregory, deceased, might be enjoined and restrained from interfering in any way with him in the exercise and discharge of his rights'and duties as the surviving partner of the said John Gregory, deceased, or under or by virtue of the third clause aforesaid of the last will and testament of the said deceased, and

      from, selling or disposing of the tools or stoo7c in business of the said store and business at No. 230 Eighth-avenue, corner of Twenty-second-street, in the city of New York, and from, collecting or attempting to collect the debts due to the aforesaid partnership. That the said Bar ah Gregory, executrix, and the said Oyrenus Bloodgood, executor, as aforesaid, might by the order and judgment of this honorable court, be compelled to pay any and all damages occasioned by their taking possession, as aforesaid, of the store and tools and stock in business of the said store, No. 230 Eighth-avenue, and depriving him of his rightful possession and control thereof, and preventing him from transacting and carrying on the business aforesaid / that an accounting might be had of the business of said copartnership, and that by the judgment of the court he might be declared to be entitled to such sum of money as upon such accounting might appear due him, and that payment thereof might be ordered accordingly; that a partition and division of the real estate aforesaid might be made according to the respective rights and interests of him and the widow and children, heirs-at-law and devisees of the said John Gregory, deceased, by the direction and according to the course and’ practice of the court, and the statute in such case made and provided ; and in case it should appear that an actual partition of the said "lands and real estate cannot be made without material injury to the rights of the parties interested therein, then. that, the said real estate might-be sold under the direction of this honorable court, and conveyances thereof made, to the purchaser or purchasers thereof at such sale and that the proceeds of such sale, after the payment of the costs and expenses of this action, might be divided among the parties entitled .thereto, according to their respective rights and interests therein, and to that end, that the rights and interests of the parties interested in the said premises, or in the proceeds thereof, might be ascertained, adjudged, and declared by the court.

      And in case it should be determined that he was not a copartner of the said John, and had not any rights as surviving partner, as aforesaid, in the property and estate aforesaid, then that his rights and interests in the estate of the said John, under and by virtue of the said third clause of his last will and testament might be judicially determined and declared by the court.
    And that he might have such other relief, or such further relief or both, in the premises, as might be just an'd agreeable to equity.
    The children of John Gregory, being all infants, put in, through their guardian ad litem,, the usual infant’s answer.
    The executrix, Sarah Gregory, and the executor, Oyrenus Bloodgood, and Sarah Gregory, individually, put in a joint answer, whereby they admitted that the business conducted in the name of .John Gregory was prosperous, and so continued up to the time of the death of said John ; that the lot of land first mentioned in the complaint, was purchased by and the conveyance thereof was made and delivered to said John; that the legal estate and title to all the parcels of land mentioned in the complaint were at the time of the death of said John vested in and stood in the name of said John; that the stock in trade, .effects and credits of the store, ETo. 230 Eighth-avenue, were at the time of the death of John Gregory of the value of -three thousand dollars, or thereabouts; that they advertised the said tools and stock of said store for sale, and were about to sell the same at public auction when they were restrained by the order of this court; and affirmatively alleged that about the time mentioned in the complaint, John Gregory started and established in his own. name, upon his own credit, and for Ms individual benefit alone, the business alleged in the complaint to have been a copartnership business, and that the said business so conducted and carried on in the name of the said John Gregory continued to be his individual. business, conducted by him, in his own name, upon his own credit, and for his sole benefit, down to the period of his decease, and that neither the plaintiff ' nor any other person ever had at any time any interest therein as principal or partner with the said John Gregory, or any right to share the profits of said business ; that the business conducted as aforesaid in the name of John Gregory was prosperous, and so continued up to the time of the death of the said John Gregory ; but they deny that they have any knowledge or information sufficient to form a belief whether each year of said business was profitable, or what was the extent of such prosperity annually or in the aggregate; that the purchase of the several lots, pieces and parcels of land mentioned and described in the complaint, were made by the said John Gregory, and the conveyances thereof were executed and delivered to him for his own' individual benefit, and as his sole individual estate and property; that no part of the consideration of either of said conveyances was paid or furnished by the plaintiff, but the whole of the consideration of each of said purchases and conveyances was furnished and paid by the said John Gregory, out of his own individual estate and property, in which, and to which, the plaintiff had no right, title, lot, share or interest; that the real estate of said John Gregory mentioned and described in the complaint was at the time of his death, and still remained largely incumbered, and they were unable to state the value thereof over the mortgages, liens and incumbrances thereon ; that such value is at any period so dependent upon circumstances existing at such period that it is impossible to state what would or might be the value, or whether the same would be upwárd of seventy-five thousand dollars; that if the same were sold at public auction at the then time, nothing like the sum of seventy-five thousand dollars would be realized therefor; and denied all the allegations in the complaint not expressly admitted by the above admissions or consistent with the above affirmative allegations.
    The answer then proceeded as follows :
    “ Second. And in further answer to said complaint and to the second matter or cause of action therein stated, these defendants deny that the plaintiff is and they claim and insist that he is not by virtue of the third clause of the will of John Gregory, entitled to the possession of the store,' tools or stock of goods at Ho. 330 Eighth-avenue, or to transact or carry on the said business as in the lifetime of said John or otherwise, for the benefit of the plaintiff or the widow or children of said John.
    “They deny that they, the said Sarah Gregory, executrix, and Cyrenus Bloodgood, executor, have denied the right of the plaintiff, as the surviving partner of the said John Gregory, deceased, otherwise than by denying as they have herein denied and do now deny, that he is such surviving partner ; and they deny that they offered or advertised or were about to sell the tools and stock of the business, Ho. 330 Eighth-avenue, in violation of any right of plaintiff as surviving partner or otherwise. They admit that they advertised the said tools and stock of said store for sale, and were about to sell the same at public auction, when they were restrained by the order of this honorable court.
    “They allege that they were and,are advised and believed, and now believe and claim, and insist, that the legal title to, and the right to the possession of, and the, actual possession of said tools and stock, was and is in the executors and executrix of John Gregory, deceased and that it was their duty to sell the same at public auction, and convert the same into cash in the ordinary and usual and proper execution of their duty as executor and executrix aforesaid; and they are advised and believe, and claim and insist, that the said plaintiff has no title thereto, nor any right to the possession thereof, or any part thereof.

      “ They further allege and insist, that, after the death of the said John Gregory, and before the said tools and stock were so advertised for sale by them, the plaintiff explicitly and in direct terms refused to continue to transact and carry on business at said store, No. 280 Eighth-avenue, under or pursuant to the provisions of the third clause of the last will and testament of said John Gregory, deceased. And they further allege that, before the said advertisement of said tools • and stock for sale, they offered to the plaintiff to divide the said stock and tools into three equal parts, and' to give'him one of said parts, specifically subject to one-third of the debts and liabilities of said store and business,' at the same time claiming, as they now claim and insist, that they were not then, and would not at any time, be bound to make or consent to any such division or apportionment thereof. And the said plaintiff refused to unite-in, make, or accept, any such - apportionment of said stock or tools. • •
    “ They further allege that they are advised and believe, and they claim and insist, that they are not bound to engage in any: business with the plaintiff under the said third clause of said'last will and testament, or otherwise, or to leave or suffer to be left, any property or assets of the estate "of said John Gregory, deceased, in any business carried on or conducted by the plaintiff, alone or otherwise, or in his possession or under his control.

