author: YaN Bettht, P. J.:

text:
    In the Matter of the Probate of the Last Will and Testament of ALFRED BEDLOW, Deceased.

      Will — undue influence —presumptions —■ transactions between persons, one of whom, is subject to the control of the other — correctness of testator's information — error in admitting evidence before a surrogate — when disregarded on appeal — evidence as to personal transactions with a deceased paA'ty.

    Tlie mere fact that a testator was weak and easily influenced does not, in itself, raise the presumption that undue influence was exercised over him hy those who surrounded him at the time of the execution of his will, simply because the will was unsatisfactory to his family, in that it made a stranger the chief beneficiary.
    The mere fact that an opportunity of exercising undue influence over a testator has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.

      'The mere fact that the person who was counsel for the testator is the counsel for the beneficiary under the will, contested on the ground of undue influence, and may he interested in the maintenance of the will, does not raise a presumption which it is necessary for the beneficiary to rebut.
    "The rule that transactions inter vivos between persons, one of whom is dependent upon and subject to the control of the other, naturally excite suspicion, and that, when the situation is shown, there is cast upon the party claiming the benefit or advantage the burden of relieving himself from the suspicion thus excited and tf showing that the transaction was free from undue influence, and that the other party acted without restraint and without coercion or pressure, direct or indirect, of the party benefited, does not apply, in all its strictness at least, to gifts by will.
    ‘The validity of a will does not depend upon the correctness of the testator’s information as to his surroundings at the time of making the will, and it is immaterial, so far as the question of the validity of the will of a testator, in other respects competent, is concerned, whether he was or was not mistaken in reference to the conduct of his family towards him.
    'The erroneous admission of evidence of the attorney who drew the will and was the counsel for the testator, in reference to personal transactions between himself and the testator of a professional character, other than the circumstances immediately surrounding the execution of the will of which he was a witness: Meld, not to call for a reversal, on an appeal from the surrogate’s decree admitting the will to probate, when it is apparent from the whole case, irrespective of the evidence improperly received, that the will was properly admitted to probate. (Code of Civil Pro., § 2545.)
    ^Relationship to a party in interest does not bring a person within the prohibition of section 829 of the Code of Civil Procedure against testimony as to personal transactions with a deceased party.

      Semile, that there is no authority for the proposition that where testamentary disposition is shown, the parties interested in disputing such disposition have a right to testify as to personal transactions between the testator and themselves tending to show that the facts, stated by the testator in his will as the reason for his testamentary disposition, were untrue.
    Appeal by the contestants, ■ Fannie M. Bedlow and others, the widow and heirs-at-law of Alfred Bedlow, deceased, from the decree of the surrogate of New York county, entered in his office on the 16th day of January, 1892, admitting to probate a certain written ■paper purporting to be the last will and testament of Alfred Bed-low, deceased.
    The respondent, Sarah A. Stillwell, is the proponent of the will. One clause of the will in question is as follows :

      Fourth. As my wife, Fanny M. Bedlow, my daughter, Florence Townsend, my son, Alfred Bedlow, Jr., and my daughter, Julia A. Frothingham, bave, to the best of their respective abilities, endeavored to prevent me, and bave prevented me, from possessing and enjoying my own property, and bave otherwise treated me ■with gross disrespect and ingratitude, and as my wife has unjustly commenced and is prosecuting a suit against me for a divorce, now, in order to show to them and to others my appreciation of such disrespect and ingratitude, I do hereby give and bequeath the sum of one dollar ($1) to each of those four persons.
    The letters referred to in the opinion as the letters of August fourth and sixth are as follows :
    “ Gt. BarriNgtoN, 4th August.

    “ My Dear Ale. :
    “ I do not know that you will even give one moment’s thought or glance to these few words I wish to say to you. But I can no longer restrain the promptings of my heart to tell you how deeply I regret the step I have taken, and if there is any way in which I can make reparation I most willingly and gladly will do so forthwith, for my heart is sadly at variance with everything connected with it. It may be too late, for you may have already cast me from your memory and wish never to recall any of the old days; but here, where I am amid the scenes and recollections of my early years, and the many, many changes that have taken place, all comes back to me, and I feel the dreadful sense of loneliness — that need of someone to lean upon, that protection which every wife ought to have who has been faithful to her marriage vows. I have never yet found, and never shall, anyone to take your place, and I have never in word, thought or deed done anything to forfeit your respect or name; and I sincerely beg that you will forgive me for the part I have taken in this unfortunate suit, and, if not too late, take me to your heart again ; let us be friends and live as husband and wife should live, and so go down the hill of life together, however long or short it may be; it is certain that either one of must be called before long, so let us do whatever we can to make one anothers departing years brighter and better ; I do not believe that either one could go down to the end living as we now are with a satisfactory conscience, and my desire is to right whatever wrong I may have done, if possible.
    “ I am staying here very quietly in -my old native town ; my dear father’s health is very, very feeble ; indeed, we feel that his days are almost numbered ; but if you feel inclined to see us I know be will be glad to see you once again, for be knows nothing of wbat bas occurred between us. I trust you will receive tbis letter in tbe kindly spirit in wbicb it is written.

      “ Yours, very truly,
    “ FANNY.”
    “ New Yoke, August 6th, 1891.
    “ Deae FaNNt :
    “ Your note of August 4 was received yesterday, and I have very carefully considered all that you say and all that bas occurred during the past few years. After such consideration I have finally and unchangeably decided that we cannot now live together as man and wife, and that any further discussion of the subject at present would result only in useless pain to both of us. I have come to this decision because I am sure that your disposition cannot, in your present frame of mind, harmonize with mine; that we might be as unhappy together in the future as we were in the past, and that our future peace and comfort will be best assured by our continued separation (at least for a time). While I cannot now live with you as you propose, I shall not neglect my duty to do the best I can towards providing for your support and comfort. That I have never been unmindful of such duty is shown by the facts that I, on May 28, 1890, submitted to your lawyer, Mr. Duer, my proposal to make you suitable payments out of my income, and that on June 4,1890, I commenced weekly remittances to you, which were continued until the people at 1495 Broadway refused to receive the letters; I desire to provide for your wants and I inclose a proper paper giving to you all I can afford to give; if you will sign it and return it to me by mail I will immediately commence the payments and will continue to send them to you regularly from time to time at any place where you may be; I would gladly make the payments larger and will increase them when I can afford to do so, but I can do nothing more at present. You say in your note ‘ how deeply I regret the step I have taken, and if there is any way in which I can make reparation I most willingly and gladly do so forthwith.’
    “ The first step toward such reparation will be to stop this disgraceful divorce suit by signing and sending to me tbe inclosed letter to your lawyer, and the inclosed paper to use in court, if necessary; this should be done immediately, because my answer must be served within a few days, unless your suit is discontinued ; the next step should be to rid yourself from those who have by their pernicious advice led you into your present unfortunate condition. You ask my forgiveness, and that we may be friends; I freely forgive' the errors of the past, and I desire to be and will always be your friend; let us again be at peace with each other and patiently wait and see what the future may have in store for us; I trust you will not delay answering this, as such delay might cause action that would force us still further apart.
    “Yours afftly,
    “ALF.”

      W. A. Duer, for the contestants, appellants.

      Q. W. Stephens, for the proponent, respondent.
   YaN Bettht, P. J.:

On the 16th of May, 1891, Alfred Bedlow died in the city of New York, leaving him surviving his widow and three children. He left a will bearing date the 4th day of August, 1890, whereby _ he appointed one Sarah A. Stilwell the sole executrix of the will, and after giving his wife and children one dollar apiece, he left a legacy to his niece, and the residue of his property he devised and bequeathed to said Sarah A. Stilwell. The probate of the will was opposed by the widow and children of the testatrix upon the usual grounds. ' None of these grounds, however, seems to be insisted on upon this appeal, except that the execution of the will was procured by undue influence. And in the discussion of this question, it is necessary that the court should consider the circumstances surrounding the testator at and about the time of the execution of the will, and subsequent thereto.

