text:
    CORN EXCHANGE BANK OF CHICAGO, Respondent, v. ALPHONSO W. BLYE, as Receiver of the Middletown National Bank, Appellant.

      Judgment in a, replevin action, directing the payment of damages not a/wm'ded by the verdict — objection thereto not loaived by an appeal — the limit of one year is not applicable to the granting of relief in such a case.

    In an action of replevin, brought to obtain the recovery of the possession of certain bonds issued by a manufacturing company, the possession of the bonds was awarded to the plaintiff, and their value, including damages, was fixed by the verdict of tlie jury at $25,315.18. The judgment entered thereon provided that the plaintiff should have a delivery of the bonds, and in case a delivery should not be had, that then the plaintiff should recover from the defendant this sum of $25,315.18 as damages, together with the costs of the action; and, further, “that the plaintiff have and recover of the defendant the sum of $2,315.18 damages for the detention of said chattels.”
    From this judgment an appeal was taken to the General Term, where it .was affirmed, and from such judgment of affirmance to the Court of Appeals, where the judgment was also affirmed, but the only question involved in such appeals was as to the right of the plaintiff to the possession of the bonds, and they had no relation to the further direction as to damages for detention not covered by the verdict contained in the judgment.

      Held, that the direction in the judgment that the plaintiff have and recover from defendant ‘ ‘ the sum of $2,315.18 damages for the detention of said chattels ” was entirely unauthorized.
    That the judgment should be corrected in that respect by striking that provision therefrom.
    That the provisions of section 1282 of the Code of Civil Procedure, fixing the time within which a motion may bo made to set aside a judgment for irregularity, had no application to this case, as this direction included in the judgment was not simply an irregularity, but was entirely^and wholly unauthorized.
    Appeal by the defendants from an order denying a motion to correct the judgment entered in tliis action, by striking out tbe recital and provision thereof with reference to damages for detention, entered in the office of the clerk of the county of New York July 5, 1889.

      JElihu JSooi, for the appellant.

      I. A. Qouldy for the' respondent.
   Daniels, J.:

The action was replevin for the recovery of the possession of bonds issued by the West Point Manufacturing Company, with the coupons thereto attached; and it resulted at the trial in the direction of a verdict for the plaintiff for the recovery of the bonds described in the complaint, except those numbered nine, ten, eleven and twelve. By the verdict, which in this manner was rendered, the possession of the bonds was awarded to the plaintiff, and their value, -including damages, was fixed at $25,315.18. And that appears to have followed the proof establishing the amount of the bonds, together with the coupons or interest warrants which had been attached to them, including thereby all that the plaintiff was entitled to in the action. And the judgment fully carried this verdict into effect. For it adjudged that the plaintiff should have the delivery of the chattels included in the verdict, and that the defendant should.deliver the bonds to the plaintiff. And in case a delivery should not be had, then the plaintiff should recover from the defendant this sum of $25,315.18 as damages, together with the costs of the action. These provisions inserted in the judgment were fully as broad as the verdict authorized them to be entered. And it furnished authority for entering no more than these directions in the judgment. But a further provision and direction was inserted in it, adjudging “ that the plaintiff have and recover from defendant the sum of $2,315.18 damages for the detention of said chattels.” That was a direction not included in the verdict, which was expressly restricted to the sum of $25,315.18, including damages. And after providing by the judgment for the recovery of the bonds, or in case possession of them should not be recovered, that the plaintiff should recover the amount of money mentioned in the verdict, there was legally nothing further to be added to the judgment against the defendant. The direction for the further recovery of $2,315.18 damages was wholly unauthorized by the verdict, and it should not have been made a part of the judgment.

After the judgment had been recovered an appeal from it was taken to the General Term where it was affirmed, and from that judgment of affirmance a further ajajDeal was taken to the Court of A ppeals, resulting also in its affirmance. But these appeals brought in question the right alone of the plaintiff to the possession of the bonds.. They in no manner comprehended this further direction contained in the judgment. Neither was any attention devoted to this direction in the decisions which were made. And no adjudication was made upon the determination of either of the appeals affecting the right of the plaintiff to this additional direction for the recovery of damages. Neither was it a subject .upon which an appeal from the judgment could regularly be taken, but the manner in which the practice has provided for its correction was that of a special motion, for it was an entirely unauthorized addition to the judgment beyond that permitted or allowed by the verdict. And where that addition may be made, tbe mode of correcting it is by a special motion. (Cagger v. Lansing, 64 N. Y., 417; Leonard v. Navigation Co., 84 id., 48; Hatch v. Central Nat. Bank, 78 id., 487; Dinsmore v. Adams, 48 How., 274; affirmed, 5 Hun, 149; Cole v. Tyler, 65 N. Y., 77.)

The time within which, by section 1282 of the Code of Civil Procedure, a motion has been required to be made to set aside a judgment for irregularity, has'no application to this appeal, for the addition of this direction to the judgment was not an irregularity, but it was entirely and wholly unauthorized. For that reason the case of Briggs v. Hilton (99 N. Y., 517) is also inapplicable. The addition in this manner made to the judgment was illegal and without any foundation for it to rest upon, and it should be corrected by striking this provision for the recovery of damages, separately and distinctly, from the amount mentioned in the verdict, from the judgment-roll.

The order should be reversed, with ten dollars costs and also the disbursements, and an order to this effect entered in the action.

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

Order reversed, with ten dollars costs and disbursements, and an order to the effect stated in opinion should be entered in the action.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    SAMUEL LEVY and ESTHER LEVY, his Wife, Suing on Behalf of Themselves and all Other Members, Policy Holders and Creditors of the Defendant, the MUTUAL LIFE INSURANCE COMPANY, who Shall Come and Seek Relief by this Suit, Appellants, v. THE MUTUAL LIFE INSURANCE COMPANY, Respondent.

      Complaint by a policy-holder simply alleging an unlawful act by an insurance company, which would justify pi'oceedings for its dissolution by the State, is demurrable.

    A complaint alleging tlie incorporation of a mutual life insuranc ecompany, that it had purchased land, and was engaged in the erection of a building upon it as an addition to a building previously erected and owned by it, and that this action upon its part was in excess of the authority conferred upon the company by its charter, and exposed it to an action by the attorney-general for its dissolution, where no special injury to the plaintiff or any other person insured by the defendant, and no inability on the part of the defendant, arising from such action on its part, to meet its "obligations or engagements is alleged, does not state a cause of action, and a demurrer thereto on this ground will be sustained.

      Uhlman v. New York Life Insurance Company (109 N. Y., 431) followed.
    Appeal by tbe plaintiffs from a judgment sustaining a demurrer to the plaintiffs’ complaint and directing the complaint to be dismissed, made at the New York Special Term, December 14, 1888, and entered in the office of the clerk of the county of New York.

      James A. Dennison, for the appellants.

      Robert Sewell, for the respondent.
   Daniels, J.:

It appears by the complaint that two policies of life insurance were issued by the defendant upon the life of Samuel Levy for the benefit of his wife. They amounted together to the sum of $30,000, and, as a ground of action, it was alleged that the defendant, which was incorporated .under an act of the legislature of this State, passed April 12, 1842, had purchased land and was engaged in the erection of a building upon it as an addition to a building previously erected and owned by it, and that this was in excess of or beyond the authority conferred upon the company by its charter, and exposed it to an action by the attorney-general for its dissolution. No special injury to either of the plaintiffs, or any other person taking insurance from the defendant as a mutual insurance company, was alleged or shown by the complaint. It was not stated that the ability of the defendant to meet these, as well as all its other engagements, was or would be in any respect diminished or affected by the acquisition of the land or the erection of the building. But the sole peril to the plaintiffs was the possibility, or remote probability, that the attorney-general, for this exercise of authority, might institute and maintain an action to dissolve the company and forfeit its corporate rights. But even if that should be done no allegation was made of any apprehended inability to pay the amount of its policies out of the assets of the company. And it did not appear, consequently, that either of the plaintiffs had been or would be in any respect subjected to an injury requiring redress through an action in tlieir part. And under this state of facts the case of Uhlman v. New York Life Insurance Company (109 N. Y., 421), seems to be in principle a direct authority against the action.

The relief for which the plaintiffs applied, by their complaint, was that the defendant and its officers should be enjoined and restrained from further purchasing real estate to enlarge or add to the building in which its principal office was situated. But no statement was made in the complaint that any intention existed to purchase or acquire such additional real estate. And in the absence of that allegation, there was no reason for invoking the interposition of the court to prevent such a purchase. A further object of the complaint was to enjoin and restrain the defendant from erecting or making the additions proposed to its building and in process of erection. But no case was presented by the facts for this relief, for it appeared by the complaint that the company was already engaged in erecting and putting up the building. And no benefit whatever, either to the plaintiffs orto the company, would result from restraining its progress. On the contrary, it may well be inferred, from what has been set forth in the complaint, that such a restraint or interference would be not only an injury to the company, but might be to the plaintiffs themselves. A still further object of the action was a requirement that the directors of the company, who were not parties to it, should sell and dispose of the real estate which in this manner had been acquired. But a direction to make that sale and disposition has not been maintained by anything contained in the complaint. It does not appear that it could properly be made in the condition in which the work upon the land had been placed at the time of the commencement of the action, or that such a sale could be made without detriment or injury to the defendant, or that any loss or prejudice whatever would result to the plaintiffs if it should not be made.