      “ And they allege that they are unwilling, and they refuse to engage in or conduct, carry on or be interested in any business with the plaintiff, or to leave or suffer to be left any property or assets of the estate of the said John Gregory, deceased, in any business conducted, carried on or superintended, wholly or otherwise, by the plaintiff, or in his custody or possession, or under his control.
    “ They deny that they have taken measures to collect any debts due to any copartnership, or to settle up the affairs of any copartnership.

      “ They are advised and believe, and so allege, that the plaintiff is not' entitled to any legal or equitable equal half right or interest, or other right or interest, in the real estate aforesaid, or in the stock in business aforesaid, or to any partition of the said real estate, or to any accounting of any alleged copartnership, or to the payment of any sum of money, or to any legal or equitable rights as surviving partner of John Gregory, deceased ; and that the aid of this honorable court is not required to interpret the third clause of the last will and testament of said John Gregory, deceased, or to judicially determine or declare the just or proper construction thereof.”
    ' The answer also' contained,' as a third defense', a plea setting up' the statute of limitations, alleging that, as to so much and such part of the .complaint as accrued more than six years prior to the death of John Gregory and the commencement of the action, that the same did so accrue more than six years before the decease of said John and the commencement of the action.- ■
    It also contained, as a fourth defense, another plea setting up the' statute of limitations, alleging that, as to so much and such part of the complaint or of the cause of action,' firstly therein' stated, as accrued more than ten years before the death of John Gregory and the commencement of the action, the same did’ so accrue more than ten years before the death, of said John Gregory and the commencement' of the action. \
    ■ It also" set up, as as a fifth defense to so much of the complaint as relates to the real estate described therein, that by and pursuant to the provisions of the statute in such case made and provided in respect to uses and trusts, the entire, sole, absolute, legal and equitable title, estate and interest in all and singular the real estate described in the complaint, vested in the said John Gregory, deceased, at the several times when the respective conveyances thereof were made and delivered to him, and that he died seized thereof, wholly and solely, and that the plaintiff at no time since such conveyances were respectively made has had, and that he has not now any legal or equitable right, title, estate or interest in said real estate, or any part thereof, or any rightful claim to any relief in respect thereto.
    It then set up, as a sixth defense to the complaint, or to so much thereof as is firstly contained therein, that during the whole period embraced in the complaint, to wit, from the month of April, 1837, down to the period when said John Gregory died, in which the plaintiff was in any way connected in business with the said John Gregory, deceased, the latter was principal, and the plaintiff was the clerk, agent, or servant of the said John Gregory, deceased, and never partner with the said John Gregory, deceased, and that during the entire period of such connection he was paid by said John Gregory, deceased, and received and accepted wages for his services, work and labor, and at the time of the decease of said John Gregory he was fully paid therefor.
    The issue thus joined was tried on the merits before Mr. Justice Hoeemah", who decided that William Gregory was a partner with John, in the business mentioned in- the complaint, from ^November 19, 1842, to December 31, 1848 ; and that from February 15, 1850, to April 2, 1858, said William was in the employ of said John as clerk, and entitled to compensation as such; and ordered a reference to take and state an account of what was > due said William as such partner and clerk.
    In the course of his opinion delivered on the decision Mr. Justice Hoeemar used the following language :

      “1 have concluded that the amount which shall be thus ascertained (to wit, by a reference before directed), to be due to William, shall be deemed a debt as so much money left in the hands of John, upon which interest shall be charged. It may be true that William may be looked upon as occupying the position of a retiring partner, and the general rule is, that such partner has an election between interest and profits (Collyer, 324, and note). But it is conceded that the profits are now exhibited in the real estate purchased, and I doubt whether, after a dissolution, when the title is taken by the continuing party in his own name, there is any right to any lien upon such real estate. It may be said that it is the partner’s ' money which in part makes up the consideration money. The statute (1 Rev. Slat. 728) may be an answer to this view. Neither do I think that John would stand in such a situation as trustee as to make any of the cases giving the cestui que trust a right to trace his funds into a purchase, and make it available, applicable.”
    On the coming in of the report of the referee, exceptions were filed thereto by the executrix and executors ; and the action having been brought to a hearing before Mr. Justice Hoeemar on the report of the referee, the exceptions thereto, the pleading, and testimony in the cause, he decided after a full trial on the merits that plaintiff was entitled to judgment against the defendants, Sarah Gregory, as executrix, and Cyrenus Bloodgood and Robert A. Gregory, executors of the estate of John Gregory, deceased, for the sum of twenty thousand two hundred and ninety-seven dollars and thirty-five cents, with costs ; and that the complaint be dismissed as to Sarah Gregory in her individual capacity, and as to Sarah Jane, Catharine Rebecca, Emma Amanda and Clara Gregory, with costs.
    On this decision a special term order was entered whereby it was ordered, adjudged and decreed as follows :
    ■ “It is declared.and adjudged that'the plaintiff, William Gregory, was a partner with the deceased, John Gregory, in the business mentioned in the complaint, from November 19, 1842, until December 31, 1848, when such partnership was dissolved.
    “It is further declared and adjudged, that from February 15, 1850, to April 2, 1858, the day of the death of the said John Gregory, the said plaintiff was in the employ of the said John as a clerk, and entitled to a compensation for his services as such.
    “It is ordered and adjudged, that the second and ninth exceptions, taken by the said defendants to the referee’s report, be and are hereby allowed, and all the other exceptions be and the same are hereby overruled, and such report in all particulars, except as to the matters of such two exceptions, is fully confirmed.
    “And it appearing that after correcting the report upon the allowance of the two exceptions aforesaid, there is due to the said plaintiff, on the partnership account between him and the said John Gregory, the sum of fourteen thousand seven hundred and fifty-six dollars and twenty-five cents, , principal and interest, and the further sum of five thousand five hundred and forty-one dollars and ten cents, on account ■ of the proper allowance for his services as clerk, after all deductions made.
    “Thereupon, it is ordered, adjudged and decreed, that the plaintiff do recover from such executors the gum of twenty thousand two hundred and ninety-seven dollars and thirty-five cents, out of the property of the said John Gregory, in their hands, or which may come to their hands, with the costs of this action.
    “And it is further ordered and adjudged, that the complaint in this action be dismissed with costs as to the defendant, Sarah Gregory, in her individual capacity, and as to the defendants, Sarah Jane Gregory, Catharine Rebecca Gregory, Emma Amanda Gregory, and Clara Gregory.”
    On this order, a judgment was entered in favor of the plaintiff against the executrix and executors, as such, for twenty thousand two hundred and ninety-seven dollars and thirty-five cents, debt, and six hundred and forty dollars and fifty-six cents, costs, amounting to twenty thousand nine hundred and-thirty-seven dollars and ninety-one cents, damages and costs ; and in favor of Sarah Gregory, in her individual capacity, and of the children of said John, dismissing the complaint as to them.
    There was no appeal taken from this judgment, except one taken by the executrix and executors to the general term, from so much thereof as rendered judgment against them for twenty thousand two hundred and ninety-seven dollars and thirty-five cents, damages and costs.
    On this appeal, the general term reversed the judgment; and the action still remains undetermined, at least as to the executrix and executors.
    After this reversal by the general term, plaintiff, on notice to the executrix and executors only, moved for and obtained an order directing the following specific questions of fact to be tried by a jury.