It is urged that the testator was weak and easily influenced by those who surrounded him, which fact is a circumstance undoubtedly to be taken into consideration with the other evidence. But the mere fact that he was weak and easily influenced does not, in itself, raise the presumption that such influence was exercised simply because a will, such as was satisfactory to the appellants, had not been made by the testator.

Upon examination of the evidence in this case, it does not seem to have been satisfactorily established that the testator was so unusually weak, as is claimed by the appellants. It is true, that several witnesses testified that he was weak and vacillating, and so impressed with those he was with that he was very apt to do as they told him. But it also appears from the evidence in respect to his relations with his family, that he had, to a very large extent, a will of his own, and a pertinacity of purpose which was quite the reverse of the weak, vacillating and easily influenced mind, which the testimony of some of the witnesses -would leave us to believe the testator possessed. And while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator,’ yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.

It is assumed by the argument of the learned counsel for the appellants that because the counsel for the testator was the counsel for the beneficiary under the will, and because such counsel might be interested in the maintenance thereof, therefore, there is a presumption arising which it is necessary for the beneficiary to rebut. In this he confuses the rule which pertains to contracts or gifts inter vivos which does not apply to gifts by will. It is true that transactions inter vivos between guardian and ward, attorney and client, trustee and oestui que trust or persons, one of whom is dependent upon and subject to the control of the other, naturally excite suspicion, and when the situation is shown then there is cast upon the party claiming the benefit or advantage the burden of relieving himself from the suspicion thus excited and of showing that the transaction was free from undue influence and that the other party acted without restraint and without coercion or pressure direct or indirect of the party benefited. But, as already said, this rule does not apply, in all its strictness at least, to gifts by will. And in the Matter of the Will of Smith (95 N. Y., 516) it was held that the mere fact that the proponent who had benefited by the will was the attorney of the testatrix did not create a presumption against the validity of the legacy given by her will. But in that case, it being shown that the testatrix was a person of advanced years and infirm mentally and physically and had made her attorney the principal beneficiary, and it appearing that this was contrary to previously expressed testamentary intention, that the attorney was tbe draughtsman of the will and took an active part in procuring its execution and that the testatrix acted without independent advice, it was held that the burden was imposed upon the attorney of satisfying the court that the will was the free, untrammeled, intelligent expression of the intention of the testator — a situation very different from that which the proof in the case at bar discloses.

It appears in the evidence in this case that on the 5th of June, 1890, a short time prior to the execution of the will in question, the testator had executed a will of a similar import, that he had been upon bad terms with his family for a considerable length of time, that attempts at reconciliation were resoi’ted to and contrition expressed on both sides, but without resulting in anything, except further or more complete estrangement, a striking illustration of which is presented by the letter of the wife of the testator, bearing date the 4th of August, 1890,' and the reply of the testator of the 6th of August (claimed to be 1891, but which must have been 1890 as the testator died in May, 1891), which resulted in a reference of the matter to the wife’s attorneys.

It is true that in 1886 he executed a trust deed in which he claimed he attempted to make provision for his family. But he also endeavored to set this trust deed aside, and litigation was had arising from the claim of improper treatment by his wife and family. And for the purpose of explaining the reason why no provision was made for them he expressed his sentiments in the will in question, and this was in harmony with other statements which had been made by him. It is entirely immaterial, so far as the question as to the validity of this will is concerned, whether he was or was not mistaken in reference to the conduct of his family towards him. The validity of a testator’s will does not depend upon the correctness of the information as to his surroundings at the time of making the will. If any other rule prevailed it certainly would open a wide field of investigation in the case of the probate of a will to ascertain whether the testator was correctly informed as to the conduct of every person who might think he had a claim upon the testator’s bounty. This point is strikingly illustrated by the case of Clapp v. Fullerton (34 N. Y., 190), in which it was held that it was not sufficient to justify the rejection of a will that the testator, in other respects competent, entertained the mistaken idea tbat one of Ms daughters was illegitimate, if it was not tbe effect of insane delusion, but of slight and inadequate evidence acting upon a jealous and suspicious mind; and an examination of the facts of that case shows how far the court has gone for the purpose of upholding a will in the absence of evidence showing the exercise of undue influence.

It is said “ the right of a testator to dispose of his estate, depends neither on the justice of his prejudices, nor the soundness of his reasoning. He may do what he will with his own, and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.”

But it is claimed that the decree should be reversed because of improper rulings upon the part of the surrogate in reference to the admission and exclusion of testimony.

It seems to us that error was committed in permitting the evidence of Mr. Keeler, who was the attorney who drew the will, and was the counsel for the testator, in reference to personal transactions between himself and the deceased of a professional character other than the circumstances immediately surrounding the execution of the will, of which he was a witness. (Loder v. Whelpley et al., 111 N. Y., 239.) But this does not necessarily call for a reversal of the decree, if it be apparent upon the whole case irrespective of the evidence improperly admitted, that the testator was competent, and that the will was properly admitted to probate. It was held in Clapp v. Fullerton (supra) that, on appeals from the decrees of surrogates, the Supreme Court succeeds to the jurisdiction and authority of the old Court of Chancery. The review is in the nature of a rehearing in equity, and the admission of improper evidence on the original hearing furnishes no ground for a reversal of the decision, if the facts established by legal and competent testimony are plainly sufficient to uphold it. (Schenck v. Dart, 22 N. Y., 420.) This rule is also recognized in the case of Foote v. Beecher (78 N. Y., 158), in wMch it is stated that, upon an appeal from a surrogate’s decree upon the probate of a will, the hearing is de novo, and the case may be determined upon the competent evidence appearing, disregarding such as is incompetent. (Code of Civ. Pro., § 2586.)

In the Matter of Smith (95 N. Y., 516) the change in the law introduced by the Code is noticed. The last clause of section 2545' of the Code declares that no decree or order of a surrogate shall be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.

Before the Code, the admission of incompetent evidence was presumptively injurious. But the section in question seems to have changed this presumption. In the case of Smith it is said, under this section, that when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the-party against whom it was committed. If it appears to the court that it did not, then its duty is ‘plain. If, on the other hand, the-evidence erroneously admitted or rejected was important and material, and the court cannot see that, notwithstanding the error, the-judgment is right, or they entertain a reasonable doubt upon the subject, then a case is presented where the party excepting is clearly-prejudiced within this section. ITe was deprived of the opportunity of having his case decided upon competent and material facts.

Now, if we strike out all the testimony of Mr. Keeler in reference to personal transactions between himself and the testator, it-in no way affects the conclusion which must necessarily be arrived at from the evidence which properly stands. In speaking of the exclusion of the testimony of Mr. Keeler, we do not intend to say that the-affidavit of Mr. Bedlow, sworn to on the 16th of March, 1891, was-improperly admitted. That was evidence, independent of testimony of any personal transactions between Keeler and the testator, as a declaration in the form of an oath of the feelings which the ■ testator entertained towards his family.

It is further claimed that the exclusion of the evidence of the appellants herein of personal transactions with the testator was error, because they had a right to show that the testator was mistaken in respect to their attitude towards him, and had no grounds. or reasons for the statements contained in his will, and that the-widow and children were entirely justified in their course. But we fail to find any authority for the reception of any such evidence. Section 829 expressly provides the only cases in which a person interested in the event may be examined concerning personal trans- - actions or communications between the witness and the deceased; and they are, so far as applicable to this case, only where the executor or administrator or person so deriving title or interest is examined in his own behalf concerning the same transaction or communication. In the case of Smith v. Christopher (3 Hun, 585), which is referred to as an authority to support the right of these contestants to testify, all that was held was that, if a party mentioned in (as it was then) section 399 of the Code, testifies to declarations of a deceased person in his own behalf, the prohibition does not apply to counter declarations offered by the adverse party.

