text:
    The People of the State of New York ex rel. John Slater, Respondent, v. Jacob Smith and Others, Composing the Town Board of the Town of Greece, Monroe County, New York, Appellants.

      Commissioner of highways — presumed to home acted in good faith — adoption of his judgment by a town board, proper — review by mandamus of a refusal to audit — change of persons composing the hom'd.

    A commissioner oí highways is the officer having the care and superintendence of the highways and bridges within his jurisdiction; it is his duty to keep them in repair, and a town board is lawfully permitted to make his judgment the measure of its consent as to the reconstruction or repairing of bridges over streams within the borders of the town.
    It will be assumed that a commissioner of highways, in the exercise of his official functions, acts in good faith and according to the best of his judgment, unless the contrary appears.
    It is not the province of a writ of mandamus to review the exercise of a power, judicial or discretionary in character, of a town board, or to direct what the result of its exercise sliall be.
    Where a town board refuses to audit an account of a commissioner of highways, upon the ground that no consent or authority has been given to him to build a bridge, for the expense of which such account is rendered, the question whether the consent expressed in a prior resolution of the board is broad enough to authorize the commissioner of highways to proceed in the manner he did, in building the bridge, is one of construction; its interpretation or effect is not necessarily a matter to be controlled by the judgment of the board to which the claim is presented, and so far as there are any facts legitimately bearing upon that question, they are properly the subject of consideration upon the trial of the issues made by the return to an alternative writ of mandamus.
    If such board has consented that the commissioner of highways shall construct the bridge, it becomes its duty to audit his bill on the merits when it is duly presented to the board for that purpose.
    Where it is the purpose of a writ of mandamus to require the officers constituting a town board, as such, to act, any change in the persons composing the board may be disregarded.
    Appeal by tlie defendants, Jacob Smith and others, composing the town board of the town of Greece, Monroe comity, New York, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the Jth day of July, 1894, providing that a peremptory’writ of mandamus issue, directed to said board, commanding them to assemble as a board of town auditors for the town of Greece, and to audit and allow the claim of the relator in this action, John Slater, for the construction of a bridge in said town, known as Little Pond bridge, and interest upon said claim as claimed by the relator, under and pursuant to the authority referred to in the alternative writ herein, and that the relator recover of the defendants the srim of two hundred thirty-two and eighty-six hundredths dollars ($232.86), costs of this action or proceeding, and that he have execution therefor, with notice of an intention to bring up for review upon such appeal the alternative writ of mandamus granted on the 1st day of December, 1893.

      Hoy G. Webster and John Desmond, for the appellants.

      D. G. FeeVy and John Van Voorhis, for the respondent.
   Bradley, J.:

The relator was commisioner of highways of the town of Greece, county of Monroe, in the year 1891 and until March, 1893. On April 25, 1891, he appeared before the board of town auditors, and called its attention to the condition of-what was known as the Little Pond bridge, and another bridge in the town; and thereupon the board passed the following resolutions: “ Resolved, that the commissioner of highways (John Slater) of the town of Greece is hereby authorized to repair the bridges that may have gone down since the annual town meeting, to the best of his judgment. Resolved, that it is the .sense of this board that John Slater, commissioner of highways, should be reimbursed for the moneys expended by him for the benefit of the town of Greece.” The relator thereafter, in that year, constructed a new Little Pond bridge at the expense of $291 for the abutments, and $800 for the iron superstructure. The board audited and allowed to the commissioner the amount of such expense for abutments, and rejected his claim for the superstructure.

Upon his petition an alternative writ was issued, requiring the defendants, as such board, to audit the claim or account for such amount with interest, or show cause why the command of the writ ought not to be obeyed. By their return to the writ the defendants admit tbe adoption of the resolutions before mentioned, and deny that the relator had by such resolutions, or otherwise, any authority to build the bridge so constructed, or that they by any action on their part ever accepted the bridge. They admit that the relator presented such claim to the board, and that the audit of it was refused, but deny that the refusal to audit the claim was arbitrary, illegal and in violation of their duty.

The trial of the issues resulted in a verdict for the ¡Dlaintiff, followed by a final order of the court that a peremptory writ of mandamus issue commanding the members of the board of town auditors to assemble as such, and audit and allow such claim of the relator. The old bridge was a wooden one, constructed on log abutments and a pier, and was about forty-five feet in length. The logs had become somewhat decayed, as had also some of the stringers. After the town meeting in that year, and on April twenty-fourth, one end of the bridge fell down, and it was thus rendered impassable. The next day the resolutions above set forth were adopted by the town board.

The leading • question is, whether by those resolutions the board consented to the construction of the bridge as it was constructed within the meaning of the statute which provides that if any highway or bridge shall at any time bo damaged or destroyed by the elements, or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated, may, with the consent of the town board, cause the same to be immediately repaired or '.rebuilt, although the expenditure of money required may exceed the sum raised, or authorized to be raised, for such purposes, as hereinbefore provided ; and the commissioners of highways shall present the proper vouchers for the expenses thereof to the town board at their next annual meeting, and the same shall be audited by them and •collected in the same manner as amounts voted at town meetings.” (Laws of 1890, chap. 568, § 10.)

The statute also provides for calling special meetings of the board to audit commissioners’ accounts for such expenses (Id. § 11), and for verification of such accounts. (Id. § 12.)

. There was in the consent given by the resolution no restriction as to the manner in which the commissioner should proceed to provide a bridge at the place in question unless it is found in the uso of the word “ repair,” and what was reasonably essential to the purpose was expressly left to the best of his judgment.”

It would, therefore, seem that if in his judgment it was deemed best or necessary to its reparation to remodel or reconstruct the bridge, to do so would apparently come within such consent. (Mather v. Crawford, 36 Barb. 564; Huggans v. Riley, 125 N. Y. 88.)