      First. Did • William Gregory, the plaintiff, and John Gregory, the testator named in the title of this action, and in the pleadings in the said action, enter into business together as copartners in the trade and business of tin and coppersmiths, and dealers in stove and tin and sheet-iron ware, and iron " and tin kitchen and household utensils and furniture, or any other trade or business, at number one hundred and seventy-three (afterward two hundred) Eighth-avenue, in the city of New York, or at any other place ?

      Second. When did such partnership commence, and when did the same terminate ?

      Third. What did each partner contribute to the capital and stock in trade of such copartnership, and to what proportion of the capital and profits of the said copartnership was each partner entitled %

    Upon the trial of these questions before one of the justices of this court and jury, the jury, after deliberating, returned their verdict as follows :
    As to the first question : That William Gregory, the plaintiff, and John Gregory, the testator named in the title of this action, entered into business as copartners in the trade and business of tin and coppersmiths, and dealers in stoves and tin and sheet-iron ware, and iron and tin kitchen and household utensils and furniture, at number 173, afterward 200, and afterward at 230 Eighth-avenue, in the city of New York, and also at 245, afterward 253 Bleecker-street, in the city of New York.
    As to the second : That the partnership so formed commenced in the month of April, 1837, and as to the business at 173, afterward at 200 and 230 Eighth-avenue, and 245 and 253 Bleecker-street, in the city of New York, continued until the death of the testator.
    As to the third: That they are unable, from the evidence, to decide what each of the partners contributed in money to the capital and stock in trade of such copartnership, but the jury find that each partner contributed his time, skill, and industry to the business, and all the proceeds and property of the business resulted from such joint contribution of their skill and industry ; and also found that each of said partners is entitled to one-half of all the proceeds, profits and assets of said partnership, whether invested or existing in real or personal estate.
    Upon a case made, the said defendants, Sarah Gregory, executrix, and Cyrenus Bloodgood, one of the executors of the last will and testament of the said John Gregory, deceased, applied to this court, at a special term thereof, for a new trial of the issues of fact so tried by the jury.
    This motion was denied; and an order was entered, May 25, 1867, denying the motion and ordering a reference to take and state an account of the partnership so found by the jury, and to compute, and ascertain, and report the amount due to the plaintiff, as his share of the capital, assets, and profits of the said copartnership, according to the said findings of the jury, whether invested or existing in real or personal estate, and for which the plaintiff is entitled to judgment in this action; and further ordering, that the said referee report the account aforesaid, as taken and stated by him, and all testimony taken before him on the said reference, and that he bring in Ms report thereon with all convenient speed; that the confirmation of the said report may be moved at special term, or at chambers, on two days’ notice to the opposite party, and that all further questions be reserved until the coming in of the report.
    The referee has not yet reported.
    Pending this last mentioned reference, the plaintiff, on notice to the executrix and Cyrenus Bloodgood, the surviving executor alone, moved for a receiver, and thereupon an. order was made on November 2,1868, ap • pointing a receiver, which was as follows:
    It is ordered: That a receiver of the property, assets, effects, and credits of the late firm of W. Gregory, J. & W. Gregory, and J. Gregory, mentioned in the complaint in this action, of which the plaintiff and J ohn Gregory, the testator of the defendants in this action, were copartners, and of which the plaintiff is the survivor, be appointed, and Thomas J. Barr, of the city of New York be, and he hereby is, appointed such receiver of the property, assets, effects, and credits of the said late firm of W. Gregory, J. & W. Gregory, and J. Gregory, so as aforesaid mentioned in the complaint in this action, with the usual powers of receivers in such cases, upon his executing- and filing a bond with sureties, approved by one of the justices of this co art, in the penalty of twenty thousand dollars, with the usual condition of bonds given by receivers in like cases.
    No appeal was taken from this order.
    Subsequently, the receiver, on notice to the plaintiff and the executrix and surviving executor, moved for an amplification of the above order of receivership, “as to the description and location of the property in this action the same as mentioned in the complaint.”
    On this motion, an order was made on December 36,1868, but dated" November 3, 1868, specifically appointing a receiver over the real estate described in the complaint, and of the rents, issues, and profits of or arising from the real property mentioned in the complaint, and ordering all persons in possession of said real estate to attorn and pay to the receiver all rent due and to grow due, and enjoining plaintiff and defendant from all interference whatever with the partnership property.
    An appeal was taken from this order to the general term, and the same was reversed on October 30, 1869.
    For this appeal, see 1 Sweeny, p. 613.
    At this stage of the litigation, and on Nov. 35, 1869, the plaintiff commenced the present action against all the parties originally defendants in the above action except Robert A. Gregory and Clara Gregory (who had in the mean time died), Sarah Jane and Emma Amanda Gregory having married, they were made parties by their marital names of Sarah Jane Van Siclen and Emma Amanda Reynolds.
    The complaint in this action contains all the allegations and prayer for relief as are contained in the complaint in the first action, except such as are above printed in italics, and except the third, fourth and fifth clauses of the will of John Gregory.
    It also contained several additional averments, which were as to the erection of buildings on the real estate ; as to the amount due the plaintiff; as to occupancy of the real estate by defendants, and their receipt of the income ; as to the bringing of the former action and sundry proceedings had therein; as to the responsibility of the defendants ; as to their intention tq dispose of the property; as to who are the' tenants of the real estate; and as to the defendants conspiring to protract a reference ordered in the previous action ; and a prayer for an injunction and a receiver.
    As to the erection of buildings, the averment is : That buildings consisting in many instances of handsome dwelling-houses, and in many instances also of stores and dwelling-houses, were at large expense erected by the said John and plaintiff on the said real estate, from which buildings a large income was, during the lifetime of the said John, and has been since his death, derived.

      As to the amount due, the averment is : That at the time of the death of said John, there was due to the plaintiff for the plaintiff’s one half share of the assets and profits of the said copartnership a sum of more than thirty-seven thousand five hundred dollars.

