author: Per Curiam.

text:
    JACOB B. SHIPHERD, Appellant v. AARON B. COHU, et al., Respondents.

      Order that the appellant print and serve dll the papers referred to in the order appealed from.

      Held, that it was for the judge to determine whether all the papers used on the motion had or had not been printed, and also whether they had or had not been correctly printed; and his determination of those facts will not be reviewed on appeal.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.

      Appeal from an order at special term directing the appellant to print and serve all the papers referred to in an appeal from an order of August 31, 1888.

      Jacob 2?. Shipherd in person, for appellant..

      Alexander Thain, for respondents.
   Per Curiam.

The appellant appealed from an order made by a judge of this court, and on that appeal served certain papers. It was claimed by the respondents that the appellant had not printed all of the papers that were used on the motion, and the judge before whom the motion was heard ordered that the appellant proceed forthwith to print and serve all the papers referred to in the order appealed from.

It was for that judge to say whether all of the papers used on the motion had or had not been, printed, and we will not review his determination. It was also for him to say whether they had or had not been correctly printed; and his determination of that fact will not be reviewed by us.

The order appealed from directed that a certain order which appeared on the eighth page of the printed papers be stricken therefrom. That order was dated November 3, 1888, while the order appealed from was dated on the 31st of August, and the appeal was taken on the 2d of October, 1888.

From this statement, it clearly appears that the order of November 3, 1888, was no part of the papers that were used on the argument of a motion in August, 1888. For this reason it should not be in the printed book.

The order appealed from is affirmed, with costs.


source: Caselaw Access Project

author: Freedman, J.: Per Curiam.

license: Public Domain

text:
    FRANCIS LAHEY, Respondent v. GOUVERNEUR KORTRIGHT, Individually and as Trustee, &c., AND ANOTHER, APPELLANTS.

      Trustee—Order appointing him trustee to hold premises set apart for the trust, construction of.

    Nicholas G. Kortright by his will directed his debts and funeral expenses to be paid, made a specific bequest and then directed that his property, real and personal, be divided into as many equal shares as might be necessary to give to his wife and children two shares each; that at the time of the division his executors should convey to his wife and each of his children one of such shares, to be at their absolute disposal, free from all control whatsoever, and that the residue of such equal shares should be retained by his executors in trust for the benefit of his wife and children, they to pay to his wife and each of his children during their natural lives respectively the interest or income of one of such equal shares. The will then contained devises over on the death of his wife, and on the death of any of his children, either with or without leaving lawful issue.
    The will contained the following power:—“I give my executors full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate and after the payment of my debts as herein-before provided to invest the proceeds in other real estate, or in personal securities as they in their discretion may.deem most for the interest of the parties interested in my estate.”
    The testator left him surviving his wife Sarah J. Kortright and two sons, Lawrence M. and Gouverneur Kortright. The executors renounced, and letters of administration with the will annexed were issued to the widow.
    The premises whereof the testator died seized were actually partitioned by commissioners in partition, appointed in an action in partition, and certain of the premises (designated as allotment 5) were set off to the trust for Gouverneur Kortright and certain others (designated as allotment 6) to that for Lawrence M. Kortright: A trustee who had been appointed having resigned, an order was made on the petition of Gouverneur Kortright appointing Lawrence M. (upon his giving a bond of $10,000)'trustee under the will, to hold the premises set apart by the commissioners in partition for the benefit of said Gouverneur, and to be held in trust for his benefit. A similar order was made on the petition of Lawrence M. appointing Gouverneur trustee under the will, to hold the premises set apart by such commissioners for the benefit of said Lawrence M. and to be held in trust for his benefit.
    The purchaser of premises included in allotments If os. 5 and 6 at a sale made by Gouverneur and Lawrence M., as trustees, objected to the title on the ground that Gouverneur and Lawrence M. were not vested with any power of sale, and particularized, among other points, that they could only get a power of sale under the orders appointing them, and that those orders did not confer such power.

      Held, that the appeal should be determined by a consideration of the construction of the orders appointing Gouverneur and Lawrence M. trustees, and that on the whole record the proper construction to be given to those orders is, that the phrase “to hold” used in those orders was used for purposes of identification and not for the purpose of restricting any powers which the trustees might otherwise have, including that of a power of saje,
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided March 5, 1889.
    Appeal from judgment in favor of plaintiff entered upon findings etc. at special term.
    This action was brought by the plaintiff seeking to be released from a contract for the purchase of the premises described in the complaint, which he had bid off at an auction sale made by the defendants on the 25th day of May, 1887.
    The defendants asked a judgment for specific performance.
    The question litigated is whether the defendants were able at the closing of the title to give the plaintiff a good marketable title. The defendants’ title arises as follows:
    Nicholas G-. Kortright died prior to April 1, 1874, in possession of and the owner in fee simple absolute of such premises, together with others. He left a will which was duly proved and admitted to probate as a will, and real and personal estate, and which was as follows :
    “I, Nicholas G. Kortright, being of sound and disposing mind, memory and understanding, do make, publish and declare this my last will and testament in manner following, that is to say :
    “First.—My executors hereinafter named shall as soon as may be after my decease pay from my estate all my just debts and funeral expenses.

      “ Second.—I give and bequeath to my wife all my household furniture, books and plate.

      “ Third.—The residue of my property real and personal shall be equally divided between my wdfe and my children and I direct that my executors shall as soon as may be conveniently done after my decease, divide such residue into as many equal shares as may be necessary to give to my said wife and children each two shares thereof, any child or children of mine who shall be born after my decease shall share equally with those born during my life.
    “ Fourth.—At the time of such division my executors shall set apart to my wife and each of my children two of such equal shares which shall be designated as belonging to the said parties respectively.
    “ Fifth.—My executors shall convey to my wife and each of my children one of such equal shares which shall be held by the said parties respectively at their absolute disposal free from all control whatsoever.

      “ Sixth.—My executors shall retain the residue of such equal shares in trust for the benefit of my wife and children and shall pay to my wife and each of my children during their natural lives respectively the interest or income of one of such equal shares; my executors shall keep separately the accounts of each share so retained by them.

      “ Seventh.—At the death of any of my said children leaving lawful issue, the share of the child or children so dying shall vest in such issue.

      u Eighth.—At the death of any of my said children without leaving lawful issue, the share of the child or children so dying shall vest equally in my surviving children and the lawful issue of such of my children as may before that time have died, such issue to take the share which his, her or their parent respectively would have taken, if living.