"Whatever was done in the acquisition of this land and the commencement of the building, is reasonably to be inferred to have been done by the officers or trustees of tho company. If any misconduct has taken place, it has been the misconduct of these persons. And the action should have been against them, if it could be maintained at all, for the vindication of any rights which had accrued to the plaintiffs and the protection of the corporation itself. They, and they alone, are the wrong-doers if a wrong has been perpetrated and the powers of the company have been exceeded. And, as wrong-doers, the action-should have been for their restraint, and not that of the company, which apparently has no more than submitted to what these officers have and are endeavoring to accomplish.

The judgment in the action was right, and it should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Daniels, J.: YaN BbuNt, P. J.:

text:
    MARIA LOUISA COLLINS, Trustee of the Funds Set Apart by the Will of ANN BLOODGOOD, Deceased, Appellant, v. ADELINE M. BEEBE, Executrix, and THEODORE D. JONES, as Executor of WELCOME R. BEEBE, Deceased, Respondents.

      A judgment-creditor of an estate, allowed by the surrogate to issue execution, is not authorized to institute proceedings supplementary thereto.

    Wliere a judgment lias been recovered against the executors of a decedent’s estate, and an execution lias been issued by the permission of the Surrogate’s Court, the plaintiff in the judgment is not entitled to obtain an order for the examination of the judgment-debtor, or of any other person having property belonging to or indebted to the estate. The plaintiff, in his efforts to secure payment of the judgment, is not authorized in such case by the statute to proceed further than permitted by the order of the Surrogate’s Court, and said permission does not extend to, or authorize proceedings to be instituted for, the sequestration or appropriation of the property of the estate to the payment of the judgment.
    The remedy of the plaintiff in such an action, where the judgment cannot be collected under the execution, is to present the demand to the executors, and to receive from them payment thereof or the distributive share to which the plaintiff may be entitled with other creditors having similar claims.
    Appeal by the plaintiff from an order of May 20, 1889, made at the New York Special Term, and entered in the office of the clerk of the county of New York May 21, 1889, vacating an order requiring a third person to appear and submit to an examination in supplementary proceedings.

      A. M. Gard, for tlie appellant.

      Stephen O. Baldwin, for the respondents.
   Daniels, J.:

The plaintiff recovered a judgment against the defendants as executrix and executor of the estate of Welcome B. Beebe, deceased. An execution was permitted, by order of the surrogate of the county of New York, to be issued upon this judgment, and it was afterwards issued against the property of the testator in the possession of his executor, and executrix. While the execution remained in the hands of the sheriff an order was made, upon the application of the plaintiff, directing Charles Donohue to appear before one of the justices of this court to be examined concerning his indebtedness to the testator, and as to property in his possession belonging to the estate of the testator. Upon a motion being made to vacate this order it was set aside, and from the order setting it aside this appeal has been brought.. The order for the examination of Charles Donohue might very well have been vacated for the insufficiency of the affidavit upon which it was made. * * * (After a disseussion of this insufficiency in the affidavit the opinion proceeds.)

But a still more substantial obstacle stood in the way of the right of the plaintiff to examine the judgment-debtors, or any other person having property belonging or indebted to the estate. And that arose out of the fact that the defendants were sued as executors, and the judgment has been recovered against them alone in that capacity. It was not a judgment attended with the ordinary right of the plaintiff to issue an execution upon it, but its object was to secure the legal existencé of a disputed demand, as that has been provided for by section 1822 of the Code of Civil Procedure. Upon the recovery of the judgment no right was vested in the plaintiff to issue an execution, or in any manner to interfere' with the property of the testator’s estate, but by section 1825 of this Code the surrogate was authorized, upon notice to the executors, to permit an execution to be issued upon the judgment. Such an application was made, and his consent was secured for the issuing of the execution, and so far it was a regular proceeding in behalf of the plaintiff. But neither this section Of the Code, nor any other, authorized the plaintiff to proceed further than that could be done under the authority in this manner obtained from the surrogate. The authority was to issue the execution, and in that manner to secure the payment of the judgment, if it could be so far made effectual. No authority has been provided for proceeding otherwise in the way of sequestrating or appropriating the property of the estate to the payment of the judgment. And the fact that the law has made no provision for the judgment-creditor talcing proceedings upon the judgment or the execution, beyond the power to levy upon and sell the property of the estate, is a circumstance supporting the inference that it was not intended that the plaintiff should possess any additional authority beyond that which was given in this manner.

If the order for the examination of the third person was regularly obtained under section 2441 of this Code, then the examination directed to be taken by it might be followed by the appointment of a receiver under section 2464, and the money or property appropriated to the payment of the judgment, even though that might constitute the bulk of the estate and defeat the right to satisfaction of all its other creditors. But the statute relating to the estate and the payment of the debts of deceased persons has not been framed so as to permit that to b.e done. It has, on the contrary, provided for equality in payment of recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts. And it has further declared that no preference shall be given in the payment of any debt over debts of the same class. “ Nor shall the commencement of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class.” (3 B. S. [6th ed.], 95, §§ [27], [28].) And this restraint would plainly be violated if tlie proceedings commenced by the plaintiff should be maintained. The surrogate has also been provided with jurisdiction to direct and control the conduct and settle the accounts of executors, administrators and testamentary trustees, and to enforce the payment of debts and the distribution of the estates of decedents, and to administer justice in all matters relating to their affairs. (Code Civ. Pro., § 2472.) And this jurisdiction would be interrupted and defeated if a creditor recovering a judgment against the personal representatives could proceed by supplementary proceedings and appropriate the property of the deceased to the payment of the judgment. And it has been fm-ther provided and declared that where the validity of a debt has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same. (Code Civ. Pro., § 2743.)

And this, as well as the other provisions which have been mentioned, are entirely inconsistent with the right of the creditor having a judgment against the personal representatives to proceed by supplementary proceedings, and thereby' appropriate the estate of the deceased, or any part of it, to the payment of the judgment. They have created an altogether different course of proceeding which the creditor has been required to follow, where the judgment may not be capable of being collected by means of the execution which the surrogate allows to be issued, and that is to present the demand against the estate, to receive either payment or its distributive share, as it may be entitled to that with other creditors having similar rights against the estate.

The order in this case was right, and it should be affix med, with ten dollars costs and also the disbursements.

Beady, J., concurred.

YaN BbuNt, P. J.:

I concur with Mr. Justice DaNIels. The affidavit upon which the order was granted was wholly insufficient. The affidavit not only should not have been in the alternative, bxxt it should have stated the facts upon which the affiant bases his allegation that the person to be examined either had property of the debtor or was indebted to him. An allegation, in the' words of the statute, is wholly insufficient. Facts must be stated from which a conclusion can be drawn, not the conclusion alone.

Order affirmed, with ten dollars costs and disbursements.


author: DaNIEls, J.: YaN Bruot, P. J. :

text:
    EDWARD KILPATRICK, Appellant, v. MARY E. BARRON, Respondent.

      Will — devise in trust to pay income to children, and descendants of deceased children, and on man'riage of all the beneficiaries or of ten' expiration of two lives to sell — a valid title cannot be given during ihe continuance of the two lives, if the children remain unma/nied — marketable title.

    A testator by bis will devised and bequeathed to his executrices the residue of his estate, with directions to turn it into money and to invest it in bonds, mortgages, improved real estate and public stocks, and divide it into as many portions as he should leave children, or descendants of children, to pay one equal share to Ihe lawful descendants of each child which should die before the testator, and to invest one share for each of his children, and pay the income thereof to the child during her natural life, and upon the death of such child to divide such share equally between her children, and in case any child should die leaving no lawful issue to divide the share of such child equally among the surviving children of the testator.
    The executrices were also directed “ to suffer and permit my unmarried daughters, during the life or lives of my two daughters, Agnes K. Geraty and Ada H. Geraty, or so long as any of my said daughters shall remain unmarried, to occupy, as a home, free of rent, my said house, known and designated as No. 54 Bast Seventy-ninth street, in the city of New York, together with all the furniture/’ etc.; and, further, “ Upon the death of my two children, Agnes K. Geraty and Ada H. Geraty, or the marriage of all my children, as either of said events may respectively occur, I order and direct that my said house, known as No. 54 East Seventy-ninth street, New York city, shall be sold, and the proceeds arising therefrom be paid and divided to and among my children and their descendants.”

      Held, that neither the testator’s children, nor the infant son of one of his daughters who had died prior to the decease of the testator, nor the two children, Agnes JE. Geraty and Ada H. Geraty, acquired under the provisions of the will the title in fee to the premises No. 54 East Seventy-ninth street; that their rights in the property were confined to the right of possession, with a defeasible title, subject to the execution of the power on the part of the executrices, when either event occurred upon the happening of which such power could be exercised, and a right to share in the proceeds of the sale in the event that such children and the infant son should be living at that time. (Per Daniels, J.)