      As to the occupancy, the averments are: That for the period of eleven years during which the first action was pending, the children and devisees of John Gregory (defendants in that action), have been in the possession and enjoyment of all said real estate, the investment and proceeds of the assets and profits of the business aforesaid, in which the plaintiff was an equal partner as aforesaid with the said John, and to an equal half share of which he has been during all that time and still is justly and equitably entitled, and all others, the property of said partnership ; that the income of said real estate over and above interest on mortgages, taxes, and assessments, has amounted to upward of fourteen thousand dollars per annum, and that plaintiff has not received any part of said property of said copartnership or of the income aforesaid of the said real estate, excepting that he has occupied apartments of small valúe in one of the houses on said real estate.
    As to the bringing of the first action and the proceedings had therein, the averments are: That defendants, Sarah Gregory, the executrix, and Cyrenus Blood-good, one of the executors of the will of John Gregory, denied the rights of the plaintiff, as the surviving partner of his brother John, as in said second complaint set forth, and thereupon the plaintiff, on the 14th of August, 1858, brought an action against the said executrix and executors and heirs-at-law and devisees of said John.
    Then follows an averment to the effect that in the prayer of the said first complaint, that relief which is asked by the portion of the prayer of the first complaint which is above firstly italicised, was prayed for.
    Then follows averments that on the trial of said first action the complaint was dismissed as to the defendants, the heirs-at-law and devisees of John Gregory ; and thereafter certain questions of fact were ordered to be tried by a jury. The questions, and the findings of the jury thereon, as given above, are then set forth in full.
    The making of the case by the defendant, Sarah Gregory, executrix, and Cyrenus Bloodgood, executor, and the application by them for a new trial of the issues of fact so tried by the jury, are then averred.
    Then the order denying the motion for a new trial, and ordering a reference, as given above, is set out in full.

      As to the conspiracy to protract a reference in the first action : The reference referred to is the one last above mentioned, and the averments respecting it are:
    “That-said defendants, Sarah Gregory, executrix, and Cyrenus Bloodgood, executor, conspiring and confederating with said defendant Sarah Jane Van Siclen, Catherine Rebecca Gregory, and Emma Amanda Reynolds, wife of Wakeman F. Reynolds, the children, and only heirs-at-law, the devisees of the said • John Gregory, deceased, have procured the reference to take and state an account of the said copartnership, so as aforesaid, directed to be had by the said order of this court, of May 25, 1867, to be protracted down to the present time, although it has been ascertained, upon an examination of the books and accounts of the said co-partnership, that there is due to the plaintiff, for his equal half of the assets and profits of the said copartnership, as stated in the said books and accounts, a sum of more than fifty thousand dollars, have prevented the referee appointed by the said order, from bringing in any report upon the matter by the said order referred to him.”

      The allegations respecting the responsibility of the defendants and their intention to dispose of the property, are as follows :

    “The plaintiff further alleges, that the said defendants in this action are not responsible as to means, except to the extent of their share and interest in the estate of the said John Gregory
    “ The plaintiff further alleges, that the defendants are about to sell and dispose of as their own the said real estate, so as aforesaid standing in the name of the said John Gregory, to the one equal undivided half part of which the plaintiff is equitably entitled as aforesaid, and that such sale by the said defendants will work a great and an irreparable injury to the plaintiff.”

      As to the injunction : The complaint prayed for an injunction restraining the defendants from selling, conveying, or in any manner interfering with the said real estate therein mentioned, and from collecting the rents and income thereof, and restraining certain tenants named from paying to the defendants, or any or either of them, any rent or other income of said real estate; and as to a receiver, prayed that a receiver might be appointed to take charge of said real estate in the complaint mentioned, and to rent the same, and collect the rents and income thereof.
    This injunction and receivership was not prayed for in the complaint in the first action.
    On this complaint, supported only by the plaintiff’s affidavit, a motion was made for an injunction and receiver, as prayed for.
    All the defendants (except Emma Amanda Reynolds, who does not appear to have been represented) opposed the motion, and read in opposition sundry affidavits and papers, which met and overcame such of the allegations contained in the complaint in this action as were also contained in the complaint in the first action, as fully as they were met and overcome on the motion in the first action for an amplification of the order of receivership therein.
    The affidavits read in opposition to the motion also distinctly and fully deny the allegations of the complaint in this action as to confederation and conspiracy, and as to their intention to dispose of or incumber the real estate.
    The widow, and those of the, children who appeal, admit that they have no estate or income other than this real estate, of which John Gregory died seized; but they allege that none of that real estate has been sold; that there are «no incumbrances thereon, except such as were, on it at the death of said John; that there are no outstanding debts or claims due from or upon the estate of said John, other than such as may be due plaintiff,; that they individually do not owe any debts; that a large part of the rents have been applied to the payment of back and current taxes, assessments and charges on the property; of premiums of insurance; of improvements and repairs; of interest on mortgages existing at the death of said John, and of the principal of said mortgages; and that the real estate is in much better condition now than it was at the death of said John; that the average yearly income, over and above such payments, has been less than four thou-' sand dollars.
    It further appears from the affidavits that the defendant, Emma Amanda Reynolds, is the youngest child living of John Gregory, and became twenty-one years of age in February, 1869, and that Clara Gregory died without issue, unmarried and intestate.
    The motion for an injunction and receiver was granted ; and a special term order was entered in conformity with the decision.
    From this order all the defendants (except Emma A. Reynolds) appealed to the general term.

      E. W. Stoughton, of counsel for appellants.

      Lockwood & Crosby, attorneys for appellants, Sarah and Catherine R. Gregory.

      D. L. Helm, attorney for appellants, the executor and executrix.

      George W. Van Siclen, attorney for appellant, Sarah Jane Van Siclen.

      John E. Parsons, of counsel for respondents.

      Dayton & Todd. attorneys for respondents.
   Barbour, Ch. J.

It does not appear to me to be necessary, upon this appeal, to express an opinion whether it was the intention of John Gregory, by the second item of his will, to devise his real estate to his wife and children, directly, without limitation as to proportions, or, to give all his estate, personal as well as real, to his executors in trust to receive the income of the realty and pay over to the wife so much thereoi as should be necessary for the support of herself and his four minor children, and the education of the latter, until his youngest child should reach the age of twenty-one years, and then to devide the entire estate between the wife and children in certain definite proportions. For, if a devise in trust was designed by the testator, such trust was void by the statute, because it involved an illegal suspension of the power óf alienation; and, therefore, either the wife and children became entitled to an absolute estate in the land, as devisees under the will, or it descended to the testator’s heirs at law ; and, in either case, the children are, at least in part, the owners in fee of the lands described in the complaint and covered by the order appealed from, subject, of course, to such equities, if any, as existed against them in favor of the plaintiff at the time of the death of John Gregory. The children of the decedent, therefore, being the owners in fee and in possession of the lands which are, as to them, the subject of the action, are entitled to the uninterrupted enjoyment of them, and to receive the rents and income thereof, unless the plaintiff, by the papers read upon his motion has proven facts, sufficient, at least prima facie, to entitle him to a judgment in this action against such legal owners, charging the property for the satisfaction of some equitable interest therein in his favor.