      “ Ninth.—After the death of my said wife that portion of her share remaining in the hands of my executors shall be divided equally among my surviving children and the lawful issue of such as may before that time have died; the lawful issue of such of my children as shall have died before the death of my said wife shall take the portion which his, her or their parent respectively Avould have taken if living.
    “ Tenth.—The provision herein made for my said wife is to be received by her in lieu of her doAver in my estate.
    “ Eleventh.—I give my executors full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my debts as hereinbefore provided to invest the proceeds in other real estate or in personal securities as they in their discretion may deem most for the interest of the parties interested in my estate.
    “ Lastly.—I hereby nominate and appoint Edward Min turn and George W. Blunt, of the City of New York, Executors of this my Last Will and Testament, and trustees of my said estate, hereby revoking all former wills by me at any time made.”
    The executors and trustees named renounced and refused to qualify.
    On June 8, 1874, letters of administration, with the will annexed, were issued to Sarah J. Kortright and Benjamin Collins, who qualified and entered upon their duties.
    In 1876 Sarah J. Kortright instituted in the Supreme Court of this state, a suit for the partition of the real and personal estate whereof Nicholas G. Kortright died seized ■ and possessed, and in her complaint prayed that a partition and division of the said estate, real and personal, as directed by said will, might be made among the parties interested therein, under the direction and according to the course and practice of the court, by commissioners to be appointed for that purpose. And in case it should appear that a partition .thereof or of any part thereof could not be made without material injury to the rights of the parties interested therein, then that the same might be sold under the judgment of this court'; and that the proceeds of such sale, after paying the costs and charges of this suit, might be divided among the parties hereto according to their respective rights and interests therein; and that, to that end that the rights and interests of the parties interested in the said estate or in the proceeds thereof, might be ascertained and declared by the judgment of the court; and also prayed for the appointment by the court of a trustee under the will of said deceased in the place and stead of the trustees therein named ; and that the said trustee so appointed might by the judgment of the court be seized as trustee of the shares in said will directed to be held in trust during the lives of the parties interested therein, and that the rights and interests of the parties thereto in the same might be ascertained and declared by the judgment of the court.
    The parties to that action were Sarah J. Kortright, plaintiff, and Gouverneur and Lawrence M. Kortright, defendants.
    The defendants being infants, J. W. C. Leveridge was appointed guardian ad litem for them. The usual order' of reference on title was made. On the coming in of the referee’s report, an interlocutory decree was entered bearing, date October 2, 1876, whereby it was, among other things decreed, that the rights and interests of the several parties to the suit of, in and to the land and personal property referred to and described in the complaint were as stated and set forth in the said referee’s report; and decreed that partition be made of said land and property (describing the land) among the parties to the suit according to their respective rights and interests therein as the same were reported by the said referee, and had been ascertained by the court and established by the judgment; and whereby J. W. C. Leveridge, W. Cary Smith and Bernard Smyth, were appointed commissioners for the purpose of malting such partition. And the commissioners were directed to divide the said lands and premises and personal property into six equal parts, quantity and quality relatively considered, and to allot to the plaintiff one of the said six equal parts to be held by her at her absolute disposal, and one other of such equal parts to be held for her benefit during the term of her natural life, by the trustee .hereafter to be appointed by this court to execute the trusts created and declared by the will of Nicholas G-. Kortright, deceased; and to allot to the defendant, G-ouverneur Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life ; and to allot to the defendant, Lawrence M. Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life, such shares to be held and enjoyed by the said parties in severalty according to their rights and interests therein as ascertained and determined in such judgment.
    Thereafter the commissioners made their report, dated March 14, 1877, whereby they reported, among other things, that they had divided the lands and premises in the interlocutory decree and commission particularly described, into six equal parts, designated by them as allotments Nos. 1, 2, 3. 4, 5 and 6; that they had set apart, allotted and assigned to the said Sarah J. Kortright the premises in allotment No. 4; to be held for her benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Sarah J. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaidthat they had set apart, allotted and assigned to the said Lawrence M. Kortright, the premises in allotment No. 5, to be held for his benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Lawrence M. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that they had set apart, allotted and assigned to the said Gouverneur Kortright, the premises in allotment No. 6, to be held for his benefit by the trustee, thereafter to be appointed by the court, according to the right and interest of the said Gouverneur Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that the said allotments were valued by them as follows : allotment No. 1 at sixty-five thousand four hundred and seven dollars; allotment No. 2 at sixty-five thousand seven hundred and twenty-two dollars; allotment No. 3 at sixty-five thousand four hundred and five dollars; allotment No. 4 at sixty-five thousand three hundred and fifty dollars; allotment No. 5 at sixty-five thousand two hundred and fifty dollars ; allotment No. 6 at sixty-five thousand two hundred and fifty dollars ; that the only personal property remaining in the estate was of the value of about twenty-two thousand dollars; that they had made no division thereof for the reason that it would not be more than sufficient to pay a certain mortgage.
    . They also reported as to payments to be made for equality of partitions.
    Thereafter, on the 15th day of March, 1877, an order was made on the petition of Sarah J. Kortright, whereby it was ordered, “ that Benjamin Collins of the city of New York, be and he is hereby appointed trustee under the will of Nicholas G. Kortright, deceased, to hold that portion of the estate of said deceased which under the said last will and testament was devised and bequeathed to the said Sarah J. Kortright, and Gouverneur Kortright and Lawrence M. Kortright during the terms of their natural lives respectively, being three equal sixth parts of the said estate, on his executing a bond to each of the said parties in the penalty of ten thousand dollars with the said Sarah J. Kortright as surety, conditioned for the faithful performance of his duties as such trustee, and for rendering a faithful account of his trust in all courts and places when thereunto required, which bond shall be approved as to its form and manner of execution, and as to the sufficiency of the surety therein, by one of the justices of this court and filed in the office of the clerk of this court , and that, in accordance with the directions contained in the said last will and testament, that the said trustee keep separately the accounts of each of the said shares, and that he pay over to the said Sarah J. Kortright, Gouverneur Kortright and Lawrence M. Kortright respectively during their respective lives the interest or income of the share so set apart to them respectively by the said commissioners, and that on the death of any or either of them he pay over and transfer any money or property in his hands belonging to such shares respectively, according to the provisions in the said last will and testament contained, and as this court may hereafter direct.”
    Thereafter, on the 24th of March, 1877, a final decree was made in said partition action whereby, among other things, it was decreed, that the partition so made by the aforesaid commissioners be firm and effectual forever ; that the appointment of Benjamin Collins as trustee, theretofore made by the order of March 15, 1887, “ be and the same hereby is declared absolute, and that the said Benjamin Collins as such trustee, be and he hereby is invested with full power and authority to execute the trusts created and declared in the said last will and testament of the said Nicholas G. Kortright, deceased, and with all the powers and duties, and subject to the obligations with which trustees are by law invested in like cases;” that the lands and premises constituting allotment No. 4, should be and the same was thereby vested “in the said Benjamin Collins, as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Sarah J. Kortright, during the term of her natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Sarah J. Kortright, during the term of her natural life, and after her death to pay over and divide the principal thereof, to and between the said Gouverneur Kortright and Lawrence M. Kortright,' or their lawful issue, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the lands and premises constituting allotment No. 5 should be and the same was thereby vested “in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Lawrence M. Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Lawrence M. Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof, to and among the lawful issue of the said Lawrence M. Kortright, or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the said lands and premises constituting allotment No. 6, should be and the same was thereby vested “ in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Gouverneur Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Gouverneur Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof to and among the lawful issue of the said Gouverneur Kortright or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” and that the said Benjamin Collins “ be and he is hereby appointed trustee of the said personal property now remaining in the said estate, and he is hereby authorized to receive from the administrators with the will annexed of -the said Nicholas G. Kortright, the said personal property as the same shall be ascertained and declared by the decree of the surrogate of the county of New York, on the final settlement of the accounts of such administrators before such surrogate, and that he pay therefrom: First.—The fees, costs and allowances hereinafter awarded and allowed to the said referee and commissioners, and to the plaintiff’s attorney and guardian ad litem. Second.-—The taxes and assessments upon the real estate in the city of Brooklyn herein-before referred to. And Third.—A certain mortgage hereinbefore referred to upon the said premises on the northeast corner of Madison avenue and Twenty-eighth street in the city of New York, or so much thereof as the said personal property might be sufficient to pay.”
    Sarah J. Kortright intermarried with one Taylor and was thereafter known as Sarah J. Taylor.
    Thereafter an order was made at the special term of the Supreme Court on the 3d day of August, 1882, in a matter entitled “ In the matter of the petition of Benjamin Collins, Sarah J. Taylor, Gouverneur Kortright and Lawrence M. Kortright for the discharge and release of Benjamin Collins, as trustee,” whereby it was ordered, “ that upon the said Benjamin Collins conveying and paying unto such trustee or trustees as may hereafter be duly appointed by this court in his place and stead all his rights, titles and interests as trustees of, in and to all and singular the trust estate, both real and personal, with which the said trustee is seized and possessed of as trustee, that he be and he hereby is permitted to surrender his trust and is released and forever discharged of and from all liability or reclamations by the said petitioners, or either of them, by reason of his acts and conduct as such trustee.”
    Thereafter, on the 24th of November, 1882, an order was made on the petition of Gouverneur Kortright, appointing Lawrence M. Kortright (upon giving a bond for $10,000) trustee under the will of Nicholas G: Kortright, to hold the share (being the premises included in allotment 5) set apart by the commissioners in partition for the benefit of said Gouverneur Kortright, and to be held in trust for his benefit. On the same date an order was made on the petition of Lawrence M. Kortright, appointing Gouverneur Kortright (upon giving a bond for $10,000) trustee under the will of- Nicholas G. Kortright, to hold the share (being the premises included in allotment 6) set apart by the commissioners in partition for the benefit of Lawrence M. Kortright, and to be held in trust for his benefit.
    The Supreme Court had full jurisdiction over the persons of the defendants in the partition action, and all the orders in .that action were made on proper notice to them.
    On a sale made by Lawrence M. and Gouverneur Kortright, as trustees, certain of the premises included in allotments 5 and 6 were purchased by the plaintiff, who objected to the title on the ground that they were not vested with any powers of sale.
    The cause was tried at special term. On the trial the plaintiff, among others, made the point that Lawrence M. and Gouveneur could only get a power of sale under the orders appointing them, and that those orders did not confer such power.
    The judge at special term held with the plaintiff on this point, writing.
   Freedman, J.:

Assuming that the power of sale given by the will was an imperative and general power in trust, which, although discretionary as to the time of execution, could, on the death, removal, resignation or refusal to act of the trustees, be conferred by the Supreme Court on a trustee appointed by that court to carry out the trusts created by the will, the question still remains whether the Supreme Court really did confer the power. If it was conferred it must be found in the order of appointment, for a trustee so appointed takes all his powers from the order of his appointment.

In Kortright, trustee, &c., v. Storminger, 49 Hun 249, which was a case submitted on an agreed state of facts, the case as submitted to the general term of the Supreme Court showed that by an order duly made and entered, a new trustee had been duly appointed to hold a certain share of the estate, with all the powers and authority given to the trustees by the provisions of the will. But the order of his appointment was not set forth. Under that broad admission it could well be held, as it was held, that he possessed all of the powers to sell which were possessed by thé original trustees.

In the cases before me the orders appointing Gouverneur Kortright and Lawrence M. Kortright as trustees were put in evidence, and they fail to show that any power of sale was conferred by the court upon either of said trustees.

The order appointing Gouverneur Kortright shows that Sarah J. Taylor and Lawrence M. Kortright had petitioned for his appointment as trustee, “ to hold the share set apart by commissioners in partition for the benefit of said Sarah J. Taylor and Lawrence M. Kortright, and to be held in trust for their benefit,” and that thereupon it was ordered that he be appointed “ such trustee.”

The order appointing Lawrence M. Kortright was made on the petition of Gouverneur Kortright, praying that Lawrence M. Kortright be appointed trustee to hold his (Gouverneur K.’s) share, and by it he is appointed “ such trustee.”

Now it may be conceded that under the decisions of Clark v. Crego, 51 N. Y. 646, and Farrar v. McCue, 89 Ib. 140, it was not necessary for the Supreme Court to expressly confer the power of sale on the new trustees. Their general appointment in place of the former trustees would have carried with it all the powers vested in the former trustees.

But the two orders above referred to did not appoint generally, but specially, and for that reason they did not by implication confer the power of sale.

The foregoing considerations entitle the plaintiff to judgment. Findings and judgment to be settled on notice.

From the judgment entered on this decision defendants appealed.