      Mrn'ray v. Murray (7 N Y. St. Rep., 391) distinguished.
    That as the title to the property, or the right to the proceeds arising from its sale, was not, prior to the happening of the events named in the will, absolutely vested in these children, they were not entitled to make their election to take the property and prevent the exercise of the power of sale. (Per Daniels, J.)
    That the title which could be thus given was not a marketable title such as a contract purchaser was bound to accept in execution of his contract.

      Appeal by the plaintiff from a judgment recovered on a trial at the New York Special Term, entered in tlie office of the clerk of the county of New York, on February 6, 1889.

      D. G. Orosby, for the appellant.

      Robert W. Todd, for the respondent.
   DaNIEls, J.:

The defendant, as the executrix of the estate of Thomas H. Geraty, deceased, entered into a contract with the plaintiff for the sale and conveyance to him of premises known as No. 54 East Seventy-ninth street, in the city of New York. And by her agreement, for the consideration therein mentioned, agreed to deliver to the plaintiff an executor’s deed, containing tlie usual full covenants, for the conveying and assuring to him the fee simple of the premises free from all incumbrances. The plaintiff paid upon the contract the sum of $1,000, and- afterwards, deeming the defendant unable to convey the title, as that was agreed upon by the contract, brought this action to recover back tlie amount that had been paid, together with the expenses incurred in the examination of the title. To perform the agreement on her part the defendant. presented herself at the place agreed upon for that purpose, with the deed subscribed and acknowledged by herself as the sole executrix of the estate, in form complying with the language of the contract. Added to this was a further deed, executed also by herself and all the living children of the testator, for the conveyance of the same property and a third deed executed by her, as the sole executrix and trustee under the will of the testator’s deceased daughter Margaret A. Fagan, for the conveyance of any interest which the testatrix had in the premises at the time of her decease or which had been vested in her surviving infant son under her will. And no question is made in the case but that she possessed the authority to execute and deliver the last of these three conveyances. But her power to convey this land as sole surviving executrix and trustee, and the power both of herself and her living children to make that conveyance has been denied by the plaintiff. And, in support of that denial, reference is made to the provisions of the will of the testator, who was the owner of this land at the time of his decease. By these provisions he devised and bequeathed to his executrices all the rest, residue and remainder of his estate, both real and personal, except that previously disposed of. This devise and bequest was generally to sell and dispose of the property and turn it into money, and after paying the debts of the testator and his funeral expenses, to invest the residue in bonds and mortgages on improved and unincumbered real estate in the city of New York, or in public stocks of the, State of New York or the United States, and then to divide said rest and residue, or the proceeds thereof, into as many portions as he should leave children, or descendants of children, at the time of his decease, and then to pay one equal share or portion thereof to the lawful' descendants of each of his children who should have departed this life before himself, leaving lawful issue surviving him to be divided among them share and share alike, and to invest one of the shares for each of his children, and to pay the income or interest, derived from each of such shares, in quarterly payments to the child for whom the same should be invested, during her natural life. And upon the death of his children, as that event should respectively happen, to pay over the share of the child dying and divide the same equally between the children of that child. But in case any of his children should depart this life leaving no lawful issue surviving them, then the share or portion set apart and invested for that child was directed to be paid over and divided equally among his surviving children. This power of disposition was not otherwise qualified than that the improved property of the testator should only be sold when it clearly appeared to be necessary for the benefit of his estate. From these general directions for the sale and investment and disposition of his estate, he excepted the premises now in controversy, together with the furniture and other things in and about the dwelling. And after making this exception, the executors were directed “ to suffer and permit my unmarried daughters, during the life or lives of my two daughters, Agnes K. Geraty and Ada H. Geraty, or so long as any of my said daughters shall remain unmarried, to occupy as a home, free of rent, my said house known and designated as number fifty-four (54). East Seventy-ninth ('Tilth) street, in the city of New York, together with all the furniture, plate, linen, china, glass, books, prints, pictures, fuel and other household effects that may be in said house at the time of my death.

Should any of my daughters at any time marry, then I direct that she shall not occupy said house as a home except by the consent of all her unmarried sisters.” And added to this direction was a power of sale given to the executrices or the survivor of them, empowering her or them as follows : “ Upon the death of my two children, Agnes K. Geraty and Ada EL Geraty, or the marriage of all my children, as either of said events may respectively occur, I order and direct that my said house, known as 54 East Seventy-ninth street, New York city, shall be sold and the proceeds arising therefrom be paid and divided to and among my children and their descendants.”

The testator, at the time of his decease, left surviving him six daughters, neither of whom were married, except Margaret A. Eagan, deceased. Josephine, one of the remaining daughters, became an inmate of a convent, and the other four are still entitled to the use, possession and occupancy of these premises. And, under the will, they are entitled to continue in that use and occupancy until the death of the testator’s two children Agnes K. and Ada EL Geraty, or the marriage of all Ms children, as either of such events may first occur. No estate in the premises has been given by the will to these daughters. But, as the executrices were vested with no more than a power of sale over the property, the testator’s daughters became seized of the title to the land subject to the execution of this power vested in the executrices and the survivor of them. But the exercise of the power created by the will for the sale and conveyance of this land was dependent upon the occurrences of one of two events. They were the decease of the testator’s two children Agnes K. and Ada IE., or the marriage of all his children. And neither of these events had occurred at the time when the conveyances were presented to the plaintiff at the place mentioned in the contract for its final performance. These two daughters were still living, and neither of the five surviving daughters of the testator were married, and, for that reason the period prescribed for the sale of the property had not arrived. In this respect the case is entirely different from that of Murray v. Murray (7 N. Y. State Rep., 391), where a complete power of sale existed at the time when it was proposed to be and was, in fact, executed; while here the power of sale was contingent and dependent upon tbe occurrence of one or two events, neither of which had occurred at the time when the deeds were proposed to be delivered. The surviving executrix, therefore, was not in a condition to execute this power. For it has been held that the extent of a power, like the extent of an agency created by a written power of attorney, must be sought for in the instrument conferring the power, and authority not found there does not exist. (Hetzel v. Barber, 69 N. Y., 1, 13.)

But in behalf of the surviving executrix the position has been taken that the children of the testator, for whose benefit this power was primarily created, were entitled to make their election that the power should not be resorted to, but that they should at once secure the advantage of the sale of the property by a conveyance made and executed by them for that object; and that position under the authorities might probably be sustained, if these children were absolutely vested with the title to this land or to the proceeds arising from its sale. But as that has been directed by the will, they were not so entitled, for whatever interest vested in them by descent was liable to be defeated by the exercise of this power of sale given to the surviving executrix as well for their descendants as themselves. The children were not absolutely entitled to the proceeds of the sale of the property, for those proceeds were to be distributed among them and their descendants. Under this direction, if either of the testator’s remaining daughters should marry and have issue living, and die leaving surviving children prior to the decease of the daughters Agnes K. and Ada H., these children would be entitled to participate in the division of the proceeds of the sale of the land, and their title to such proceeds would not be derived from the deceased parent, but from the directions contained in the will of the testator. The event is not improbable that two or even three of the testator’s daughters may marry, and each die leaving-children prior to the decease of Agnes 3L or Ada Ii. remaining unmarried. In that event the deceased daughter would be entitled to no part of the proceeds arising out of the sale of this land, but the share which would otherwise be received by the daughter so dying would, by the testator’s will, vest in and become the property of her children. And that might very well be the case with three of the testator’s daughters living at the time of his decease.

By tbe language which bas been employed in this part of the will, the sale of the land was not to be made until one or the other of the events mentioned had transpired. And when the sale should in that manner be made, its proceeds were to be distributed among the testator’s children who were living and the descendants of those who were deceased. It was at the occurrence of one of these events only that this sale and distribution were directed to take place, and the reasonable import of the language used by the testator is, that the persons answering the description contained in the reference made to them in the will, were those, and only those, who were to share in the proceeds of the sale of this property. The legal rule is conformable to the language of the will, for legacies given to a class of persons vest in those who answer the description and are capable of taking at the time of distribution. They are deemed to be the objects of the gift.” (Teed v. Morton, 60 N. Y., 502, 506; De Laney v. McCormack, 88 id., 174, 183.)

Neither the testator’s children nor the infant son of the daughter who died, had, at the time when these deeds were offered for delivery, the title to this land. What they had in the property was a right of possession, with a defeasible title, subject to the execution of the power, when either event occurred upon which it could be exercised, and to share in the proceeds of the sale so far as they might be living at that time. So far as a daughter should then be deceased, both the right and the title would vest under the will in her surviving children. And those children, after either event happened upon which the power was dependent, would be entitled to insist upon the execution of the power, the sale of the property and the distribution of its proceeds, receiving for themselves the shares which they would then be entitled to under the will. And if a sale should now take place, and the proceeds of the property be divided among the testator’s daughters, and the child of the daughter deceased, another sale and division of the proceeds would become necessary and legal after the decease of the daughters if they left descendants or children surviving them. It follows, therefore, that the title proposed to be given by these deeds to the plaintiff was not such a title as he was authorized to demand under the language of the contract. And where that is the fact, or the title may be the subject of serious doubt, the law will not compel tbe purchaser to accept, or receive it. (Methodist Episcopal Church Home v. Thompson, 108 N. Y., 618.)