The first suit, brought some ten or twelve years ago, and which is still pending, is between the same parties as plaintiff and defendants, respectively, involves, substantially, the same cause of action, and demands for the plaintiff, so far as the lands are concerned, similar relief to that prayed for in the complaint in this the second action.

As I deem it improper to express any opinion, unnecessarily, upon this interlocutory question, touching the merits of the action, which may, .possibly, embarrass the court upon the final hearing, I will not here discuss the question as to the effect of the reversal or partial reversal of the judgment before Justice Hoeem ak in the first suit, beyond this :—Either the rights of the plaintiff in this action as against the children of William Gregory are fully and finally adjudicated and determined by the judgment in the first suit dismissing the complaint as to them, or, the effect of the reversal then was to open the judgment as to such children, so as to leave or reinstate them as parties defendant in the first suit, precisely the same as if no judgment had been rendered at special term in their favor; and, in either instance, it appears to me, the prosecution of this action cannot, properly, be permitted for any purpose so long as the first suit remains pending and undetermined. For, if the judgment in favor of the children is to be considered as final, the claims of the plaintiff against them because of his alleged equitable interest in the lands, have been fully adjudicated and determined thereby ; and such judgment is. therefore, a perpetual bar to any other suit or proceeding against them by the plaintiff, for the same cause of action. Or, if the children of John are still parties defendant in the first suit, the plaintiff may there have all the remedy, either by way of interlocutory orders or final decree, to which he can be entitled in a subsequent action between the same parties and embracing the same subject matter and cause of action. I may add that all the facts necessary to constitute a yalid plea in bar in case the former judgment is. in law, - final as to the children, or in abatement, if the first action is still pending as to them, are set forth in the answer, as they well might be (Code, § 150 ; Sweet v. Tuttle, 14 N. Y. [4 Kern.], 465 ; Bridge v. Payson, 5 Sandf., 210), and those facts were proven upon the motion. It appears to me, therefore, that whether the facts so set forth in the answer are to be considered as constituting a sufficient plea in bar or in abatement, the order appealed from ought not to have been granted.

Be that, however, as it may, it is quite clear that an order restraining the defendant children of John Gregory from selling the lands of which they are the owners in fee, or from collecting the rents thereof, and appointing a receiver of the same, cannot properly be granted in an action like this, unless the plaintiff es-' tablishes the fact upon his motion, by legal evidence, that he has some equitable interest in the lands which will entitle him to the ultimate possession of the same, or some part or portion thereof; and so this court held, in effect, upon an appeal from an order amplifying the powers of a receiver of the same lands, in the first suit.

The only evidence given by the plaintiff, upon the motion, touching his alleged interest in the real estate, was contained in the complaint, verified by him, in an affidavit stating. that the facts. therein set forth were true of his own knowledge. There are two averments in the complaint, so verified, which the plaintiff’s counsel claims to be sufficient to prove that he has an equitable interest and ownership in the property, to wit:—First, the plaintiff alleges that by the mutual determination, consent and understanding of himself and his brother John Gregory, portions of the proceeds and profits ,of their partnership business were to be, and, from time to time, were, invested in the purchase of the several parcels of real estate therein described, and that by a like mutual consent and understanding between them, the deeds and title of all the property so purchased were taken in the name of John Gregory, and thus stood at the time of his death. The second allegation relied upon, sets forth the fact that an order was made in the first suit directing certain issues to be tried before a jury ; that upon the trial of such issues the jury found that “each of said partners” (i. e., John and William Gregory), “was entitled to one half of all the proceeds, profits, and assets of said partnership, whether invested or existing in real or personal estate /” and that such verdict was confirmed by an order of the court.

It will, readily, be perceived that the verdict in question does not tend to establish the fact that the profits or assets of the partnership were invested in the particular lands which, so far as the children of John Gregory are concerned, on the subject of this action, or in any lands whatever, nor that this or any real estate ever belonged to the partnership firm. In fact, it is, merely, an attempt to determine by the verdict, of a jury a question of law in regard to the rights of the parties to the action ; the- very question, indeed, that must finally be decided by the judgment of the court as matter of law, after the proofs are closed. Indeed, it may be observed here, no question was submitted to the jury relating to the lands mentioned in the complaint or any other real estate. The verdict, therefore, proves nothing in regard to the alleged equitable interest of the plaintiff; and it follows that the only evidence before the court upon the motion, touching that important fact, must be found, if at all, in the statement of the plaintiff that the lands in question were purchased with the funds of the partnership, and conveyed to John Gregory, under an understanding and agreement between the two brothers to that effect.

That statement, it will be observed, relates to and covers agreements and transactions had between the plaintiff and John Gregory, under whom his children, the real defendants here, derive their title to the lands which are the subject, and to reach which in equity is the object, of this action. The plaintiff, therefore, could not be permitted, himself, to testify to those facts as a witness, upon the trial of the suit; such facts being covered by the exceptions continued in section 399 of the Code.

It was the common practice of the former court of chancery to grant injunctions upon the unsupported affidavits of complainants, although such complainants were not entitled to be examined as witnesses in their own behalf upon the trial; and that practice is still continued by the courts under our present system. But, I know of no instance in which an injunction pendente lite, or an order appointing a receiver, founded, solely, upon facts set forth in an affidavit of the plaintiff, which, from their nature, it was impossible for the defendant to disprove or controvert, has ever been upheld. Indeed, it appears to me that a practice which permitted the granting of injunctions, or the appointment of receivers, upon affidavits of that character, would be so manifestly unjust and inequitable, that it ought not to obtain. Taking this case, itself, as an example;—it is easy to see, in the first place, that it was utterly impossible for the defendants to prove upon the hearing of the motion that no such understanding or agreement between the plaintiff and his deceased partner as is set forth by the former in his affidavit, was had or made; and, secondly, that either the agreement is in writing or some person other than the plaintiff knows and can testify to the necessary facts, or, if not, such facts cannot be proven by him upon the trial. If, then, the agreement was in writing, or if the facts could have been proven upon the motion by the affidavit of another person, such writing or affidavit should have been produced by the plaintiff at the hearing, and his failure to present the same is presumptive evidence that he was unable to do so, and, consequently, that he cannot prove such facts upon the trial of the action so as to entitle himself to a judgment against the owners of the land, by reason of any equitable interest therein, founded upon such agreement; and, certainly, it would be unjust and inequitable to enjoin a defendant or appoint a receiver of his property, during the progress of an action to a trial in which there is no reason to suppose the plaintiff can succeed. Without here considering the question as to whether the prohibition in the Code against the examination of a party, in his own behalf, in relation to his transactions with a deceased person, applies to affidavits used upon a motion in an action. I am, therefore, of opinion that the affidavit of the plaintiff, alone, in regard to his dealings with his brother, was insufficient to entitle him to the order appealed from.