There was no evidence of any person interested in this proceeding, if we except that of the attorney (which evidence the court has already stated should not have been admitted) showing declarations upon the part of the testator in favor of his testamentary disposition.

It is true, it is claimed by the appellant, that Mrs. Stilwell, the mother of the chief beneficiary under the will, comes within the prohibition of the section because of her relationship to the beneficiary. But we fail to find that the courts, have by judicial decision, legislated to the extent claimed. The language of the section of the Code upon this subject certainly embraces nobody but the parties in interest, and relationship has never yet been held as a disqualification.

Attention is called to the ease of Potts v. Mayer (86 N. Y., 302), as an authority in favor of the contention of the appellants. But in that case the testimony of a deceased party taken upon a former trial was read in evidence, and it was because such testimony was read in evidence in regard to the transaction which was under consideration that the witness was allowed to testify in respect thereto.

The case of Lewis v. Merritt (98 N. Y., 206) has no application to the case at bar. In that case the executor bringing an action in his representative capacity, testified to the existence of a certain state of things, and the defendant was refused the opportunity of showing by his own testimony that such state of things did not exist, and the court held that to be error, upon the ground that the prohibition of section 829 does not extend so far as to prevent a party from testifying to extraneous facts and circumstances, that a witness for the adverse party has testified to, even though he is thereby called upon to negative the existence of personal transactions and communications between himself and the deceased.

In the case of Marsh v. Brown (18 Hun, 319), which was an application by a child for his share in his father’s estate, the executor claimed to deduct a sum alleged to have been advanced to him, and tojrove such advance produced an entry made by the testator in one of his boohs, and it was simply held that the child was entitled to testify 'in reference to such advancement, and to explain or deny the entry. But we nowhere find any authority for the proposition that where testamentary disposition is shown, the parties interested in resisting such disposition have a right to testify themselves as to personal transactions between the testator and themselves, tending to show that the facts stated by the testator as the reason for his testamentary disposition were untrue.

. We do not think, therefore, that any error was committed by the court below which calls for a reversal of the decree in question, and it should be affirmed, with costs.

O’BRIEN and Follett, JJ., concurred.

Decree affirmed, with costs.


source: Caselaw Access Project

author: O’BeieN, J. :

license: Public Domain

text:
    DAVID H. CARROLL, Respondent, v. JOHN PETTIT, Appellant.

      Principal amd broker— sale of real estate — interference of principal after the • discovery of a purchaser by the broker — right of the bi'oker to commissions.

    In an action by a broker to recover from the seller of real estate a commission for procuring a purchaser, under employment by the seller, the main question was as to whether the seller had interfered with the negotiations undertaken by the broker in his behalf, and thus unlawfully prevented the broker from performing ■ his contract of employment:

      Held, that a letter written by the broker to the business manager of the purchaser, concerning the proposed purchase, and in the course of the negotiations therefor, and competent as a part of the res gestee to show what the broker did under his employment towards procuring a purchaser^ was not rendered incompetent because it incidentally corroborated the testimony of the broker upon a material point as to the disputed date of an interview between himself and the seller.

      When a principal intervenes and interferes with the prosecution of the employment on the part of his broker, an exception is created to the general rule of law that the broker must perform his contract of employment to become entitled to commissions, and the broker is not in such case compelled to prove a complete performance on his part, but may recover his commissions in the same way as though he had completely performed his undertaking.
    Appeal by the defendant, John Pettit, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 16th day of March, 1892, on a verdict for $1,269.11, recovered at circuit, and from an order denying a motion for a new trial, entered in said clerk’s office on the same day.
    .The action was brought to recover commissions which the plaintiff claimed to have earned in negotiations for a sale of real estate.
    The letter of December 20, 1889, from the plaintiff to the business manager of Mr. Stokes, the purchaser of the property in suit, referred to in the opinion, is as follows:
    D. H. CAEEOLL,
    Eeal Estate.
    Estates Taken Charge of and Property Eented,
    Loans Negotiated,
    No. 391 Broadway,
    Cor. Eeade Street,
    Over Tradesmen’s Bank.
    New Yoee, 20 Deo., 1889.
    Mr. A. B. EllimaN :
    Dear Sie. — Thanks for your letter of yesterday. Pettit has just called here; from what he says he is short of money, an<TD think if you care to reconsider the matter of 92 William St., that I may get him to as low as $115,000. He explains the offer of 125,000, which, he says, was made in this way, that the purchaser wished a second mortgage left on the property, and as money is a great necessity to him at the present, he declined the proposal. Kindly talk with Mr. Stokes at once in reference to the matter, and let me know to-day if convenient. When talking with Pettit I said positively to him that I would hot approach you again on the subject unless at a much lower figure than first proposed.

      Very truly yours,
    D. H. CARROLL.

      Tbe letter to tbe plaintiff from tbe business manager of tbe purchaser, referred to in tbe opinion as tbe letter wbicb the plaintiff testified be read to tbe defendant, and from wbicb be claimed tbe defendant learned tbe name of the purchaser, is as follows:
    54 "Wall Stbeet,
    New Yoex, Dec. 13, 1889.
    D. H. Caeeoll, Esq., 291 Broadway:

    Deae Sie. — Thanks for yours of tbe twelfth. I return herewith John Pettit’s letter. Can you find out exactly what be paid for the-property? "We are seriously considering tbe matter. Mr. Stokes will return on Monday.
    Yours truly,
    A. B. ELLIMAN.

      Tread/well Oleveland, for tbe appellant.

      George V. _ZY Baldwin, for the respondent.
   O’BeieN, J. :

This was an action by a real estate broker against tbe defendant to recover a commission claimed to be due upon a sale of the defendant’s real estate. Tbe complaint alleged and evidence was offered! tending to support tbe employment of plaintiff by the defendant under wbicb the former undertook the sale of tbe property and procured a purchaser, and that, while in the midst of tbe negotiations and when they bad almost reached a favorable conclusion, tbe defendant learning through plaintiff of tbe person who contemplated purchasing, surreptitiously approached such purchaser and concluded tbe sale so procured by tbe plaintiff without the latter’s knowledge.

On tbe part of tbe defendant tbe defenses were that tbe plaintiff" was not employed and that tbe defendant made the sale himself.

Upon tbe first question, as to tbe employment of tbe plaintiff by defendant, the evidence was sufficient to justify tbe conclusion reached by the jury. Tbe serious question, however, presented upon this apjieal is, assuming such employment, did tbe defendant interfere with the negotiations undertaken by tbe plaintiff in bis behalf and thus unlawfully prevent tbe plaintiff from performing tbe contract of employment ?

The evidence shows that plaintiff did not effect tbe sale and bis-right to compensation must depend not upon bis having performed bis contract, but upon the conclusion to be reached on the testimony whether such performance was prevented by the action of the defendant. No question arises but that all the details, in regard to the leases, amount of mortgages and the time when due, were furnished by the defendant to the plaintiff and by the latter to the purchaser; and it is equally beyond dispute that, without having terminated in any way the plaintiff’s employment and whilst the negotiations were pending, the property was sold by the defendant to the very purchaser to whom it had been offered and who had been induced to consider the property by the plaintiff.

The contract itself was made on the twentieth of December, subsequent to an interview on the same day which the plaintiff claims he had with the defendant and at which interview, as claimed, the defendant obtained the name of the purchaser. The defendant denied this interview of the twentieth placing it some days prior to that date; but the letter from the plaintiff to the manager or agent of the purchaser confirms plaintiff’s version that an interview did take place between plaintiff and defendant on the twentieth. This letter was objected to and it has been strenuously insisted upon this appeal that its admission was an eri’or so great as to call for a reversal of the judgment. That it had considerable bearing upon the conclusion of the jury, as to the credibility of the two statements made respectively by the plaintiff and defendant, there can be no doubt, and, if its admission was erroneous, the verdict should not be permitted to stand.