Platt & Bowers, attorneys, and John M. Bowers of counsel for appellants, argued: —

I. The power of sale given by the will was a general imperative power in trust, which, although discretionary as to the time of execution, could, on the death, removal, resignation or refusal to act of the trustees, be executed by a trustee appointed by the Supreme Court to carry out the trusts created by the will. The power is general, 1 R. S. 732, § 77.—The power is imperative, 1 R. S. 734, § 96.—The power is in trust, 1 R. 8. 734, § 95.— An express trust is created, 1 R. S. 728, § 55.—The Supreme Court has full power to appoint a new trustee, 1 R. S. 730, §§ 68, 69, 70 and 71.—The following authorities seem directly in point: Cook v. Platt, 98 N. Y. 39; Farrar v. McCue, 89 Ib. 140; Delaney v. McCormick, 88 Ib. 174. Cook v. Platt, 98 N. Y. 35, though holding that the trust in that case was an invalid one, sustains the point here maintained.

II. The power of sale was to the trustees, and though imperative, could be exercised as to time in their discretion. In such cases the power passes to new trustees duly appointed, and not to the administrator with the will annexed. Cook v. Platt, 98 N. Y. 39 ; Mott v. Ackerman, 92 Ib. 540. The following cases are directly in point. Ward v. Ward, 105 N. Y. 68 ; Tobias v. Cushman, 32 Ib. 319; Robert v. Corning, 89 Ib. 225; Bacon v. Bacon, 4 Demarest, 5.

III. The trustees having refused the trust, an order discharging them therefrom was unnecessary. By their refusal to act, the trust vested in the Supreme Court, with all the powers and duties of the original trustees; and the court properly executed the trust by the appointment of new trustees. Depeyster v. Clendenning, 8 Paige, 295; Matter of Robinson, 37 N. Y. 261; Dunning v. Ocean Nat. Bk., 61 Ib. 497, pp. 500-502 ; Ross v. Roberts, 2 Hun 90.

IV. It is not necessary for the Supreme Court to expressly confer any authority on the new trustee. The appointment carries with it all the authority vested in the original trustee. Clark v. Crego, 51 N. Y. 646; Farrar v. McCue, 89 Ib. 140; Nugent v. Clune, 117 Mass. 219.

James F. Malcolm, attorney, and Samuel Jones of counsel for respondent, made and argued, orally, various points in support of the judgment.

Per Curiam.

This action was begun to relieve the plaintiff from the obligation of a written contract, made by him and defendants, and by which the former was to buy and the latter to sell certain real estate.

On the trial, the plaintiff maintained that the defendants had no power to sell so much of the real estate as they held as trustees. The learned court held.with the plaintiff in this respect, grounding its decision upon the construction of two orders of the Supreme Court appointing the defendants trustees.

As these orders were of similar tenor, it is necessary to advert but to one of them. It recited that on reading and filing the petition, etc., praying that Lawrence M. Kortright be appointed trustee under the will of Nicholas G. Kortright, deceased, to hold the share set apart and for the benefit of said Gouverneur Kortright and to be held in trust for his benefit, etc., it is ordered that the said Lawrence M. Kortright be and he hereby is appointed such trustee upon, etc. '

The construction given below to this order was, that Kortright was appointed as trustee solely to hold the share, and therefore that the order gave no power to sell it. It was competent, however, for the purpose of construction, to look at the whole of the record which ended in the order. From that record it appeared that the will of a former owner had appointed a trustee to hold the share and for other purpose with power of sale. The trustee named not taking, the Supreme Court appointed a trustee, to execute the trust of the will. Afterwards the trustee so appointed resigned, and the trustee named in the order, now examined, was appointed as appears by that order.

On the whole record, the object of the proceedings appears to have been to substitute some one in the place of the one named in the will, without a purpose of dividing the power that the will had provided. As the trustee had a power of sale under the will, the trustee named in the order had the same power. The expression to hold ” the share of Gouverneur Kortright, was used not as a description of power, but of necessity, in order to identify the trusteeship or office, as under the will there were trusts as to other shares like that of Gouverneur Kortright, excepting that they were for the benefit of other persons. The power of sale was but an incident of the trusteeship, and accompanied that. The words “ to hold ” might have been supplaced by the words of the share,” etc.

There are in the case other questions. The argument at the bar was so shaped that it is proper to determine this appeal, by a consideration of the construction of the order.

The judgment is reversed and a new trial granted, with costs to abide the event.


author: By the Court.—Sedgwick, Ch. J.

text:
    MARGARET WELLS, Respondent v. FRANCIS ALEXANDER, et al., Appellants.

      Contract—Proposal and acceptance do not constitute. Implication of promise, duty or obligation, when it does not arise. Contract, notification limiting delivery as a condition precedent effect of; construed, as ceasing to be operative by a voluntary act.

    Plaintiff, through her agent, made to defendants by letter dated December 31, 1887, a proposition to furnish three of their steamers (naming them) with coal to be delivered alongside a specified pier, for the year 1888, from January 1st to December 31st, for $3.05 per ton. Defendants replied to this by letter dated January 4, 1888, saying “we beg to accept your offer of 31st ult." The letters are given in full in the opinion. Defendants were the owners or charterers or operators, of the steamers specified in the letter of December 31st, which were used by them in operating a line running between the port of New York and ports in Mexico and Cuba. Up to June 25,1888, defendants bought from plaintiff all the coal they required for the specified steamers and paid therefor ; on that day they retired from business and sold, conveyed and delivered, all their steamship property, including the three specified ones, and therefore ceased to operate them.

      Held, (1) That the letters were a mere proposal and acceptance and did not constitute a contract.

      (2) Assuming that the letters constituted a contract, it was a contract to furnish upon notification by defendants, when and in what quantities coal was needed or to be delivered; and in the absence of such notification there was no consideration to defendants for any supposed promise on their part to receive the coal unless there was an implied promise on their part to give the notification.
    (3) There was no implied promise to give the notification, the giving of it being simply a condition precedent to any duty or obligation to deliver the coal arising from which a promise to give it cannot be implied.
    (4) If notification was given, a liability would arise for the amount specified in the notice at the price named in the proposal; it would amount • to an order for the delivery of a specific quantity on the terms proposed.
    (5) Assuming that the letters constituted a contract, it imposed no duty, obligation or right either to deliver, receive or demand coal upon the specified vessels going into the hands other than those of defendants. Only such coal as would be needed for the object in view when the arrangement, viz.: that of supplying the vessels of defendants while in their hands, fails within the scope of purview of the contract.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal by defendants from judgment for plaintiff, entered upon an order sustaining demurrer to a defence set up in the answer.
    Statement of the case bX the Court.
    The complaint alleges, that at all times referred to in the complaint, the defendants were copartners doing business in the city of New York and were the “proprietors or operators of a line of steamships; that the plaintiff entered into an agreement with the defendants by which the plaintiff promised and agreed to furnish defendants for the use of certain steamships then owned or operated by them, with such quantities of pea coal as might be required for said vessels during the year 1888, to be delivered" alongside the same at Pier 3, North river, in the city of New York, for the sum of $3.05 a ton, and in consideration thereof defendants promised and agreed to purchase from plaintiff, at said rate, all coal necessary for the use of the said steamships during said year; that ever since the date of said agreement, said steamships have been making and are still making regular trips, and have required and used and still require and use large quantities of coal; that plaintiff has duly performed all the terms and conditions of said agreement on her part and “ has been and still is ready and willing to furnish coal in accordance Avith said agreement and has duly notified defendants thereof and duly tendered such coal to them, but the defendants have refused and still refuse to receive and pay for the same ; that by said refusal of defendants to perform the terms of their agreement, plaintiff has been damaged in the sum,” etc.
    The answer, denying that they ever entered into the contract aA7errerl in the complaint, or any contract for the supplying of coal as mentioned in the complaint, alleged for a second and distinct defence, that on and before the 4th day of January, 1888, they were the owners or charterers and operators of the steamships “ City of Alexandria,” “ City of Washington” and “ Manhattan,” which steamships were used by them in the operation of a line running between the port of New York and ports in Mexico and Cuba. That on or about the 31st- day of December, 1887, these defendants received from the said Joseph K. Wells, mentioned in said complaint, a letter of which the following is a copy :
    “ Dec. 31, 1887.
    Messrs. F. Alexandre & Sons,
    New York.
    Gents.—We propose to furnish your steamers City of Alexandria, City of Washington and Manhattan with strictly free burning pea, delivered alongside. Pier 3, North River, for the year 1888, commencing January 1st, to Dec. 31st, for the sum of three dollars and five cents ($3.05) per ton. We also agree to furnish any other steamers of jour line with same coal and at same price at any time you wish. If through any cause we are unable to deliver pea coal we will deliver you other sizes at an equitable adjustment of price.
    Yours very respectfully,
    Jos. K. Wells,
    Agt.”
    That on the fourth day of January, 1888, these defendants answered said letter as follows:
    “ New York, Jany. 4, 1888.
    Mr. Jos. K. Wells,

      Dear Sir.—We beg to accept your offer of 31st ult. to furnish our steamers City of Alexandria, City of Washington and Manhattan with strictly free burning pea coal, delivered alongside Pier 3, North Eiver, for the year 1888, commencing Jan. 1st, for the sum of $3.05 per ton of 2,240 lbs. Also to furnish any other steamer of our line with same coal at same price if we wish it. If, through any cause you are unable to deliver pea coal you will deliver us other sizes at an equitable adjustment of price.
    Yours truly,
    F. Alexandre & Sons.”
    Which answer was duly received by said Joseph K. Wells.
    That thereafter, and until the 25th day of June, 1888, these defendants purchased from the said Joseph K. Wells, as the agent of some person or persons to these defendants unknown, such quantities of coal as they required for use in the said steamships, and duly paid for the same. That on the said 25th day of June, 1888, these defendants having determined to retire from the business of operating steamships, sold and conveyed unto the New York and Cuba Mail Steamship Company all their steamship property, charters and business including all the right, title and interest of these defendants in the three steamers above mentioned, and forthwith delivered the same to the said New York and Cuba Mail Steamship Company, and ceased to operate the said steamships or any of them. That since then these defendants have not required or used or purchased any coal for the operation of the said three steamships. That as these defendants are informed and believe, the three steamships aforesaid are the steamships referred to in the complaint of the said plaintiff, and these defendants are advised and believe that they were under no obligation after the said 25th day of June, 1888, to receive from the said Joseph K. Wells, or any principal represented by him, any coal for use in said steamships or any or either of them.
    The plaintiff demurred to this defence “ on the ground that it is insufficient in law upon its face, in not stating facts sufficient to constitute a defence.”
    The court below sustained the demurrer with leave to defendants to amend the answer upon payment of costs. A judgment was entered on. this decision, from which this appeal is taken by the defendants.