The judgment adjudging the title to be such as the plaintiff was bound to receive, and directing a specifie performance of the contract, was, therefore, erroneous, and it should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

YaN Bruot, P. J. :

Without concurring in or dissenting from the construction placed by Mr. Justice Daniels upon the will of Thomas H. Geraty, deceased, I concur in the conclusion arrived at by him.

A purchaser of land is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one; and where such title depends upon a will the construction of which is open to discussion, even if the court is of opinion that the true construction will give the purchaser a good title, he should not be required to run the risk of a subsequent different construction being put upon the will. The heirs and next of kin of the testator are not bound by the construction put upon the will in an action between seller and purchaser, and, consequently, no binding construction can be given to the will.

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


author: Yak BbuNt, P. J.:

text:
    In the Matter of the Probate of the Will of ROSALIE FLORANCE, Deceased.

      Residence of a wife, voluntarily living apan't from, her husband, for twelve year's prior to her death — it is not necessmily, for the purposes of the probate of her will, the residence of the husband.

    In an application made to the surrogate of the county of New York hy the husband of a decedent to vacate and set aside the decree admitting her will to prohate, on the ground that the decedent was a resident of the city of Philadelphia, in the State of Pennsylvania, it appeared that, although no legal separation had taken place between the decedent and her husband, they had lived apart for twelve years, during which time the decedent with her three children had made her home in the city of New York, while her husband remained in the city of Philadelphia, where they had both lived prior to the time of their separation; that during such twelve years the petitioner had not contributed anything towards the support of his wife or their children, although he had never refused to provide a home for them in the city of Philadelphia.

      Held, that the decedent was a resident of the State of New York, within.the meaning of the statute in relation to proceedings before the surrogate of that city for the admission to probate of her will.
    That the old rule in reference to a married woman’s domicile cannot longer prevail in view of the rights which have been conferred upon her by statutory authority.
    Appeal from an order of tbe surrogate of tbe county of New York, denying a motion made by tbe busband of Rosalie Florance, deceased, to vacate or set aside tbe probate of tbe will of tbe deceased or to modify tbe same, wbicb order was entered April 24, 1889, in said surrogate’s office.

      George ET. Yeamcrn., for tbe appellants.

      Charles E. Milled, for tbe executors, respondents.

      Edward W. Sheldon, for tbe United States Trust Company, as trustee under tbe will.

      Meyer Butzel, special guardian.
   Yak BbuNt, P. J.:

Tbis application is a renewal of one made in June, 1888, pursuant to leave duly given.

It appears from tbe papers before tbe learned surrogate that tbe petitioner and appellant resides in tbe city of Philadelphia, State of Pennsylvania, and that be was tbe busband of Rosalie Florance, who died on October 12, 1887, in Europe. That in November, 1887, tbe last will and testament of said Rosalie was filed for probate with tbe surrogate of New York, and at tbe same time a petition was presented alleging that she bad been, previous to her death, a resident of tbe county of New York. A citation was duly issued to and served upon all persons entitled to notice, including tbe petitioner, to attend tbe probate of tbe will. That tbe petitioner neglected to appear and tbe said will was admitted to probate and letters testamentary were issued thereon.

Tbe petitioner stated in bis petition that he did not attend tbe probate of the will because be did not suppose that any of his rights would be affected thereby, and that within a week or so after said probate the petitioner learned that said will had been improperly probated, in that the deceased was not a resident of New York at the time of her death, and he was advised by counsel that steps should be taken to modify and correct said probate. That thereupon, on June 21, 1888, a petition was presented to the Surrogate’s Court upon which a citation was issued and such proceedings had, that, in October, 1888, the motion was denied, and that pursuant to leave granted, the petition in question was presented in December, 1888.

It further appeared that the petitioner and said Rosalie were married in the year 1860, in the city of New York, where she was born and had always resided up to the time of her marriage to the petitioner; that the petitioner and his said wife then went to live in Philadelphia, and resided there until 1873, when they broke up housekeeping and resided in various places. In the fall of 1873, the petitioner and his wife finally separated from one another, he making his home in Philadelphia, and she, with three children, in New York, she taking care of and maintaining them. The said Rosalie, from her savings of some property left her, accumulated some $60,000, which comprised her estate at her death.

The petitioner claims that as no legal separation had taken place between them, although they had lived apart for twelve years, the residence of his wife was that of her husband, viz., Pennsylvania, and that, by the laws of said State, he was entitled to share in her estate, which would not be the case were she a resident of. New York.

The whole claim of the plaintiff is based upon the old rule that a woman by marriage acquires the domicile of her husband and changes it with him. It is admitted that a wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman’s domicile cannot, certainly, prevail in view of the rights which are recognized to be hers by the statutes.

The property relations between husband and wife have been entirely changed since the rule in quéstion has obtained, and the reasons for the rule no longer exists. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that in 1875 the petitioner and his wife agreed to separate, she to take their children and maintain them. They did separate, he going to Philadelphia and she living in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to. do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and, consequently, did not refuse, but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not.

They had agreed to live separate, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York, made that her home and that of her children, and certainly if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children and to be protected from the claims of a husband with whom she has not lived for twelve years, and who has not, during that time, either contributed or offered to contribute to her. support or to that of their children and who desires now, under a legal fiction, to take away from his own children a portion of their mother’s inheritance.

The motion was decided correctly by the learned surrrogate, and the order appealed from should be affirmed, with costs to each of the parties appearing as respondents.

Dahiels and BaeRett, JJ., concurred.

Order affirmed, with costs to each of the pai'ties appearing as respondents.


author: Yan Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM GLYNN, Appellant.

      Grime of robbery in the first degree — what evidence will sustain a cormction thereof— fern' is not a neeessa/i'y element of the criine.

    On tlie trial of an indictment charging the defendant with the crime of robbery in the first degree, it appeared that the captain of a schooner lying in the Fast river, near the city of New York, heard a noise at midnight on the deck, which, although one of the hatches of the boat had been fastened down, he succeeded, in reaching from the cabin, whereupon the defendant, who was on the deck, pointed a pistol at him and ordered him to go below or he would blow his brains out, thereupon the captain struck him and he fell overboard, and two other men who were with him jumped into a boat and rowed away after pelting the captain with stones. After they had departed the captain found that certain articles had been taken from the boat.
    The indictment charged that the defendant, with force and arms, took the articles in question, in the presence of the captain, against his will, by means of putting the said captain in fear of some immediate injury to his person.

      Held, that the evidence was sufficient to sustain a conviction of the defendant under such indictment.
    That fear was not a necessary element of the criine as defined in sections 224 and 225 of the Penal Code.
    Appeal by the defendant from a' judgment of the Court of General Sessions of the Peace, in and for the city and county of New York of February 20, 1889, convicting him of the crime of robbery in the first degree.

      Ambrose H. Purdy, for the appellant.

      Mackenzie Semple, for the respondent.
   Yan Brunt, P. J.:

The evidence in this case shows that one Hiram Springstead was, in October, about the llth, 188S, the captain of a trading schooner, which was lying at the foot of One Hundred and Ninth street, East river, in this city. At midnight he, being in his cabin, heard a noise on deck. The cabin doors had been fastened with lashings on the inside. The captain shoved the door but could not get out because of obstructions from the outside. A knife had been stuck through and the inside lashings cut. The captain then blew out the light and went through the hold and out on deck through the fore-peak hatch, Upon getting upon the deck he saw the appellant standing aft by the cabin door, also another man on deck and a man in a row-boat alongside.

• The appellant pointed a pistol at the captain and ordered him to go below or he would blow his brains out, which injunction the captain does not seem to have heeded, because, he says, “ I took my chances and slugged him and he fell overboard, and the other man jumped into the boat and it went away.” They then pegged the captain with stones and brick-bats so that he had to lie down below the rail of the vessel to escape the missiles. After they had rowed away the captain examined the boat and missed the articles which were claimed to have been stolen.

The point made upon this appeal is that the evidence was insufficient to warrant the verdict, in that the acts proved do not constitute robbery. The indictment charged that the appellant, with force and arms, took the articles in question in the presence of the captain against his will, by means of putting the said captain in f ear of some immediate injury to his person.

It is urged, first, that there is no proof whatever that any property was taken in the presence of the captain, and that the evidence shows that the taking was not against his will, and that the property was not taken by putting the captain in fear; and it is urged that the facts show that the captain not only was not put in fear, but that he q>ut his assailants, among whom was the defendant, in that condition of mind. It seems to be assumed that under the definition of robbery as contained in the Penal Code, fear is a necessary ingredient of the crime, but as we read the Code, fear is not a necessary element, but may be an element which goes to make up the crime.

