author: Hooper C. Van Vorst, Referee. Per Curiam.

text:
    MARY IRVING as Trustee, &c., Respondent v. JAMES J. CAMPBELL, Appellant.

      Specific performance by vendee of a contract to purchase land—Action to compel—Inchoate right of dower—Conveyance by wife.

    The main question in this ease related to the title of the plaintiff to the land that was the subject of the contract. That title was held to be good and the judgment in the case was affirmed on appeal, on the opinion of the referee before whom the case was tried.

      Held, that in this state a deed or other instrument unduly registered, either from want of a valid acknowledgment or otherwise, is not notice to subsequent purchasers or mortgagees. Pecku. Mallams, 10 JV. T. 509 ; 4 Kent's Com. 174, but the fact that the official certificate does not follow the precise words of the statute, does not show a failure of a substantial compliance with its provisions, or that the real object and purpose of the statute has not been reached in what was actually done. Clerical errors, changes in phraseology or omission of words, clearly not of the substance of the statute may be disregarded. West Point Iron Company v. Reymert, 45 N. T. 703, as in Jackson v. Gumaer, 2 Cow. 552, 556, the officer certified that “ before me came DeWitt C. Rose ” “to nie known and acknowledged ” etc. and the words “tobe the person described in and who executed the deed ” required by the statute to be stated in the certificate were omitted, and it was urged that this omission was fatal, but the court per Savage, Ch. J., held the objection to be “technical ” and it was disregarded. Jackson v. Osborn, 2 Wend. 555.
    In the case under consideration, the execution of the conveyance was proved by a subscribing witness thereto, under 1 B. 8. 756, § 12, and the residence of the subscribing witness is not stated in the certificate of the officer taking the acknowledgment. Held, that this omission was not fatal, and might be regarded as unsubstantial, and that the above decisions cover the case. Such certificates should be liberally construed and clearly with reference to the object and purpose to be reached. Smith v. Boyd, 101 N. T. 477 ; Cuylcendall v. Douglas, 19 Hun, 585 ; Hunt v. Johnson, 19 N. T. 279. When the proof is made by a subscribing witness, the officer cannot take the proof, unless he is personally acquainted with the witness, or has satisfactory evidence that he is the same person who was a subscribing witness to the instrument. The chief and substantial thing is, however, that the officer shall in all cases be satisfied, that the execution of the deed is the act of the person described in and who executed it. In order to be satisfied of the identity of a subscribing witness, it is not absolutely necessary that the officer should know his residence. The real end and purpose the statute sought to reach, has been gained by the certificate. Hellreigel v. Manning, 97 A7. Y. 56, which was an action for specific performance, holds that defects in the record or paper title may be cured by parol evidence. The record of the title to this property remaining in the register’s office, of which every person is bound to take notice, deprives the objection taken in this case of any force. It supplies every fact alleged to be wanting in the certificate. The subscribing witness, Gideon J. Tucker, had formerly owned this property, and in 1870 he conveyed the same to Lawrence. In Tucker’s deed which is on record, he is described as of the city and county of New York, and his acknowledgment of that deed was made before the same notary public, before whom he afterwards appeared to testify to the execution of the deed from Lawrence to Irving, now in dispute. In view of these facts appearing on the record, the objection taken must be regarded as merely “technical” and is overruled.
    In this state a married woman may convey her lands, or any interest she may have in land, by deed duly acknowledged, although her husband do not join therein, and a release by a wife of her inchoate right of dower “to the holder of the title,” is valid even if executed by her alone (Savage v. Grill, 19 Hun, 4; 80 N. Y. 630). Malloney v: Horan, 49 N. Y. 112-117, by a clear implication holds the same doctrine, and a clearer expression to the same idea by Folg-ee, J., is given in Merchants Bank v. Thomson, et al., 55 N. Y. 7.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided October 25, 1888.
    Appeal from a judgment entered upon the report of a referee, in favor of plaintiff and against defendant and from an order subsequently entered directing money judgment for plaintiff and deposit of deed. The action was brought by plaintiff to compel specific performance by defendant of a contract to purchase real property in New York. The issues in the action were upon the title of the plaintiff to the land in question.
   Hooper C. Van Vorst, Referee.

This is an action by the vendor to compel the specific performance by the defendant of a contract for the sale and purchase of land. The objections to the plaintiff’s title interposed by the defendant necessitates an examination of the recording acts. The statute declares that an unrecorded deed shall be void as against any subsequent purchaser, in good faith and for a valuable consideration ” of the sanie real estate. 1 R. S. 756, § 1. To entitle a conveyance of land to be recorded the statute prescribes and limits the proof needed to establish its execution. The execution of the conveyance may be acknowledged by the person executing the same before an appropriate officer or it shall be proved by a subscribing witness thereto. When proved by a subscribing witness which is the case under consideration, the witness “ shall state his own place of residence, and that he knew the person described in and who executed such conveyance.” lb., § 12. It is further provided that the officer taking the acknowledgment shall indorse on the conveyance a certificate signed by. himself, setting forth among other things the names of the witnesses examined before him and their place of .residence. 1 R. S. 759, § 15.

In the case under consideration the deed itself, the execution of which is claimed to have been proven by Gideon J. Tucker a subscribing witness thereto, is lost, and a certified copy of the same taken from the record thereof in the register’s office has been received in evidence. The sufficiency of this record as evidence is objected to by the defendant’s counsel upon the ground that the residence of 'the subscribing witness is not stated in the copy certificate written on the certified deed.

There is a want of harmony in the decisions in respect to the effect of a record of a conveyance, the official proof of the execution of which, to entitle it to be' recorded, is not in substantial compliance with the provisions of law directing the record of deeds. In Pomeroy s Equity Jurisprudence, vol. 2, § 600, it is said u that the regular defective or improper recording of an instrument although clearly not a constructive notice under the statute, may be sufficient to put a purchaser upon inquiry and so constitute an actual notice.” Upon an examination of the cases that learned author says “that there is upon that point a conflict of judicial opinion.” But in this state it is held that a deed or bther instrument unduly registered, either from want of a valid acknowledgment or otherwise is not notice to subsequent purchasers or mortgagees. Peck v. Mallams, 10 N. Y. 509 ; 4 Kent's Com. 174. But that the official certificate does not follow the precise words of the statute, does not show a failure of a substantial compliance with its provisions, or that the real object and purpose of the statute has not been reached in what was actually done. Clerical errors, changes in phraseology, or omission of words, clearly not of the substance of the statute may be disregarded. West Point Iron Company v. Reymert, 45 N. Y. 703.

In Jackson v. Gumaer, 2 Cow. 552, 556, the officer taking the acknowledgment of the execution of the instrument certified that “ before me came DeWitt C. Rose,” to me known and acknowledged,” etc. The words “ to be the person described in, and who executed the deed ” required by the statute to be stated in the certificate were omitted. It was urged that this omission was fatal. The court per Savage, C. J., held the objection to be “technical,” and it was disregarded. Jackson v. Osborn, 2 Wend. 555.

The value and importance of the particular words omitted from the certificate in the case under consideration, under the recording acts has not been the subject of judicial decision. It is a new objection. But without violating the principle which has been heretofore applied in determining what was a substantial and proper compliance with the terms of the statute, and what omissions in the form of a certificate might be regarded as unsubstantial, it may be properly held that the above decisions cover the case in question. Such certificates should be liberally construed and clearly with reference to the object and purpose to be reached. Smith v. Boyd, 101 N. Y. 477; Cuykendall v. Douglas, 19 Hun, 585; Hunt v. Johnson, 19 N. Y. 279.

The purpose of the statute is clear, and everything that effectuates that purpose is material and cannot be disregarded. The statute provides that to entitle it “ to be recorded” the deed shall be acknowledged by the party executing the same or shall be proved by a subscribing witness thereto. 1 R. S. 756, § 4.

When taking the acknowledgment of the execution of a deed by the grantor himself, the officer must know, or by evidence be satisfied, that the person making such acknowledgment, is the individual described in and who executed the same; and with the same principal object in view, when the proof is made by a subscribing witness, the officer is not to take the proof unless he is personally acquainted with the witness, or has satisfactory evidence that, he is the same person who was a subscribing witness to the instrument. Ib. 12, supra.

The chief and- substantial thing is, however, that the officer shall in all cases be satisfied that the execution of the deed is the act of the person described in and who executed it. In orders-to be satisfied of the identity of a subscribing witness it is not absolutely necessary that the officer should know his residence. In the case under consideration the witness, who for several terms had been surrogate of the city and county of New York, was a well-known resident of that city. The real end the statute sought to reach for all purposes seems to have been gained by the certificate, a copy of which is indorsed on the certified copy deed.

Hellreigel v. Manning, 97 N. Y. 56, which was an action for specific performance, holds that defects in the record or paper title may be cured by parol evidence. But the record of the title to this property remaining in the register’s office, to which no possible objection can be made, and of which every person dealing with it is bound to take notice, deprives the objection taken in this case of any force. It supplies every fact alleged to be wanting in the certificate. The subscribing witness, Gideon J. Tucker, had himself formerly owned this property, and in 1870 he conveyed the same to Lawrence. Tucker’s deed to Lawrence is on record. In it Tucker is described as of the city and county of New York, and his acknowledgment of the execution of that deed was made before the same notary public before whom he afterwards appeared to testify to the execution of the deed from Lawrence to Irving. In view of these facts, the objection taken in this case must be regarded as “ technical.”

For all the purposes which the recording act is intended to serve, the whole record conceruing a parcel of land anterior to a conveyance, the sufficiency of the record of which as a notice to subsequent purchase is challenged for defects of the nature of those involved in this action, and which are in truth unsubstantial, should be considered in determining whether the entire record does not supply every defect however formal, and afford ample notice of the state of the title and of every fact under the law necessary to be known by one who in good faith seeks to become a purchaser of the same real estate.