      Carter, Rollins & Ledyard, attorneys, and Lewis Cass Ledyard, of counsel for appellants, argued :—
    I. The view adopted by the court below was that this correspondence created a contract on the part of the respondents to purchase all the coal which might be required for the three steamers mentioned during the year 1888. This, it will be observed, is equivalent to holding that it was an undertaking by them to purchase not only what they might require during the year for these steamers, but what any one else might require for them in case the respondents themselves did not operate them throughout the period. In other words, the ruling amounted to holding that the respondents contracted to continue to operate the steamers during the year. Such a view seems to be wholly erroneous. Knowlton v. Sewall, 10 Allen 34.

      II. Upon no other construction can the plaintiff recover. And this for the reason, that upon any other view of the defendants’ undertaking, it would be wholly incapable of enforcement for want of a consideration. Chicago and Great Eastern Railway Company v. Dane, 43 N. Y. 240; Campbell v. Lambert, 36 La. An. 35; The H. & T. C. R. R. Co. v. Mitchell, 38 Texas 85.
    III. In reference to the authorities relied upon by the plaintiff, it may be said that they are chiefly cases falling within one of the following classes: First.— Where a contract has been made, admittedly valid, the obligation of which is in no way doubted, and its performance by one of the parties has become impossible by reason of some act of his own, of course, he is still bound by his contract, and if its performance has become impossible, must respond in damages for the breach. Second.—Where a contract has been made, admittedly valid, the obligation of which is in no way doubted, and its performance by one of the parties has become impossible by reason of causes not within his control, still his obligation continues. Impossibility of performance is no defence; it was his business to provide against it in the contract. Third.—Where- a contract has been made, admittedly valid and binding, and the thing which forms the subject of the contract has perished, that also is a contingency which the parties are bound to provide against in their contract. But in none of these cases is the contract itself in question. The question in all of them, was whether the happening of the event which gave rise to the dispute was an excuse for non-performance. No such question is involved in this case. We do not set up the sale by the defendants of their steamers, as ah excuse for non-performance. We say that either they were never under any obligation to perform at all, or else, that the fair and reasonable construction of their contract, is that it should endure only so long as their ownership of steamers should continue.

      Wilcox, Adams & Macklin, attorneys, and George Bethune Adams, of counsel for respondent, argued:—
    I. The correspondence set forth in the answer establishes a valid and binding contract on both parties. Fitzhugh v. Raymond, 49 Barb. 645; Utica Water Works Co. v. City of Utica, 31 Hun, 431 et passim ; Broom’s Legal Maxims, p. 623. It is not denied that the steamers continued, after the 25th of June, to require and use coal, and this obviates the necessity of any discussion as to the construction of the contract, if they had ceased to require and use coal after that date by reason of any superior force, destruction by the elements, for instance. It is doubtful, under the decisions in this state, if even such destruction would have relieved the defendants, because they should have provided against such a contingency in the contract. Tompkins v. Dudley, 12 n. Y. 107; Booth v. Spuyten Duyvil Roll. M. Co., 60 Ib. 492, et passim. The mutuality of the contract, with respect to mentioned steamers, stands forth conspicuously, and it is well settled that where mutuality appears a construction which would render the contract unilateral or optional would be unreasonable, and should not be adopted excepting on very clear grounds. Bushnell v. Chatauqua Nat. Bk., 10 Hun 380; and see Barton v. McLean, 5 Hill 256 ; Richards v. Edick, 17 Barb. 260. The privilege extended to and accepted by the defendants of calling for coal for their other steamers at their option, "was alone a sufficient consideration to support an obligation on their part to receive coal for the mentioned steamers, even if the plaintiff was not obliged to furnish coal to the latter. The evident consideration for this option was the agreement to purchase coal for the mentioned steamers at the price and for the period specified. It matters not whether the option was exercised or not. To hold the contract invalid would deprive the plaintiff of the consideration therefor. The plaintiff, however, was bound to furnish the mentioned steamers and the defendant bound to receive and pay. Justice v. Lang, 42 N. Y. 494 ; Mason v. Decker, 72 Ib. 596 ; Butler v. Thomson, 92 U. S. 412. The option was an additional consideration. But even if there was want of mutuality, and the option was not a sufficient consideration, a consideration was imported into the contract by the acts of the parties under it. Parsons on Contracts, vol. 1, 450; Commercial Bank v. Nolan, 7 How. (Miss.) 508; Kennaway v. Treleavan, 5 M. & W. 501; Fishmongers’ Co. v. Robertson, 5 Man. & C. 131; Phelps v. Townsend, 8 Pick. 392; Yard v. Eland, 1 Ld. Raym. 368; Cabellera v. Slater, 25 E. L. & E. 285; S. C. 24 C. B. 300; L’Amoreux v. Gould, 3 Seld. 349; Mozley v. Tinkler, 1 C. M. & R. 692; Loughran v. Smith, 11 Hun 311. There is a line of cases cited and relied upon by the defendants in the court below, and probably will be on the appeal, where clearly no mutuality existed in the papers set up as contracts, and it was held, of course, that neither party was bound. Those cases are, The Chicago and Great Eastern Railway v. Dane, 43 N. Y. 240 ; Campbell v. Lambert, 36 La. An. 351; H. T. C. R. R. Co. v. Mitchell, 38 Tex. 85 ; Knowlton v. Sewall, 10 Allen 34.
    II. Contract rights cannot be terminated nor abridged by a voluntary transfer of interest in the subject matter. The defence seems to proceed upon the theory that a restriction or limitation can be implied from the terms of the contract. The plain intent is, that the coal should be supplied for the year and no restriction whatever appears. Under such circumstances no restriction can be implied. Lyon v. Hersey, 103 N. Y. 264; Coyne v. Weaver, 84 Ib. 390 ; Gifford v. First Presbyterian Society of Syracuse, 56 Barb. 114. There being no limitation expressed in the contract, the only question that remains is, could it be terminated by the voluntary act of the defendants in selling the steamers ? The authorities are uniform in deciding that it could not. Some of the cases adjudged are: Rudge v. Thomas, 3 Bulst. 202 (1690); Charnley v. Winstanley, 5 East
      266 (1802); Ford v. Tilley, 6 B. & C. 325 (1827); Price v. Williams, 1 N. & W. 6 (1836); Stirling v. Maitland, 5 B. & S. 840 (1864); McClearly v. Edwards, 27 Barb. 239; Denison v. Ford, 7 Daly 384. The nearest approach to the defendants’ contention seems to be in the principle found in Taylor v. Caldwell, 3 B. & S. 826, 32 L. R., Q. B. 164, and Howell v. Coupland, L. B,., 9 Q. B. 462, on appeal 1 Q. B. D. 258, but to make those cases similar to the defendants’ contention here, it would have to appear that the defendants there were prevented from performing the contract by their voluntary act. The principle that a breach can be excused for such a reason as the perishing of the subject matter, has not, however, been followed in New York. Tompkins, v. Dudley, and Booth v. Spuyten Duyvil Bolling Mill Co., supra.

   By the Court.—Sedgwick, Ch. J.

The counsel in the argument of the appeal have not raised any question of practice or of form, and have in effect, made the matter to be decided, the same as if on a trial it appeared that the only arrangement between the parties was such as would be proven by the existence of the facts alleged by the defence in the answer to have existed.

Attention is to be given first to ascertaining what were the relations of the parties formed by ,the correspondence between them.

The letter of plaintiff began, “ We propose to furnish,” etc. The answer of defendants was, “We beg to accept your offer,” etc. As the latter was a reference to the former, and as if it referred to something other than the former, there would be no aggregatio mentium, it must be taken that what was termed by defendants, “ your offer ” meant “ your proposal.” The proposal was accepted. This means no more than, that the proposal was assented to. As a proposal is necessarily unilateral, merely accepting it implies no engagement on the side of the party to whom it is addressed beyond this, that the party addressed, implies that he agrees to be bound by the terms of what is proposed. If there is. not to be found in those terms a binding engagement, the party accepting is not bound.

In Justice v. Lang, 42 N. Y. 493, it was held that a verbal promise to buy was sufficient consideration to support a written contract to sell. In the same case on a later appeal, 52 N. Y. 323, it was held that under the circumstances of that case, whether such prondse was made was a question for the jury. It was held that the testimony of the plaintiff that he “ accepted the contract ” would not necessarily show that he had made the verbal promise. Such testimony was equivocal. “In one sense he accepted it when he put the paper in his pocket and carried it away, and in another sense he may have accepted it as a voluntary promise or proposal to sell and deliver the arms, leaving it optional with him to accept or refuse them, and in still another sense by consenting to its terms and agreeing to' abide by and perform it as the vendee named in it.” In the case cited the memorandum signed by the defendant was, “We agree to deliver,” etc.