The ground of error assigned with respect to this letter is that it was incompetent because written by the plaintiff to a third person, and that it could not be resorted to for the purpose of showing that the testimony of plaintiff on the stand was corroborated by a former statement to the same effect made to the purchaser. If the letter was admitted for this reason alone, we should be inclined to agree with the defendant; but, we think, that in his argument the appellant overlooks the fact that it was competent, as part of the res gestae, for plaintiff to show what he did under his employment towards procuring a purchaser. And this letter, written as it was to the manager of the purchaser, the very person who represented the purchaser in the negotiations with the broker, was just as competent as proof of the efforts made, as it would have been for the plaintiff to have personally testified to what he did under the contract of employment. The letter, therefore, being competent for one reason, is not rendered incompetent because it’ incidentally corroborates the testimony of plaintiff upon a material fact as to the date of the interview between the parties.

The plaintiff testified that at this interview he read to the defendant the letter received from the purchaser’s agent, in which the name of the purchaser appeared; and from this, it was claimed that the defendant obtained knowledge of the purchaser. The defendant insisted that such knowledge was derived through his son, and from an examination of the Real Estate Record ; and in this he was Supported by the testimony of his son. And were there no other facts in the case bearing upon the good faith of the defendant in personally conducting the negotiations, we think that the basis for a recovery would have been slight. In other, words, while the plaintiff’s testimony was susceptible of the view that the knowledge of the purchaser was thus obtained from the letter which he claims he received from the manager of the purchaser, and which he testified was read, still, the contrary evidence showing that prior to that time the knowledge was derived from another source, corroborated as it was by the testimony of the son, would have a ■ tendency to preponderate in defendant’s favor. Assuming, however, that, entirely independent of the plaintiff, the defendant had, from an examination of the Real Estate Record, obtained the name of the purchaser, because the latter had recently purchased the property adjoining, still, if on the twentieth the defendant obtained from the plaintiff knowledge that the person whom the broker had secured as a proposed purchaser was the same person of whom he had learned from the Real Estate Record, the defendant owed some duty to the ■plaintiff of either terminating the agency or notifying him that he intended personally to conduct future negotiations.

But, apart from this, the testimony shows that the plaintiff’s work had been fruitful, not only in directing the purchaser’s attention to the property, but in affording him information as to incumbrances thereon, and as to the price at which it could be obtained, which rendered it in all probability alone possible for the defendant, within a space of a few hours to consummate the sale. As to what occurred upon reaching the purchaser’s office defendant thus testifies: .“At Mr. Stokes’ office I saw Mr. Elliman; I agreed with bim upon the price for this property.” And though he further testified that he never heard of Mr. Carroll in connection with Mr. Stokes as the purchaser until almost the actual signing of that contract, it is made evident, not only by his testimony, but by the testimony of Mr. Elli-man, the manager for Mr. Stokes and the person who conducted the negotiation, that Mr. Elliman himself told the defendant that Carroll had presented the property to them, and that he was, perhaps, entitled to a commission.”

We think, upon this evidence, it was properly a question to submit to the jury as to whether or not plaintiff, not only by the negotiations with the defendant in obtaining from him a reduction of the original price that he asked for the property, but also in getting the purchaser to favorably consider it, had brought the negotiations to a point where they would undoubtedly have resulted in a contract, when the defendant personally took up the negotiations and, with the advantage he had obtained from the plaintiff’s work, succeeded in selling the property.

This question and the rule of law applicable thereto were clearly and fully presented to the jury by the charge of the trial judge, in addition to stating the general rule that there can be no recovery on the part of a broker, unless he shows to the satisfaction of the jury that he brought the parties together and was the procuring cause of the sale, he then presented the limitation or exception to this rule in the following language : <£ It is claimed in this case that the exception has been proven, and the whole theory of the plaintiff is, that performance of duty, which, under ordinary circumstances, would be required of a broker, was prevented by the interference of the defendant himself. If that be so, and if, on the facts of this case, you find that Carroll was prevented from going on with the transaction and that Pettit took it from him, deprived him of the benefit of it, took it out of his hands, knew that he was doing so, put himself in the place of the broker, knowingly acquired to himself the benefit of the services of the broker, and thus terminated the action of the broker so that he could go no further, then the case presents that exception which was relied upon by the plaintiff as being the foundation of the action which he has now brought.”

There being sufficient evidence in the case to present this question, all that remains is to determine whether this rule of law, laid down bj the trial judge, was correct. He, in effect, charged that when a principal intervenes and interferes with the prosecution of the employment on the part of the broker, an exception is created to the general rule of law, and that the broker is not compelled to prove a complete performance on his part, but that he may recover his commissions in the same way as though he had completely performed his undertaking. This statement of the law we regard as supported by many cases. And were it a new question, we fail to see why it is not a just measure of the duty which the principal owes to the agent whom he has employed for any specific purpose.

A well-considered case, in which all the principles applicable to the obligations of principals and brokers are clearly defined is that of Sibbald v. Bethlehem Iron Company (83 N. Y., 384), from the opinion in which we quote, upon the question here presented:

Usually the broker is entitled to a fair and reasonable opportunity to perform his obligation, subject of course to the right of the seller to sell independently. But that having been granted him, the right of the principal to terminate his authority is absolute and unrestricted, except only that he may not do it in bad faith and as a mere device to escape the payment of the broker’s commissions. Thus, if in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker with a view of concluding the bargain without his aid and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal. But if the latter acts in good faith, not seeking to escape the payment of commissions, but moved fairly by a view of his own interest, he has the absolute right before a bargain is made, while negotiations remain unsuccessful, before commissions are earned, to revoke the broker’s authority, and the latter cannot thereafter claim compensation for a sale made by the principal, even though it be to a customer with whom the broker unsuccessfully negotiated, and even though to some extent the seller might justly be said to have availed himself of the fruits of the broker’s labor.”

We think that the evidence warranted the submission of the question to the jury, as was done by the court, and that we should not •entrench upon their province in disturbing a conclusion reached by them upon disputed evidence, where the preponderance the other way was not so great as to have justified a direction of a verdict for the defendant.

We are of opinion, therefore, that the judgment appealed from .should be affirmed, with costs and disbursements.

YaN Bkunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs and disbursements.


author: Follett, J.:

text:
    CORNELIUS W. H. ELTING, Appellant, v. CHARLES W. DAYTON, Respondent.

      Amendment of a complaint — performance of contract — amendment to show extension of time.

      A. judgment for the plaintiff, in an action to recover payment for work done under a contract, which was, hy its terms, to he completed by a certain date, was reversed and a new trial was ordered, on the ground that, as the complaint alleged performance and did not aver an extension of time, and as it was found on the trial that the work was not completed by the date agreed upon, the plaintiff could not, without an amendment of the complaint, recover on the theory that strict performance had been waived.