But if the view above expressed should not appear to be well founded, still sufficient appears in the evidence to show that the plaintiff has a good and valid title to the premises in question, and that no sufficient reason exists in law or equity for refusing a decree in her favor for a specific performance of the contract. The title of Lawrence is not questioned. His deed to Eliza Irving through whom plaintiff claims, is lost, but with the disappearance of her deed the title of the grantee in the premises was not destroyed. Granted that the deed from Lawrence to Irving has never been recorded, or that the record was ineffectual for any purpose, the plaintiff’s case is yet made out with a reasonable certainty. A conveyance of land although unrecorded is good and effectual between the parties thereto and their heirs, and as to all others who had knowledge or notice of the conveyance.

The existence and quality of a lost conveyance although unrecorded, may be proved by parol. Lawrence conveyed to Eliza Irving in 1871. That is clearly shown by the testimony of Gideon J. Tucker, the subscribing witness to the deed, who was examined as a witness before me, and the copy deed taken from the records was satisfactorily proven to be a copy of the conveyance to her. Lawrence who lived several years after he parted with the title upon his conveyance yielded the premises to his grantee, Mrs. Irving, who has continued in actual and undisturbed possession ever since. Such open possession with claim of title of itself constitutes notice to all persons. Brown v. Volkening, 64 N. Y. 82 : Pope v. Allen, 90 Ib. 298.

, Mrs. Irving’s right and title has never been disputed. No claim has been interposed by any person adverse to her right. The record shows no conveyance in opposition or hostile to her title. Is it reasonable to suppose under all the facts of this case that there is in existence .any purchaser in good faith from Lawrence other than Eliza Irving with an unrecorded deed ? Many things may be supposed and many conjectures entertained, but to be effective as casting a cloud upon title to land they must be reasonable. There must be a real question and a real doubt. Flemming v. Burnham, 100 N. Y. 10.

To this might be added “ real persons ” and not imaginary ones, who were at least entitled to make a fair, claim adverse to the plaintiff. The doubt must be shown to be reasonably based on facts proved to exist, something more than a mere possibility. The rule laid down in Schermerhorn v. Niblo, 2 Bos. 161 is applicable here : The law does not regard a bare possibility that the title may be affected by existing causes which may subsequently be developed, when the highest evidence of which the nature of the case admits, and evidence amounting to moral certainty is given, that no such cause exists, will not be regarded as a sufficient ground for declining to compel a purchaser to perform his contract.”

A right in favor of no person has been asserted. None is shown to exist or even tó be claimed. And under the facts it is the wildest conjecture that any could be based upon any substantial foundation. It is scarcely possible even, that the testimony of the subscribing witness Tucker, as to the execution by Lawrence of the deed to Irving, could ever be contradicted or shown to be false. Every presumption legal and moral is in favor of its truthfulness. And that evidence settles the question of the plaintiff’s title in her favor beyond any reasonable doubt.

I think that there is no weight in the second objection interposed by the defendant.

It is clear that under the reformed trust deed the plaintiff had full' power and authority to make a valid conveyance of the fee of the premises in question.

I think it is equally clear that the proceedings in the action brought in the superior court to reform the original deed of trust were not vitiated by reason of the alleged defect of parties to the record.

It is claimed by the defendant that immediately upon the execution and delivery of the original deed of trust an expectant estate was created in the heirs of Irving Emmons, contingent indeed, but one which no act of the grantor, the trustee, or Irving - Emmons could have defeated, and that in consequence the heirs of Irving Emmons gained rights which could not be altered or extinguished by any action to which they were not parties.

Even if it be admitted that the rule laid down in Nodine v. Greenfield, 7 Paige, 544, Williamson v. Field, 2 Sand. Ch. 533, that in the case of remote limitations of the fee it is sufficient to bring before the court the persons in esse who have the first estate of inheritance, together with the persons having all the precedent estates and prior interests—would not apply to actions to reform a deed of trust conferring upon persons in esse contingent rights through remote limitations of the fee, I yet conclude that the objection is not well taken for the reason that the heirs of Irving Emmons, if they take at all, would not take as purchasers, but by descent.

The estate of the trustee is one limited in duration by its requirements, and when the purposes of the trust are fulfilled and the duties of the trustee are ended, the estate in the trustee ceases. And while so much of the trust declared in the original deed of the trust as empowered the trustee to collect the rents and profits of the premises in question, and to pay them over to Eliza Jonas during her natural life was a valid trust under the statutes of this state, (1 R. S. 728, § 55, sub. 3,) yet it required for its accomplishment an estate in the trustee for the life of the beneficiary only. The remainder of the trust was clearly not valid as an express trust. Cooke v. Platt, 98 N. Y. 35.

The trust to convey real property not being within the classes of allowable express trusts established by the revised statutes.

It will not be necessary for me to determine here however, whether the direction to the trustee to convey the fee of the premises in question upon the death of Mrs. Jonas conferred upon the trustees a valid power in trust, the fee of the premises remaining in the grantor and his heirs subject to be divested by the execution of the power. Clark v. Crego, 47 Barb. 614; S. C. 51 N. Y. 646; Hotchkiss v. Elting, 36 Barb. 38. Or whether on the contrary the trust was executed by the statute and a legal estate in remainder passed at once to the beneficiaries. 1 R. S. 727, §| 45, 47, 49. Under either construction, the heirs of Irving Emmons would take not as purchasers, but by descent. If, by force of the statute, the limitations in the original deed of trust created the local estate by way of remainder in Irving Emmons, such a remainder would be clearly within the statutory and common law definition of a vested remainder. While if, on the contrary, the provisions of the trust deed created a valid power in trust, although prior to the execution of this power, the appointee would take no estate in the land, either legal or equitable, yet upon its execution the appointee would derive his title not from the person exercising the power or from the deed in the execution of the power, but from the trust deed itself. And the appointee would then take as though the estate had been directly limited in the original deed, and not mediately through the power. The character of the limitations, and not the fact that he derived an estate through the power, would determine the character in which the appointee took his title, whether as purchaser or as heir. And the legal effect of the limitations being, as we have seen, to create in Irving Emmons a vested remainder which his heirs would take, not by purchase, but by descent, the interest of Irving Emmons under the power became a vested, and not a contingent interest, which upon his death, in the lifetime of Eliza Jonas, would descend to his heirs or pass to his grantees. And this consequence would not be affected by the power of appointment conferred upon Eliza Jonas by the deed of trust. For it is well settled that where a remainder is limited, subject to the exercise of a power of appointment by which it may be defeated, such a remainder will be held to be vested, though a defeasible remainder.

The further objection to the title is taken by the defendant, that Gideon J. Tucker did not join with his wife, in the release of her dower right in the premises.

This objection was not taken until the close of the trial of the action, and after Gideon J. Tucker, the husband, had been examined as a witness. Had it been suggested as important, it is probable that his assent and signature to the release could have been obtained upon the spot.

But I do not regard the objection as sufficient to defeat the plaintiff’s right.

The wife of Tucker, by a separate instrument, dated the 5th day of July, 1875, for a valuable consideration, released and conveyed to Lawrence, the grantee of her husband, all her right, title, interest, dower and right of dower, in and to the premises in question. The instrument executed by her recited the fact of the conveyance of the land, by her husband to Lawrence, and was evidently designed to complete and confirm it in so far as she was concerned, and for the consideration expressed therein, to release and extinguish her claim of dower.

I fail to see why such act of the wife, although subsequently performed, may not be regarded as an adoption of and as joining in her husband’s conveyance.

A release to a stranger would have been void. But Lawrence was her husband’s grantee, and was the owner of the fee.

Elmendorf v. Lockwood, 57 N. Y. 322; Witthans v. Schack, 105 Ib. 332, are recent cases bearing upon this subject, but they do not, under their facts, present the precise case raised by the evidence before me.

In Marvin v. Smith, 46 N. Y. 571, Allen, J., says: “An inchoate right of dower may be released to the grantee of the husband, by a proper conveyance executed and acknowledged in the form prescribed by statute, but the right cannot be transferred to a stranger, or to one to whom the wife does not stand in privity.”

In some of the states it has been held that the release of "a wife’s inchoate right of dower can only be made through her execution of her husband’s deed, in which she should join. “ Leading Gases in the American Law of Property,” by Sharswood, vol. 1, 370-347.

But Savage v. Grill, 19 Hun, 4, refers to the'case of the Albany Insurance Co. v. Bay, 4 N. Y. 9, as holding “ that in this state a married woman may convey her lands, or any interest she may have in land, by deed duly acknowledged, although her husband do not join .therein,” and decides that such rule would seem to be the same in respect to a release of dower.”

Savage v. Grill holds that a release by a wife of her inchoate right of dower, “to the holder of the title,” even if executed by her alone, would be valid. S. C., 80 N. Y. 630.

Malloney v. Horan, 49 N. Y. 112-117, by a clear implication, holds the same doctrine.

Folger, J., referring to Carson v. Murray, 3 Paige, 483, which holds, that a wife cannot execute any valid release of her dower in the real estate of her husband, in any other way, than by joining with him in a conveyance to a third person, says: “ The release must at all events accompany, or be incident to the conveyance of another.”

The release and conveyance executed by the wife of Gideon J. Tucker, although made after he had conveyed away the title, may in truth be regarded, as it was clearly intended by the parties, as “incident” to her husband’s deed, and as made in “conjunction” therewith.

In a subsequent case, the Merchant’s Bank v. Thomson, et al., 55 N. Y 7, Folger, J., gives a clearer expression to the same idea, and after stating that a quit claim or release by a married woman to a stranger to the title is ineffectual to divest her of an inchoate right of dower, adds : “ But a release from the wife, executed directly to the purchaser, in connection with the sheriff’s deed, will free the premises and give a good title.” That statement appears to cover this case. Robbins v. Kensie, 45 Ill. 354.