In the present case, the sense in which the acceptance was made, is determined by the fact that it was only a proposal that was accepted.

In Butler v. Thomson, 92 U. S. 402, the memorandum was signed by a broker common to both parties. The form was “ Sold for A. B. to C. D.” certain goods, etc. The court held that this was a contract of the defendants to buy, because there could be no sale without a buying and therefore the word “sold” comprised the buying. This reasoning would not be applied to a proposal because that could occur without a purchase or a promise to purchase.

In Pordage v. Cole, 1 Saund. 319, the head note is, “If it be agreed between A. & B. that B. shall pay A. a sum of money for his lands, etc., these words amount to a covenant by A. to convey the land; for agreed is the word of both.”

What then were the terms proposed ? The plaintiff was to “ furnish ” three steamers with coal for the year 1888. The subject matter of the proposal, on a view favorable to the plaintiff, was the supply of coal to the steamers for their successive voyages. It was not the obligation of the plaintiff that the coal should be u furnished ” in one mass for the whole year. It could not have been meant that it was a privilege of plaintiff to deliver the whole on the 1st of January or the 31st of December. The intention at least was that there should be successive deliveries from time to time. As' the plaintiff would not know the several amounts, or the times when coal would be needed, it was to be implied thaf the obligation was to furnish coal when notified by the defendants, when and in what quantities coal was needed or to be delivered. This notification was, therefore, a condition of the creation of plaintiff’s duty to furnish the coal. No such notification was given., Therefore there was no obligation on the part of plaintiff to furnish coal and no consideration to defendants for any supposed promise on their part to receive” the coal unless it may be that there was an implied promise by defendants to notify plaintiff. There was no such express promise.

Undoubtedly, if notification was given, the defendants would be liable for the amount specified in the notice at the price named in the terms of the proposal. L’Amoreux v. Gould, 7 N. Y. 349 ; Thayer v. Burchard, 99 Mass. 508 : Great N. R’way Co. v. Witham, 9 L. R. C. P. 507.

I do not think there is any implied promise by defendants to give the notice in question. Thayer v. Burchard, supra; Bailey v. Austrian, 19 Minn. 535 ; Burton v. G. N. R. Co., 9 Exch. 507. The case is not different from that of a bare condition in a grant on which no action to perform the condition lies.

In Booth v. Cleveland Rolling Mill Co., 74 N. Y. 15, the court did not hold, that the ground of the implied promise was any condition contained in the instrument, but that the clause is an agreement signed by defendants that the defendants “ are to proceed at once to make said rails,” etc., could not be interpreted as conditions “and evinced a promise to proceed at once,” etc.

In New England Iron Co. v. Gilbert El. R. R. Co., 91 N. Y. 153, the court did not hold that a statement of a - condition on which there was to be performance on plaintiff’s part implied a promise by defendant to give the notice, but said that it appeared from other covenants, that there was an intention manifested that the defendant should do certain things in which the plaintiff acquired by the contract an interest. Upon that the court did. not definitely hold that there was an implied• promise to do the things or give the notice. It said “ although the defendant does not in express terms undertake to do the act or give the notice which shall set the plaintiff in motion, a promise to do so or at least a promise that the plaintiff shall have the building of the railroad, if that enterprise is prosecuted by the defendant, is clearly to be implied from the covenants and stipulations which were inserted,” etc. From this it would seem, that the latter kind of promise was to be implied, there being some doubt as to the former kind of promise. That case as presented did not make it necessary to determine what would be the measure of damages in the case of a promise not to give work to another, unaccompanied with a valid promise to give it to the plaintiff.

In this case, there is only the condition and nothing else to show an implied promise. The only thing in which the plaintiff could have the interest pointed at in New England Iron Co. v. Gilbert El. R. R. Co., supra, was the payment of the purchase price, and this could not affect the nature of the obligation upon which that price was to be paid.

In Quick v. Wheeler, 78 N. Y. 300, the agreement by defendant was to pay the plaintiff 4i cents per foot for from 6 to 15 thousand feet of timber of same kind, etc., and delivered at the place aforesaid during the winter, etc. The agreement was. signed by both parties. The court said “ There was no mutuality. There was not the consideration which mutual promises give a contract. The plaintiff did not bind himself to sell and deliver the tie timber. Hence this contract can be treated only as a written offer on the part of the defendant to take and pay for the timber upon the terms stated.”

In Jones v. Kent, 80 N. Y. 585, the obligation of the vendee to pay the consideration stipulated for by the vendor, was made the ground of the implied promise •that the court held was made by the vendee, it being the case of property delivered to vendee.

As notice or demand was not given or made, my opinion is that the plaintiff was not held to furnish any coal, and that defendants were not held to pay for any coal that had not in fact been demanded or received.

By the answer, it appeared that the defendants had sold the steamers and did not need any coal for them after June 25, 1888. In view of the conclusion, that the obligation of the defendants to pay depended upon whether they had given a notice or made a request or demand, it is not necessary to examine the matter which would be only an examination of the reason why the defendants ceased to give orders.

The counsel, however, have given a part of their argument to this subject in a certain way.

One side took the position, that as the defendants needed no coal for the steamers after they were sold, they were absolved from the contract, or rather that the contract did not contemplate the furnishing any coal after that time. If this is correct it would be because the contemplation of the parties was, that such coal should be furnished as the defendants needed for the steamers. The other side took the position that whether the defendants needed the coal for the steamers or not, they were bound to take as much as the plaintiff was bound to furnish, and that was as much as the steamers should be supplied with to enable them to make the regular trips of 1888.

The question is, again, what are the implications of the contract. Parsons says, vol. 2, (5th ed.) 515: “Thegeneral ground of a legal implication is, that the parties to the contract would have expressed that which the law implies, had they thought of it, or had they not supposed it was unnecessary to speak of it because the law provided for it.” In Russell v. Allerton, 108 N. Y. 288, in the contract to be construed, was a clause “ charterers to approve the ventilation.” It was necessary to determine whether they might make or not make an approval at their pleasure. The court held that they could not. It was said “ To give the words in question” that meaning “is to place the plaintiff in a matter purely of business, wholly at the mercy of others with whom they were contracting. Could the plaintiff have intended any such results or could the defendant have expected such action on the part of the plaintiff ? ” It was held that under the clause the charterers were hound to approve such devices as would secure ventilation to a reasonably sufficient extent, under the circumstances.

It seems that parties about to make an arrangement as to coaling vessels for a year, would not think that the owner would keep vessels for the sake of having them coaled, or that he would need coal after he had sold them. There would not be among business men the idea, that coal to be bought to he used by the buyer upon vessels would be needed or would be bought for vessels after they had been sold. I therefore think that by the language used, the parties to this arrangement did not mean that the plaintiff should “ furnish ” coal to the vessels after the defendants had sold them and needed no more coal for them. Of course a person can buy more coal than he will need for any specified purpose, and a contract for that is valid. He is not held to the purchase until a construction of the contract shows that such was its meaning. The language of this contract is so undefined, so uncertain, that construction is called for, and that is, that the steamers were to be furnished so long as the steamers remained in the circumstances that existed at the time of the making of the arrangement. The important circumstance now referred to is, that the steamers were owned and managed by the defendants.

The case of Whelan v. Ansonia Clock Company, 97 N. Y. 295, follows the case of Niblo v. Binsse, 1 Keyes 476. Niblo’s assignor had contracted to put certain heating apparatus into a house. Before the work was done the house was burned. The plaintiff sued for the work already done. The defence was, that the contractor had failed to do all the work he contracted to do. This was held to be no defence because, as the court decided, the contractor’s failure was caused by a default of the defendant. “If one party agrees with another to do work upon his house, the law implies that the employer is to have the building in existence upon which the work contracted for may be done.” In the cited case there was no doubt as to the extent of work the contractor agreed to do. In the present case, it has-been said that the true interpretation of the contract did not call upon the plaintiff to deliver, or the defendants to buy coal for the ships wdien they ceased to be under the ownership or management of the defendants. In Tompkins v. Dudley, 25 N. Y. 272, it was held, that if by contract the completion of a house is a condition precedent of the payment of money as compensation, there is no obligation to pay the money unless the house be in fact completed. And though the house was burned, the condition was not performed.

In Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 490, it was. held, that if a party unqualifiedly contracts to deliver 400 tons of rails he must perform his contract or be liable for a non-performance, although his rolling mill, in which he would make the rails, be burned.

In Dexter v. Norton, 47 N. Y. 62, it was held, that when specific property is the subject of a contract of sale with future delivery, title not vesting in the vendee, and before the day of delivery it is burned without fault on the part of vendor, the latter is not bound to a delivery or liable in damages. The reason for this is, that the obligation to deliver is subject to an implied condition that the property sold remains in existence. There is no implied contract by the vendor that it shall exist.

I am of opinion, that the contracts of the parties did not imply that the coal to be furnished ” to the steamers, was such coal as would be needed for them, if they went into other hands than those of defendants.

The judgment below should be reversed "with costs to abide event, and that defendants should have judgment on the demurrer with costs.

Truax, and Dugro, JJ., concurred.


text:
    HENRY DeFOREST WEEKS, as Administrator, etc., Appellant v. JOHN GARVEY, Impleaded, etc., Respondent.

      Subrogation to rights of mortgagee; as to right ofotvner of land conveying subject to his mortgage thereon to be so subrogated on his paying off the mortgage.