Bobbery is to be defined to be the unlawful taking of property from the person of another or in the presence of another against his will by means of force. Neither fear or violence enter into this definition. It is only in the third definition where the element of fear is mentioned, the fear of injury, immediate or future, to his person or property. Therefore, if the property in question was taken in the presence of this captain by means of force or violence, whether it produces fear or not, the crime of robbery was made out. It is urged that the taking was complete at the time that the caqitain discovered the presence of the appellant and his associates upon his boat, and, therefore, nothing that was done afterwards could alter' or change the nature of the offense. It seems to be clear that, although the thief may have procured possession of the property of another without force or violence, the removal of the property from the presence of that other, with force or violence, constitutes robbery. It is not stated in the definition of robbery” that the owner or person in whose presence the property is removed shall know of - its removal at the time. The fact that it is removed from such presence by means of force or violence constitutes the crime. Suppose a man should set his carpet bag upon the sidewalk, and two persons confederating to- rob him, one should make an assault" upon him while the other took out some of the contents of the bag and shut it up so that it appeared to be in the same condition as before, and his assailants should then retreat, carrying the stolen property with them, the person robbed having no knowledge that his bag had been opened and anything taken away until after the thieves had entirely escaped, can there be any doubt but that the crime committed would be “ robbery ? ” The facts in the case at bar seem to be exactly like this. The thieves used force and violence in order to be able to carry off the property which they had secured. There was ample evidence from which the jury could find that the property in question was in the boat, and was carried from the presence of the captain by means of the force and violence used by the men in the boat. The mere fact that the captain did not know that it was in the boat in no way altered the effect of these facts, •as knowledge of the fact of removal from the presence, by the person from whose presence property is removed, is not a necessary ingredient of the crime.

The judgment appealed from should be affirmed.

Daniels, and Barrett, JJ., concurred.

Judgment affirmed.


author: Daniels. J\ :

text:
    SAMUEL NEWMAN, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Arrest of an innocent person by a railroad detective under suspicious circumsta/nees — liability of the railroad — when not liable for Ms detention by a police sergeant —• lohen not lictble to exempla/ry damages.

    A'party who had purchased a ticket and sleeping berth, and was awaiting the departure of a railroad train, was arrested by a person acting as a detective in the employ of the railroad eompany; was taken before a police sergeant and was detained in custody during the night, and upon his examination the following morning was discharged. The cause assigned for his arrest was his general suspicious appearance, in support of which the detective testified that he had on a rubber suit and hood, part of which came down over his face; that there were holes in the hood through which he could see; that he had a moustache which the detective pulled off, and could see that he also had false whiskers. In his possession was a paper box which contained bottles of liquid substances, rags in an oily condition and eight or ten wax tapers, and upon these facts he was detained by the sergeant before whom he was taken.
    In an action, brought to recover damages for his arrest and detention:
    Held, that if his appearance, under the circumstances, were such as to justify the careful conclusion on the part of the officer that the plaintiff had either committed a felony, or was about to commit a felony, then he was excused for making the arrest, although it might turn out thereafter that the suspicion was unfounded.
    That, although arrested by the officer, the railroad company was not liable for such damages as were caused by the action of the sergeant or police justice in detaining him, unless the officer requested that that should be done.
    That as there was no evidence of any ill-will, or malice or wanton disregard of the plaintiff’s rights in making the arrest, and as the arrest was made in good faith upon the suspicion, deemed to be warranted by the circumstances, that the party arrested was either a criminal or a person contemplating the commission of a crime, no case was presented for the allowance of exemplary damages.
    Appeal by tbe defendant from a judgment entered, on the verdict of a jury, for $500, at the New York Circuit, in the office of the clerk of the county of New York, November 15, 1888, and from an order denying a motion on the minutes of the court for a new trial.

      Oha/rles Steele, for the appellant.

      J. Delcthunty, for the respondent.
   Daniels. J\ :

The jury rendered a verdict in favor of the plaintiff for the sum of $500, as damages for his arrest and detention by the act of a person in the employment of the defendant as a detective. The arrest was made at the depot of the defendant where the plaintiff was awaiting the departure of a train on which he had purchased a ticket and sleeping berth to Lackawaxen. After his arrest he was taken before a police sergeant and detained in custody during the night, .and upon his examination on the following morning and his identification by a reputable citizen of New York, he was discharged by the justice. The cause assigned for his arrest was his general suspicious appearance. The evidence as to this was obtained, in some degree, from the plaintiff himself, but it was chiefly given by the witnesses sworn on behalf of the defendant. The detective, who is alleged to have made the arrest, or directed the making of the arrest, testified that the plaintiff had on a rubber suit and a hood, part of which came down upon his face, leaving his mouth, and that part of it right under his nose, only visible; that there were holes in the hood through which he could see; that he had a moustache on, which was on one side, and the witness pulled it off, and when the cap was off he could see that he had false whiskers. He was regarded as a suspicious and disorderly person, and for that reason the arrest was made. In his possession was a paper box which contained bottles of liquid substances, rags in an oily condition, and eight or ten wax tapers, and upon these facts he was detained by the sergeant before whom he was taken.

The court held the arrest to have been without legal authority and unlawful, and one for which the defendant was liable in damages, if it was made by an officer of the defendant employed for this purpose. This ruling of the court seems, under the authorities, to have exceeded the legal rule, for there were circumstances in the case connected with the plaintiff’s appearance and the contents of the box in his possession, and the statements made by him, from which it might be inferred that he was a person who either had committed or was contemplating the commission of a crime. At least the evidence upon this subject was sufficient to present that inquiry to the jury, and the court was in error in taking it from their consideration by the decision which was made.

It did not appear what was the law in the State of New Jersey upon this subject, but as the common law is presumed to prevail there, the officer was authorized to make the arrest if the facts were such as to indicate the plaintiff to have been either a criminal or a person contemplating the commission of a felony. This principle was considered in Beckwith v. Philby (6 Barn. & Cress., 635), where it was held that an officer was authorized to make the arrest and detention of an individual when there was reasonable cause to suspect that he had either committed a felony or was about to commit one, having in his possession the implements proper and necessary for that purpose. And whether the party arrested was accompanied by such circumstances as to warrant the belief that he was a criminal, or probably intended the commission of a felony, was a question for the jury and not for the court. The same general principle was followed in Lawrence v. Hedger (3 Taunt., 14), and it has the sanction of Eanes v. State (6 Humph. [Tenn.], 53) and Holley v. Mix (3 Wend., 350). In that case it was declared to be the law that “ if no felony was committed by any one, and a private individual arrested without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to rely on.” (Id., 353.) And this was approved in Burns v. Erben (40 N. Y., 463, 469). And to the like effect is 1 Hillard on Torts, 220,221, and cases referred to in note. Whether the officer who was in the employment of the company was excused for making the arrest, if he in fact made it at all, was, therefore, for the jury to consider and decide under the evidence. If his appearance, under the circumstances, was such as to justify the careful conclusion on the part of the officer, that the plaintiff had either committed a felony or was about to commit a felony, then he was excused for making the arrest, although it turned out that the suspicion was unfounded.

The plaintiff’s testimony was to the effect that he was detained by the sergeant during the night at the instance of the officer in the employment of the defendant. The testimony of the officer was to the contrary; that he made no complaint against the plaintiff; and that of the sergeant was that the officer did not request him to detain the plaintiff, but that he did so for the reason that lie did not consider his explanation was satisfactory, or that he ought to let him go. The court, in view of this evidence, was asked to direct the jury, if they should be of the opinion that Brown arrested the plaintiff, that the defendant was not liable for such damages as were caused by the action of the sergeant, Wohlleben or Justice Stilsing, in detaining him, unless they believed that Brown requested that also. The court declined so to charge, and to that the defendant excepted. This point was considered in Lock v. Ashton (18 L. J., Q. B., 76), and the court there held that the defendant was not liable for damages caused by the detention of the plaintiff by the magistrate himself. And this authority appears to have entitled the defendant to this instruction from the court. From the time when the plaintiff was taken before the sei’geant he was subject to his control and direction, and if he, in the discharge of his duty and the exercise of his authority, considered the case to be one requiring the further detention and examination of the plaintiff, it was his act and not that of the defendant. If, on the contrary, the detention was produced by the instigation or urgency of an officer in the employment of the defendant, having authority on its behalf to make the arrest, then the defendant would be liable for the damages sustained by this continued detention of the plaintiff, and the case should have been in that manner submitted to the jury, instead of the subject being withdrawn, as it was, from their consideration by this refusal to charge.

The court also charged the jury that if Brown, the officer in the defendant’s employment, arrested the plaintiff, and in making the arrest acted recklessly and with wanton disregard of the rights of the plaintiff, that then the jury might award damages by way of punishment of the defendant, what is called “ exemplary damages.” The defendant’s counsel requested the court to direct the jury that) there being no evidence of malice, the plaintiff was not entitled to recover beyond his actual pecuniary loss and was not entitled to recover exemplaray or punitive damges. These requests were refused, and exceptions were taken to the refusal, as well as to the charge given by the court. The evidence failed to establish the fact that there was any ill-will or malice or wanton disregard of the plaintiff’s rights in making the arrest. It appeared, on the other hand, to have been made in good faith upon the suspicion, deemed to be warranted by the circumstances, that he was "either a criminal or a person contemplating the commission of a crime. And, under this evidence, no case was presented for the allowance of exemplary damages. Upon that subject the exceptions were well taken.