The full and uncontrollable right of a former covert to her property is supposed to be secured by the statutes giving to her the right to enjoy and dispose of it.

The inchoate right of dower of a wife is property. Its value is appreciable, and can be ascertained. Her husband cannot deprive her of it.

The value of her separate interest in the land in question, which had been conveyed away by her husband, it was proper that she should realize, if she desired to do so, before his death. Upon the execution of her separate deed, she received its value, as a consideration for its delivery, and her act, I am persuaded, released the land from all claim of dower in her favor in law and equity.

I cannot therefore conclude that any of the objections taken by the defendant are well founded, or cast any reasonable doubt upon the goodness of the plaintiff’s title to the land.

There should be judgment in favor of the plaintiff for specific performance as demanded in the complaint.

James P. Campbell, attorney, and Alexander Thain of counsel, for appellant.

Dill, Chandler & Seymour, attorneys, for respondent.

Per Curiam.

Judgment is affirmed on the opinion of the referee, with costs.


source: Caselaw Access Project

author: Truax, J. Per Curiam.

license: Public Domain

text:
    RICHARD G. BERFORD, Appellant v. THE NEW YORK IRON MINE, et al., Respondents.

      Demurrer.

    A demurrer by defendants to the complaint on the ground that the court lias not jurisdiction of the subject of the action, does not concede that the complaint does state facts sufficient to constitute a cause of action, especially is this so, when by the same demurrer, the defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer to the complaint should not be overruled, because it may appear on the face of the complaint that a cause of action is stated therein, against one of the defendants who does not demur. It is not enough that the complaint states a cause of action against one of the defendants who does not demur, in order to sustain it against a defendant who does demur. The test is, does the complaint state a cause of action against the defendant who demurs ? If it does not the demurrer must be sustained.
    It appears from the complaint that the defendant, The New York Iron Mine, is a corporation organized under the laws of the state of Michigan, and the plaintiff alleges in his complaint certain facts which he claims entitle him to relief against the defendant, The New York Iron Mine ; and the relief that he claims is, that it be decreed that this defendant shall declare and pay such dividends as upon an accounting may appear proper, etc. The case of Fisher v. The Charter Oak Life Ins. Co., 52 Super. Ot. 179, is a conclusive authority in favor of this demurrer, and it must be sustained. It was there held that the courts of this state will not interfere with the internal administration of the affairs of a foreign corporation; that the law does not give any remedy here for the things complained of, and therefore that the court has no jurisdiction of the subject of the action.
    As it does not appear on the face of the complaint that the defendant, The York Mining Company, is a foreign corporation, the demurrer of that company that the court has not jurisdiction of the subject of the action is overruled, and for the same reason that portion of the demurrer of the defendants, Tilden’s executors, is also overruled, but the demurrer of the last named defendants that the complaint does not state facts sufficient to constitute a cause of action is sustained.
    Before Sedgwick, Ch. J., and Freedman, J-

      Decided October 25, 1888.
    Appeal from an interlocutory judgment made at special term, sustaining the demurrers to the complaint filed by defendants, The New York Iron Mine and others.
    . The following opinion was delivered by the court at special term :
   Truax, J.

The defendants above named separately demur to the complaint herein, on the grounds that the court has not jurisdiction of the subject of the action, and, secondly, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff' contends that by demurring on the ground that the court has not jurisdiction of the subject of the action, the defendants concede that the complaint does state facts sufficient to constitute a cause of action. In this I am of the opinion that he errs.

Section 488 of the Code of Civil Procedure provides that “ a defendant may demur to the complaint where one or more of the following objections thereto appear upon the face thereof.” Logically, it cannot be said that a demurrer to the complaint on the ground that the court has not jurisdiction of the subject of the action, concedes that a cause of action is set forth. Especially is this so in view of the fact that by the same demurrer the defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Moreover, the defendants would have had the right, under the code, to demur now to the complaint, on the ground that the court has not jurisdiction of the subject of the action, and at the trial to demur on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The plaintiff also contends that the demurrers to the complaint should be overruled if it appears on the face of the complaint that any cause of action is stated against any of the defendants, and then he claims that a cause of action is stated against one of the defendants, Wetmore, who has not, as far as it yet appears, pleaded.

I am of the opinion that this is not the law, and the cases cited by the plaintiff as authorities for this proposition do not decide the point.

The case of Wheeler v. The Connecticut Mutual Life Ins. Co., 82 N. Y. 543, is one of the cases cited by the plaintiff. In that case the complaint contained distinct causes of action, and the demurrer was on the ground that the complaint did .not state any cause of action. The court of appeals held that one of the -causes of action was well pleaded, and therefore overruled the demurrer. It is not enough that the complaint states a cause of action against a defendant who does not demur in order to sustain it against a defendant who does demur. The test is, does the complaint state a cause of action against the defendant who demurs ? If it does not, the demurrer must be sustained. .

It appears from the face of the complaint that the defendant, The New York Iron Mine, is a corporation organized under the laws of the state of Michigan. It does not appear under the laws of what state the defendant The York Mining Company was organized.

The plaintiff alleges in his complaint certain facts which he claims entitle him to the relief as against the said defendant, The New York Iron Mine. The relief that he claims against this defendant is that it be decreed to declare and pay such dividends as may appear upon an accounting to be proper.

The case of Fisher v. The Charter Oak Life Ins. Co., reported in 52 Super. Ci. 179, is a conclusive authority in favor of this demurrer. It was there held that the courts of this state will not interfere with the internal administration of the affairs of a foreign corporation; that the law does not give any remedy here for the things complained of, and therefore that the court has no jurisdiction of the subject of the action. This demurrer of the defendant, The New York Iron Mine, is sustained.

The more important question in the case, however, is, does the complaint state a cause of action against any of the defendants demurring ?

The complaint is quite a lengthy one, and it is difficult to distinguish the allegations of fact from the conclusions of law stated therein. The material allegations of fact stated in the complaint, as I read it, are the following :

On the 26th day of April, the 1st and the 6th days of May, 1877, respectively, at the city of Marquette, in the state of Michigan, the defendant, Wetmore, made, indorsed, sold and delivered for value to the First National Bank of Negaunee, three certain promissory notes by each of which the defendant, The New York Iron Mine, by the said Wetmore, promised to pay sixty days after date, for value received, to said First National Bank $5,000; and that the said First National Bank thereupon paid said Wetmore the amount of the said three notes, less the legal interest thereon.

That said Wetmore induced said bank to discount said notes by representing to the said bank that he was expressly and duly authorized by the defendant, The New York Iron Mine, to make said notes; that he could and did, by his execution of said notes, bind the defendant, The New York Iron Mine, its property and assets for the payment of the same ; and that the said bank relied upon said representation when it discounted said notes and paid the proceeds thereof to the said Wetmore.

That said Wetmore was not authorized by the defendant, The New York Iron Mine, to make said notes or said representations, and that he had no power (except as hereinafter set forth), to bind the defendant, The New York Iron Mine, its property or assets, for the payment of said notes; all of which facts he then and there knew and concealed from the said First National Bank.

That said Wetmore obtained said money from the said bank for the purpose of enabling him to realize certain interests in the profits of said New York Iron Mine, and he applied the said proceeds to his own use, and in the hooks of account of the said defendant, The New York Iron Mine, which were then in the possession and control of said Wetmore, as an officer and director thereof, he charged said notes as obligations against himself.

That the said bank assigned said notes to one John Mitchell; that Mitchell died, and administrators were duly appointed on his estate. That said administrators sold, assigned, conveyed and delivered the notes and all the liens and privileges appertaining thereto, to this plaintiff; and that said notes were duly presented for payment and payment was refused, and said notes were duly protested and remain wholly unpaid.

That The New York Iron Mir'' was a corporation organized under the laws of the state of Michigan. That its capital stock was 20,000 shares, of which the said Wetmore then owned 5,333 shares, and the said Samuel J. Tilden owned the rest of said shares. That 4,000 shares were at the time of the discounting of the notes by the said bank then in the possession of Tilden as collateral for certain debts of Wetmore’s under a written instrument dated May 31, 1876, and that it is claimed by Tilden and his executors that said shares became collateral to certain other debts under an instrument dated May 31, 1877. That Wetmore was adjudged a bankrupt and is wholly insolvent and a judgment and execution at law would be wholly ineffectual against him.

The complaint further alleges, that Tilden and The New York Iron Mine have omitted to state the accounts of the corporation since May 31,1877, and to make any dividends of its property or profits; and that The New York Iron Mine has ceased to do business. That Tilden and the New York Iron Mine have procured the incorporation of a company known as The York Mining Company, and transferred to it, without consideration, all the property of the New York Iron Mine, except cash and negotiable and convertible assets. That Tilden and The New York Iron Mine have procured a new lease in the name of said Tilden and The York Mining Company, of certain property theretofore held under lease by The New York Iron Mine, and have proceeded to conduct the business of The New York Iron Mine under the name of The York Mining Company. That Tilden and The York Mining Company have made profits out of the property transferred to it. That Tilden and The New York Iron Mine permitted said Tilden to retain in his individual possession all the cash and negotiable and convertible assets of The New York Iron Mine, which amount to upwards of $400,000.

That the executors of said Tilden have in their possession said sum of $400,000.

That the defendant, Samuel J. Tilden, died on the 4th day of August, 1886, and the defendants Green, Bigelow and Smith were duly appointed the executors of his last will and testament, and that they have qualified and remain such executors.