      Held, that, under seetion 723 of the Code of Civil Procedure, leave should be given to amend the complaint so as to allege that the plaintiff was prevented from performing his contract within the time limited by reason of additional work ordered by the defendant, and that the defendant had waived completion within the time limited.
    The fact that a new suit on the cause of action would be barred by the statute of limitations, is a strong reason for granting such an amendment.
    Appeal by the plaintiff, Caroline "W. Elting, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 20th day of April, 1892, denying a motion for leave to serve an amended complaint in the above-entitled action.
    February 25, 1885, the plaintiff, a builder, entered into a contract with the defendant, the owner of five houses, to repair them according to plans and specifications, for $9,726, on or before April 20, 1885. The work was not, in fact, completed until May 15, 1885. Thb defendant paid towards the contract-price, March 25, 1885, $2,000; April 10, 1885, $2,000; May 8, 1885, $2,000; August 25, 1885, this action was begun to recover $3,726, the remainder of the contract-price, and $500 for extra work, which was set up as a first cause of action. In the first count the plaintiff averred that he had performed his contract. As a second cause of action it was alleged that Hart Z. Norton had done work and furnished materials for the buildings for which the defendant promised to pay $600, and that the hi aim therefor had been assigned to the plaintiff who demanded judgment for $4,826. The defendant admitted the making of the contract with the plaintiff as alleged, and that he had paid $6,000 thereon. He denied that the plaintiff had performed his contract and also denied that he was indebted in the sum of $500 for extra work. The defendant further denied that he had made a contract with Norton and was indebted on account of work performed thereon in the sum of $600. As a second defense and as a eounter-claim the defendant averred that the plaintiff had not performed his contract in a good and workmanlike manner and had failed to complete it within the time limited, to his damage in the sum of $2,500, for which he demanded judgment.
    The case was tried before a referee who found that the work was not completed within the time agreed, but that the delay was caused by the defendant’s ordering additional work which was performed by the plaintiff, which was worth $440. He also found that Norton had, under his contract, dpne work for the defendant, at the agreed price of $600, and that the claim had been assigned to the plaintiff. He disallowed the defendant’s counter-claim and ordered a judgment for the plaintiff for $4,766, which was reversed by the General Term and a new trial granted. The reversal was placed on the ground that the plaintiff having alleged performance and not having averred an extension of time therefor, he could not, as against the objection and exception of the defendant, without amendment of the complaint, recover on the theory that strict performance had been waived. (ElUng v. Da/yton, 43 N. Y. St. Hep., 363.)
    After the new trial was ordered the plaintiff moved at Special Term for leave to amend his complaint by averring that he was prevented from performing bis contract within the time limited by reason of the additional work ordered and required, and that defendant had waived the completion of the work within the time mentioned in the contract. The Special Term denied the motion and the plaintiff has appealed from the order.

      John J. Linson, for the plaintiff, appellant.

      J. F. Steir, for the defendant, respondent.
   Follett, J.:

“ The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, * * * by inserting an allegation material to the case.” (Code of Civ. Pro., § 723.) After this case had been fully tried on the merits, the referee found that the owner of the buildings, by ordering additional work and' changing the plans, prevented the plaintiff from performing the contract within the time limited, and had waived strict performance. If this is true, and for the purposes of this motion we must deem it so, the plaintiff ought not to lose his labor and materials because of the mistake in the complaint. The omission or error, which the amendment is designed to remedy, is one of those which it is the object of the section to permit the court to rectify. It is said, by the counsel for the respondent, that the amendment should not be allowed because a new suit on the cause of action would be barred by the statute of limitations. Although some laches has been shown on the part of the plaintiff, the fact that the statute of limitations has run against a new action, is a strong reason for granting instead of refusing the relief. The only question is one of terms, and, we think, the proposed amended complaint should be received by the defendant upon the payment of the costs of the reference, and of the defendant’s appeal to the General Term.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion granted upon payment of ten dollars costs and the proposed amended complaint be allowed to stand, upon the payment by the plaintiff of the costs and disbursements of the reference, and of the defendant’s appeal to the General Term.

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

So ordered.


author: YaN BkuNt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, EUGENE A. PINCKNEY, Appellate.

      False representations — obtaining money on a worthless eheeh — comparison of handwritings.

    It is not necessary in order to establish false representations that the proof should be direct, but such evidence must be given and such facts established as tend legitimately and necessarily to show the existence of a fraudulent intent.
    On appeal from a conviction under an indictment for grand larceny in the second degree, in obtaining money on a worthless check through false representations, it appeared that testimony was given on the trial showing that when the defendant was charged with drawing a check, purporting to be signed by a mythical person, he made no denial.

      Meld, that the jury had a right to find that such was the actual fact.
    Under chapter 36 of the Laws of 1880, as amended by chapter 666 of the Laws of 1888, in reference to comparison of handwritings, the submission of writings to a jury must be in connection with the testimony of witnesses in regard to the validity or authorship of the various handwritings; and in the absence of such testimony such writings cannot be submitted to the jury for the purpose of arbitrary comparison by the jurors.
    Appeal by the defendant, Engene A. Pinckney, from a judgment of the Court of General Sessions of the City and County of New York, rendered on the 26th day of August, 1892, convicting the defendant of the crime of grand larceny in the second degree.

      D. MoMahon, for the appellant.

      H. B. B. Stapler, for the respondent.
   YaN BkuNt, P. J.:

The defendant was indicted, charged with the crime of grand larceny in the second degree. It appears that on the 14th of May, 1892, the defendant called at the store of one Denholme, who, with his partner, carried on the business of dealing in shirts and mens’ furnishing goods, and purchased some goods of the value of twelve dollars and forty-five cents, and requested that a check which he then presented for ninety-six dollars and seventy-five cents be cashed, the amount of the purchase which he then made to be taken out, also the sum of four dollars and fifty cents, the amount of a purchase made by him a few days previously. The witness Denhohne asked the defendant if the check was good, if it was a good business check, and be said “ Yes, that is good; I have sold that man lots and lots of goods; he would ship him a car load of goods at once if he requests it.”

The check was received and the balance in money paid to the defendant. The check was dated at Belle Plain, Iowa, 10th of May, 1892, drawn on the First National Bank to the order of the defendant for the sum of ninety-six dollars and seventy-five cents, and signed “Edward Thomas,” and duly indorsed by defendant. Mr. Denholme deposited this check in the Chatham Bank, and in about a week it was returned protested for non-payment. He then had an interview with the defendant and said to him that “ the bank writes that this party is a myth; that you have been drawing fraudulently upon the bank.” Denholme further said: “ I showed him a letter from the bank president, the first letter I got, and told him that the party was a myth, and the check was a fraudulent check.” The only reply that the defendant made to this statement, according to Denholme’s testimony was that he would make it good. The partner also saw the defendant in reference to this matter, to whom the defendant said: “ That is all a mistake; that man’s perfectly good; ” that he knew him personally and did business with him for a long time. The partner then told the defendant that he was a myth, and had no account; that there was no such man in existence to their knowledge; and the reply of the defendant was: “ These bankers make mistakes sometimes.” In a subsequent conversation the witness told defendant that he had found out he had played the same game on a number of other people, and that he thought the whole transaction was crooked. The defendant’s reply was, that he had a good many names of people; he would talk about people who knew him, how well they conducted themselves; it was all a mistake.”

Evidence was also offered showing that on the 20th of March, 1892, the defendant passed upon the witness Garner another check for $100 drawn by himself upon the same bank which was protested for non-payment and not paid; and, also, before the return of this Iowa check last mentioned, the defendant had deposited with the witness another check for $100 drawn on the First National Bank of Asbury Park, which check was returned unpaid, the check containing the letters “ N. A.” which the witness said meant no account.

The check upon which the defendant obtained the money from the complainant, signed E. Thomas,” and the check drawn upon the same bank, upon which the defendant obtained the money from the witness Garner, signed “ E. A. Pinckney,” the district attorney claimed the right to show to the jury and ask them to compare them. This was objected to upon the part of the defendant, and the court ruled that the district attorney might show them to the jury in order to show the fraudulent intent of the accused, and the district attorney thereupon exhibited the check to the jury and asked them to compare the signatures of the two checks. The case having been submitted to the jury the defendant was convicted, and from the judgment thereupon entered this appeal is taken.

It is urged upon the part of the defendant that there was no legal proof that any of the representations made by the defendant at the time of procuring the cashing of this check were false.

There is no doubt that there is no direct proof of the falsity of these representations. It is not necessary in order to establish false representations that the proof should be direct; but such evidence must be given and such facts established as tend legitimately and necessarily to show the existence of such intent.

■ It appears from the evidence in this case by competent testimony that this check was sent for the purpose of collection and returned protested for non-payment, and that one of the witnesses had an interview with the defendant in which he stated that the bank had written that the party signing the check was a myth, and that defendant had been drawing fraudulently, upon the bank; and the only reply that the defendant made to this Statement was that h.e would make it good. The jury had a right, upon testimony showing that when the defendant was charged with drawing a check purporting to be signed by a mythical person he made no denial, to find that such was the actual fact. And, therefore, the evidence upon this branch of the case tended to show that the representations made by the defendant were absolutely false.