I am also of opinion, that the order appealed from was not necessary for the protection of the alleged interest of the plaintiff in the real estate in question, and, for that reason, that it was improperly granted.

The complaint alleges, that, at the time of the death of John Gregory, the real estate was worth upwards of seventy-five thousand dollars, over and above all incumbrances, that it has largely increased in value, and that the income of the same, after paying taxes, assessments, and interest on mortgages, is more than fourteen thousand dollars per annum, and that the evidence taken before the referee, in the first suit, shows that there is due to the plaintifffor Ms share of the assets and profits of the copartnership, more than fifty thousand dollars. As the referee was directed to ascertain and report the amount due the plaintiff as his share of the assets of the partnership, whether existing 3 in real or personal estate, it may be assumed that the value of the lands in question is included in that • calculation ; and as the rents and income of the property amount to fourteen thousand dollars a year, alter paying taxes, &c., it may safely be inferred that the real estate is worth at least twice as much as the amount of the interest therein which the plaintiff claims to have proven before the referee. If, then, the plaintiff shall ultimately succeed in establishing either that the amount of his interest in the assets constitutes a debt against the estate of John Gregory, for the payment of which the lands in question are equitably chargeable, or, that he is, in equity, the owner of one-half of such lands, and is entitled to a conveyance thereof to himself in fee, there can be no doubt the property is fully sufficient to satisfy his claims, without resorting to the rents which may accrue hereafter during the pendency of the action. It seems clear, therefore, that no receiver of such rents nor any order restraining the defendants from collecting the. same, was necessary for the protection of the interests of the plaintiff; and, the filing of a Ms pendens notice will more effectually preserve the equitable interest which the plaintiff may have in the lands, themselves against a sale and conveyance by the defendants, than would an injunction restraining the owners in fee from selling the same; inasmuch as the former would be, in law, a notice to every purchaser, however innocent, while the latter would not. As, then, the interests of the plaintiff in the lands could have been fully protected by the filing of a Ms pendens, it follows that an order enjoining the defendants and appointing a receiver was unnecessary, and, therefore, improper (Mills v. Mills, 21 How. Pr., 437 ; Stevenson v. Fayerweather, Id., 449 ; Osborn v. Taylor, 5 Paige, 515 ; Waddell v. Brune, 4 Edw., 671).

For these reasons, I think the order appealed from should be reversed with costs.

Jokes, J. (concurring).

Considering this appeal (without at present adverting to the additional allegations in the complaint with respect to the defendants’ responsibility, the design to dispose of the property, and their confederation), there appear to be but two motives for bringing the action—but two objects to be gained by it. Both of these objects are to overrule previous decisions of this court made in the former action.

The plaintiff has a general receivership already appointed in the former action, as against the executor and executrix. That receivership still stands. There can, therefore, be nothing gained by ordering another similar receivership in this action.

Unless, then, the object is to get an injunction and receivership which will either appoint a receivership as to the executor and executrix specifically, over the real estate mentioned in the complaint, or one which will affect the interests of the children and widow in the lands to a greater extent than they can be affected by an order against the executor or executrix only,— there can be no necessity for this suit.

As to the appointment of a receivership specifying in the order that the receivership is appointed over the specific real estate mentioned in the complaint, that was attempted to be done in the other action. It was then held that there was no sufficient proof that the property belonged to the partnership. The proof in this case is no stronger. As regards the executors and executrix, the proof can be supplied in the former action. A subsequent action should not be allowed for that purpose.

But as regards the widow and children, however, the former action having been dismissed as to them, no order for a receiver, either general or specific, can be made therein affecting their interests in the property any further than they may be affected by a judgment or order against the executor and executrix ; to that extent they may be affected by any order or judgment made in the former action, and, therefore, to affect them to that extent this action is unnecessary.

If, then, it is sought to affect their interests to a greater extent than they can be by an order or judgment against the executors or executrix only, it is necessary that they should be parties to the suit.

It is then to be considered whether the interests of the children and widow in the real estate can be affected by means of this action to a greater extent than through an order or judgment rendered against the executors and executrix in the former one.

In this action the plaintiff alleges that the real estate in question, although standing in the individual name of John Gregory, yet, in fact, was partnership property, and that he, as one of the partners, is entitled to the one equal undivided half, and prays that his right to the moiety, as one of the partners, may be established by the court, and for a partition of the real estate.

In the previous action he made the same allegations, and prayed for same relief.

On the trial of that action on the merits, it was decided that the plaintiff was not entitled to the relief asked for in this action, which was part of the relief prayed for in that action ; but the plaintiff having in that action also prayed that an accounting may be had of the business of the said copartnership; and that by the judgment of this honorable court the plaintiff may be declared to be entitled to such sum of money as upon such accounting may appear to be due to him, and payment thereof may be ordered accordingly.

The said accounting was taken therein, whereon it was found that John Gregory, deceased, was indebted to the plaintiff in the sum of twenty thousand two hundred and ninety-seven dollars and thirty-five cents.

Judgment was therefore entered in that action, as above set forth.

This judgment in favor of the widow and children, so long as it stands unreversed and unimpaired, is a conclusive bar against any action by plaintiff against them to affect their interest in the property, on the ground that it belonged to a copartnership of which plaintiff and John Gregory were equal members.

That judgment is consequently a bar to this action, so far as the parties defendant, consisting of the widow and children, are concerned, unless the reversal of so much as was against the executor and executrix had the effect of also reversing that part wh'ch was in favor of the widow and children. If, however, the reversal had such an effect, then that action is still pending as to the widow and children, and all the relief asked for in this, can be had in that.

It is urged, that immediately on one’s death, the law, so to speak, impounds all his estate, real and personal, for the payment of his debts, and that, consequently, one claiming to be a creditor at large, may, if the personal estate is insufficient to satisfy his claim, or if it has been distributed and the heirs or devisees are a,bout to dispose of the real estate, have an injunction to restrain said disposition until he shall have established his claim; and in case he shall succeed in establishing, then until he shall have collected; and further than this, if the real estate is not sufficient value to satisfy the alleged claim and interest thereon, that a receiver may be appointed of the rents and profits, to collect and receive the same and apply them on the claim when' established, and the interest thereon.

There may be force in the proposition, but I do not propose to examine into it, as it is not presented by the case made by the complaint.

This action is not based on a claim claimed by the plaintiff to be due him from the deceased, and it is not sought to subject the real estate mentioned in the complaint to the payment of any such indebtedness, as being property of the deceased, and as such, subjected by the law to the payment of his debts.

, On the contrary, the complaint seeks to reach the individual moiety of the real estate, and the rents, issues and profits thereof, on the ground that the same belong to, and are the property of the plaintiff, by reason of the said real estate belonging, as claimed, to the copartnership, composed of the plaintiff and the deceased, as equal partners.