The relief which the plaintiff asks for is for a discovery and an account of the assets of The New York Iron Mine in the possession of said defendants’ executors, and of said York Mining Company. For an account of the property, assets and profits of The New York Iron Mine and of the share therein of said William L. Wet-more upon said 5,333 shares of its stock; for an account of the liens upon said share of said William L. Wetmore of The New York Iron Mine; for an account of the liens upon said share of said defendants’ executors; for an account of the liens upon said share of said defendant Peter White; that the defendant, The York Mining Company and said executors, defendants, may be required to pay to The New York Iron Mine, or a receiver to be appointed for that purpose, such sum as shall be found due upon such accounting, and to transfer and deliver accordingly, all property and assets of said New York Iron Mine in the possession and control of them or either of them; that upon the share of said William L. Wetmore in the assets and profits of said New York Iron Mine, said corporation shall be decreed to declare and pay such dividends as may appear upon such accounting to be proper. That it be decreed what liens and obligations aforesaid are prior to the lien of the plaintiff, and that so much of such dividend as may be declared or decreed as exceeded the liens and obligations aforesaid prior to the lien of the plaintiff, may be decreed to be paid to the plaintiff to the extent necessary to discharge said notes.

That it be decreed that the lien of the plaintiff upon such share of said William L. Wetmore is valid as against and prior to any lien of said Peter White, created subsequently to the date of said notes, or any claim of Matthew H. Maynard, as assignee in bankruptcy of said William L. Wetmore—and as against any lien of The New York Iron Mine, and of said defendant’s executors., under the instrument aforesaid, dated May 31, 1877, except for cash then actually advanced and paid on the faith of the same ; that a receiver of the property and assets aforesaid be appointed, and that the defendants during the pendency of the action and permanently, be enjoined from parting with or disposing of the property aforesaid, except in conformity with the decree of this court, and finally for other relief.

There are other statements in the complaint which seem to me to be not statements of fact but conclusions of law.

For instance, it is alleged that said Wetmore as owner of 5,333 shares of the capital stock of the said New York Iron Mine, owned and was interested in the capital, property, profits and assets of said corporation; that the claim and assertion made by said Tilden and the executors of said Tilden that said stock is held by them as collateral security are invalid and inequitable as against this plaintiff; that by virtue of the premises and otherwise by operation of law and by express assignment, all the right, title and interest in and to all the property, profits and assets of the said, The New York Iron Mine of said William L. Wetmore, which he had on the dates of said notes, by virtue of his ownership of said 5,333 shares of stock, were pledged and appropriated for the payment respectively of said notes. I do not consider this last statement as an allegation that the said Wetmore assigned his right, title and interest in any other way than in the way which the plaintiff claims as an assignment- by operation of law. It is true that in another portion of the complaint the plaintiff alleges that by means of the charge which the defendant, Wetmore, made against -himself on the books of the defendant, The New York Iron Mine, and by “ divers other means ” said Wetmore authorized and directed said defendant, The New York Mine, to pay said notes out of his interest in the said New York Iron Mine, its property, profits and assets, and appropriated the same therefor.

Even if the said Wetmore did authorize and direct the said defendant to pay said notes, it imposed no legal obligation on the defendant to do as Wetmore had authorized and directed. There is no allegation that The New York Iron Mine ever promised to do as the said Wetmore had authorized and directed it to do; nor do the facts stated amount in law to an assignment and appropriation of any portion of the property, profits and assets of The New York Iron Mine to the payment of the notes above referred to; nor could the defendant Wetmore, by his mere statement to that effect, bind the property and assets of the defendant, The New York Iron Mine, for the payment of the said notes.

The facts alleged in this complaint would not give the plaintiff a lien on the property and assets of The New York Iron Mine, even if the mine itself had made the notes. A stockholder of a corporation, simply as a stockholder, has no control over the property of the corporation, nor has he the power to impose any lien thereon. It is nowhere alleged in the complaint that Wetmore intended or attempted to create a lien upon the stock of The New York Iron Mine owned by him, or to assign that stock as collateral security for the notes made by him. This court has not the power, nor would it on proof of the facts alleged in the complaint, order .The New York Iron Mine to declare and pay such dividends as may appear upon an accounting to be proper. This relief can be asked for only by the legal holder of the shares of a corporation, if by any one, and the complaint shows that the shares of the corporation are held by some one other than the plaintiff. It is nowhere alleged that there are any earnings to divide.

A discovery and an account of the assets of The New York Iron Mine in the possession of the defendant’s executors, and of the said York Mining Company, and for an account of the property, assets and profits of The New York Iron Mine and of the share therein of said William L. Wetmore, upon said 5,333 shares of its stock, can be decreed only in favor of a shareholder. As the plaintiff is not a shareholder, he is not entitled to this relief; nor will a court of equity decree on account of the hens upon the share of said Wetmore, at the request of a person who has no lien upon such share. The facts stated in the complaint do not show that the plaintiff has such a lien on the shares of said Wetmore, nor did they operate as an equitable assignment thereof. Williams v. Ingersoll, 89 N. Y. 518.

Dows v. Kidder, 84 N. Y. 130, is not an authority for the proposition contended for by the plaintiff. As I read that case it is an authority for this proposition only : that when A converts certain property of which B is the owner, to his, A’s, own use, delivers it to C to sell, and C sells it, B has a cause of action against C for the amount of the proceeds of the property that C had in his hands at the time he received notice from B that he, B, was .the owner of the property.

It also follows that if the plaintiff has no lien on or assignment of Wetmore’s shares, he, the plaintiff, cannot ask the defendants, the executors of Tilden, to account for the profits that they have derived while holding said Wetmore’s shares.

It seems to me that the action against The York Mining Company is in the nature of an action to set aside a transfer to that company made by The New York Iron Mine, whom the plaintiff claims is a debtor of Wetmore, who is plaintiff’s debtor, on the ground that such transfer as between The New York Iron Mine and The York Mining Company was made without consideration and for the purpose of impeding, embarrassing, hindering and delaying the owners and holders of said notes and causes of action. The plaintiff is not a judgment creditor of The New York Iron Mine, nor does he allege that that company is insolvent, and therefore he cannot set aside a transfer made by that company.

It does not appear on the face of the complaint that the defendant, The York Mining Company, is a foreign corporation, and therefore the demurrer by that company that the court has not jurisdiction of the subject of the action is overruled. And for the same reason that portion of the demurrer of the defendants, Tilden’s executors, is also overruled. The demurrer of The New York Iron Mine is sustained, with costs. The demurrer of The York Mining Company and of the defendants, Tilden’s executors, that the complaint does not state facts sufficient to constitute a cause of action is sustained, but without costs.

The plaintiff may amend within twenty days on payment of costs.

Roger M. Sherman, for appellant.

Frank F. Smith, for respondent.

Per Curiam.

Judgment affirmed with costs, upon opinion rendered below.


author: "Dugro, J. Per Curiam.

text:
    BENJAMIN F. WATSON, Respondent v. DANIEL F. COONEY and JAMES H. HOLDANE, Appellants.

      Reference of issues —Attorney and client.

    The issues in an action brought by an attorney to recover for the value of services rendered will be referred to hear and determine only when it appears that in consequence of the nature of the demand and of the proofs required to sustain it, it would be impracticable to try the case with a jury.
    Where in such an action the bill of particulars discloses that the demand is mainly for services rendered on divers different days in four suits or proceedings, and that the amount of the disbursements is inconsiderable, a reference of the issues will not be ordered.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided October 25, 1888.
    This action is brought to recover for the value of services rendered by an attorney under an agreement, the provisions of which are set forth in the opinion. After issue was joined plaintiff in pursuance of a demand therefor served a bill of particulars in substance as follows :
    In the matter of Samuel Secor and John A. Secor, bankrupts :—
    To 36 days of professional service in court, or an examination and preparation for the same, viz.: (here the days were specified), at $50 per day. $1,800
    To 93 days adjourning case and attending to detail matters, viz.: (here the days were specified), at $5 per day. 465
    Ephraim Miller v. Abram R. Warner.
    To 56 days professional services in court or before the referee and in preparation, viz.: (here the days were specified), at $50 dollars per day. 2,800

      To 41 .days engaged all day in preparation for trial and consultation, viz.: (here the days were specified), at $50 per day. 2,050
    To 55 days for attending to adjourning case, or to detail matters, viz.: (here the days were specified), at $5 per day. 275
    In the matter of the Petition of Brookman.
    To 36 days professional services at court or before register and in preparation, viz.: (here the days were specified), at $50 per day. 1,800
    To 62 days attending to adjournments or to detail matter, viz.: (here the days were specified), at $5 per day. 310
    A. B. Warner, assignee against Higgins, et al.
    To 6 half days professional services in court or before examiner and in preparation, viz.: (here the days were specified), at $50 per day. 150
    To 26 days attending to detail matter, (here the days were specified), at $5 per day. 130
    Costs and disbursements as taxed. 327.04
    Disbursements in the matter of Samuel Secor and John A. Secor, bankrupts. Here 26 different items of disbursements amounting to 294.70 were specified with the dates on which they were made, 1877, Oct. 4. Paid stenographers on account. 500
    Ephraim Miller v. Abram R. Warner, assignee.
    To 1* days in court and in preparation for the same, (here the days were specified), at $50 per day. 75
    To 16 days adjourning matters and attending to detail matters, viz.: (here the days were specified), at $5 per day. 80
    In the matter of Samuel Secor and John A. Secor, bankrupts.
    To 3 days attendance in court or before register and preparation for same, viz.: (here the days were specified), at $50 per day. 150

      To 2 consultations on October 4th and 26th, 1883, at $12.50. 25
    To 18 days adjourning hearings and detail matters, viz.: (here the days were specified), at $5. _ _ 90
    _ _ 1884—Paid register’s fees in matter of obtaining final discharge of assignee. 100
    A motion for a reference of all the issues in the action to a referee to hear and determine the same was made by the plaintiff upon the pleadings and the bill of particulars. Neither in the answer nor in the affidavit read in opposition to the motion was there any averments that the charges were exorbitant.
    The motion was granted at special term; the judge who granted it writing as follows:—
   "Dugro, J.