And inasmuch as the ‘commissioner was the officer haying the care and superintendence of the highways and .bridges in the town, and was charged with the duty of keeping them in repair (Laws of 1890, chap. 568, § 4), the board was lawfully permitted to make his judgment the measure of its consent. He had been placed pursuant to the statute in that relation to the public, and in that view the board -was at liberty to assume that he would faithfully exercise his judgment and perform his duty in that behalf. If the reparation in material and structure of the passageway made by him over the stream or waterway was the product of his judgment, it is not seen that the commissioner of highways exceeded the consent granted to him by the town board. It may be assumed that in the exercise of his official functions the commissioner acted in good faith, and, therefore, according to the best of his judgment in the matter,unless the contrary appeai-s. This is the rule applicable to the action of officers clothed with discretionary or judicial powers. The old bridge had been supported by log abutments at the ends and a wooden pier in the center consisting of posts supporting a crib of logs. The floor of the bridge rested upon wooden stringers.

The logs of the southerly abutment had gone out and that end of the'bridge dropped down.- It appears that the other abutment was in a bad condition, and that the pier and substantially all the timbers of the bridge had become somewhat decayed. It cannot well be said that the commissioner was not justified in his conclusion that the repair of the bridge required its reconstruction. He accordingly let the work of putting in stone abutments to the lowest bidder, and in like manner contracted for the iron superstructure. Before that was supplied he put plank upon stringers temporarily for the use of the bridge. It is urged that as in that condition it could have been used by the public, the expense of the iron superstructure was ■unnecessary and unauthorized. It appears that the highway embracing the bridge is a thoroughfare upon which there is much travel and transportation with teams and vehicles, heavy as well as light, and the relator may, having in view the safety and durability of the bridge, have deemed the reconstruction of it, as it was accomplished, more economical for his town than the restoration of the wooden bridge would have been. This, within the meaning of the consent of the town board, given as before mentioned, was a matter to be determined by the exercise of the relator’s judgment. The contention on the part of the defense is that the controversy has relation only to the exercise of power judicial or discretionary in character of the town board, and that' as the board has acted in rejection of the claim, there is no support for the remedy by mandamus. The legal proposition so stated is substantially correct. It is not the province of the writ to review the exercise of such power or to direct wliat the result of its exercise shall be, and if that is the only purpose it can serve in the present case, the relator is not entitled to it. (People ex rel. Hammond v. Leonard, 74 N. Y. 443; People ex rel. Francis v. Common Council, etc., 78 id. 33 ; People ex rel. Millard v. Chapin, 104 id. 96; People ex rel. Myers v. Barnes, 114 id. 317.)

■ But that is not the situation. The town board did not audit the relator’s account, and the main ground of its rejection was that no consent or authority had been given to him to build the iron bridge. In this, as viewed here, the board did not give the effect to the resolutions to which they were entitled, and as he had such consent it became the duty of the board to audit his bill on the merits when duly presented for the purpose.

The question whether the consent expressed in the resolution of the board was broad enough to authorize the relator to proceed in the manner he did to provide the bridge, was one of construction in view of the circumstances as they then existed. Its interproration or effect was not necessarily a matter to be controlled by the judgment of the board when the delator’s claim was presented, and so far as there were any facts legitimately bearing upon that question they properly were the subject of consideration upon the trial of the issues made by the return to the alternative writ. The position urged that the purpose or measure of the consent was a matter necessarily to be determined by the judgment of the board is not sustained, and, therefore, the construction and effect given to the consent is the subject of review in this proceeding. As this board, erred in that respect, the rejection of the account on that ground did not conclude the relator in seeking to require that his account be audited. (People ex rel. Bliss v. Board of Supervisors, 39 N. Y. St. Repr. 313.)

The relator incurred some expense in providing and erecting the-iron superstructure of the bridge, and by reason of the consent so given him is entitled to payment of the amount reasonably incurred by him in that behalf.

Iiis bill for it was $800, exclusive of interest, and, so far as it appears here, that sum was the alnount of the expense actually incurred by him. But that question is not here for consideration. It is properly the subject of inquiry by the town board, in the determination of which its action will be judicial in character, and as before stated the result of its audit of the claim upon the merits is hot the subject of direction by the peremptory writ.

The suggestion that the matter of the account had passed from the jurisdiction of the town board when this proceeding was commenced, and, therefore, it was instituted too late for the purpose of any relief, requires no consideration.

It does not necessarily so appear in respect to the account "which the relator seeks to have audited. And no such question seems to have been specifically raised at the trial or pointed to by any exception.

The purpose of the writ is to require the officei’s constituting the town board, as such, to act, and any change in the personnel may be disregarded. (People ex rel. Case v. Collins, 19 Wend, 56.)

There was no error in any rulings on the trial bearing upon questions essentially pertinent to those before the court for considera^ tion, and none to the prejudice of the defendants.

The order appealed from, amongst other provisions, directed that the peremptory writ command the town board to “ audit and allow the claim of the relator,” etc. This may be susceptible of a construction which would give to it an import broader than that intended by the court.

• The order should, therefore, be modified By striking out the words “ and allow,” and by inserting in the place thereof the words “ on the merits,” and, as so modified, the order should be affirmed, with costs to the relator.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from modified by striking out the words “ and allow ” and inserting instead thereof the words C£ on the merits,” and, as modified, affirmed, with costs to the relator.


source: Caselaw Access Project

author: Pumsey, J.:

license: Public Domain

text:
    Charles Bell, as Committee, etc., of Morgan Smith, a Lunatic, Appellant, v. Eberle E. Smith and Another, Respondents.

      Agreement between a father and son — when presumed to be invalid — when a man is competent to do business.

    In an action brought to set aside an agreement made between a father, eighty-one years of age, and his son, by which the father satisfied a mortgage given by his son to him, and the son agreed to board, lodge and clothe the father and his wife during their joint lives, the presumption is, by reason of the relation between the parties, that the bargain is not valid, and the burden of proof rests upon the sou to overcome such presumption. If, however, it be shown that the father thoroughly understood the bargain made with his son, and that it was a reasonable bargain to make and inured to his advantage, the agreement will be upheld.
    A man of the age of eighty-one years, although not retaining his faculties to their full extent, is perfectly competent to do business if he has a clear appreciation of the particular business in which hois engaged, of the relation which it bears to his fortune, of the expediency or inexpediency of it, and is able to judge rationally as to t-he reasonableness of the particular transaction.
    Appeal by the plaintiff, Charles Bell, as committee, etc., of Morgan Smith, a lunatic, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yates on the 23d day of November, 1893, upon the decision of the court, rendered after a trial at the Yates County Equity Special Term, dismissing the plaintiff’s complaint upon the merits, and for costs.