But, we think, fatal error was committed in submitting the check purporting to Be drawn by Thomas, and the one purporting to be drawn by Pinckney, to the jury for the purpose of comparison of handwriting. It is apparent, upon an inspection of the statute, chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888, that the jury, independent of testimony in regard to handwriting, are not permitted to become witnesses simply upon an inspection and comparison of handwriting. Section 1 of the act of 1880, provides that comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute. By the Laws of 1888 this rule was enlarged by the addition of a section providing that comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing, shall be permitted and submitted to the' court and jury in like manner; the words “ in like manner ” referring to the manner provided in the first section. Therefore, it is apparent that the submission of a writing to . a jury must be in connection with the testimony of witnesses in regard to the validity or authorship of the various handwritings; and that, independent of the examination of witnesses, such handwritings cannot be submitted to the jury for the purpose of arbitrary comparison by them. In other words, the handwriting can only be inspected by the jury in aid of the testimony of witnesses in reference to the authorship of the handwritings in question.

In the case at bar, without any testimony tending to show that these checks were signed by the same individual, they weré submitted to the jury. The jurors thus became original witnesses, to determine the question according to their own sweet will or fancy.

We do not think that any such practice was intended under the laws in question; and that the submission of these signatures by the district attorney to the jury for arbitrary comparison, was error.

It is not necessary to consider other points in the case in which error was committed; but it is apparent that the defendant may have suffered injustice by the submission of the checks in question to the jury.

The conviction must be reversed and a new trial ordered.

O’BRIEN and Follett, JJ., concurred.

Conviction reversed and new trial ordered.


author: Pek CubiaM :

text:
    THE AMERICAN NATIONAL BANK OF PROVIDENCE, Rhode Island, Appellant, v. WILLIAM R. GRACE, Respondent.

      False representations — motion to make a complaint more definite and certain.

    A complaint, in an action for fraud and deceit in inducing the plaintiff to purchase certain promissory notes, after setting forth the alleged false statements. >of the defendant, alleged that the defendant knew his statements to be false, and that he “knew of facts and circumstances sufficient to charge him with knowledge of the falsity” of his.statements.

      Held, that the latter allegation was not obscure, and that a motion to make the complaint more definite and certain should be denied.
    Appeal by tbe plaintiff, the American National Bank of Providence, Rhode Island, from an order made at the New York Special Term at chambers, and entered in the office of the clerk of the city and county of New York on the 13th day of December, 1892, granting a motion made By the defendant to require the plaintiff to make the complaint more definite and certain.

      James M. Townsend, for the appellant.

      F. B. Goudert, for the respondent.
   Pek CubiaM :

The action is for fraud and deceit, by which, as alleged, the plaintiff was induced to purchase of the defendant two promissory notes, and to pay therefor the sum of $19,600. A statement of the character of the deceit and fraud practiced is fully set forth; but instead of the usual averment that the false representations were knowingly made, and material facts which should have been communicated to-the plaintiff were suppressed, the complaint, in one of the paragraphs, thus alleges:

“Seventh. That, as plaintiff has been informed, since the failure of said firm of Grant & Ward, and verily believes, the said statements and representations made by the defendant to plaintiff, as-aforesaid, were each and every one false and fraudulent at the time they were made, and were known by the defendant to be false and fraudulent when he made them; that said statements and representations were calculated to deceive the plaintiff, and the same were made by the defendant with the intent to deceive and defraud, this plaintiff; and in making said statements and representations the defendant assumed and intended to and did convey to plaintiff the impression that he had actual knowledge of the matters so stated and represented, when defendant was, at the time, conscious that he had no such knowledge, and was then informed and knew of' facts and circumstances sufficient to charge hvm with knowledge-of the falsity thereof \ which facts and circumstances were unknown to this plaintiff, and which defendant then knew were unknown to' this plaintiff, and which defendant fraudulently suppressed and concealed from this plaintiff.”

It will thus be seen that, after fully setting forth in the complaint the false statements, the defendant’s knowledge that they were false is thus alleged in two ways, first, that defendant knew his statements to be false; and, second, that he knew of facts and circumstances sufficient to charge him with knowledge of the falsity of his statements. It is insisted that this second allegation is indefinite and uncertain, and it is from the order compelling an amendment of the complaint in this particular that this appeal is taken.

It is urged that the defendant mistook his remedy, which should have been for a bill of particulars instead of a motion to make the complaint more definite. The distinction between the two has been frequently pointed out, and, as said in Rouget v. Haight (10 N. Y. Supp., 753), they show “ how slight a difference may exist between the conditions requiring the application of the one or the other.” In the case last cited the rule was thus stated: “ It appears to be settled that if the charge or defense be definitely stated^ although the statement involves details, it is sufficient to put the party to an application for a bill of particulars and compels him to resort to that remedy, although the result of either application would be the same.”

And in Jackman, v. Lord (9 N. Y. Supp., 200), the presiding justice of this court said: “We do not understand that where a general allegation in the complaint is sufficient to make a good cause of action, the court can compel the allegation of specific facts leading to the general conclusions alleged in the complaint.” Again, in Brownell v. National Bank of Gloversville (13 Week. Dig., 371) it was held that, if ■ looking at the complaint the court can. see witb ordinary certainty tbe meaning of the different allegations and tlie cause of action intended to be set up by them, the pleading is not indefinite.

And in Cook v. Matteson (11 N. Y. Supp., 513), citing the last case, it was said: The motion is to be determined upon an inspection of the pleading, and if from such inspection the court can see with reasonable certainty the meaning of the allegations and the cause of action intended therein to be set forth, the pleading will •be held sufficient to resist a motion to make it more definite.”

Applying these rulings or taking the one which the respondent -furnishes, viz., that where a specific allegation is obscure the remedy is by motion to make more definite and certain; we think, the conclusion to be reached, upon an inspection of the pleadings, is against .the view contended for by respondent. ¥e fail to see in what •respect the specific allegation is obscure. It is true that the evidence ■to establish this allegation is not set forth nor is that necessary in a pleading. Upon reading this complaint no doubt can exist as to what the allegation means. It is a statement that the defendant ““knew of facts and circumstances sufficient to charge him with knowledge of the falsity thereof.” This is but a statement that the defendant had reasons for knowing that the representations made 'were false; that they were not known to the plaintiff, and they were such that good faith on the part of the defendant required him to make them known to the plaintiff.

We agree with the appellant, that the effect of granting the motion would be to compel a disclosure of its evidence, because to require a .statement of the facts and circumstances known by the defendant, ¡and which are claimed to have been sufficient to charge him with .knowledge of the falsity of the representations, is but asking the plaintiff to disclose what evidence he has of defendant’s knowledge in this particular. We do not think that there is anything indefinite or uncertain in the allegation, and where, as here, the charge relates to facts which must be shown to have been within the knowlege of the defendant, he is not entitled to the relief sought. Besides, as said in Williams v. Folsom (10 N. Y. Supp., 895), “allegations of iraud are .not required to be stated with great particularity.”

We are of .opinion, therefore, that the motion should not have been granted, and tlie order appealed from is, therefore, reversed, with costs and disbursements, and the motion denied.

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

Order reversed, with costs and disbursements, and motion denied.


author: YaN BeüNt, P. J.:

text:
    GUY HAAS, Plaintiff, v. BARBARA KUHN, Individually and as Executrix, etc., Defendant.

      Incumbrance imposed bp a life tenant on land held by her subject to a testa/mentarry power of sale giren to her as executrix — removed by a sale under the power.