The contract upon which this action is based contains a provision whereby the defendants are alleged to have agreed that they would bear a certain proportion of such costs, charges and expenses as have been or may hereafter be paid or incurred in or about the prosecuting, conducting and carrying on of certain bankruptcy proceedings ; and in and about the suing for, collecting and recovering of any of the estate, property and effects of certain bankrupts. It seems that by this agreement an account of the costs and charges past and future was necessary to be kept. The bill of particulars shows such an account to have been kept. I see nothing in the papers submitted to arouse suspicion of an exorbitant charge, and the cause of action is not for services rendered in a single suit. The action is one ex contractu, involving the examination of a long account within the meaning of the rule applicable to such cases, and so should be referred (Chambers v. Appleton, 84 N. Y. 649; see also, Hossack v. Heyerdahl, 38 Super. Ot. 391).”

Defendants appealed to the general term from the special term order granting the motion.

B. F. Watson, for the respondent in person, argued :—

I. The general doctrine as to compulsory references where numerous items are contested is illustrated by Van Orden v. Tilden, 13 Daly, 396; O’Brien v. The Catskill R. R. Co., 32 Dun, 636; Stebbins v. Cowles, 30 Bun, 532.

II. Under section 1013 of the Code of Civil Procedure, and under section 271 of the Code of Procedure, this .court has uniformly referred actions by attorneys for services. Opinion of Rapallo, J., in Townsend v. Hendricks, 40 How. Pr. 162; Gregory v. Seaman, 51 Super. Ct. (J. & S.) 517; Bowman v. Sheldon, 1 Duer, 607. In Hartwell v. Albert (Super. Ct., Special Term, 1881, 3 Month. Law B., 77) a reference was denied in an action where the items of the account numbered only fifty-four, because all these were admitted, leaving only five items in dispute. Also in Bates v. Eagleton Mfg. Co., 10 Civ. Pro. B. 218 (N. Y. Super. Ct. 1886) a reference was denied because the motion papers were insufficient, and did not show that the examination of a long account was involved. References in actions by attorneys, have also been made by other courts: see Schennerhorn v. Wood, 4 Daily, 158; Byrne v. Delamater, 1 Month. L. B. 62 ; Hale v. Swinburne, 17 Abb. N. C. 381; Carr v. Berdell, 22 Dun, 130.

III. The decisions of the court refusing in actions by attorneys for services to grant a reference, can be classified in five general classes; and a casual inspection will show that this case does not come within any of these classes. (1.) Actions, in which, by reason of admissions in the answer, the items of a long account have been narrowed and reduced, so as to leave but a small portion of the account necessary to prove. Of this class will be found the following decisions: Hartwell v. Albert, 3 Month. L. B. 77; Dittenhoefer v. Lewis, 5 Daly, 72; Adams v. City of Utica, 6 Civ. Pro. R. 294. (2.) Actions in which the services sued for were all rendered in one action. Benn v. First Nat. Bank, &c., 19 Weekly Dig. 206. (3.) Actions in which the services sued for were charged and sued for in a gross sum. Felt v. Tiffany, 11 Hun, 62 ; Davis v. Walsh, 48 Super. Ct. (J. & S.) 515; Hull v. Allen, 4 Civ. Pro. Rep. 300. (4.) Actions in which a long account was not involved. Merritt v. Vigilius, 28 Hun, 420; Martin v. Gould, 13 Civ. Pro. Rep. 45. (5.) Actions in which the defense is interposed, that the charges are exorbitant and excessive. Martin v. Windsor Hotel Co., 10 Hun. 304. In this last named case, the opinion, while it holds that the court has the undoubted discretion to order a reference, held that under the circumstances of that case a reference should not be ordered. In a later case (Carr v. Berdell, 22 Hun, 130), in granting a reference, the court said : “ There may have been occasions calling for the remarks in some of the cases cited by the appellant, deprecating references to attorneys of actions by attorneys for professional services, but no occasion for such remarks exist in this case......Nor can we assent to a sweeping condemnation of attorneys as referees in any class of cases.”

IV. There is no pretense that the charges are exorbitant and excessive. The answer fails to show any such claim, and the opinion of the judge granting the order, I see nothing in the papers submitted to arouse suspicion of an exorbitant charge,” takes this case out of the pale of the decision of Martin v. Windsor Hotel Co., supra.

The order was clearly justified by section 1013 of the Code, and the discretion of the judge was wisely exercised, and will not be overruled unless it is palpable that a long account cannot be involved. Van Orden v. Tilden, 13 Daly, 396.

Turner, McClure & Solston, attorneys, and David McClure of counsel, for appellants, argued:—

I. The plaintiff is not entitled to a reference in this case, because there is in reality but one cause of action.. In such cases the authorities are uniform in holding that a trial by jury should be ordered, unless both parties agree to a trial before a referee. Tracy y. Stearns, 61 How. 265, and cases cited. The demand of the plaintiff in this action may be established in two modes: (1) by calling competent witnesses to testify to the value of his services in gross, upon a statement of each particular service rendered; (2) by fixing special values upon particular items of service; but the fact that this latter mode of proof may be adopted does not change the demand into a long account within the meaning of the statute authorizing references of actions where the trial will involve the examination of a long account. Felt v. Tiffany, 11 Hun, 63; Brinkerhoff v. Republic Fire Ins. Co., 2 N. Y. 550.

II. Although the bill of particulars contains distinct items, it does not necessarily follow that an examination of a long account is involved. The principle of the following cases is applicable. Dickinson v. Mitchell, 19 Abb. 286; Dittenhoeffer v. Lewis, 5 Daly, 72; Merritt v. Virgilius, 28 Him, 421; Evans v. Kalbfleisch, 16 Abb. N. S. 13.

III. The court has refused to refer attorneys’ claims, except in extraordinary cases. Martin v. Windsor Hotel Co., 10 Hun, 330 ; Bradley v. Eager, 5 Weekly Digest, 330.

IV. The cases of Chalmers v. Appleton, 84 N. Y. 649, and Hossack v. Heyerdohl, 38 Super. Ct. 391, cited in the opinion of the court as authorities for the order in this case, are not controlling in this case. Neither of the actions were by attorneys. The rule governing actions in cases where attorneys are parties is different, as we have shown.

Per Curiam.

This action is brought to recover for legal services rendered by the plaintiff to an assignee in bankruptcy, and the plaintiff seeks to hold the appellant liable under an agreement by which the appellant with others agreed to bear and pay pro rata in proportion to the amount of their respective claims, all such costs, charges and expenses as have been or may hereby be paid or incurred in and about the proceedings.

The courts havé referred actions of this character with much reluctance and only when it appeared that in consequence of the nature of the demand and of the proofs required to sustain it, it would be impracticable to try the case with a jury. A reference entails large additional expense on the defeated party and adds much to the burden and trouble of the proceedings. Litigants express much dissatisfaction at being compelled to have an attorney’s claim against them determined by a brother attorney, and it is clearly for the best interest of both the profession and the community to have disputes of this character settled by the verdict of a jury.

An examination of the bill of particulars in this action fails to convince us that a referee is necessary. The bill is mainly for services rendered in four suits or proceedings. It will be necessary to have expert testimony as to the value of the services rendered, and the value of all the services can be testified to by the witnesses, so that it will not be necessary to prove the value of the services rendered on each day as separate items. The amount of the disbursements is inconsiderable and we see no reason why the case cannot be satisfactorily tried with a jury.

The order appealed from should therefore be reversed with ten dollars costs and disbursements to abide the event of the action.


author: Per Curiam.

text:
    WILLIAM P. THORP, Respondent v. HENRY A. RILEY, Appellant.

      Interrogatories, settlement of, what not considered on, effect of stipulation to admit, appealability of order disallowing.

    An order sustaining objections to, and disallowing interrogatories is appealable.
    A stipulation by the objector to interrogatories, which does not, beyond peradventure give to the propounder all the benefit which is sought to be obtained by the interrogatories, and which they might give or avail equally as well to support a pleaded defence, will not avail to sustain an order disallowing such interrogatories, they being pertinent to the issue framed.
    On the settlement of interrogatories the sufficiency of the answer as a defence is not to be considered. The pertinency of the proposed interrogatories to the issue as made is alone to be determined.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided October 25, 1888.
    Appeal from order disallowing certain interrogatories, proposed by defendant to be attached to a commission to be issued in behalf of defendant.
    This action is brought to recover $1,000, balance of $2,500, given to defendant by plaintiff while an infant for investment in certain classes of securities under an agreement dated September 24, 1885.
    The answer set up among other things as a defence :

      “ That between August 1, 1885, and November 24, 1885, plaintiff had frequent consultations with defendant and requested his advice and assistance in starting him in the banking business in the northwest, plaintiff desiring to invest as capital in such business the sum of $10,000 or thereabouts. ■ That defendant pursuant to said request rendered personal services to plaintiff almost continuously during said period of time.

      “ That it was then agreed that defendant to still further carry out plaintiff’s desires should visit the northwest in his company.
    “ That thereupon it was further agreed between the plaintiff and defendant that if the former should secure a business in the northwest, that then the latter should receive as compensation for his services an interest of $1,000 in such business, on which he should receive his proportionate ratio of profits, but that if plaintiff did not so secure a business defendant should pay his own expenses and receive no compensation.
    “ That in pursuance of said agreement defendant visited the northwest in plaintiff’s company in the latter part of November, 1885, and as a result of defendant’s efforts plaintiff in December, 1885, secured a business in the northwest and became part owner and president of a bank in Iroquois, Dakota.

      “ That in the early part of December, 1885, plaintiff and defendant entered into an agreement, whereby it was agreed that in consideration of defendant giving up his claim to an interest of $1,000 in the business so secured by the plaintiff, defendant should receive the sum of $1,000 in cash, being the balance of said original deposit of $2,500, after deducting therefrom the sum of $1,500 which defendant then agreed to send to plaintiff, and defendant thereupon gave up his claim to said interest in said business.