      M. A. Leary, for the appellant.

      John Gillette. for the respondents.

      Present — Dwight, P. J., Lewis and Haight, JJ.; Bradley, J., not sitting.
   Judgment appealed from affirmed, with, costs, od the opinion of Htjmsey, J., at Special Term.

The opinion of the Special Term was as follows:

Pumsey, J.:

This is one of those unfortunate litigations which not infrequently arise between children of very old people, who are anxious to divide the property without waiting for the death of their parents. The facts, which are entirely undisputed, are that Morgan Smith and his wife were the parents of one Josephine Pulver and of the defendant, Eberle E. Smith. Mr. Morgan Smith was about eighty-one years old, and his wife was some years older. For some time the two had been living at the house of Mrs. Pulver, and had received . from her such care and attention as was satisfactory to them. Mr. Morgan Smith was the owner of about $5,400 of personal property, including the bond and mortgage in question, which, with interest, amounted, on the 9th day of June, 1892, to about $2,700. Shortly before the ninth of June ‘there had been some sort of a settlement between Pulver and Morgan Smith, and Mr. Smith had learned that Pulver intended to charge him what he believed to be an exorbitant price for the board and lodging which he and his wife received, and he found that Pulver claimed that he (Smith) was then indebted to him in the sum of about $1,800 for board already had. It appeared that he was exceedingly dissatisfied with this condition •of affairs. There is no doubt that at this time Pulver and Mrs. Pulver both supposed that he was perfectly competent to do business. He knew how much he had, and they evidently supposed that he was in a fit condition to settle their account and to pay them the sum of $1,800, or thereabouts, for the board which he had had up to that time. It is clear that he was then sufficiently able to do business to appreciate the fact that his fortune was not enough to enable him to pay for his board at the rate at which they then charged him, and to understand that common prudence required that he should make some other arrangement with regard to his support, lest the fortune which he had would not be sufficient to provide for him and his wife during their lives. At this time he went to the house of his son Eberle, the defendant. Ebez-le, it seezns, was a well-to-do farmer, who lived upozi the farm which Morgan Sznitli had occupied for many years. Morgan Sznith and his wife had some sort of a life estate in that faz-m, or in some portion of it. Eberle Sznith azzd his wife had givezz to Morgan Smith a bond to secure the payznent of $2,500, secured by a znortgage upozi the faz-zn on which he lived. Upon this bond there was due something over one year’s interest. While Morgazz Sznith was at his son’s house-azi agreement was znade between them, by which Morgan Smith dischaz-ged and satisfied the bond and mortgage, and Ebez-le Smith and his wife agreed to give to Moz-gan Smith and his w-ife a home at their house, azid to clothe and care for them during their lives, azzd, in case Moz-gazi Smith azzd his wife desiz-ed to live elsewhere, to pay $300 a year during the life of Morgan Smith and $150 a year to Mrs. Sznith, izi case she survived her husband. This actiozz is brought to set aside and cancel this discharge, azid the sole question is whether or not Moz-gan Smith, at the tizne he znade this paper, was of sound mind and competent to make a contract of this kind, or whether he had become, by reason of his age, incompetent to make such a contz-act.

It may be pz-enzised that such a contz-act is not unusual. Whatever may be thought of the expediency of such a contract generally it cazznot be said to have been azi inexpediezzt contract to make in this instance. Ebez-le Smith was an only sozz. He was, so far as appears, on the best possible terms with his father, and there is nothing to show that there had ever been any difficulty or unkindness between them. Mr. Smith, his fathei-, had, as he supposed, grave reason to be displeased with the conduct of Pulver towai-ds him. Of his whole fortune at that time almost $2,000 had already been absorbed by the chai-ges which Pulver made, and which, it seems, he had not supposed would be so lai-ge. These chai-ges would reduce his estate from $5,400 to about $3,600, azzd it is quite clear that the iizterest on that $3,600 would zzot be sufficiezit to pay the bill which Pulver had advised him he intended to charge, being sevezz dollaz-s a week for the board azzd lodgizzg of the two. It was apparent that at this rate he would be obliged each year to break izzto his capital sez-iously, and that the small fortune which he possessed would soozz be exhausted. In that state of affairs it surely ■cannot be said to be unreasonable that he desired to make some other .arrangement for his support; and the arrangement which he did make, by which he provided for the maintenance of himself and his wife, including their clothing and all their expenses, at the house of his only son, at a cost of the interest on a $2,500 mortgage, was a very profitable bargain. It is noticeable that he procured by this bargain what Pulver had been charging him seven dollars a week for.

Was he then competent at this time to make this bargain ? The •question is not whether he was competent, on the twenty-third of August, to make this bargain, but whether he was competent to make it on the ninth of June. It may be conceded that because the i-elation of father and son existed between Morgan Smith and Eberle the presumption is that the bargain was not a valid one (Boyd v. De La Montagnie, 73 N. Y. 498), and that the defendant Eberle •has the burden of the proof to overturn this presumption. As we have seen the transaction was not an unreasonable one in itself. 'The' evidence shows that at the time it was made Morgan Smith •consulted with his brother, a business man in whom he had great confidence. The brother says that at this time Morgan understood what property he had, and produced it and counted it, and it was figured up. He spoke of the debt to Pulver, from which it appears that he was perfectly cognizant of what was owing in that place. It appears that he talked over the terms of this contract with his brother, and advised the brother Avliat he wanted put into it, and after the contract was written he read it over and appreciated the contents and said it was all right. . It appears that he 'Suggested the agreement himself, and gave as reasons that his expense at Pulver’s was too much and that he wanted to secure a home while he had something to do it with. When the amount of money to be paid, in case he left Eberle’s house, was spoken of he said he wanted it made large enough to secure to himself and his wife a home. He knew at that time that he had no debts, except the debt to Pulver, and he knew its amount. That testimony shows that, at the time he made this contract, he was in the full possession of his faculties, quite as much so as any man of his age could be expected to be. It appears, from the testimony of the defendant’s witnesses, •that while he was there at Eberle’s and afterwards, even down to the time when the inquisition, which declared him insane was had, he was intelligent and bright,,and there was no serious failure of his mental faculties. These persons tell of interviews with him, in which lie-talked of his business, and showed a clear appreciation of his financial condition. It appears that in August, 1892, when Mrs. Pulver was taking him from EberleVto her home, he met Judge Struble, with whom he had a conversation, and that he at that time had a clear recollection of things that had occurred, and was bright and intelligent. The evidence of other witnesses who saw him from time to time when he was at Eberle’s, shows that he recollected his friends, he knew their ages and conditions, he knew their families and inquired about-them, and talked with visitors intelligently upon the usual topics of the day. It is very clear that he knew all about his own family,, and that he had an exceedingly clear appreciation of his financial condition, and was perfectly aware what he wanted to accomplish by this bargain.