The judgment and order should be reversed, and a new trial directed, with costs to the defendant to abide the event.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment and order reversed and new trial ordered, with costs to the defendant to abide event.


text:
    FRANK RUDD, as Receiver, etc., of the GOODWILLIE-WYMAN COMPANY, Plaintiff, v. GEORGE H. ROBINSON, Defendant.

      Trustee of a corporation — its account-books, when evidence against Mm — payment, by the corporation of a debt owing to him by a firm, its pr'edecessor'- in business — of illegal interest — of profits on business ventures can'ried on by the corporation with his money — when recoverable — chattel mortgage given to him to secure money advanced not filed when given — validity thereof.

    In an action, brought to charge the defendant, as a trustee of a corporation, formed under the manufacturing laws of this State, with money improperly , received by him from the corporation, by a receiver appointed on the application of a judgment-debtor thereof, it appeared that the defendant had been, from time to time, applied to by the corporation for financial aid, and that of the five trustees of the corporation two of them were identified with the defendant in the management and direction of its business, and were at all times in a position to dictate as to what should be done in the management of the affairs of the company.
    This corporation succeeded to the business of a firm which was found to have been indebted to the defendant in the amount of over $1,000, the payment of which was obtained by him from the corporation; the evidence of which fact was derived mainly from entries made in the books of the company, to the admission of which in evidence the defendant objected.
    The evidence tended to show that these entries had been unquestioned either by the defendant or any other officer of the company.

      Held, that the entries made in the due course of business were admissible evidence to prove the transactions recorded when they afterwards became the subject of legal controversy.

      Peek v. Valentine (94 N. Y., 569) distinguished.

      That the corporation had no right to pay, nor had the defendant, as its trustee, the right to receive from, it, this money in settlement of an indebtedness of the pre-existing firm.
    That the moneys so received by the defendant, together with the interest received, upon money advanced by him to the corporation, in excess of the legal rate of interest thereon, were properly recoverable by the receiver from him.
    It further appeared that the defendant had become interested in various transactions with the company, designated as “ventures,” for purchases made in which defendant advanced the money, and the profits arising from which were equally divided between the company and the defendant.

      Held, that while the defendant was entitled to a return of his money, together with lawful interest thereon, he had no right to share in the profits of the business which belonged exclusively to the company itself.
    The company having- become largely indebted to the defendant, on the 20th day of October, 1883, executed and delivered to him, with the consent of a majority of its stockholders, a chattel mortgage by way of security for the payment thereof, covering a large part of the property of the company, which, it was claimed, was unlawful under the provisions of section 4 of 2 Revised Statutes (6th ed.), 399, as a transfer to an officer of the corporation in contemplation of its insolvency.

      Held, that this section of the statute, having been repealed by section 39 of chapter 402 of the Laws of 1882, and not restored by the repeal of so much of this act of 1882 as related to it, until the enactment of chapter 434 of the Laws of 1884, was not applicable to this mortgage given in October, 1888.
    This mortgage delivered on October 20, 1883, was not filed until December thirteenth of that year, and not until after the property mentioned in it had been, to a considerable extent, disposed of, nor was possession of the property taken by the mortgagee at or near the time when the mortgage was given.

      Held, that the mortgage was invalid for this reason, as against all the creditors of the mortgagor, without regard to the time when their debts were contracted, and that the plaintiff, as receiver, was authorized, by the provisions of chapter 314 of the Laws of 1858, to maintain an action to set aside this mortgage.
    Motion by defendant for a new trial, on exceptions taken, under section 1001 of the Code of Civil Procedure, after a trial at the New York Special Term on April 6, 1887.

      Edmim, B. Qoodell, for the plaintiff.

      8. Jones, for the defendant.
   Daniels, J.:

The action was brought to charge the defendant, as a trustee of a corporation formed under the laws of this State, for the creation of manufacturing corporations, for the unlawful receipt and appropriation of property received by him in that capacity. The corporation was formed on or about the 5th of October, 1882, with a capital of $50,000. It was called the Goodwillie "Wyman Company, and by its formation it was intended as and was the successor of a copartnership firm, previously engaged in business under the same name. It succeeded to the assets, interests and property, of that firm, and the two persons who were copartners in the firm became stockholders and trustees in the corporation. It continued to carry on the business for which it was incorporated until about the close of the year 1883. A judgment was then recovered against .it in favor of a creditor, upon which execution against his property was returned unsatisfied. And upon his application, in an action prosecuted for that purpose, S. A. Briggs, another trustee of the corporation, was appointed receiver of its property. This receiver was afterwards superseded, and the plaintiff was appointed with all the powers and authority incidental under the law, to that position. The defendant was the owner of a small amount of stock in the corporation, and was one of its trustees during the time it was actually engaged in business. The corporation, from its organization, encountered difficulties in meeting and discharging its liabilities, and the defendant, being a man of financial responsibility, was applied to for his aid and assistance. And that was rendered in the advancement of money to and for the corporation, and in the negotiation of its paper, from time to time, while it was engaged in business.

It was alleged, in support of the action, that he had taken advantage of this position to advance his own pecuniary prosperity at the expense of that of the corporation. And this was found to have been sustained by the court in the interlocutory judgment which has been entered, and under which he has been required to account for moneys and property received and disposed of by him as a trustee of the company. The trustees were five in number. Two of them were practically identified with the defendant in the direction and management of the business. These three trustees constituted the majority, and were at all times in a position to dictate as to what should be done in the way of controlling the finances and property of the company.

At the time it was formed the preceding firm was largely indebted. Among other debts it was alleged to owe the defendant upon two promissory notes of $505 and $501.50, and the payment of these debts was obtained by him from the coloration. The proof upon which these facts were found and incorporated in the judgment was derived mainly from entries made in the books of the company. The defendant objected to the book containing these entries being received as evidence, on the ground that it had not been authenticated in such a manner as to be proof against him. The accounts, so far as they included these items, were kept in the book by the witness, Briggs. And evidence was given upon the trial by the witness, Frederick B. Fiske, from which the court was warranted in finding that Mr. Briggs was acting, in this capacity, as the representative of the defendant. He was asked, What did Mr. Robinson say, if anything, about who should be the incorporators and trustees? A. He wanted Mr. Briggs to b'e a trustee and to take charge of the books. Q. Did he say anything about Mr. Briggs representing him ? A. In a general way, yes, sir; that Mr. Briggs was in the company, in effect, as his representative. Q. Did he say that? A. Substantially that; yes, sir.” And he added further that the defendant said that “ whatever was said to Mr. Briggs would be communicated to him, or something like that.” He was asked to give the substance of what was said, and answered that what was said to Mr. Briggs would be told to him. Added to this was the evidence of Briggs that he made the entries in the books from memoranda furnished to him by Mr. Fiske. He himself had no knowledge on the subject of the correctness of the entries, but they were made by him in the books from memoranda furnished to him by Mr. Fiske. Mr. Fiske was asked, “ So far as you personally furnished Mr. Briggs data to be entered in the books of the corporation, were the entries truthful and correct entries of transactions made by you on behalf of the corporation ? ” and he answered, “ Most certainly.” He was further asked, “ None of them, to your knowledge, were otherwise ? A. Assiuedly not.”'

He was further asked, “Was there ever, to your knowledge, any question made by Mr. Robinson, or any other officer of the company, in regard to the correctness of those entries, or the correctness of the books of the corporation ? A. Do you mean these data that I furnished? Q. No, these books here. A. I have no recollection of anybody calling them in question except myself.” And the extent to wliicli he called them in question was the account of the account of the firm in which he had been interested. Other evidence of these witnesses was still more extended upon this subject, proving the facts to have been that Eiske reported to Briggs for entry in the books only such matters as were known to him to be correct. And the evidence of Briggs was that the entries were correctly made, as the information was given to him by the witness Eiske. And entries made in the course of business in this manner have been held to be admissible evidence to prove the transactions recorded, when they afterwards become the subject of legal controversy, (Mayor, etc., v. Second Avenue R. R. Co., 102 N. Y., 572; Cheever v. Lamar, 19 Hun, 130.) And the admissibility of the books in this manner proved has not been affected by anything contained in Peck v. Valentine (94 N. Y., 569), for there the decision was confined wholly to objectionable evidence of a lost memorandum. These entries, established in this manner, sustain the conclusion adopted by the court, that these sums of money had been paid to the defendant by the corporation upon the indebtedness of the preceding firm to him ; and no property or funds of that firm are shown to have been placed in the possession of the company out of which it should have made these payments. This was, therefore, within the knowledge of the defendant as a trustee of the company, an appropriation and use of so much of its funds as were applied in payment of these debts, to the. satisfaction of demands held by him against the firm; and that neither the corporation itself had the right to make, nor the defendant, as its trustee, the right to receive. His position was one of trust and confidence, which he was legally disabled from using for the promotion of his own advantage. (Hoyle v. Plattsburgh, etc., R. R. Co., 54 N. Y., 314.)