      “ And defendant alleges that by virtue of the agreements aforesaid plaintiff has received emoluments and advantages of the value of $1,000 which he still retains, and that he has never restored, or offered to restore same to the defendant.”
    Upon the settlement of interrogatories to be annexed to a commission to be issued for the examination of a witness on behalf of defendant, a number of interrogatories designed to show plaintiff’s connection with the bank of Iroquois, that the business of that bank had been a successful and paying one, that its future prospects were bright, that it had made large profits, and had made dividends, and to show the value of its stocks, were objected to by the plaintiff; and on plaintiff’s stipulating that the banking business obtained by the plaintiff in Iroquois, Dakota, was of the value of one thousand dollars, the objections were sustained and'the interrogatories disallowed and a special term order entered to that effect.

      A. Walker Otis, attorney and of counsel for appellant, argued:—
    I. The interrogatories which were stricken out were all material, and should have been allowed. (1.) Infancy in no way avoids the defence. 2 Kent, 240 ; Holmes v. Blogg, 8 Taunton, 508; Medbury v. Watrous, 7 Hill, 111; Bartholomew v. Finnemore, 17 Barb. 428; Green v. Green, 69 N. Y. 533 ; Crummey v. Mills, 40 Hun, 370; Gray v. Lessington, 2 Bos. 263 ; Hangen v. Hachmeister, 49 N. Y. Super. Ct. 24. (2.) Plaintiff’s offer to stipulate that the banking business obtained by plaintiff in Iroquois was of the value of $1,000, did not warrant the striking out of the interrogatories. Such a stipulation is of no value to defendant. As plaintiff was to put $10,000 in the bank, the “business” was doubtless worth that sum.
    H. Even if there were doubt as to the materiality of the interrogatories, it was error for the court below to strike them out on settlement. The question should have been reserved for the trial judge.
    The code provides that upon the settlement of the interrogatories “ either party must be allowed to insert therein any question pertinent to the issue which he proposes” (sec. 892) and that when the depositions taken are read at the trial “an objection to the competency or credibility of the witness or to the relevancy or substantial competency of a question put to him”.....“may be made as if the witness was then personally examined and without being noted upon the deposition ” (sec. 911). The judge on settlement cannot foresee what the exigencies of the trial may be, and questions which may from his standpoint seem immaterial, may become of the greatest importance when the actual trial occurs. When the question in good faith presented is whether a certain question is relevant, material or competent, the better practice is to settle the interrogatories subject to objections at the trial. Under such a practice, the questions will be passed upon by the judge who has the best opportunity for doing so, and no injustice will be done either party, for the reason that all the rulings can be reviewed on appeal from the judgment, whereas if an error be made by the judge, on settlement by disallowing an interrogatory, the aggrieved party is remediless if the cause shall come on for trial before an appeal from the order striking out the interrogatory can be heard, unless he can procure a stay of the trial pending such appeal. In a case where an appeal from an erroneous ruling on settlement of interrogatories was carried to the court of appeals, that court say that conceding the right of the judge to do so, “the power to exclude questions should be sparingly exercised.” Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175.

      Francis Speir, Jr., attorney and of counsel, and John H. Kitchen, of counsel, for respondent, argued :—
    I. Admitting for the sake of argument the facts set up in the answer it cannot be shown that the value of the business of the bank during the year 1885, or its prospective value, or the amount of capital contributed by the plaintiff, or what his salary was, or the plaintiff’s interest, the names of its present officers, its original incorporators, or dividends paid, or its undivided profits, or its surplus, or finally that the plaintiff was dissatisfied with Irbquois, Dakota, as a place of residence and why, are material in any conceivable case to the issues raised by the pleading in this case especially in view of the stipulation tendered in open court.
    II. It is undoubtedly a rule of law that an infant cannot be permitted to retain property purchased by him, and at the same time repudiate the contract by which he received it. But taking the strongest view of the case in the defendant’s favor, it will be seen by the answer that he never had any interest in the Iroquois Bank, and it would be unjust to the officers and stockholders of said bank, and to this plaintiff, to force them to give a full history of the bank from its incorporation to the present time.
    III. An infant has the right to repudiate a contract like the alleged contract set forth in the answer. No property was taken from the defendant and he has retained one thousand dolía,rs of the infant’s property, which he admits was deposited with him as trustee for a specific purpose. His own statement is that he parted with nothing that did not belong to the infant. How then can it be material to investigate the interest of the plaintiff in this bank, in which the defendant never had an interest. The only question in this case is, did the plaintiff agree to pay the defendant one thousand dollars or did the defendant violate his trust and con- • vert the one thousand :dollars to his own use. The question as to the value of the interest of the plaintiff in the Dakota Bank, is not material, non constat, the history of the bank since its foundation or its officers and business condition. Besides and beyond all this, plaintiff tendered a stipulation to defendant, stating that the business was worth $1,000, but objected to the evidence of this as immaterial to the issues in this case.
    IV. This order is not appealable and could only be reviewed on appeal from the judgment entered after trial. To allow an appeal at this time from those interrogatories which are disallowed would be having this court possibly pass twice upon the same question. Uline v. N. Y. C. & H. R. R. Co., 79 N. Y. 179; MacDonald v. Garrison, 9 Abb. Pr. 178.
   Per Curiam.

The disallowance was made upon the settlement of the interrogatories and an order disallowing the interrogatories was entered. Uline v. N. Y. C. & H. R. R. Co., 79 N. Y 179, determines that such an order can be reviewed upon appeal.

The order did not disallow the interrogatories absolutely, as not pertinent to the issue. They appear to be pertinent to the issue. They were disallowed on the condition which was complied with, that plaintiff should file a stipulation “ that the banking business obtained by the plaintiff in Iroquois, Dakota, was of the value of $1,000.”

It does not with certainty and beyond doubt appear, that this admission would avail to support the answer as much, as would answers to the interrogatories, if they should be favorable to defendant. Assuming, but not deciding, that the defendant might be forced to take an admission of a fact instead of evidence of the fact, there should be no manner of doubt that the admission would benefit the defendant to the same extent that the evidence would.

On the issues as made, the fact that the business was worth only $1,000, would not be as important to defendant as proof that it was worth $10,000 or more than $1,000. There might be at least, under the evidence, circumstances which could be considered by a jury, as to the probability that the plaintiff made the arrangement pleaded in the answer.

On the settlement of interrogatories the sufficiency of the answer, as a defence, should not be considered. The pertinency of the proposed interrogatories to the issue as made, is alone to be determined. In the present case, the proposed admission did not embrace profits from the business acquired by the plaintiff. Answer to the interrogatories might have disclosed that plaintiff did receive profits, and the answer set up as a defense the receipt of such profits.

The order should be reversed with $10 costs and the interrogatories excluded should be allowed.


text:
    THE TWENTY-THIRD STREET BAPTIST CHURCH, Appellant v. JACOB B. CORNWELL et al., as Executors, &c., Respondents.ts.

      Subscription, payable on a contingency, prerequisites to a recovery on— Unincorporated church associations, validity of subscriptions by—Payment of invalid subscription after prescribed period for subscription, effect of—Motion for new trial on minutes on dismissal of complaint, improper.

    Subscriptions payable on the contingency of a specific amount subscribed within a certain period are not recoverable unless valid and binding subscriptions to the specified amount are made within the time.
    Unincorporated bodies formed for the purpose of prosecuting the work of a church in different channels (which did not comprise the subscription and collection of subscriptions for the building of a church) cannot make valid subscriptions to a fund for building a church edifice, this although they purport to have a president, or treasurer, and the subscription is made in the name of the societies by their presidents or treasurers.
    The payment by such societies of the amounts of their subscription after the period within which subscriptions were to be made, will not, their subscriptions being essential to make up the required amount, render the other subscribers legally liable for their subscription.
    When on a trial before a judge and jury the complaint is dismissed, a motion for a new trial on the judge’s minutes is improper.
    Before Freedman and Truax, JJ.

      Decided October 25, 1888.
    Appeal from a judgment dismissing the complaint upon the merits with costs, and also from an order denying a motion for a new trial upon the judge’s minutes.
    The action was tried before the court and jury.
    The Stanton Street Baptist Church desiring to move its location, sold its property in Stanton street, and with the proceeds of the sale purchased some lots in Twenty-third street. For the purpose of erecting a church edifice on the Twenty-third street lots a subscription was started. The subscription paper was as follows :
    “ We, the undersigned, hereby agree to pay on May 1, 1882, or sooner, at our option the sums severally set to our names towards a church edifice fund of fifty thousand dollars ($50,000) now being raised by the Stanton Street Baptist Church of New York city, on condition that the aggregate of subscriptions herein found shall not be less than the said amount of fifty thousand dollars ($50,000).
    “Moneys received will be paid into the New York Life Insurance and Trust Company.
    “Location of the new building to be Twenty-third street, corner of Lexington avenue.”
    On April 30, 1882, there was subscribed to this paper $50,145. Among these subscriptions however were one of “ Ladies Aid Society, Mrs. H. O. Hiscox, President, $5,000.” “ One of Young Men’s Mission Society, Harry Angelí, President, $5,000.” “ One of Youths’ Mission Society, E. D. Garnsey, President, $25.” And that of Catherine Weeks (the defendant’s testatrix), $5,000.
    This action was brought to recover the $5,000 subscribed by Catherine Weeks.
    It appeared in the evidence that the Ladies Aid Society, the Young Men’s Mission Society and the Youths’ Mission Society were unincorporated, and were formed for the purpose of prosecuting the work of the church in different channels; that the Ladies Aid Society was an old society having a special line of missionary work under its charge; that the Young Men’s Mission Society was an old organization for benevolent purposes; it also appeared that the subscriptions of these societies had been paid but not until after May 1, 1882; it also appeared that none of these societies were formed for the purpose of subscribing or soliciting subscriptions for the building of a church edifice.
    At the conclusion of the testimony on behalf of the plaintiff the court dismissed the complaint. The plaintiff then moved' for a new trial on the minutes which was denied.