The evidence of the plaintiff’s witnesses shows that he was a feeble old man, and undoubtedly he was not as bright or intelligent, nor was his mind as active as in his younger days. But it is not exjiected that a man of his age will retain his faculties to their full perfection. The law does not require that to make him competent to do-business. A man is^perfectly competent to do business if he has a. clear appreciation of the particular business in which he is engaged, of the relation it bears to his fortune, of the expediency or inexpediency of it, and if he is able to judge rationally as to the reasonableness of the particular transaction. All this Morgan Smith was. able to do. In addition to this he knew clearly all about his own family and the necessities of his financial condition, and he had sound reasons which he gave for making the bargain which he did. It would be very serious if the -law should say that whenever the faculties of a man begin to fail because of his age, it should be reason sufficient for taking from him the right to control his property. The power of such control is of great use to many old men, to insure to them proper and courteous treatment from their families. It has been the experience of many lawyers that as soon as a. man became old and infirm, he ceased to receive from his children that respect and care which, in his prime, he was enabled to command, and that but' for the hopes of the favors which they might: obtain from him, he would be left to charity for that care which his age and necessities demanded. Because of that it was said by Chancellor Kent that the law would go a great way in assuring to old men the right to manage tlieir fortunes, although their bodies and their minds might have become enfeebled with age.

But without laying any stress upon these considerations, it is sufficient to say that upon the testimony this man thoroughly understood the bargain which he made with his son; that it was a reasonable bargain to make ; that it assured him a comfortable home or sufficient maintenance if he thought fit to go elsewhere, and that he was possessed of sufficient mind to enable him to make it.


author: Hwig-ht, P. J.:

text:
    Charlotte Thon, Respondent, v. Rochester Railway Company, Appellant.

      Words in a foreign language proved, as an admission made by the adverse pa/i'ty — testimony as to their meaning by the counsel of suchpm'ty— contradiction thereof ■— credibility of the counsel.

    Upon, tie trial of an action brought, to recover damages arising from personal injuries alleged to have been caused by the defendant’s negligence, one Wolff, a witness for the defense, testified that the plaintiff told him in effect that the accident, by reason of which she sustained the injuries complained of, was caused by her stepping from the defendant’s car while it was in motion.
    On the cross-examination of this witness it appeared that the statement made to him by the plaintiff was in the German language, and, being asked to repeat it in German, in response to a direction of the court, the witness gave what he declared to be in substance, as nearly as he could reproduce it, the statement of the plaintiff as made by her in German. This testimony in German the stenographer was unable to take down. Subsequently the plaintiff called to the stand one of her counsel, a competent German and English scholar, who testified that he took down in writing, verbatim, the German words which the witness Wolff, by his testimony, attributed to the plaintiff in the conversation testified to by him. The words so taken by such counsel for the plaintiff were . submitted to the witness Wolff, and he identified them as the German words used by the plaintiff, 'as nearly as he could recollect them.
    The plaintiff thereupon offered to prove by such counsel what the meaning of these words was ■ when correctly translated into English. The offer was excluded under the defendant’s objection and the plaintiff excepted.

      Held, that the testimony offered was competent and admissible in evidence, and that because of the error of the court in excluding the same, a motion for a new trial of the action was properly granted;
    That a proposal of the court to permit the witness Wolff to be recalled and to be again asked for a German version of the plaintiff’s testimony, to. be translated to the jury, did not meet the situation ;
    That all the evidence proposed to be given by the plaintiff’s counsel was subject to contradiction, by the witness Wolff as to the identity of the German words testified to by him, and by Wolff, or by any other competent witness, as to the correctness of their translation, and should have been admitted.
    That the position occupied by the witness as counsel for the plaintiff affected only the credibility of his testimony.
    Lewis, J., dissenting.
    Appeal by the defendant, the Rochester Railway Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of the county of Monroe on the 18th day of September, 1893, granting the plaintiff’s motion, made upon the minutes, for a new trial.

      G. J.' Pissell, for the appellant.

      Ivan Powers, for the respondent.

       Decided October term, 1894, but held to await the decision on a motion for reargument, which was denied at the present term.

   Hwig-ht, P. J.:

The action was to recover damages for a bodily injury caused, as alleged, by negligence of a driver of a horse car of the defendant upon which the plaintiff was a passenger and from which she was alighting when the injury was received.