    The sale by an executrix, under a testamentary power of sale, of land held by her as a life tenant subject to the execution of such power, removes, and frees the title from, an incumbrance imposed by the life tenant, as, e. g., an agreement entered into by the life tenant with a third party not to erect a wall upon a certain portion of the land; and this is so, although the executrix and the life tenant are the same person, where the sale is made in the capacity of executrix and the incum-brance is created by her in her individual capacity.
    Submission of a controversy upon an agreed statement of facts, without action, under section 1279, etc., of the Code of Civil Procedure. The contract or agreement made by the defendant, referred to in the opinion, is as follows:
    ‘‘Agreement made and entered into this 21st day of February 1878, between J. Brewi & Co., of the city of New York, parties of the first part, and Barbara Kuhn, of the same place, party of the second part, witnesseth:
    “ Whereas, Said parties of the first part are the owners of premises known as No. 134 Essex street, in said city, and said party of the second part owns the premises adjoining known as 136 Essex street; now, the parties hereto have mutually agreed that the parties of’the first part shall, at their own cost and expense, erect a party-wall between the rear buildings on said two premises, commencing fifty feet from the front wall of the front buildings on said premises and ending at the rear line of said lots, said wall to be six inches on the ground of the party of the second part from the rear of said front building extending to the rear end of said lots, being a distance of fifty feet; and said parties of the first part further agree to put one flue in said partition wall for the use of the rear building of the party of the second part, at their own cost and exjaense; said wall to be used in common by the parties hereto.
    “ Said party of the second part agrees to erect no wall along that portion of said party-wall commencing on the front of the rear building on her premises and extending to the rear wall of the front building on her premises; and further agrees not to interfere with the windows or proper light of said party-wall between front and rear buildings as long as said rear building shall stand on the lot known now as No. 134 Essex street.
    “ And it is further agreed that said party-wall to be built as heretofore stated shall be used and owned in common by the parties hereto as long as the same shall stand, and in case of fire, accident or any unforeseen cause which will damage, injure and destroy said party-wall, the same to be repaired or rebuilt at the joint expense of both parties hereto as named above.”

      F. A. Winslow, for the plaintiff.

      Loren Zeller, for the defendant.
   YaN BeüNt, P. J.:

Upon one important branch of this controversy the submission is somewhat uncertain as to the fact admitted, and that is as to the means by which the defendant acquired her life estate in the premises in question. We presume, however, that it was intended to be admitted that she acquired this life estate by the will of her husband, in pursuance of the power of sale contained in which she made the contract with the defendant therein mentioned, and we will dispose of the case, assuming this to have been the purport of the admission.

The plaintiff seeks to recover $1,000 and interest, and charges for the examination of title herein, because it is claimed that the defendant is unable to give a clear title to certain premises on Essex street which she entered into a contract with the plaintiff to convey. It would appear that, by the will of the defendant’s husband, who died in 1877, slie was devised this real estate for life; of which will the defendant was executrix, and by which will a discretionary power of sale of all real estate was given to such executrix. In February, 1878, the defendant individually executed an agreement not to erect a wall over or upon certain parts of the premises in question. In October, 1892, the defendant, as executrix, under the power of sale contained in- the will, entered into a contract to sell the premises in question, free from all incumbrances, to the plaintiff. The plaintiff, upon examination of the title, discovered this agreement in regard to building upon the lot .in question, and refused to take title and brought this submission, which was presented to recover the amount paid on account, and the disbursements and charges upon the examination of the title. And the question submitted is, whether the premises are incumbered by reason of the party-wall agreement and the covenants therein, either during the life of the defendant or for a longer time.

This question seems to be resolved when we consider the nature of the life tenancy of the defendant. The sole title she took under the will was sirbject to the power of sale therein contained. She, undoubtedly, could make a contract with reference to building upon this lot during her life, which would be binding upon her so long as the power of sale contained in the will was not executed. But, as her title during life was subject to the execution of this power of sale, when this power of sale was executed because of the supposed advantage to the estate, such execution related back to the time when the wall became operative, and cut off any incumbrances which might be put upon the property by those persons holding the title subject to the exercise of such power of sale. It would, therefore, seem to be apparent that, by the exercise of the power of sale as executrix of the will of her husband, the defendant could give a title, free and clear from this individual agreement which she made, which was only binding upon her during her life in case the power of sale was not exercised. It is apparent that this must necessarily have been the result had the life tenant and the executor or executrix of the will been different persons. And the mere fact that the life tenant and the executrix are the same person does not seem to us, in any way, to restrict powers which might be exercised under the power of sale.

We think, therefore, that the deed of the executrix was superior to the agreement of the'individual life tenant, and that the plaintiff should be decreed- to perforin the contract and pay the costs of this action.

Judgment accordingly.

O’BRIEN and Follett, JJ., concurred.

The plaintiff should be decreed to perform the contract and pay the costs of this action. Judgment accordingly.


author: O’BRIEN, J.:

text:
    MARION L. CARROLL and ANNE L. LANGDON, Plaintiffs, v. THE NEW YORK LIFE INSURANCE AND TRUST COMPANY, Defendant.

      Sulk-head rights — a claim, for their value substituted — it does not pass by a deed of lands under water.

    A trust deed conveyed certain property in the city oí New York, together with all the right and title to the land and * ‘ lands under water in front of said premises; ” such right had originally included certain hulk-head rights, hut before the execution of the trust deed the maker thereof had entered into a stipulation with the city, in an action then pending against the city for an injunction and to recover possession of the hulk-head which it had wrongfully appropriated, , which stipulation provided that if a judgmemt should he recovered against the city the question of damages and the value of the premises was to be reserved and ascertained as the court should direct. This was afterwards done and the value of the hulk-head rights was fixed.

      Held, in construing the trust deed as between the maker and trustee, that the effect of this stipulation, and the subsequent proceedings in the action in which it was made, was to divest the title of the maker of the trust deed to the bulk-head rights, as of the date of the appropriation by the city.
    That the bulk-head rights of the maker then ceased to exist, and a claim for their value was substituted therefor.
    That such claim was personal property and was not appropriately described by the words ‘ ‘ land or lands under water ” used in the deed, and that, consequently, the damages recovered from the city on such claim were not included in, and did not pass by, the trust deed.
    SubMission of a controversy upon an agreed statement of facts, without action, under section 1279, etc., of the Code of Civil Procedui’e.

      Ogden do BeeJcmcm, for the plaintiffs.

      B. 8. Emmet, for the defendant.
   O’BRIEN, J.:

It appears from the submission that on the 29th of September, 1876, and for many years prior thereto, the plaintiffs were owners of the wharf and bulk-head on the westerly side of West street in front of certain lots of land belonging to them on the easterly side-of said street, and of the rights of wharfage arising from the said wharf and bulk-head, and that on September 29, 1876, the city of New York, by its department of docks, wrongfully took possession of said bulk-head and commenced to fill in with solid filling the-space between the same and the new exterior line, thereby excluding the plaintiffs from the possession and enjoyment of the said wharf' and bulk-head. Thereupon, and on the 1st of February, 1877, an action was commenced by the plaintiffs in this court against the city and the department of docks, to recover possession of the wharf and', bulk-head and of the plaintiffs’ easements therein, and for an injunction, but the city continued to fill in the space in question, and by-May 23, 1878, had entirely appropriated the plaintiffs’ rights and; easements in the said bulk-head, and deprived them of the possession-thereof and destroyed such easements.