    Where one owning land on which he had given a mortgage to secure his bond conveys it to another subject to the mortgage, and subsequently pays off the mortgage, he is entitled to be subrogated to the right of the mortgagee as to the land as against the grantee, although the grantee did not assume the mortgage, and so also as against any subsequent grantees, other than himself, deriving title through his grantee although their conveyances did not in words convey subject to the mortgage ; but if his grantee re-convey to him, such said right of subrogation is thereby extinguished.
    A subsequent conveyance by him and agreement between him and that grantee, whereby he covenanted, on the happening of certain events, to convey to the son of that grantee (neither the conveyance nor the agreement^ referring in any manner to the mortgage), will not invest him with any right of subrogation upon his afterwards paying off the mortgage.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal by plaintiff from judgment dismissing complaint entered on finding and conclusion of the court, in equity.
    The facts sufficiently appear in the opinion.

      George II. Forster., attorney, and Frederick P. Forster, of counsel for appellant, on the questions considered in the opinion, argued :—
    The plaintiff was entitled to be subrogated to the rights of the Dyckmans, the satisfaction should have been canceled, and the mortgage foreclosed.
    The plaintiff advertised for debts,—This bond and mortgage was presented as a valid claim against the estate. ° He paid it by mistake, out of the personal estate derived from the business of James Garvey, and not one cent of which appears to have come from this property. That mistake arose from the omission to record or give any. notice of the papers on which Joseph J. Garvey’s claim was based. The payment was made in April, 1878, and no claim was ever made until April, 1884, when the suit of Garvey v. Owens was begun. The alleged deed under which defendant Garvey claims was made December 14, 1869. For fifteen years he made no claim whatever on it, and not until nearly seven years from James Garvey’s death, and more than six from the payment of this mortgage, was a claim made.
    The defendant insists that he ought to have the benefit of this part of the personal estate of James Garvey, paid by mistake on what the administrator regarded as a just claim on the real estate, and the trial judge sustains this doctrine. On the contrary we submit that the principles clearly apparent from the authorities, demonstrate that, in equity, the plaintiff is entitled to the relief he asked here. Goodnow v. Stricker, 61 Iowa 261; Chapman v. Goodnow, 123 U. S. 543-5; Goodnow v. Moreton, 51 Iowa 555; Goodnow v. Litchfield, 67 Ib. 691; S. C., 63 Ib. 275; Goodnow v. Stricker, 62 Ib. 221; Barnes v. Mott, 64 N. Y. 397; Gans v. Thieme, 93 Ib. 225; Patterson v. Birdsall, 64 Ib. 295; Simpson v. Del Hoyo, 94 Ib. 194; Strusburgh v. Mayor, 87 Ib. 452; Allen v. Mayor, 4 E. D. Smith 404; Townsend v. Whitney, 75 N. Y 429-30 ; Cole v. Malcolm, 66 Ib. 366 ; Re Coster, 2 Johns. Ch. 503; Barnes v. Mott, 64 N. Y. 401; Hyde v. Tanner, 1 Barb. 84.

      George G. Genet, attorney, and of counsel for respondent, on the questions considered in the opinion, argued:—
    The bond and mortgage were James Garvey’s own debt and should have been paid by him, and was properly paid by his administrator. After the making of the bond and mortgage to Dyckman and in 1862 James Garvey conveyed this with other property, to one Morrison for a consideration of $40,000. The deed conveyed the property as subject to several mortgages but. covenanted that it was free and' clear of all taxes, incumbrances, etc., but the payment of none of the mortgages was assumed by Morrison. Thus Morrison’s property was security for James Garvey’s bond for the payment of which he was himself liable to Morrison. .Afterwards and in 1867 Morrison reconveyed this particular piece of property back to James Garvey, and covenanted that it was free from all taxes, incumbrances, etc. Afterwards, and on the 14th of December, 1867, James conveyed the property to John Garvey, without mentioning any mortgage, and the next day John made the agreement with James conveying it back to James in trust to collect the rents and pay himself $3,500, and after paying taxes, repairs and insurance, to convey the property to Joseph J. Garvey on his arriving of age in 1881, and to account to him for the rents and profits. “ Property covered by a mortgage is worth less by the amount of the mortgage.” “ Where defendant sold premises to plaintiff upon which there was a valid mortgage, of which fact the vendee, the plaintiff, was ignorant, Held the latter could maintain an action for false representations in the sale. The damages would be the mortgage and interest.” Krum v. Beach, 96 N. Y. 398.
   By the Court.—Sedgwick, Ch. J.

The question made by appellant on this appeal arises from the following facts. '

■ The plaintiff was the administrator of James Garvey, who died intestate. The intestate, at the time of his death, was in actual possession of a house and lot, which was incumbered by a mortgage made by him to secure his bond. He appeared from the record to have title. The administrator paid the bond and a satisfaction of the mortgage was made by the mortgagee. Afterwards the administrator ascertained that James Garvey had conveyed the property to Michael Morrison, subject, as expressed in the conveyance, to certain mortgages, of which the satisfied mortgage was one. Afterwards Morrison reconveyed the premises to James Garvey, the conveyance not alluding to the mortgage. Afterwards, according to the 6th finding, James Garvey conveyed to John Garvey. Then James and John made a sealed contract in which John reconveyed to James and James covenanted to convey to the son of John upon the happening of certain events. Neither the last conveyance nor the agreement contained any reference to the mortgage. For the purposes of this appeal it is not necessary to give any further details, excepting that in a suit, to which the plaintiff was not a party, the contract last referred to was enforced so that conveyance was made to John Garvey as the heir of his "son who had died.

On these facts the plaintiff claims that at the time he paid, in satisfaction of the mortgage, he was entitled to be subrogated to the rights of the mortgagee, as against the land, because he was a surety as to that land, the land having been conveyed by James Garvey subject to the mortgage, and that he having paid the mortgage in ignorance of the unrecorded conveyance to Morrison, his right of subrogation still exists.

My opinion is, that the claim cannot be sustained. Conceding that it was apparently the duty of the plaintiff as administrator to pay the bond and mortgage if the intestate had not conveyed the land, yet the reconveyance to the intestate annulled the rights that might have existed in him had he not reconveyed it.

A person buying subject to a mortgage buys an equity of redemption, and a purchaser of the equity redemption pays less, by legal intendment, than the value of the property as it would be, if unincumbered by the amount of the incumbrance. The grantee then has value reserved in his hands to be applied to the incumbrance. Cox v. Wheeler, 7 Paige 257; Vanderkemp v. Shelton, 11 Ib. 34. Such was the state of matters when the conveyance to Morrison was made.

If Morrison had conveyed to another than James Garvey, the grantee would have held the land subject to the equitable right to have the land applied to the mortgage, although the conveyance did not convey, in words, subject to the mortgage. Jumel v. Jumel, 7 Paige 594. The grantee being James Garvey, the mortgagor, he became repossessed of the fund or value which his grantor had formerly held and which was primarily to be applied to the mortgage. Moreover, he took a covenant against incumbrances from which the mortgage was not excepted. It was not mentioned in the deed to him as it had been in the deed by him. The reconveyance put him in possession of the indemnity that was provided in the deed to him.

The subsequent conveyances do not disclose any foundations for an equity like that claimed in the action.

Judgment affirmed with costs.

Truax and Dugro, JJ., concurred.


text:
    HENRY De FOREST WEEKS, as Administrator, etc., Respondent v. JOHN GARVEY, Impleaded, et al., Appellants.

      Judgment for costs against administrator, etc., proper entry of, upon a de cisión made by the court in an equity action brought by an administrator, dismissing the complaint with costs. Parties, representative capacity, when action must be brought in.

    Where in an equity action by IT. De F. W. as administrator tried by the court, the court decided that the defendant was entitled to judgment dismissing the complaint with costs, and directed judgment to be entered accordingly, the clerk is not authorized to enter a judgment adjudging that such defendant ‘ ‘ recover judgment against H. De F. W. ” for the amount of the costs; he should enter it against “ H. De F. W. as administrator, etc.,” according to his description in the pleadings. In such an action no personal judgment for costs can be entered against the plaintiff without a special direction of the court to that effect.
    The insertion in such case in the judgment as entered after the words “ H. De F. W.” of the words “ exclusively chargeable on and collectible from the estate or .funds of.....deceased,” is improper.
    Note :—See preceding case for a decision on the merits.

      Where an administrator, claiming a right in his intestate to be held as a quasi equitable surety, brings an action based solely on such claimed right, he must bring it in his representative capacity, and not in his individual capacity.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal by defendants from an order amending judgment.
    Statement of the Case by the Court.
    The action was in equity and the whole issue was of fact (§ 964). The decision of the court was “to direct the judgment to be entered ” (§ 1021), and the clerk was to enter judgment as directed therein (§ 1228).
    The decision of the court was “ that the defendant John Garvey, is entitled to judgment dismissing the complaint as to him, with costs, and I direct that judgment be entered accordingly.”
    The clerk, in performing his ministerial duty on ex parte application of defendant, entered a judgment adjudging that J. G. do and have and recover judgment against Henry De Forest Weeks for the amount of the costs that had been taxed.