One Wolff, a witness for the defense, testified that the plaintiff, relating to him the circumstances of the accident soon after its occurrence, told him, in effect, that in her haste to reach another car, at the junction of the two routes, she stepped from the car she was on while it was in motion and thus fell to the ground; that she had rung the bell once or twice for the car to stop, and that she did not know it was not allowed to stop on the intersection of the two streets. On the cross-examination of this witness it appeared that the statement made to him by the plaintiff was. in the German language, and he was asked to repeat it in German. After protesting, more than once, that he could not give the words of the plaintiff, he finally, in response to a direction of the court, gave what he declared to be, in substance, as nearly as he could reproduce it, the statement of tlie plaintiff as made by her in German, which testimony, in German, the stenographer was ilnable to take. Subsequently, when the plaintiff had the case, to reply, she called to the stand one of her counsel, Mr. Jacob Spahn, a competent German and English scholar, who testified that he took down in writing, verbatim, the German words which the witness "Wolff, by his testimony, attributed to the plaintiff in the conversation testified to by him. The words so taken by Mr. Spahn were submitted to the witness Wolff and he identified them as the German words used by the plaintiff, as nearly as he could recollect them. The plaintiff thereupon offered to prove by Mr. Spahn what the meaning of those words was when correctly translated into English. The evidence offered was excluded under the defendant’s objection, and plaintiff’s exception to this ruling was the ground upon which the learned judge at, the Circuit granted the motion for a new' trial. We think the evidence offered -was competent and admissible, and that for the error of its exclusion the motion for a new trial was properly granted.

The situation wras one which did not call for an interpreter, but for a translator, and for that purpose Mr. Spahn was competent both as a witness and as a German and English scholar ; his position as counsel for the plaintiff went only to his credibility. He was presumably the only person connected with the case who was at the same time interested and competent to recognize and identify with accuracy the German words which the witness Wolff attributed to the plaintiff. This he testified he did, and reduced them to writing as they were spoken by the witness, and he produced them before the court. Those -words, when thus secured and identified, were a part of -the evidence in the case, and, being such, it was necessary that they should be translated into English. The proposal of the court to permit the wetness Wolff to be recalled and to be again asked for a German version of the statement of the plaintiff, and to permit that portion of his testimony to be interpreted to the jury, did not quite meet the situation. The witness had once given his version of the plaintiff’s statement in German; the words had been taken down and preserved; they were a part of the evidence already given in the ease; it only remained to have them translated in order that the plaintiff should have the benefit of the evidence if it should prove to be beneficial to her.

Of course all the evidence thus given, and proposed to be given, by the witness Spahn was subject to contradiction, by the witness Wolff as to the identity of the German words testified to by him, and by Wolff, or any other competent witness, as to the correctness of their translation. But that the plaintiff had a right that the jury should know what the testimony was when first given, and what was the meaning of the German words then testified to, we cannot doubt. The testimony excluded related to an alleged admission of the plaintiff closely affecting her cause of action, and it is impossible to say that its exclusion was not to the prejudice of the plaintiff.

The order for a new trial should be affirmed.

, Haight, J., concurred; Lewis, J., dissented; Bradley, L, not sitting.

Order appealed from affirmed, with costs of this appeal to the plaintiff to abide the event.


author: Lewis, J.:

text:
    Percy R. McPhail, Respondent, v. Leander Ridout and Others, Appellants.

      Change of place of trial for the convenience of witnesses — the moving .affidavits must state facts showing the witnesses to he necessary — costs of the motion.

    An affidavit of a party moving to change the place of trial of an action for the convenience of witnesses, which fails to state the facts upon which the affiant bases his allegations that the witnesses named therein are material witnesses, is radically defective, and an order denying such motion, with costs, and granting the moving party leave to renew his motion upon new affidavits, will be affirmed upon appeal.
    Appeal by the defendants, Leander Ridout and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 18th day of July, 1891, denying the defendants’ motion to change the place of trial of the action "from the county of Monroe to the county of Cattaraugus.

      E. A. Nash, for the appellants.

      William A. Sutherland, for the respondent.
   Lewis, J.:

This action was brought upon two promissory notes made by the defendants, payable to the order of E. Bennett & Son. It was alleged in the conrplaint that the notes were transferred by the payees before maturity to one John P. Johnson, a banker at Highland, Nansas, for a valuable consideration and without notice, and by Johnson transferred to the plaintiff for value.

The place of trial was -laid in the county of Monroe.

The answer of the defendants denied the execution and delivery of the notes and alleged that they were without consideration and were obtained from them by fraud and misrepresentation, and that Johnson did not purchase the notes before maturity and did not pay value for them and took them with notice of the fraud, and that the plaintiff obtained possession of the notes after they became due and payable. All the transactions relative to the alleged making and delivery of the notes took place in the county of Cattaraugus.

The defendants, upon the pleadings and affidavit of the defendants, moved to change the place of trial to Cattaraugus county. The motion was denied, with ten dollars costs, to be paid by the defendants to the plaintiff, but with leave to the defendants to renew the motion upon new affidavits. We are not advised by the record , upon what ground the motion was denied, but assume that it was for the reason that the moving papers were defective in not stating the reason for the belief of the affiants that the persons named were ■necessary and material witnesses for the defendants. The plaintiff, with a view of defeating the defendants’ motion, made and filed a written stipulation admitting the truthfulness of the allegations of the defendants’ answer as to the notes having been procured by means of false and fraudulent representations, and that they were signed by the defendants in reliance upon the truth of such representations. It is the defendants’ contention that the stipulation was not' sufficiently broad; that it did not admit some material facts which they could prove by the Cattaraugus witnesses, and they call attention to the failure of the stipulation to admit that.O. W. Leggett and R. C. Nobles were the duly authorized agents of E. Bennett & Son, the payees named in the notes ; and also to the allegation in the defendants’ answer, wherein it is alleged, upon information and belief, that during the months of April and May, 1890, C. W. Leggett and B. O. Nobles, the duly authorized agents of E. Bennett & Son, made certain false representations to the defendants and to the clause in the moving affidavit That Fred .Smith, Charles O. Boutelle, Stephen M. Herrick, Bichard O. Dunn and Milton B. Childs are necessary and material witnesses, because they heard the statements and representations of the said Leggett and Nobles, because they know that said Leggett and Nobles were the duly authorized agents of said E.' Bennett & Son.” It is nowhere stated in said affidavit upon what facts the affiants base their allegation that said witnesses heard the representations mentioned, or knew of the agency of Leggett and Nobles. At most the statement in the affidavit amounted to the expression of an opinion of the affiants as to the knowledge possessed by the witnesses. Had it been stated that the affiants had conversed with the persons named, and had been informed by them that they would testify to facts showing or establishing the agency, or had the affidavits of the alleged witnesses been produced, showing the facts upon which their knowledge was based, a better ground for the motion would have been shown.