      Edward 8. Clinch, attorney and of counsel for appellant, on the points decided, argued :—
    The Ladies- Aid Society, the Young Men’s Mission Society and the Youths’ Mission Society were unincorporated bodies formed for the purpose of prosecuting the work of the church in different channels. The Ladies Aid Society has been in existence since prior to 1864, and had a special line of missionary work under its charge. During that time it had collected money for other purposes than for the church building and the amount collected rose largely into the thousands. It was shown that they overpaid their subscription by more than $1,000. The Young Men’s Mission Society had been connected with the church for thirty-five or forty years, had collected large sums of money during those years, and at its twenty-fifth anniversary had collected over $30,000. There is no evidence to show the constituency of the Youths’ Mission Society, but the subscription was made by E. D. Garnsey, Treasurer.
    It seems to have been claimed below that bona fide subscriptions could not be made by an. unincorporated body, and upon that ground the motion to dismiss the complaint was made. In other words, that persons cannot associate themselves in unincorporated bodies and create obligations • binding upon them. The plaintiff insists that, prima facie at least, every member of these unincorporated bodies who were subscribers became personally liable for the amount of the.subscription, and that this liability could have been enforced by the plaintiff had the subscriptions not been paid.
    The Code of Civil Procedure provides for actions by and against such unincorporated associations (§§ 1919-1924). It provides that an action or special proceeding may be maintained against the president or treasurer of an unincorporated association upon any cause of action for or upon which the plaintiff may maintain such an action .against all the associates by reason of their liability therefor, either jointly or severally, and that any company of persons which has a president or treasurer is deemed an association within the meaning of section 1919. Section 1921 provides that a judgment against the association shall not authorize an execution against the property of the officer against whom it is brought, while section 1922 provides for the commencement of an action against the members of the association, on the return wholly or partly unsatisfied and unexecuted of an execution issued thereupon; and section 1924 provides, that section 1913, which provides for the misnomer or death or non-liability of any person who may be joined as a defendant in such an action, shall be applicable to an action brought as prescribed by section 1922. These provisions of the Code are based upon the laws of 1849, chapter 258, but are more comprehensive than that chapter and more amply protect the rights of creditors against such associations. In the face of these provisions and conditions, it cannot be successfully maintained that these societies and their members could not have been held liable for the amount of their subscriptions had they not been paid. Ebbinghousen v. Worth Club, 4 Abb. N. C. 300 and note. Black v. Spaulding, 10 Han, 128. Certainly, prima facie that the subscriptions made by these societies were bona fide was established upon the trial of this action.
    The defendants will probably cite in support of their contention the case of the Presbyterian Church of Albany v. Cooper, 45 Hun, 453. In that case it appears that an attempt was made to raise a fund of $45,000, upon a subscription paper, which provided that the subscriptions were made “ upon the express condition and not otherwise, that the sum of $45,000 in the aggregate, shall be subscribed or paid in.” It appeared by the subscription paper that “ The Ladies Association of the First Presbyterian Church” had subscribed $5,000. The “ Ladies Association ” was an unincorporated body, and it does not appear when it was formed. At a meeting of the ladies, one of their number presiding, a resolution was adopted pledging themselves to raise $5,000, the payment to be according to the terms of the subscription paper. By its opinion, the general term seems to have been led to its conclusion by this fact, for it says: “The subscription of $5,000, by the ‘ Ladies Association ’ clearly was not legally binding upon the twenty-five or thirty ladies who assembled and passed a resolution to raise the money, but did not pass it to make the subscription......The entire transaction was simply a testimonial of their good will or of their willingness to try to raise the sum named.”
    The “ Ladies Aid Society ” connected with the plaintiff church had been in existence about twenty years and had] collected many thousand dollars, and was a recognized agent of the church in the special lines of work which were committed to it and as such society it made a subscription and not a mere agreement to raise money, so that the case at bar is clearly distinguished from the case of the Presbyterian Church v. Cooper. In that case, it also appeared that a subscription was made in the name of the “ young men of the church,” who, at a meeting, passed a resolution pledging themselves to raise “ by entertainment or otherwise $1,500 towards the paying of the $45,000 mortgage upon the church, and that the chairman be requested to sign and forward the resolution to the treasurer of the board of trustees; ” and that this was, done, but the subscription paper was not signed, so that, in respect to this amount, there was no valid subscription. The resolution passed by the “ young men of the church ” differs essentially from the subscription made by the “ Young Men’s Mission Society,” which has been connected with the plaintiff for thirty-five or forty years, and was also a recognized agent of the church for the collection of moneys.

      Van Winkle, Candler and Jay, attorneys, and Flamen B. Candler of counsel, for respondents, on the points decided, argued:—
    I. Where a subscription is made upon condition that-a certain sum shall be subscribed within a specified time, all the subscribers must be equally liable in order to make legally binding any of the subscriptions. And the condition is not fulfilled unless the subsequent subscriptions are legally binding and made by solvent and responsible persons upon no other conditions than those limiting the liability of the first subscriber. Stewart v. Trustees of Hamilton College, 2 Den. 403; Westminster College v. Gamble, 42 Mo. 411; N. Y. Exch. Co. v. DeWolfe, 31 N. Y. 273; Chesebrough v. Wright, 51 N. Y. 662.
    II. Subscriptions to a church edifice fund on a subscription paper similar to the one in this action, made by unincorporated bodies or associations such as the “Ladies Association” and the like, are not binding in law; and when it is necessary to include the amount of such invalid subscriptions in order to make up the amount required, as the condition precedent to the subscribers’ liability, none of the subscribers to the paper are' bound. Presbyterian Ch. v. Cooper, 45 Hun, 453, 456. Even though the “Ladies’ Association” above referred to or any similar association which had been duly incorporated were by its president or other officer to sign a subscription paper in the corporate name, the act would not be binding upon the corporation as a corporate act. Peoples’ Bank v. St. Anthony’s Roman Catholic Church, 39 Hun, 498, The subscriptions appearing on the subscription paper in the following form : “ Ladies’ Aid Society, Mrs. H. O. Hiscox, President, $5,000; ” “ Young Men’s Mission Society, Harry Angelí, President, $5.000; ” “ Youths’ Mission Society, E. D. Garnsey, Treasurer, $25,” and. “ Mrs. McDonald and class, $500,” were all, and each of them invalid, because none of those associations had any' corporate existence, and no one was bound by the action of its officers in signing the subscription paper, and none of such subscriptions are of the kind contemplated by the law. Peoples’ Bank v. Church, supra; Church v. Cooper, supra.

    III. These subscriptions above quoted were invalid at the time they were made. This invalidity could only be cured by the payment of the money under them before May 1, 1882. Any payment subsequent to that date would be ineffectual, and it appears by the evidence that all payments upon every one of them were made subsequently to May 1,1882. Stewart v. Trustees of Hamilton College, 2 Den. 403; 1 N. Y. 581.
    IY. The motion for a new trial made at the Trial Term was improper, no verdict having been rendered. Van Doren v. Horton, 19 Hun, 7; Hill v. Hotchkin, 23 Hun, 414; Seely v. N. Y. C. R. R., 25 Hun, 280 ; Healy v. 23d St. R. R., 11 Daly, 281; Dusenbury v. Dusenbury, 1 Civ. Pro. 292.
   Per Curiam.

The principal question in this case, the one arising on the appeal from the judgment, has been passed upon by the general term of the Supreme Court, Third Department, in the First Presbyterian Church &c. v. Cooper, 45 Hun, 453.

On the authority of that case we hold that the subscriptions of the Ladies’ Aid Society, Young Men’s Mission Society and of the Youths’ Mission Society were invalid, and that the aggregate of subscriptions was less than fifty thousand dollars.

The motion for a new trial on the judge’s minutes was improperly made. Section 999 of the Code of Civil Procedure authorizes the judge presiding at a trial by a jury to entertain a motion for a new trial made upon his minutes, only in a case where there has been a verdict. Dusenbury v. Dusenbury, 1 Civ. Pro. Pep. 292 and cases there cited.

The judgment and order are affirmed with costs.


text:
    MARY E. CHAFFEE, Appellant v. EQUITABLE RESERVE FUND LIFE ASSOCIATION, Respondent.

      Examination of party defendant after issue and before trial—when order for, not obnoxious to the objection that its object is to discover the evidence on which defendant relies to sustain his defense although its object is to prove the converse of defendant's affirmative allegations.—Boohs and papers, production of may be required as an incident to the examination.

    This action is brought on a certificate or agreement issued by defendant whereby it agreed on satisfactory proof of the death of Edward L. Chaffee to pay to his wife, the plaintiff, if then living, otherwise to the heirs or legal representatives of said Edward, the sum of $10,000 from the death fund (thereafter defined) of the defendant at the time of such death or from moneys that should be realized to such death fund from the next assessment to be made as thereinafter provided; and whereby it was provided, that no claim should be otherwise due and payable except from the reserved fund as thereinafter provided; and whereby it was further provided that only the excess of the reserve fund over $100,000, should be applicable to make up any deficiency that might exist in the death fund at the time a death claim was due for the payment of such claim.
    The complaint alleged, among other things, the death of said Edward, that due proof of such death had been given to defendant, and that the plaintiff was his widow. It contained, however, no allegation either that there was $10,000 or any less amount in the death fund at the time of the death of said Edward, or that $10,000 or any less sum had been realized from the next assessment, or that any subsequent assessment had been made, or that there was $100,000 or any greater sum in the reserved fund. It prayed judgment for $10,000 with interest or for such sum as the court might find and decree to be due upon the policy under its terms and provisions.
    The answer, among other things, affirmatively alleged, that at the time of the death of said Edward, the reserve fund of said association did not amount to the sum of $100,000, that there was no money in the death fund of said association applicable to the payment of the claim, if any, under said certificate, and that in pursuance of the provisions of said certificate and in accordance with the constitution and by-laws of said association an assessment was made, and that the amount realized to the death fund and applicable to the payment of the said certificate, if any sum whatever be due or payable, was the sum of $3,393.90; but denied that any sum whatever was due or payable under said certificate.
    On the application of the plaintiff before trial based on the pleadings and an affidavit of one Fiske, it was ordered, that defendant’s secretary be examined and his deposition taken pursuant to sections 872 and 873 of the Code of Civil Procedure and that he appear at a time and place specified in the order, and submit to an examination concerning the matters relevant to the issues in the action and concerning the matters stated in said affidavit. The order further directed him to produce the books and papers named in said affidavit, on said examination. On defendant’s motion this order was vacated.