      George G. Genet, attorney, and of counsel for appellants, argued:—
    It is a well settled principle of law that after an executor or administrator reduces the personal property to possession, he ceases to hold it in a representative capacity, and all actions concerning it must be brought in his name as owner, and notwithstanding he calls himself administrator, he does not sue in a representative capacity. Thompson v. Whitmarsh, 100 n. Y. 35; Buckland, as Adm’r v. Gallup, 105 n. Y. 453. Section 1814 has not changed the rule, “ The phrase representative capacity includes only those causes of action which accrued in the lifetime of the decedent.” Bingham v. Marine Bank, 41 Hun 317; Buckland v. Gallup, 105 N. Y. 457.
    The complaint alleges a cause of action that accrued wholly after plaintiff became administrator. The payment of the bond was with funds of the decedent which he had reduced to his actual possession and the mistake, if any, in paying the bond and satisfying the mortgage of record, was his mistake and not that of the decedent; therefore, he did not in any respect bring this suit in a representative capacity. In the title of the suit plaintiff describes himself as administrator. But the nature of the action is not determined by the title of the suit, but by the allegations in the body of the complaint, so that although the title showed that he sued as administrator, yet if the allegations of the complaint showed that he had no cause of action as administrator, but did show an individual cause of action, the complaint would not be dismissed, but the court would try the suit as if brought for the real cause of action, if any. Stetwell v. Carpenter, 62 N. Y. 639.
    The court below tried the case, therefore, upon the merits, and finding that plaintiff had no cause of action, dismissed the complaint as to John Garvey with costs. In such a case the proper and only judgment to be entered for the costs is a judgment against the plaintiff, he being personally liable for the costs, and if such a judgment is set aside by a judge at chambers or special term, the appellate court will reverse it. Buckland as Adm’r v. Gallup, 105 N. Y. 453.

      George H. Forster, attorney, and Frederick P. Forster, of counsel for respondent, argued :—
    I. The clerk had no power to enter a personal judgment against plaintiff without a direction to do so by the court, and he had no power to disregard the conclusions of law directing judgment against plaintiff as administrator. U. S. Life Ins. Co. v. Jordan, 46 Hun 201; Rosa v. Jenkins, 31 Ib. 384; Code §§ 1814, 3246 ; Woodruff v. Woodruff, 14 How. 481; Slocum v. Barry, 38 N. Y. 46 ; Marsh v. Hussey, 4 Bosw. 614 ; Cunningham v. McGregor, 12 How. 305; Stuart v. Palmer, 74 N. Y. 191; In re Ford, 6 Lans. 94; Dodge v. Crandall, 30 N. Y. 294; Lindslay v. Deafendorf, 43 How. 90; Hone v. De Peyster, 106 N. Y. 648 ; Dean v. Roseboom, 37 Hun 311.
    II. The action was not one in which if an application on notice had been made, the administrator would have been charged personally. Spencer v. Strait, 40 Hun 463 ; Hone v. De Peyster, 44 Ib. 487 ; Sherman v. Page, 21 Ib. 63-4; Hall v. Richardson, 22 Ib.. 446 ; Bucldand v. Gallup, 105 N. Y. 455; Bingham v. Marine Nat. Bank, 41 Hun 377 ; Merritt v. Seaman, 6 Barb. 330; 6 N. Y. 168; Cheney v. Beals, 47 Barb. 523 ; Eagle v. Fox, 28 Ib. 473; Bright v. Currie, 5 Sand. 433.
   By the Court.—Sedgwick, Ch. J.

Assuming, as the parties have assumed on the argument, that this was an award of costs against the plaintiff to be made out of his own property, the clerk’s action was incorrect if it be conceded that the action was brought by plaintiff in a representative capacity.

Section 3247 says that, in an action like this, costs must be awarded “ as in an action by a person prosecuting in his own right,” but they are exclusively chargeable upon and collectible from the estate fund or person represented, unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution of the action. There has been no direction as to plaintiff’s liability in consequence of bad faith. The court that ordered what judgment should be entered did not make such a direction. Whatever the judgment, in form, the costs could not be collected except from the estate, and I take it, the words “ as in an action by a person prosecuting in his own right,” mean, only that there shall be an absence from the award of any discrimination as to whether the person or the estate is to pay, and not that a true description of the plaintiff, as it appears on the record, shall be omitted. And therefore the clerk should have described the plaintiff as the pleadings described him, that is, as administrator, &c.

The court making the order below, had power to correct the mistake of the clerk in this respect. I think, however, that there should not have been inserted the words “exclusively chargeable upon and collectible from the estate or funds of said James Garvey, deceased.” These words to be sure, embody only a true legal consequence of the award of costs against the plaintiff as administrator, but inserting them is therefore unnecessary, and perhaps implies that there has been an adjudication that the plaintiff has been held, by the court trying the case, as not liable personally. It does not appear that the court has had the question presented.

The learned counsel for the defendant argues, that by the record it appears that the case is not within section 3246, and for the reason that on the whole record, it appears that the plaintiff did not bring the action in his representative capacity.

The court in Thompson v. Whitmarsh, 100 N. Y. on p. 40, said in considering the effect of sections 449 and 1814, that “ the effect of the section and the change produced by it, is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor has taken a new security or evidence of debt. In these cases, before the code, the action might be in the individual or representative name, but now must be in the latter.” Cole v. McClellan, 4 Hill 59.

The substance of the claim, not regarding unnecessary details, is the following: The plaintiff’s intestate died, being liable to pay a certain bond made by him and secured by property owned by him at the time he made the bond. When he died, he had executed a deed conveying the property to third parties, whose representatives are the defendants to this action. This deed was not upon record at the time of his death. After his death the plaintiff, as administrator, paid the bond and mortgage and took a satisfaction piece, in ignorance that the land had been conveyed by his intestate. In this action he claims, that if the mistake were held corrected in equity, he then would have been entitled to an assignment of the mortgage, on the ground that the land was the primary fund for its payment. The ground of this claim was the right of his intestate to be held as a quasi equitable surety, and it is upon such a right only that there could be a recovery. For this reason, I am of opinion, that the plaintiff’s claim is only that of a representative.

Perhaps none of these facts existed, and perhaps the testator was not a surety. Yet, the only question here is, in whose behalf did he sue or could he have, sued in his own. This must be answered favorably to the plaintiff.

The order appealed from should be modified by strik- . ing out the words “ exclusively chargeable,” etc., and as modified affirmed, without costs.

Tbuax and Dugbo, JJ. concurred.


author: By the Court.—Truax, J.

text:
    NELLIE L. DEXTER, Appellant v. EDWARD DEXTER, Respondent.

      Conversion of goods, damages for.

    In the case at bar, the goods in question were taken by defendant as the assignee for the benefit of creditors of one John W. Dexter. A demand for the goods was alleged in the complaint and admitted by the answer, but it was shown on the trial that at the time the demand was made the goods had been destroyed by fire, without any fault or negligence on the part of the defendant. Held, that a demand and refusal to deliver, do not establish a conversion where at the time of such demand the property in question is not in existence, and that the accidental loss or destruction of an article by one lawfully in its possession, is nota conversion, and the complaint was rightfully dismissed.
    After the plaintiff had rested her case and the defendant had moved the dismissal of the complaint and the court had announced its intention to grant the motion, the plaintiff offered to show that her assignor, to whom she alleged the goods in fact belonged, was driven away from the house in which the goods were stored and from which they were afterwards taken by the defendant, and that the defendant knew of this fact before the assignment was made to him, and before he took the possession of the goods. The court below refused to allow the plaintiff, at that stage of the proceedings, to show this fact. Held, that under the circumstances of the case, this refusal was not error.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal from a judgment dismissing the complaint, on trial before a jury.

      Alexander Thain, attorney for appellant.

      Uawkesworth <&> Bankine, attorneys, and Jacob F. Miller and William B. Bankine, of counsel for respondent.
   By the Court.—Truax, J.

The action was brought by the plaintiff to recover damages for the conversion of certain goods. The evidence shows that the goods were taken by the defendant as the assignee for the benefit of creditors of one John W. Dexter, and that at the time the goods were taken by the defendant they were in the possession and under the control of the said John W. Dexter.

It was held by this court in the case of Goodwin v. Goldsmith, 49 Super. Ct. Rep. 101, that in order to establish a conversion as against an assignee for the benefit of creditors who has simply taken the property of his assignor, it is necessary to show that a demand has been made upon him, and that he has refused to comply with such demand.

A demand was alleged in the complaint and was admitted by the answer. But it was shown on the trial that at the time this demand was made the goods had been destroyed by fire, without any fault or negligence on the part of the defendant.

It was held by the Commission of Appeals in the case of The Salt Springs National Bank v. Wheeler, 48 N. Y. 492, that a demand and refusal to deliver do not establish a conversion where, at the time of the demand, the property in question is not in existence, and that the accidental loss or destruction of an article by one lawfully in its possession is not a conversion. For this reason we are of the opinion that the complaint was rightly dismissed.

After the plaintiff had rested her case and after the court had intimated its intention of dismissing the complaint, the plaintiff offered to show that her assignor, to whom she alleged the goods in fact belonged, was driven away from the house in which the goods were stored and from which they were afterwards taken by the defendant, and that the defendant knew of this fact before the assignment was made to him and before he took the goods. The court refused to allow the plaintiff to show this fact. Under the circumstances of the case, as shown in the papers on this appeal, we cannot say that it was error in the court not to allow the plaintiff to re-open her case.

The judgment appealed from is affirmed with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    CHARLES CORDS, JR., by Guardian, &c., Respondent v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.

      Negligence, action to recover damages for injuries caused thereby. Failure of proof, etc.

    The complaint in this action alleged that the plaintiff “was violently struck and seriously injured by one of the cars of the defendant, and through its negligence and carelessness, and the negligence and carelessness of its employees or servants ” the injury was caused, etc. This allegation was denied by the defendant. The court charged the jury, in substance, that if there was any negligence, it must be found in the negligence of the driver of the car, and for his negligence the defendant was responsible. To this portion of the charge the defendant excepted, and stated as the ground of the exception, that there was no proof that the driver was the defendant’s employee, or that it was responsible for him. -

      Held, that by this exception to the charge the attention of the court was drawn to the fact that there was no proof that the driver was employed by the defendant, and there being no evidence that the driver was employed by the defendant, there was no evidence of defendant’s negligence, and for this reason the judgment was reversed.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.