Like defects appear in every part of the affidavit where the affiants assume to state the reason why the persons named would be necessary witnesses.

Our particular attention is called by the appellants’ counsel to the statement in the affidavit as to the witness Fred E. Johnson, as follows : The said Fred E. Johnson, that at the time the said notes are alleged in the complaint herein to have belonged to and been owned by this plaintiff, or the said John P. Johnson, they were owned by the said E. Bennett & Son, and were not in the possession of either the said plaintiff or the said. John P. Johnson.” The counsel claims that Johnson is certainly shown to be a highly necessary and important witness for the ' defense ; there is nothing that precedes or follows the clause above quoted which adds any strength to it. It wholly fails to show that he is a necessary witness.

The motion was undoubtedly denied because of these radical defects in the moving papers. • The defendants should have availed themselves of the clause in the order permitting a renewal of the motion upon new affidavits.

The ajipellants complain of the clause in the order imposing upon them ten dollars costs of the motion. The costs upon such motion are sometimes made to abide tbe event of tbe action, but tbe motion being denied for tbe reason that tbe moving papers were radically defective, tbe defendants were properly required to pay costs of tbe motion, especially so as they were permitted to renew tbe motion upon new affidavits.

The order appealed from should be affirmed, with ten dollars costs and disbursements. ■ ■ '

Dwight, P. J., and Bradley, J., concurred; Haight, J., absent.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Rumsey, J.:

text:
    The People of the State of New York, Respondent, v. Daniel W. Powers, Personally (Appellant) and as Executor and Trustee, etc., of Martha Dunlap, Deceased, Impleaded with Others.

      Trust for “ charitable and benevolent coiporations" of a city — when sufficiently specific— designation of beneficiaries — judicial notice of organized charities — application of a fund for the benefit of others, enforced — sight of the Attorney-General to institute a suit to enforce a charitable trust, not limited by Code of Oivil Procedwe, § 1781 — refusal of charitable corporations to collect a bequest— pasiies to the suit.

    A testatrix, by her last will and testament,' devised and bequeathed certain property to her sisters for life, and further therein provided as follows:
    “I give, bequeath and devise unto Daniel W. Powers, of Rochester, N. Y., all the property given and devised by the eleventh clause of this will, which shall remain after the execution and termination of the said trust at the death of said Nancy and Mary Dunlap. This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers that he will dispose of the said property among the charitable and benevolent institutions or corporations in the city of Rochester, as he shall choose, and such sums and proportions as he shall deem proper.”

      Meld, that the words “this gift and devise is made upon the trust and confidence reposed in the said Daniel 'W. Powers,” etc., were sufficient to create a trust, as the other necessary conditions existed, the testatrix having pointed out with sufficient certainty both the subject-matter and the objects of the trust.
    To sufficiently designate in a will the beneficiaries of a trust thereby created, it is not necessary that they should be named in the will. It is sufficient if power be given to the trustee to select the object of the trust, provided the persons or corporations are so defined and limited in the will that a court of equity would have power to enforce the execution of the trust, or in default of a selection by the trustee, to decree an equal distribution among those from whom the selection might have been made; the objects of the trust must, however, be so limited by class, or kind or locality, that the court can, within the limits of a reasonable investigation, ascertain what they are, and that they are actually existing and devoted to the purposes for which the testator’s bounty is intended, and come within the specified objects from which the selection might have been made.
    The court can take judicial notice of the fact that in every large city there are organized charities, but cannot take such notice as to how many there are or for what special purpose they are established; there is no presumption that the charitable institutions in a certain city are so numerous that they cannot be easily ascertained.
    Where a bequest is made to a class of beneficiaries specially designated and confined so that each one can be readily ascertained, the bequest is sufficiently definite and will be upheld.
    It is in all cases the duty of courts, where a testatrix has sought by will to dispose of property for charitable uses, to sustain such disposition if it can .be done without a violation of the rules for the construction of such bequests.
    A person who knows that a testatrix intends that a bequest to him shall be applied to the benefit of others, and, by express promise or silent acquiescence, encourages the making of such a bequest, will be compelled to carry out the intention of the testatrix, if it can possibly be done; the fact that such legatee has the right of selection of the beneficiary does not make the power given to him less imperative.
    A devise for benevolent purposes alone does not create a charity and is not valid, but when the word ‘ ‘ benevolent ” is used in connection with the word ‘ ‘ charitable” the former is synonymous with the latter, and a bequest to “benevolent or charitable” objects is valid.
    'The People of the State of New York, like all other parties to actions, must show an interest in the subject-matter of the litigation before they can prosecute a suit, but the interest which entitles or requires the Attorney-General to sue in the name of the People of the State may be something other than a right to the recovery of money or property. The right to interfere arises when a right ,to be asserted or a wrong to be redressed affects the whole or a large part of 'the community and is public in its nature. A devise for a charitable purpose is a public use, and in order to be a valid trust for a charitable use there must always be some public benefit open to an indefinite and vague number, and unless that exists the trust is not charitable.
    The People of the State of New York have such an interest in the administration of a public charity as to warrant the Attorney-General in bringing a suit in the name of the People of the State to enforce it, where his interference is necessary.
    There is no difference in principle between the refusal of charitable corporations to claim and collect a fund, which is undoubtedly theirs, and a refusal to collect any securities which they might own and allowing them to be lost. In either case the effect of their action would be to waste the fund to which they were entitled and which it was their duty to protect and apply, and the Attorney-General is authorized in such a case to institute a suit to protect the rights of such corporations as the interests of the People are jeopardized by such inaction on their part.
    The statutory power given by the provisions of section 1781 of the Code of Civil Procedure does not in terms or otherwise affect or take away the duty of the Attorney-General to proceed under the provisions of the Revised Statutes or at common law to prosecute such suits as are necessary to protect the interests of the People of the State.
    In an action brought by the Attorney-General in the name of the People of the State to enforce a charitable trust, not only the corporations which refuse to act and compel the distribution of the trust fund, but also the person who wrongfully withholds the estate that has been devoted to their use, must be made parties in order that full relief may be granted.
    Appeal by the defendant, Daniel W. Powers, from an interlocutory judgment of the Supreme Court in- favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of May, 1894, upon the decision of the court, rendered at the Monroe Special Term, overruling the demurrer of the defendant, Daniel W. Powers, to the complaint.