Thereafter, on February 6, 1878, and on the trial of the action on-the 29th of May, 1878, two stipulations were entered into between the-parties reciting the fact of the filling in of such space, and providing-that, in the event of the plaintiffs being entitled to judgment, the question of their damage by reason of the acts of the defendant, and the-question of the value of the plaintiffs’ premises were to be reserved and ascertained as the court should direct. The plaintiffs were finally successful in the Court of Appeals, and a judgment on the remit-titur was, on the 12th day of October, 1883, entered in accordance-With the terms of the stipulation. By an interlocutory order or judgment a reference was accordingly ordered to take proof of the value of plaintiffs’ property and of the damages sustained by plaintiffs in being deprived of their bulk-head rights, and it was finally-adjudged, upon the report of the referee, that the plaintiffs should recover from the city of New York, for principal and interest, the sum of $81,400, being the value of the premises ” at the time of appropriation of the said property by the mayor, etc., “ to wit, the 23d day of May, 1878.” It was by such judgment directed that, upon receiving such payment, the plaintiffs should execute to the city a deed of their interest in the bulk-head and rights in question. A deed was accordingly prepared by the plaintiffs; and in addition thereto the city required a release from the defendant trust company of any interest which the latter might have in the property as trustee under certain deeds of trust executed by the plaintiffs to such trust company on January 20,1885, and the 19th of November, 1886, conveying to the trust company, upon the trusts therein set forth, certain real and personal property particularly described. Included in such conveyances were the lands formerly owned by John Jacob Astor, and which, under his will, passed to the plaintiffs, appurtenant to or part of which were, as originally devised, the wharf and bulkhead and plaintiffs’ easements therein, which were involved in the litigation with the city, and out of which the amount of money which is now the subject of dispute herein arose.

The separate deeds of trust made by each of the plaintiffs of the property owned by them to the defendant contain the same provisions and conditions, calling for the application of the entire income, ■after the payment of necessary charges for taxes and administration, to plaintiffs for life, and upon the death of the life tenant the trust was to cease and determine, and the property to go to such persons ■or corporations as the life tenant by last will and testament should direct; and providing further, in the event of intestacy, for a transfer to the children of the life tenant, if such there were, and in the «vent of no children, the trust estate to go to the right heirs of the life tenant, according to the statutes of descents and distributions of the State of New York.

The fund being on deposit with the trust company to abide a •decision, we are asked to determine the questions submitted, which are as follows:

(1.) Are the plaintiffs entitled to the said moneys as recovered by them and deposited in the trust company ?

(2.) Did any right or claim to said moneys pass to or vest in the said defendant, the New York Life Insurance and Trust Company, by virtue of the aforesaid deeds of trust ?

(3.) Is the defendant, as trustee under said deeds of trust, entitled to hold or retain the said moneys or any part thereof ?

These three can be reduced to the single question, whether the bulk-head rights, formerly owned by the plaintiffs, or their claim against the city for the value of such rights, were included in the deeds of trust to the defendant.

Such bulk-head rights are included in the property which, under the will of Astor, passed to the plaintiffs, and in the deeds of trust to the defendant. Describing this particular property in question by metes and bounds, there was added to the description these words: “ Together with all the right and title of John Jacob Astor, deceased, to the land and lands under water in front of said premises.”

Notwithstanding the force and weight to be attached to such language, it is insisted that the defendant can have no claim to the moneys in question, because the plaintiffs, by force of their stipulations with the city, abandoned their claim to the property in specie, and changed their demand into one for damages for its appropriation. That thereby they elected to take a pecuniary consideration from the city for the property instead of the property itself, and that the legal effect of this was that the city became possessed of the property in question as of the date of its appropriation, viz., May 23, 1878; and, therefore, the title of the plaintiffs was divested as of that date, and simultaneously the claim of the plaintiffs became one for its value; and thus an interest which had been real estate thereupon became transmuted into personal property.

We are of opinion that this position of the plaintiffs should De sustained. It is true, as noticed, that the deeds from plaintiffs to the defendant, in terms, convey more than the lots fronting on West street, and if the bulk-head rights had existed at the time of the execution of those deeds, there can be no doubt that they would have passed to the defendant. If, however, the bulk-head rights had then ceased to exist and the claim for their value had^been substituted, the language used in the deeds would not have been appropriate to vest in the defendant the damages recoverable in the action. Such a right would be a chose in action, and, unquestionably, in character, personal property, and such property and rights would not be appropriately described by the words “ land or lands under water.” The record, notably the interlocutory judgment and the stipulations, shows that the bulk-head rights were destroyed by the act of the city long prior to the execution of the deeds of trust, and the plaintiffs, therefore, had no property of that description to convey. What was left to them was a claim for damages which they were to recover in lieu of any bulk-head rights which, in 1878, they may have possessed.

Whatever doubt might otherwise arise as to the character of their claim prior to the decision by the Court of Appeals, it was settled by the judgment entered upon the remittitur in 1883 — prior to the deeds of trust to the defendant — which judgment provided that the plaintiffs should recover against the city for damages suffered by them by reason of the acts of the city in unlawfully appropriating their property; such damages to be ascertained in the manner the court should direct, in accordance with the stipulation between the parties and which formed a part of the judgment-roll.

Viewed in the light of the stipulations and the judgment, we think that the position of the parties may be well likened to that of persons who had entered into an executory contract for the sale of lands. It has been frequently held that the effect of such an executory contract is to change the position of the seller leaving him, instead of a title to the lands proposed to be sold, simply a claim to the amount stipulated to be paid. Such claim, being personal property, would not be appropriately described by the words land or lands under water,” which were the words used here. Or if we have resort to another illustration furnished by the numerous decisions in elevated railroad cases, it will afford another argument to support the plaintiffs’ contention. In those cases, wherein the elevated railroads had unlawfully entered into possession of the property of others and had destroyed easements appurtenant to such property and where a possessory action had been brought, as here, asking for an injunction to restrain the unlawful interference with the plaintiffs’ rights and easements, we think it clear, if in such an action the parties should stipulate to substitute a claim for damages, or if by the judgment damages were awarded in lieu of a decree restoring the rights and easements to the plaintiff and enjoining the railroad from trespassing thereon, that the effect of such a stipulation or such a judgment would be to change the character of the rights involved in the action from an interest which had been real estate into a claim for damages, which would be personal property.

Here, the effect of the stipulations and of the judgment was to finally determine the transfers of the easement and bulk-head rights as of the date of May 23, 1878, and the right of the plaintiffs was thereafter to receive a money compensation therefor as of the same date. It being, therefore, reasonably free from doubt that the bulkhead rights owned by the plaintiff were destroyed, and a claim for damages substituted, prior to the trust deeds to the defendant, the plaintiffs not having such bulk-head rights, could not, at the date of the deeds to the trust company, have conveyed them. The personal property given to the defendant by plaintiffs was particularly described, and did not include such claim for damages, or any claim involved in the suit between the plaintiffs and the city; and the case submitted shows that the defendant’s claim is based solely upon the force and effect to be given to the words in the deed already adverted to, at the end of the description of the lots on 'West street, “ together with all the right and title of John Jacob Astor, deceased, to the land, and lands under water in front of said, premises.”

Among the statements agreed upon in the case submitted, we find the following:

“ That the said trust company has never claimed nor considered, nor did the said Marion L. Carroll or Anne L. Langdon ever consider or intend that the said trust company, by reason of such conveyances by them to it, should acquire any right, title or interest in any rights of plaintiffs in said bulk-head, or in the said easements, or in their claim for damages against the mayor, aldermen and commonalty of the city of New York, by reason of any of the matters aforesaid; and that the said trust company has never taken any part in said action against said the mayor, aldermen and commonalty of the city of New York, and the board of the department of docks, nor been substituted, or made any claim to be substituted as plaintiffs therein since the creation of said trusts, but that said action was conducted from the commencement thereof until the final judgment therein by the said plaintiffs only.”

This, undoubtedly, is a practical construction of the terms of the trust deeds placed thereon by the acts of the parties, to which some force should always be attached, and such construction is favorable to the plaintiffs’ view that the claim against the city, which was substituted for the interest they formerly had in the lands, ante dated the deeds to the trust company, and was not included therein.

¥e think that, upon the submitted case, the question should be answered favorably to the plaintiffs who, in accordance with the terms of the submission, should have judgment in their favor against the defendant for the sum of $83,582.08 and interest.

Yan Brunt, P. J., and Follett, L, concurred.

Judgment ordered for plaintiffs against the defendant for the sum of $83,582.08 and interest.