      Hoadley, Lauterbach & Johnson, attorneys, and Wm. JSf. Cohen, of counsel for appellant.

      Miller & Savage, attorneys, and George W. Miller, of counsel for respondent.
   By the Court.—Truax, J.

The action was brought to recover damages for injuries which the plaintiff alleged that he sustained through the negligence of the defendant. The defendant denied its negligence.

It was shown on the part of the plaintiff that he was injured by one of the cars that run through 125th street in the city of New York, while he was near Second avenue.

The allegation of the complaint was that the defendant owned this car. • This allegation was denied by the defendant.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground, with other grounds, that there was no evidence of any negligence on the part of the defendant. At the close of the whole case he renewed this motion. The motion was denied, and then the defendant asked the court to direct a verdict for the defendant on the same ground. This motion was also denied. To each of these denials the defendant duly excepted.

The court charged the jury, that if there was any negligence on the part of the defendant it must he found in the negligence of the driver who drove the horses attached to the car in question. No other possible ground is disclosed by the evidence. But for said driver’s negligence the defendant is responsible.” To this the defendant duly excepted, and stated as the ground for such exception, that there was no proof of the driver’s being , the defendant’s employee, or that it was responsible for him.

We are of the opinion that the attention of the court was not specifically directed to the fact that there was a failure on the part of the plaintiff to show that the defendant owned and controlled the car which caused the injury and employed the driver of that car, by the motion to dismiss the complaint on the ground stated; but the attention of the court was drawn to this fact by the exception to the portion of the charge above given. An examination of the case shows that there is no evidence that the driver, who was on the car at the time of the accident, was employed by the defendant. There is no evidence that the defendant owned or controlled the cars running through 125th street, and therefore there is no evidence in the case that the defendant was negligent.

For this reason, the judgment is reversed and a new trial is ordered, with costs of this appeal to the party who finally prevails in the action.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    THOMAS ADAMS & COMPANY, Limited, Appellant v. SALY I. MAYER, et al., Respondents.

      Goods sold and delivered. Contract for same.

    The contract in this case provided that the goods were to be shipped by plaintiffs to defendants “ as soon and in as large quantities as the plaintiff reasonably could." The goods were shipped, consigned to defendants at New York. The defendants received, entered and warehoused the same, and they remained in their possession for about three years. After the goods reached New York and the defendants, they wrote to plaintiff in substance, “ We regret that we cannot use the goods; ive will accept the goods at a price" less than the price mentioned in the contract between the parties.

      Held, that if the defendants intended to rely upon the terms of the contract, it was their duty to refuse to receive the goods, and to notify the plaintiff of that fact. What they wrote to plaintiff was not a refusal to accept the goods.

      Also, that the dismissal of the complaint at the trial upon the ground that the plaintiff must show as a condition precedent that the goods were shipped to Hew Yorlc.m as large quantities as plaintiff reasonably could, and because of the failure to show this fact the plaintiff had failed to prove his ease, was error. •
    Before Sedgwick, Ch. J., and Truax, J.

      Decided April 15, 1889.
    Appeal from a judgment dismissing the complaint upon a trial before the court and a jury.
    McFarland, Boardman & Platt, attorneys, and W. W. MacFarland, of counsel for appellant.

      David Leventritt, attorney, and of counsel for respondents.
   By the Court.—Truax, J.

The material allegation of the complaint is, that the plaintiff sold and delivered to the defendants certain goods. It is true that the plaintiff sets up in the complaint the terms of the contract under which the goods were sold and delivered, and alleges that the said contract provided that the said goods were to be shipped by the plaintiff to the defendants “ as soon and in as large quantities as the plaintiff reasonably could”; but in view of the allegation that the goods were delivered to the defendants, this allegation becomes immaterial.

It was shown on the trial that the goods were shipped from Liverpool, consigned to the defendants at New York. The defendants went to the custom house with the bill of lading and invoice and the goods were entered by the defendants, warehoused by them, and remained in their possession and out of the possession of the plaintiff for about three years. After the goods had reached the port of New York the defendants wrote to the plaintiff in substance as follows: “ We regret that we cannot use the goods. We will accept the goods at a price ” less than the price mentioned in the contract between the parties.

It was the duty of the defendants, if they intended to rely upon the terms of the contract, to refuse to receive the goods and to notify the plaintiff of that fact. Saying to the plaintiff, “ we regret that we cannot use the goods, we will accept the goods at a price ” less than the price named in the contract, is not a refusal to accept the goods.

It is also to be noticed that it was alleged in the complaint that the goods were to be delivered by consigning the same to the defendants in New York, and this allegation was admitted by the defendants.

The complaint was dismissed at the trial upon the ground that the plaintiff must show as a condition precedent that the goods were shipped to New York in as large quantities as plaintiff reasonably could, and that, because of the failure to show this fact, the plaintiff had failed to prove his case.

We are of the opinion that this was error.

This view of the case renders it unnecessary to discuss the question presented by the ruling of the court in striking out the deposition of the witness Hellers.

The judgment appealed from is reversed and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., concurred.


author: By the Court.—Dugro, J.

text:
    THEODORE HAEBLER et al., Appellants v. JOHN G. BERNHARTH, et al., Respondents.

      Warrant of attachment, issue of, when causes of action exist that are specified under section 635 of the Code of Civil Procedure. Proof of the same required, etc.

    The proof required to be made by section 636 of the Code of Procedure, is legal proof or evidence, and the judge has no right to be satisfied with less, and it should be by affidavit stating facts, not conclusions. A verified complaint if regarded as an affidavit must fulfil the requirements of other affidavits as to the manner of stating the facts. In any event the facts established by the affidavits, should fully sustain the claim made upon them before the plaintiff can be entitled to an attachment. A plain case must be made by reasonable and satisfactory proof. Held that the order of the special term, in this case, vacating the attachment, should be affirmed.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 15, 1889.
    Appeal from an order vacating a warrant of attachment.

      Marshall P. Stafford, attorney, and of counsel for appellants.

      Billings & Cardoza, attorneys, and Michael 3. Cardoza and Edgar J. Nathan, of counsel for respondents.
   By the Court.—Dugro, J.

This is an appeal from an order vacating a warrant of attachment. The motion to vacate was made upon an affidavit on which the warrant was granted.

The plaintiffs claim that the complaint was also one of the papers presented on the application for the attachment.

The complaint, after alleging the plaintiffs’ copartnership and that of defendants’, reads:

“III.—That between, on or about the 30th day of January and the 4th day of February, 1888, the plaintiffs bought of the defendants one thousand bags of beans to be shipped from France, and on or about the 22d day of March, 1888, the plaintiffs paid the defendants the price agreed therefor.

“ IV.—That the defendants warranted and guaranteed that said beans should be of a kind and quality equal to the sample furnished to plaintiffs by defendants at the time of said purchase.

“V.—That the beans delivered to the plaintiffs by the defendants, under said contract, were not of a kind and quality equal to said sample, but were greatly inferior thereto.

“ VI.-—That by reason of the breach of warranty by the defendants, as aforesaid, the plaintiffs were damaged in the sum of $1,064.51.

“Wherefore the plaintiffs demand judgment against the defendants in the sum of $1,064.51, besides costs of this action.” .

The affidavit is as follows:

“ City and County of New York, ss. :

“ Theodore Haebler, being duly sworn, says that he is one of the plaintiffs named in the above entitled action, which has been brought to recover the sum of one thousand sixty-four aV0 dollars, as damages suffered by the plaintiffs by reason of a breach of warranty by the defendants as to the kind and quality of one thousand bags of beans purchased and paid for by the plaintiffs, to be shipped by the defendants from Havre, France, under said warranty.

“ That the defendants are not residents of this state, but reside at Havre, France.

“ That the plaintiffs are entitled to recover from the defendants the sum of one thousand sixty-four iVo dollars over and above all counterclaims known to deponent.”

Assuming that the complaint formed part of the papers used to obtain the warrant of attachment, I cannot see how the plaintiffs have shown that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendants.'

The showing which the plaintiffs are required to make by section 636, is a showing by legal proof; the judge has no right to be satisfied by less. Section 683, by the words, new proof by affidavit on the part of the plaintiff,” is convincing upon this point. The proof required should be by affidavit stating facts, not conclusions.

The verified complaint, if regarded as an affidavit, must nevertheless comply with the requirements of other affidavits as to the manner of stating the facts. No fact is stated in any of the papers which could fairly be considered as proof that the plaintiffs have (assuming a cause of action to be stated) sustained more than nominal damages, and such damages would not sustain the attachment.

It appears upon the face of the affidavits that, by reason of defendants’ breach of warranty, plaintiffs have been damaged in the sum of $1,064.51, but this is not a showing of the fact by proof; this is simply an allegation of the fact which is probably based upon the affiants’ conclusions: If the grounds of the conclusion appeared in the affidavits there might have been a showing by proof. The plaintiffs’ statement would as well have warranted a claim of $5,000, as one of $1,064.51. The facts and the affidavit should appear to sustain the claim made upon them before the plaintiffs can be entitled to an attachment.

In Smith v. Davis, 29 Hun 308, it is held that a plain case must be made out by reasonable and satisfactory proof, and that where it is not it follows that the attachment must be set aside.

I think that the order of the special term should be affirmed with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Truax, J., concurred.