      George F. Dcmforth, for the appellant.

      Thoodore F. Hcmcock, Attorney-General, and Theodore Bacon, for the respondent.
    Interlocutory judgment appealed from affirmed, with costs, on the opinion of Rumsey, J., at Special Team, with leave to the defendant to withdraw demurrer and answer over within twenty days on payment of the costs of the demurrer and of this appeal.
    Lewis and Bradley, J J., concurred; Dwight, P. J., not voting; Haight, J., absent.
   The opinion of the Special Term was as follows :

Rumsey, J.:

The second ground of demurrer is clearly not well taken for several reasons. It does not appear upon the face of the complaint that there are any other charitable and benevolent institutions or corporations in the city of Rochester other than those made parties. If there are it does not appear that-the demurring defendant is prejudiced by the non-joinder. (Anderton v. Wolf, 41 Hun, 571.) The plaintiffs are the People of the State suing though the Attorney•Greneral. The complaint says that one Martha jDunlap, a resident of Rochester, died there on the 15th day of May, 1882, leaving a large estate, having previously made her will, dated March twenty-second of the same year. She had never married. Tier only next of lrin were two sisters, each owning an estate of over $100,000. It is stated that the defendant Powers had for many years had charge of the management of the estate of each of the sisters; had been their confidential and trusted adviser in regard to their affairs and the custodian of their money and securities; and was regarded by Martha Dunlap with especial trust and confidence. It is alleged that the defendant was himself at that time a man of large wealth, from which it is fairly to be inferred that the testatrix felt no particular obligation to make him the absolute devisee of her estate for his own benefit. The will which she made was drawn by the defendant, and after some legacies contained a bequest to the defendant of the rest and residue of her yn’operty, in trust for the testatrix’s sisters during their lives. Then follows the clause which has given rise to this litigation. It is as follows:

“I give, bequeath and devise unto Daniel W. Powers, of Rochester, N. Y., all the property given and devised by the eleventh clause of this will which shall remain after the execution and termination of the said trust at the death of said Nancy and Mary Dunlap. This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers that he will dispose of the said property among the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose, and such sums and proportions as he shall deem proper.”

The defend an it is alleged, was nominated as executor; was appointed by the surrogate and took upon himself the duties of that office and reduced the estate to possession. No part of the income of the estate of Martha Dunlap was used for the support of her sisteus, their own property being ample for that purpose, and the last of the two sisters died in 1889. The complaint then states that Powers never made any distribution of the estate of Martha, bequeathed to him by the above clause of her will; nor in any way acted in discharge of the trust, nor even acknowledged it; but in the year 1892 he repudiated the trust and denied any obligation to distribute any part of the estate pursuant to it, and still so refuses and denies. The five defendants, other than Powers, are corporations organized for charitable and benevolent purposes in the city of Rochester, and in which Martha Dunlap had a special interest. It is alleged further that each of these corporations has either expressly refused or neglected to begin any suit for the enforcement of the trust. Judgment is ashed that the trust expressed in the foregoing paragraph of Miss Dunlap’s will be adjudged valid and enforcible, and for other relief which need not here be specified.

There are other allegations in the complaint, but they do not appear to be material upon this issue, whatever may be their bearing should there ever be a trial of the action.

The defendant, Power'é, in his demurrer, in addition to the charge that there is a defect of parties, objects that the complaint does not state facts sufficient to constitute a cause of action, and in this way are raised the serious and interesting questions presented in the case. That the words This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers,” etc., are sufficient, if other conditions exist to create a trust, cannot be denied. (Perry on Trusts, § 112 ; Bull v. Bull, 8 Conn. 47; Harrison v. Harrison, 44 Am. Dec. 365 and note, 372, 373.) These conditions are that the testator has pointed out with sufficient certainty both the subject-matter and the objects of the trust. The subject-matter is clearly stated. Can it be said that the testatrix has designated the objects with sufficient certainty ? Has she so designated them that the court can ascertain who they are % For that is the test as established by the court. (Prichard v. Thompson, 95 N. Y. 76 ; Read v. Williams, 125 id. 560.) But to sufficiently designate the beneficiaries it is not necessary that they be named in the will. If power is given to the trustee to select the object of the trust it will be sufficient, provided the persons or corporations are so defined and limited in the will that a court of equity would have ’ power to enforce the execution of the trust, or. in default of a selection by the trustee, to decree an equal distribution among those from whom the selection might have been made. Such is the rule on the subject laid down by the courts of this State. (Power v. Cassidy, 79 N. Y. 602; Holland v. Alcock, 108 id. 312.) Obviously the application of this very general rule requires that the objects of the trust be so limited by class or kind or locality that the court can witliin the limits of a reasonable investigation ascertain what they are ; that they are actually existing and devoted to the purposes for which the testator’s bounty is intended; and come within the specified objects from which the selection might have been made. In this case I think they are so limited. The precise number of charities which are situated within the city of Bochester does not appear. Five are ‘ named in the complaint. Whether or not there are more is not stated. The court can, no doubt, take judicial notice that in every large city there are organized charities, but not how many there are nor for what special purpose they are established. But there can be no presumption that the charitable institutions in the city of Bochester are so numerous that they could not be easily ascertained. The leading case on the subject is Power v. Cassidy (16 Hun, 294; 79 N. Y. 602). That was an action for the construction of a will. The devise in question was to the executors of the testator £< to be divided by them amongst such Boman Catholic charities, institutions, schools or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.” The case came on for hearing at Special Term before Judge Yan Yoest, than whom no man wras more familiar with questions of that nature or more able in disposing of them. His opinion is reported in 16 Hun, 296. He says, among other things, “ the duty of designating the particular institutions from the general class is devolved upon the executrix and executors, who are also to determine the amount each should receive, and when that has been done, the action would have the same effect as though the names of the particular institutions and charities were written in the will.” He further says: “ They (the beneficiaries in the will) are distinct, and can readily be sepiarated from the large number of religious and charitable organizations of New York, maintained by other Christian or benevolent bodies. They, in fact, constitute a limited and well-defined class, have each a distinct organization, and are bodies corporate.” It apipeared in that case that several Boman Catholic institutions in the city of New York were unincorporated; a fact, by the way,'which does not appear in the case at bar. But it was held by Judge Yan Yoest and by the General Term that such fact was not important, so long as it appeared, as it did, that there were schools and institutions, answering the description, incorporated and competent to take, because the presumption was that the testator meant his trustees to select competent beneficiaries. ITpon appeal the Court of Appeals affirmed the judgment, holding that as there were organizations of the class specified capable of taking, and which could be ascertained, the provision was not void for uncertainty; that the fact that power was given to the executors to select the beneficiaries and the share of each, did not impair the legality of the provision; and that the executors were limited to such organizations as were capable of taking (79 N. T. 602). There is no difference in principle between that case and this, and hardly any difference in the facts. The case of Power v. Oassicly has been repeatedly discussed, but, so far as I can see, has never been overruled or even criticized. It is quite true that the doctrine of it has been limited, but the limitation only emphasizes the rule that where the class of beneficiaries is specially designated and confined, so that each one can be readily ascertained, the bequest is sufficiently definite and will be upheld. (Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 id. 312; Fosdick v. Town of Hempstead, 125 id. 581, 591.) It is in all cases not only the wish but the duty of courts, when one has sought to dispose of property for charitable uses, to-sustain such disposition if it can be done without violation of the rules which have been settled for the construction of such bequests. (Perry on Trusts, § 709 ; Saltonstall v. Sanders, 11 Allen, 446, 454, 455, Gray, J.) Much stronger is the duty in a case like this, where the will was drawn by the person named as trustee. The rule is, that one who knows that a testator intends that a bequest to him shall be applied to the benefit of others, and by express promise or silent acquiescence encourages the making of such a bequest, will be compelled to carry out the intention of the testator if it can possibly be done. (Matter of Will of O'Hara, 95 N. Y. 403.) In such a case the law should be applied with the utmost possible liberality to effectuate the intention.