This, as before observed, is the ground-work of, and claim in, the complaint in the former action. That action is still pending as against the execntor and executrix, and can be pleaded by them in abatement of this; while as to the widow and children, if the reversal of that part of the special term judgment in the first action, which gives a personal judgment against the executor and executrix, operates as a reversal of the whole of that judgment, then they can plead that former action in abatement of this; if, however, that reversal does not affect so much of that judgment as dismisses the complaint in that action as against the widow and children, then they can plead that judgment in bar of this action.

The additional allegations respecting the confederation of the defendants to protract the reference, their responsibility and design to dispose of the property, taken in connection with the other allegations and facts in the case, afford no ground for an injunction or receiver.

The referee and the court have full control in the previous action over the reference therein depending, and can readily prevent any unreasonable protraction thereof.

As regards the disposition of the property, a no tice of Us pendens will effectually protect all the plaintiffs’ rights in that respect if this action is properly conceived.

Insolvency will frequently warrant the appointment of a receiver, but never unless it also appears that the plaintiff has a cause of action against the defendant over whom the receiver is to be appointed, that recovery therein is at least probable, and the benefit to result from such recovery will either be wholly lost or substantially impaired by reason of said insolvency, if a receiver is not appointed.

As already held, there is no probability of a recovery in this action ; and as far as the other action is concerned there is already a receiver appointed therein, and if any further receivership is desired in that action, plaintiff must be remitted to his motion therein.

The result may be that plaintiff has lost whatever right he may have had to claim an ownership in the lands as tenant in common with - the defendants. If such is the result, it is due to plaintiff’s own action in electing to take the benefit of and rely on the personal judgment in his favor against the executrix and execution, and by reason of such election omitting to appeal from the judgment against him in favor of the widow, heirs and devisees.

Under these circumstances 1 think that neither an injunction nor a receivership should be granted in this action.

I concur in reversing the order appealed from, with ten dollars costs.

Spencer, J., took no part in the decision.


source: Caselaw Access Project

author: By the Court.—Spencer, J.

license: Public Domain

text:
    HALE v. OMAHA NATIONAL BANK.
    As a general rule, the words of a covenant in a written instrument ■ that are intended to create a lien upon personal property, should clearly indicate that such lien is created and attaches, and takes effect upon the subject matter at the time of the execution of the instrument.
    In all cases the words asserting the lien should speak in presentí,” ii intended to create or vest a lien at the time of the execution of the instrument.
    When the words of a covenant, relating to a proposed lien, express future action of the parties for the creation of the same, and it also appears that the subject matter of the proposed lien is not in being, but must be brought into existence, to admit of any lien thereupon, the just and logical conclusion follows, that future action for the creation of the lien was intended by the parties, and no lien was created by the covenant.
    Notice of an alleged claim or lien will not make it valid when invalid before the notice. It is only when the alleged lien can be sustained and adjudged as valid, that the question of notice can affect the case.
    The case of Wood 0. Lester (29 Barb. 145) reviewed and commented upon.
    Before Monell, Jones, and Spencer, JJ.

      Decided February 4, 1871.
    The plaintiff’s assignor is a corporation of the State of Nebraska.
    The complaint substantially states that such corporation of Nebraska, known as “The Credit Foneier of America,” on or about June 22, 1867, made and executed to and with Edward Cozzens and John M. Bettman, a certain lease for a hotel and premises in the city of Omaha, to be kept by lessees, and known as “Cozzens’ Hotel;” of which lease a full copy is set forth, and by the terms and conditions of which, it appears that “The Credit Foncier” did lease certain hotel premises, and hotel •buildings, then in course of erection thereon, for the term of five years, to said Cozzens and Bettman, who agreed to pay the annual rent of ten thousand five hundred dollars; and did also agree in the following words: “And a liento be given by said lessees to said lessors, to secure the payment thereof, as hereinbefore stipulated, on all the furniture which shall be placed in said hotel by said lessees.''

    “ The Credit Foncier” also agreed to complete said hotel, and have the same ready to be delivered, and deliver the same to Cozzens and Bettman, within forty-five days from June 7, 1867; and they were bound to receive the possession of said hotel at any time after the expiration of thirty days after the signing of the lease. The complaint further alleges, that it was the intention of the parties to said lease, in and by the terms of the same, “ to create and make a lien upon all the furniture so placed, and to be placed in said hotel, as collateral security for the payment of said rent,” &c., &c. That said lease formed, and was a good and valid lien on all the furniture placed in said hotel by said Cozzens and Bettman ; of all of which defendant had due notice, &c., &c. That “The Credit Foncier” assigned to plaintiff the lease and the rents due and to become due thereon.
    That the defendant, on May 1,1868, took possession of this furniture, and sold the same, and wrongfully converted the same, &c., &c., so that plaintiff is unable to make and enforce the said lien upon the same, for the rent unpaid, amounting to ten thousand five hundred dollars, and interest; for all of which the plaintiff claims ten thousand five hundred dollars damages, &c.
    The defendant demurs to the complaint on the ground that on the face thereof it appears that it does not state facts sufficient to constitute a cause of action against the defendant, and the court below gave judgment for plaintiff on the demurrer, and judgment was entered for the plaintiff for the sum of ten thousand one hundred and seventeen dollars and eighteen cents, with interest and,costs; from which defendant appeals.

      E. R. Meade, attorney for appellant.

      George W. Miller, of counsel for appellant.

      Clark Bell, counsel and attorney for respondent.
   By the Court.—Spencer, J.

The main question in this case for the consideration of the court depends upon the construction of the following clause and covenant on the part of the lessees, contained in said lease: “ And the said lessees, in consideration of the leasing aforesaid, do hereby covenant and agree to pay as rent for said premises the sum of ten thousand five hundred dollars per annum, payable as follows—namely, one thousand dollars at the date of signing this lease, one thousand six hundred and twenty-five dollars three months from the date of the commencement of this lease, and two thousand six hundred and twenty-five dollars quarterly, at the expiration of each quarter thereafter, and a lien to be given by said lessees to said lessors to secure the payment thereof, as hereinbefore stipulated, on all the furniture which shall be placed in said hotel by said lessees.”

The assignee of the lessor brings an action at law to recover from the defendant the value of the furniture that was placed in said hotel after the execution of the lease, alleging that said defendant has taken possession of, sold, and wrongfully converted said furniture and the avails thereof, and so disposed of the same that the plaintiff is unable to make or enforce his lien thereon (created by the foregoing clause in the lease), to his damage, &c.

The plaintiff rests his right of recovery in this action upon the following main facts, covered substantially by the allegations of his complaint, and admitted by the demurrer:

First. The execution of the lease containing the foregoing clause.

Second. That the lessees entered upon the premises leased, and placed" a large amount of furniture in the hotel thereon, which was sufficient in value to be good security for the rent, &c.

Third. The assignment of the lease by the lessor to plaintiff.

Fourth. The accruing of rent and failure of lessees to pay, to the amount of ten thousand five hundred dollars.