      Held, that as the evidence sought to be obtained was to prove facts necessary to be established by plaintiff in support of her action, and as that evidence could only be obtained from defendant's officers and its books, and as it was not certain what officer had the necessary information, and as the books and papers might be required to make the examination of the witness effective, the vacation of the order was error.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided October 29, 1888.
    Appeal from order of special term vacating an order for the examination of an officer of the defendant as a witness before trial.
    The facts sufficiently appear in the head note and the opinion.

      Arnoux, Bitch & Woodford, attorneys, and Wm. H. Arnoux of counsel for appellant, argued:—

      I. The state of facts shown in the affidavit of Mr. Fiske was sufficient for a bill of discovery under the old practice. The facts set forth show the materiality of the evidence sought to be obtained;. and that it was necessary affirmative evidence in support of plaintiff’s cause of action. Bailey v. Dean, 5 Barb. 297. The cause shown to vacate such an order must distinctly appear .in the affidavit, and must be of sufficient weight to warrant the judge to vacate. Levy v. Loeb, 5 Abb. N. C. 157. In Levy v. Loeb, 5 Abb. N. C. 157, Freedman, J., and aff’d., 75 N. Y. 609, the order denying the defendant’s motion to vacate the order for the defendant’s examination was reversed, the court holding that the power of the court to vacate an order to examine before trial for cause shown was inherent; and also that it was not shown by the plaintiff that the examination was material and necessary. In tha,t case the defendant proved by affidavit that issue had not been joined, and that one of the defendants had previously been examined. The court said that as issue had not been joined the requirements of the prosecution could not be known. There is no such state of facts in this case.
    II. The order for the examination of the defendant before trial was properly granted. O’Reilly v. Westn. Union, 12 Hun, 124 ; Brisbane v. Brisbane, 20 Hun, 48; Harrold v. N. Y. E. R. R., 21 Hun, 271; Herbage v. The City of Utica, 14 N. Y. State Reporter, 845.
    III. The order granted in this case should not have been vacated. Glenney v. Hedwell, 64 N. Y. 120; Beach v. Mayor, 14 Hun, 79; Greer v. Allen, 15 Hun, 432; Chapin v. Thompson, 15 How. 53; Sprague v. Butterworth, 22 Hun, 502; Corbett v. De Comeau, 5 Abb. N. C. 169; Schepmoes v. Bousson, 52 How. 408; Hutchinson v. Lawrence, 3 Civ. Pro. Rep. 88; Hynes v. McDermott, 55 How. 262 ; Ludewig v. Pariser, 4 Abb. H. G. 246; McGuffin v. Dinsmore, 4 Abb. N. C. 244, citing Code, § 853; March v. Davidson, 9 Paige, 583; Schepmoes v. Bousson, supra; Crooke v. Corbin, 23
      Hun, 176. In none of the cases examined, either where it has been held that the examination of an adverse party before trial was a substitute for the bill of discovery, as in Phoenix v. Dupuy, 53 How. 158, and in Schepmoes v. Bousson, 53 How. 401, or where it has been denied, as in Hynes v. McDermott, 55 How. 260, is there any question as to the right of a party to such an examination where it is shown that he has a good cause of action; that his application is made in good faith and not for piscatorial purposes, and when the technical rules governing the remedy have been complied with. Although the absolute right to such an examination, formerly conceded to the parties to the action, has been denied, and the right of the court to vacate an order for such examination, formerly denied, has been held to be inherent in the court, it has been the uniform practice of the courts to order such examination, exacting compliance, both in form and substance, with the provisions of the code under which the examination is sought. Greer v. Allen, 15 Hun, 432; 14 Ib. 79; Chapin v. Thompson, 16 Ib. 54. And to refuse to exercise the power to vacate an order for such examination where, as in this case, the object and spirit of the code would be defeated and substantial injustice done. Glenney Case, 64 N. Y. 120; Harrold v. N. Y. E. R. R., 21 Hun, 268; Brisbane v. Brisbane, 20 Ib. 48.
    IV. The fact that we ask too much is no ground for denying what we are entitled to. In Hutchinson v. Lawrence, 3 Civ. Pro. Rep. 88, it is said “it may be that effort will be made to extend it (the examination) beyond what may appear to be necessary to obtain a knowledge of the facts required to be known to present the plaintiff’s case. But that possibility will not justify a denial of the remedy.”

      Me Adam & Me Adam, attorneys, and of counsel, for respondent, argued:—
    I. The order for examination before trial under § 872 of the Code, although absolute on its face, is under the control of the court in its discretion and may be vacated for cause shown. Jenkins v. Putnam, 106 N. Y. 272; Webster v. Stockwell, 3 Abb. N. C. 115; Ludewig v. Pariser, 4 Ib. 246; Cobbett v. DeComeau, 4 Ib. 252; Cobbett v. DeComeau, 5 Ib. 169; Levy v. Loeb, 5 Ib. 157 ; Barker v. Wilder, 10 Week. Dig. 252; affirmed, 21 Hun, 584. In this case the order was properly vacated for the following reasons :
    II. This order seeks to compel the production and inspection of the books of the defendant. That is the prime purpose of the order. Such an order cannot be granted ex parte ; it must be applied for upon petition and order to show cause under § 805 of the Code. Dick v. Phillips, 41 Hun, 604; Levy v. N. Y. C. R. R. Co., 53 Super. Ct. 267. In the last case, the question arose under § 872, subd. 7 of the Code, as in this case, and it was there held that the order should be vacated on the ground above stated.
    III. Such an order should not be granted in a common law action for the recovery of money only. The party has an adequate remedy by subpoena duces tecum on the trial. Dickie v. Austin, 4 Civ. Pro. R. 123; Cutter v. Pool, 3 Abb. N. C. 130; Black v. Curry, 1 Civ. Pro. R. 193; Kanter v. Brophy, 1 Ib. 83; Sanger v. Seymour, 4 N. Y. State Rep. 451.
    IV. But the affidavit of Haley Fiske, together with the pleadings, shows the object of the order to be merely a fishing excursion to ascertain how the defendant proposes to establish its defense. He says: “ He desires to examine the defendant’s secretary, the said Bogert, as to all and every of the material allegations in the answer, and deems it necessarv to do so in advance for the purpose of obtaining admissions and proofs of the facts in issue.” The answer contains the defense of the defendant, which is to be proved by him and not by the plaintiff. A plaintiff cannot compel his adversary to appear and be examined before trial, when the object of the examination is to oblige him to disclose the evidence by which he intends to establish his defense, or to obtain admissions from him. Such an examination is only allowed as to the facts tending to establish the applicant’s cause of action and then only when the evidence cannot be obtained in any other way. Code, § 871; Adams v. Cavanagh, 37 Hun, 232; Stichter v. Tillinghast, 11 Civ. Pro. R. 413 ; Wallace v. Wallace, 19 Week. Dig. 495; McMahon v. Brooklyn R. R. Co., 20 Week. Dig. 404. The plaintiff can prove all the allegations of her complaint by testimony and papers in her own possession. The affidavit of Haley Fiske shows that the proposed examination relates solely to the allegations of the answer. It is the proper business of the defendant to prove the allegations of the answer and not of the plaintiff. Yet plaintiff now seeks to find out in advance how the defendant will prove them by an order which would permit her attorneys to examine all the transactions of the company from its organization, and to rummage through all its books. Such an inquisition will not be sanctioned by the court, and the order for examination before trial was properly vacated.
   Per Curiam.

This action is brought on a certificate or agreement issued by the defendant whereby it agreed to pay to the plaintiff within ninety days after the receipt of proof of death of Edward L. Chaffee, the sum of $10,000 from the death fund (thereafter defined), of the association at the time of such death or from moneys that should be realized to said death fund from the next assessment to be made as thereinafter provided.

The answer alleges, that at the time of the death of the said Edward L. Chaffee, there was no money in the death fund applicable to the payment of the said claim, and that an assessment was made as provided in the certificate which realized the sum of $3,393.90.

It is evident that before the plaintiff can recover she must prove that the death fund amounted to $10,000, or if it did not amount to that sum what amount an assessment would realize, and that such evidence must be obtained from the officers and books of the defendant.

From the nature of the case the plaintiff has not the information necessary to enable her to testify in relation to those facts, and it does not appear that there is any source from which the testimony could be obtained, except from an examination of the officers and books of the defendant, and as before stated the testimony is material to sustain plaintiff’s cause of action.

Nor should the plaintiff be compelled to wait until the trial and then depend upon a subpoena duces tecum. It is not certain that the secretary is the officer who has the necessary information and the plaintiff should not be exposed to the risk of the failure of the officer subpoenaed to be able to testify. We do not wish to be understood as deciding that plaintiff is to have under this order a discovery or inspection of the books of the defendant. The books may be required to be produced as an incident to the examination of the witnesses, Levey v. N. Y. Central R. R. Co., 53 Super. Ct. Rep. 267, so as to make his examination effective. Plaintiff is entitled to such an examination but not to a discovery or inspection of books and papers.

We think the order vacating the order for the examination should be reversed with costs and disbursements and the motion to vacate denied with ten dollars cost.