It was there said, and the correctness of the statement has not since been denied, that, “whether a director of a corporation is to be called a trustee or not, in a strict sense, there can be no doubt that his character is fiduciary, being intrusted by others with powers which are to be exercised for the common and general interests of the corporation, and not for his own private interests. He falls, therefore, within the great rule by which equity requires that confidence shall not be abused by the party in whom it is reposed, and which, it enforces by imposing a disability, either partial or complete, upon the party intrusted to deal on his own behalf, in respect to any matter involved in such confidence.” .(Id., 328.) And this rule is further supported by Blake v. Buffalo Creek Railroad Company (56 N. Y., 485). And that a director or trustee of a corporation is within the principle was also declared in Butts v. Wood (37 N. Y., 317) and in Wardell v. Railroad Company (103 U. S., 651). The position of the defendant, as a trustee, was such as to preclude him from using or permitting the use of his power or authority for his own personal benefit. And, to prevent that from being done in this and other analogous cases, the law has subjected guardians, trustees, agents, directors and other officers of corporations to account for all profits made by them by talcing advantage of their official position and opportunities. It will not allow these officers to place themselves in the position where there may be a conflict between the duties and obligations which they owe to the corporations and their own personal interests. And for that reason it has been generally declared and maintained that, all persons who stand in a fiduciary relation to others must account for all the profits made upon moneys in their hands by reason of such relation.” And “ agents, guardians, directors of corporations, officers of municipal corporations, and all other persons clothed with a fiduciary character, are subject to this rule.” (1 Perry on Trusts [2d ed.], § 430.) And this liability is further illustrated by sections 194 and 427, and cases referred to in the notes.

The principle; also, in Cumberland Coal, etc., Company v. Parish (42 Md., 598) was maintained upon a consideration of the authorities as broadly as it has already been stated. It was there said, with approval, that it is now well settled that directors and managers of corporations and other companies are equally within the rule which guards and restrains the dealings and transactions between trustee and cestwi que trust and agent and his principal, such directors or managers being in fact trustees and agents of the bodies represented by them.” (Id., 605.) And to the latter effect is Cumberland Coal and Iron Company v. Sherman (30 Barb., 553); Stewart v. Lehigh Valley Railroad Company (38 N. J. Law, 505); Gardner v. Butler (30 N. J. Eq., 702); Kitchen v. St. Louis, etc., Railway Company (69 Mo., 224); Chouteau v. Allen (70 id., 290) and Hubbard v. N. Y., etc., Investment Company (14 Fed. Rep, 679). The payments of these debts to the defendant, with the funds of this company, was a misappropriation of its money. And from his relation and position and general acquaintance with the business, as well as through the employment of IVIr. Briggs to keep him posted, it is justly to be inferred that he was well aware of the origin and source from which this money received by him was obtained. And for this misappropriation of so much of the funds of the company, he has been rightly required to account under the judgment which has been entered.

It was further made to appear that, for moneys advanced by the defendant in the course of the business of the company, he received more than the legal rate of interest. As the evidence was given, these occasions were not frequent, however, neither were the amounts large. One occasion was stated particularly in the testimony of Mr. Fiske, which was the only one mentioned by him as being within his recollection. The witness, "William Corson, mentioned another, where an excess above the legal rate of interest received was ninety dollars' and sixty cents. This excessive interest was not received by the defendant under any agreement for the payment of usury, but it seems to have been taken by him as a bonus for the advances which he had made. And while it is true that a director or trustee of a corporation has not been disabled by the law from loaning money to the company, it is still necessary, for his protection in the transactions, that it shall appear that no undue advantage has been taken by him of his position, or of the authority permitted to be exercised by him over the affairs of the company. Loans made in good faith for the convenience or necessity of the company are sanctioned by what was held in Twin Lick Oil Company v. Marbury (91 U. S., 587). But there it did not appear that any funds in the way of excessive interest or usury had been received. This part of this case appears to have been quite limited in its amount, but for whatever the defendant did so receive from the company upon advances or loans made by him to the defendant, he has been regularly held accountable by the judgment. No specific amount has been adjudged against him, but that is left to be ascertained, as it very properly may be, upon the accounting ordered to take place.

It was further proved that the defendant had become interested in various transactions with the company which have been described and designated as “ ventures.” These were purchases made by the company for which the defendant advanced the money. The property purchased went into the possession of the company and was sold by it, and the profits arising out of the transactions were divided equally between the company and the defendant. What he did was to advance his money to enable the company to enter upon and promote these enterprises. The services by which the property was taken in charge, or put into a condition to be sold, were those of the subordinates of the company, and not of the defendant. Yarious amounts of money are shown to have been paid to the defendant as his share of these profits.

They were clearly secured by him by reason of his position in, and authority over, the affairs of this corporation, and in substance and effect were in the nature of bonuses or premiums paid for the use of his money. Within the rule maintained by the authorities which have already been mentioned, these profits he had no right to exact or receive. While he was entitled to a return of his money out of these various transactions, together with lawful interest upon the amounts advanced, he had no legal right to share in the-profits of the business. That was the business exclusively of the company itself, and the profits were wholly payable to it for the benefit of its stockholders and creditors. And so far as they have been received by the defendant, beyond the amounts to which he was entitled by way of interest and principal for the moneys advanced by him, he is liable to account in this action.

On the 20th of October, 1883, the company had become indebted to the defendant for moneys loaned and advanced- and for obligations which he had incurred, in the sum of $16,500. And, with the consent of a majority of the stockholders, a chattel mortgage was executed and delivered to him for the security of this sum, upon- a large part, if not all, of the property of the company. This mortgage was assailed as unlawful under the provisions of the statute declaring that it should not be lawful to make any transfer or assignment, in contemplation of the insolvency of the company, to any person or persons whatever, and declaring every such transfer and assignment to an officer or stockholder, or other person in trust for them or them benefit, to be utterly void. (2 R. S., [6th ed.], 399, § 4.) But this section of the statute was not in force at the time when this mortgage was executed, for it had been repealed by section 39, chapter 402 of the Laws of 1882. And it was not again restored, by the repealing of so much of this act as related to it, until the enactment of chapter 434 of the Laws of 1884. It can, therefore, be of no advantage whatever to the plaintiff in this action.

But while this mortgage was made in October, 1883, it was not filed until the thirteenth of the following month of December and after the property mentioned in it had, to a considerable extent, been disposed of. This omission to file the mortgage entitled the plaintiff to avoid it under the provisions of the statute relating to this transaction. Possession of the property was not taken by the mortgagee at or near the time when the mortgage was given, and that subjected it to the presumption that it, in fact, was fraudulent. And the statute further declared the mortgage to. be absolutely void against the creditors of the mortgagor, and against subsequent purchasers and mortgagees in good faith, for the failure to file it as that has been provided for by law. (3 R. S. [6th ed.], 143, §§ 5, 9.) The effect of the failure to file a chattel mortgage was examined in Thompson v. Van Vechten (27 N. Y., 568). And it was then considered by the court in giving effect to another and no more than an equivalent provision of the statute that: “ The creditors who may take advantage of the default in refiling, embrace all the creditors of the 'mortgagor without regard to the time when the debts were contracted.” (Id., 583.) •' And that is strictly the language of the statute itself as to the effect of the omission to file the mortgage at all. Campbell Printing Press Company v. Damon (48 Hun, 509), follows and gives effect to this language of the statute.

The plaintiff, as receiver, represents not only the creditor in whose suit he has been appointed, but the other creditors of the corporation. And as such, by chapter 314 of the Laws of 1858, he has been empowered to maintain an action to set aside this mortgage-. Bor that purpose it has been declared that he may “ treat as void and resist all acts done, transfers and agreements made in fraud of the rights of any creditor.” And every person in fraud of the rights of creditors receiving the property or effects of an insolvent corporation has been declared to be liable, in a proper action by a receiver, for tlie recovery of such property. And this effect has been accorded to the statute, as it is plainly included within its language, in Southard v. Benner (72 N. Y., 424), and Underwood v. Sutcliffe (77 id., 58). For the disposition of this mortgaged property, as far as that has taken place, and for what still remains under the control of the defendant, he appears to have become legally liable, and has rightly been directed to account in the action.

But, where payments have been made to him, by way of refunding moneys loaned by him in good faith, and without the employment of his coercive authority as a trustee of. the company, he is entitled to retain the moneys in that manner received. As much as that is sanctioned by Twin Lick Oil Company v. Marbury (supra). Neither is he liable to account for moneys paid to other persons holding obligations or paper of the company, on which he was liable as indorser. For such payments no ground of liability appears to be disclosed by the evidence against the defendant, and in these respects the judgment which has been entered was unauthorized. And so it was in the last paragraph contained in it, directing the recovery of costs by the plaintiff and awarding an additional allowance of five per cent upon the amount to which he should become ultimately entitled. If. the plaintiff shall become entitled to costs, that can only be ascertained upon the rendering of final judgment. And the recovery of costs in a case of this description has, therefore, been limited by the Code to that event. (Code Civil Pro., §§ 3228, 3230, 3253.)