Fifth.' That defendant took possession of, sold, and wrongfully converted said furniture and the avails thereof, and that in consequence thereof plaintiff is unable to enforce his lien, &c.

If this court sustains the ruling and judgment of the court below, it must hold that this covenant and condition in the lease made and created a valid, legal and equitable lien or mortgage in favor of the lessor, that went into effect and attached upon the furniture (in future) when the same came into existence as the property of the lessees, and was placed in said hotel; in other words, that such a lien, or special property, rights and interest in said furniture was created as would enable the lessee or his assignor, in case the rent was not paid, to maintain an action for the value thereof against any person who took possession of and sold or otherwise disposed of the same.

I am of the opinion that no such lien or mortgage was made or created, that no such legal or equitable rights or interests m the property ever attached to said property, nor ever vested in the lessee by virtue of this covenant or claim, and the circumstances and facts attending the same.

As a general rule, the words of a covenent in a written instrument, that are intended to create a lien or charge upon personal property, should clearly indicate that such lien is created and attaches and takes effect upon the subject matter at the time of the execution of the instrument; but in all cases I think the words creating the lien should be “in presentí,” whatever they may denote as to the time when the lien attaches. But when (as in this case) the words of the covenant express future action by the parties in regard to the creation of the lien, and the lien is also to take effect or attach in the future, the just and logical conclusion follows, that future action and effect was intended by the parties, and that no lien whatever was created by the covenant that could attach to the property.

Therefore, I hold that this covenant in the lease does not even purport to make or create a lien upon the furniture in presentí, and I think that no course of reasoning nor criticism upon the sense and the grammatical relation of the words used can be adopted, which will establish the conclusion that the parties made or intended to make or create such a lien.

The words of the covenant and the general facts appearing from the lease forbid such a construction.

Undoubtedly, the parties covenanted that a lien should be thereafter made and given upon the furniture as security for the rent. The words, “ And a lien to be given,” are expressive of future action ; and this interpretation is materially strengthened by the words following in the same connection, “ On all the furniture which shall be placed in said hotel by said lessees,” thus clearly expressing that there was not then any furniture in place, condition or existence, that could be made the subject of a lien, but that thereafter, when the lessees should obtain and place the same in such hotel, a lien should then be given (created) thereon.

In my opinion, the words of this clause form a simple covenant, on the part of the lessees, in regard to their action in the premises in the future; they covenanted that they would at some future time create and make a lien on this furniture, in favor of the lessor, as security, &c.

I cannot realize how the question of notice can affect this case.

The complaint alleges that it was the intention of the parties then and there to create or make a lien (by this lease). That it was recorded, &c. ; that being thus made and recorded, &o., &c., it formed and was a lien. And of all this defendant had notice. Notice of what? As I read the complaint, I should answer—notice of the alleged intentions of the parties, the record of the lease, and notice that all their acts formed and made a legal or equitable lien in the premises.

I conclude that it is only when an alleged lien contained in a written instrument, can be sustained and adjudged as valid, that the question of notice affects the case. Notice of an alleged claim or lien, will not strengthen it nor make valid what was invalid before the notice.

I do not deem in necessary to make an extended review of the cases relating to legal or equitable liens, to support these views of the court.

We hold simply that the language of this clause did not create any lien whatsoever upon the property in question, and no case that I can find construes such language otherwise.

A grammatical analysis of the language of this clause is the only test of the accuracy of our decision.

I shall review only one of the cases cited by the respondent’s counsel to sustain the position, that by this covenant a lien in equity, at least, was created upon this furniture, and that is Wood v. Lester (29 Barb., 145). The plaintiff sold land, a part of which was woodland. He took a mortgage to secure the purchase money, in which it was provided that in case the wood upon the land was cut by the mortgager, that he (the mortgagee) should have a lien on the wood cut to the amount of a certain sum per cord, to apply upon the mortgage.

There was also a condition that the mortgagor should give, when requested, a chattel mortgage upon the wood when cut, "&c. This instrument was recorded as a lien upon real estate, but not filed as a chattel mortgage.

This wood was afterwards cut and levied upon and sold, by virtue of an execution on the judgment of the defendant, Lester (who had notice of the plaintiff’s lien).

An action was brought in the seventh district to foreclose this mortgage and Lester made a party defendant.

It was tried at special term before Justice Johnson, who held in the judgment that the title of Lester to the • wood was superior to that of plaintiff, and Lester had judgment for costs, from which plaintiff appealed to the general term, whose judgment reverses or modifies that of the special term, so as to compel Lester to account for the wood, or the amount of the lien thereon, and interest.

The covenants of the mortgage which received consideration and construction from the court as reported, were two in number.

First. That the plaintiff “ should hate a lien upon the said wood for the purchase money” (referring to the wood when cut from the premises).

Second. (This was a separate and subsequent covenant in the mortgage.) That the mortgagee should from time to time on demand of plaintiff, “ execute and deliver to Mm such chattel mortgage or mortgages as might he necessary to secure and protect such lien and perpetuate the same, &c.

Justice Johnson, who tried the case, construed these covenants together, and held that they constituted a simple covenant for the execution of the chattel mortgage in the future to secure this admitted lien or charge that the mortgagee had covenanted plaintiff should have if the wood was afterwards cut. The general term construed these two covenants separately, and held that they were independent covenants, and not necessarily connected, &c.

First. That the first covenant which provides that plaintiff “ should have alien upon all the wood for the purchase money”—upon its conversion into personal property by severance from the land, was a valid agreement, and constituted a lien upon said wood, in equity; and that said lien attached as soon as the wood was cut and became personal property, as against the mortgagor and all parties claiming under him, with notice of the lien thus created.

Second. That the provision for future chattel mortgages was merely cumulative, and did not affect the lien previovsly declared and provided for, it being in the nature of a covenant in the deed for a future assurance which was never held to affect other and preceding covenants.

Thus was that case decided upon a mere grammatical analysis of the language used in the construction of the covenants, or their language and relation to each other, rather than upon a principle of law or equity. I think the construction of the general term should prevail, under the circumstances, especially in view of the fact, that the wood cut was embraced in the mortgage as realty before its severance from the soil, and although thereby its character as property was changed, the act of change was provided

for in the instrument, so that the security afforded by the mortgage should not be lessened, and I think such an agreement for the continuance of the lien, &c., should be sustained. Yet the views of Justice Johnson to the contrary are entitled to much consideration. I conclude this case does not affect the one at bar.

The words of a covenant providing that a party “ should have a lien ” upon the happening of a certain event in the future, when considered as relating to property then in existence, as real estate, and as such subject to the lien ‘ ‘ in presentí, ’ ’ conveys an entirely different meaning than the words of the provision in this case, a lien to be given ” upon property, that at the time has no status or existence, except one to be made and developed exclusively in the future.

The order of the special term should be reversed, the demurrer sustained, and judgment ordered for defendant, with costs.

Monell and Jones, JJ., concurred.