Several of the findings of fact and conclusions of law, beyond those which have been considered, have been made the subject of special exception by the defendant. But it is not necessary, materially, to review these exceptions, for the reason that even if some of the findings are broader than the evidence, still, with the modification already suggested, no injury or injustice will result from them to the defendant. And the same observation is applicable to the rulings concerning the admission and rejection of evidence. They have not changed the case in any degree to the prejudice of the defendant. His liability, to the extent already considered, has been sustained by the testimony taken upon the trial. And, while the motion for a new trial should be denied, the judgment should be so far modified as to exclude the provision contained in it awarding costs and allowances, and modifying tbe fourth subdivision of the sixth conclusion of law, to such an extent as to exclude from it the direction that the plaintiff shall account for and pay over the moneys received by him in payment of the debts of the corporation in good faith made to him, or in ]Dayment of the debts of the corporation to others for which he had become liable, or for property not included in the mortgage, disposed of for the payment of such debts. And, as so modified, the motion should be denied, without costs to either party.

The principles laid down in Hubbell v. Meigs (50 N. Y., 480) permitted the receipt of the entries in books as evidence.

YaN Beuht, P. J., and Beadt, J., concurred.

Judgment modified as directed in opinion, and, as so modified, the motion for a new trial denied, without costs to either party.


author: YaN BbuNt, P. J.:

text:
    CONSTANCE B. PRICE, Appellant and Respondent, v. WALTER J. PRICE, Appellant and Respondent.

      Admeasurement of dower — liability for withholding possession, of a grantee and of an heir respectively — an imposition of am, easement vjpon lands not set off is improper — what character of real property should be setoff.

    Under tlie provisions of sections 1600 and 1C08 of tlie Code of Civil Procedure a grantee of property, subject to a dower interest, becomes liable only after a demand, after wliicli bis liability continues, not exceeding six years in all, until judgment admeasuring tbe dower is entered, although prior to that time . he may have conveyed-the land —while an heir-at-law is liable from the date of the death of the husband.
    It is not proper, in the admeasurement of dower, to impose charges upon lands not set off for the exclusive use and benefit of the doweress during her life, nor is it proper to set off dower in a burial lot.
    In the admeasurement of dower the land subject thereto consisted of certain houses and lands in the city of New York, and seventy-six acres of land near Lake George, on which was a manor-house, another piece of land and an island in Lake George, and a burial lot in Greenwood Cemetery; of which a part of the manor-house property, including the dwelling,'and a third of the burial lot, were set off to the doweress, together with property easements in other parts of the manor property, for the benefit of that part which had been set off for her benefit.

      Held, that such admeasurement was improper as there was no probability that, from the part of the manor property set oil to her, she would be able to realize the sum to which she was naturally entitled.
    That the attempt to create an easement over other portions of the property which were not set oil to the doweress was improper, and that it was also error to set off dower to her in the burial lot.
    Appeals by both tlie plaintiff and certain of tbe defendants from a decree herein, entered in the office of the clerk of the county of New York May 22, 1889, admeasuring the dower of the plaintiff and awarding her damages for the withholding of such dower.

      George H. /Starr and Oharles Jones, for the plaintiff.

      James S. Marvin, for the defendant Little.

      David Wilcox, for the defendant Paine and others.
   YaN BbuNt, P. J.:

The plaintiff and one "Walter W. Price were married. Price died in January, 1876, being then the owner in fee of the real property described in the complaint herein, which consisted of some houses and lots in the city of New York, seventy-six acres of land, called Price Manor, at Lake George, Diamond Island in Lake George, and a plot of land in the village of Lake George. He also owned a burial plot in Greenwood Cemetery.

In June, 1880, the plaintiff brought this action to recover her dower in all the aforesaid lands. The action was referred to a referee for trial, who dismissed the complaint. Upon appeal this judgment was reversed and judgment absolute was given to the plaintiff, that she was entitled to dower in the lands described in the complaint, and directed an interlocutory judgment to that effect to be entered, which was done, and by which it was referred to a referee to admeasure and set off the dower. In July, 1885, the last-named referee made his first report, that it was not for the interest of all the parties to admeasure and set off any parcel of said lands.

The court at Special Term refused to confirm this report and sent the case back to the referee with directions to admeasure the dower and set it off from the manor property. Upon appeal this order was affirmed by the General Term. The referee thereupon proceeded to the admeasmement of the dower of the plaintiff, and, in June, 1887. made bis report admeasuring the plaintiff’s dower, and setting off to her a part of the manor-house property, upon which stood the dwelling, etc., and also attempted to impose upon other parts of the manor property easements for the benefit of that part which had been set aside for the benefit of the doweress, and also set off one-third of the burial plot in Greenwood Cemetery.

In December, 1881, it was, on motion of the plaintiff, referred to the same referee to compute the amount due to the plaintiff from the defendants, respectively, as her damages for the withholding of her dower, and to take an account of the mesne rents, issues and profits of the several pieces of property in which the plaintiff was endowed, from the beginning of the action, until entry of interlocutory judgment and also to the filing of his report.

It appeared that the defendant Josephine Little sold the premises owned by her on April 25,1882, and delivered possession thereof to the purchaser. In January, 1889, the referee filed his report computing the amounts as directed, charging the defendant Little with the mesne profits from the time suit was brought up to August 9, 1S87, the time when report was confirmed, and charged the other defendants with such profits from the commencement of the action to the filing of his report in January, 1889. Upon motion to confirm this report the court modified the same as to the defendant Little by striking out the mesne profits, after she had sold the house, and as against St. John’s Church by limiting the time from the commencement of the action to the 9th of August, 1887, the date of the confirmation of the report admeasuring the dower, and as to the other defendants by limiting the time to six years. Final judgment was entered upon this basis in May, 1889. The plaintiff appealed from that part of the judgment which admeasured the dower in the manor-house property, and from that part of the judgment awarding damages against the defendant Little so far as it fails to award damages down to August 9, 1887. The defendants, St. John’s Church and Josephine Little, appealed from so much of the judgment as awarded- dower and damages and costs. And the other defendants appealed from so much of said judgment as imposed privileges or easements upon other lands and as awarded dower in burial plot in Greenwood Cemetery. The various appellants also named, in their notices of appeal various orders and judgments, but as they have all been previously before the General Term it is not thought necessary to refer to them here. It is not necessary to consider the question as to whether dower can be actually admeasured, or as to in what property it should be set apart, as these questions have been previously béfore the General Term and passed upon.

Upon the whole case, however, we are of the opinion that the dower has not been so admeasured as to protect the plaintiff. There is no probability that from the part of the manor-house property set off to her that she will ever be able to realize the sum to which she is yearly entitled. The situation and character of the property is such that a large margin must be left for maintenance and support, which the rental of that portion set aside will not assure.

We think, also, that the referee erred in attempting to create easements over other portions of the property not set aside. The doweress is entitled to the full and complete possession of the property set aside, and the owners of the other property are entitled to have their property free and clear of and from each and every claim of the doweress. The referee, therefore, had no rights to impose charges upon land not set aside for the exclusive use and benefit of the doweress during her life. It is difficult to see how dower can be set off in a burial lot. The doweress has only a life interest in the land admeasured, the right to the use and benefit of the same during her life; her right then in the burial lot would appear to be the right to be buried there as long as she lives, and when dead she must remove. The referee, therefore, erred, when he set-off dower in the burial lot. The only remaining question to be considered is that part of the judgment which fails to charge the defendant Little with mesne profits after the sale of the property owned by her. As at the common law a widow was entitled to damages from the time only when she recovered her judgment for her dower, the statute prescribes the only rule for a recovery for withholding dower prior to judgment.

Section 1600 of the Code provides that the damages for the withholding the dower are to be computed where the claim is made against some person other than an heir, from the time when dower is demanded of the defendants to the time of trial or application for judgment, as the case may be, but not exceeding six years in the whole.

Section 1603 provides that, in case tbe heir of the husband has aliened the real property, the doweress may recover, in a separate action against him, damages for withholding her dower from the time of the death of the husband to the time of alienation. This provision clearly has no application to the case of a grantee.

A grantee becomes hable only after demand. An heir is liable from husband’s death, no demand is necessary to fix his liability, whereas no liability begins to run against grantee until demand, and then this liability continues until judgment. After suit 'brought there is no provision for proceeding against subsequent purchasers. By demand upon grantee the liability is fixed by the very terms of the statute. There is no way that a grantee subsequent to suit brought can be brought in.

The rules in action of ejectment have no application nere. This right is a creature of the statute, derives its whole force from the statute, and when the statute provides that the doweress may also recover from a person other than the heir, damages for withholding her dower from the time of 'demand to the day of judgment, it did not say unless the person in the meantime aliens the land, but it does say that a defendant withholding dower at the time of bringing suit is liable for damages until judgment. ~We think, therefore, that it was erroneous to deprive the plaintiff of damages after the aliena tion of her land by the defendant Little. She was liable for such damages for six years prior to the application for judgment.

The judgment appealed from must be reversed, with costs to the plaintiff to abide final event.

DaNiels, J., concurred.

Judgment reversed, with costs to plaintiff to abide final event.