The fact that the trustee has the right of selection does not make the power given to him less imperative. (1 R. S. 734, § 97.) It will be noticed that the discretion given to him is not as to whether or not the fund shall be divided, but only extends to the selection of the objects and the amount to be given to each. The sole difference between this case and that of Power v. Cassidy is that in the latter the executors had already exercised the power of selection. But that is of no importance. The question is what the executor and trustee may rightfully do, not what has been done. But that matter was disposed of by the Court of Appeals. (Read v. Williams, 125 N. Y. 560, 569.)

' It was suggested upon the argument that the trust was invalid, because the objects of it were benevolent as well as charitable institutions ; the argument being that while a trust for charitable institutions might be sustained, yet one for benevolent institutions was too broad, and might include institutions other than those which the law recognizes as charitable, and that, therefore, so much of the devise as went for the benefit of benevolent institutions was invalid. The conclusion was drawn that as all the estate might at the discretion of the executor be turned over to benevolent as distinguished from charitable institutions, the entire scheme was thereby made void. It cannot be denied that a devise for benevolent purposes alone does not create a charity and is not valid. (Chamberlain v. Stearns, 111 Mass. 267.) But the same court which so held has also decided that when the word “benevolent” is used in connection with “ charitable ” it is synonymous with it, and that a bequest to “benevolent or charitable” objects is valid. (Saltonstall v. Sanders, 11 Allen, 446; Suter v. Hilliard, 132 Mass. 412.) Such, I believe, now to be the law of England as pronounced by the highest court, overruling, or, at least refusing to follow, cases to the contrary. (Miller v. Rowan, 5 Cl. & Fin. *99 ; Perry on Trusts, § 705, 712, and note.) But in this will the discretion is limited not to charitable or benevolent institutions, but to charitable and benevolent institutions; so that no institution is within the terms of the devise, unless it is one of those which the law recognizes as charitable as well as benevolent. I have not for-gotten the case of Norris v. Thomson's Hxrs. (19 N. J. Eq. 307), in which it was held that a power of appointment “ among such benevolent, religious or charitable institutions as she may think proper ” was void because of the use of the word “ benevolent.” The court says that a devise for benevolent objects is too indefinite and is void, and that as the appointee might within the power have selected benevolent to the exclusion of charitable and religious objects, the whole devise was-invalidated. The decision is founded, on certain English cases, which, as shown by Judge Gray in Saltonstall v. Sanders (supra;), have not been followed in that country. The court of New Jersey takes no notice of the collocation of the words “ charitable or religious ” with “ benevolent,” which was the ground of the decisions of the Massachusetts cases and the House of Lords. With regard to this case, it is to be noticed that the power was held to be too indefinite solely because it was extended to benevolent as well as charitable institutions. It is fairly to be inferred from the language of the opinion that if the power had been to appoint to such charitable and religious institutions as she might think proper ” it would have been sustained.

Having reached the conclusion that the devise is valid and that the defendant takes the property subject to the duty of disposing of it as directed by the will, the next question presented is whether this action can be maintained in the name of the People to enforce the trust. The objection to the action does not go to the jurisdiction of the court, for no one denies that the court has the jurisdiction to enforce this trust in an action of some kind. (1 R. S. 734, § 96; Perry on Trusts, § 694; Story’s Eq. Juris. § 1191.) The objection is that the People have set up no cause of action in their favor, and, therefore, are not proper jiarties plaintiff. It is undoubtedly true that the People, like all other parties to actions, must show an interest in the subject-matter of the litigation before they can prosecute a suit. (People v. Booth, 32 N. Y. 397.) But when that principle is admitted we do not advance a step in this discussion, for still there remains the question, what is such an interest in the subject-matter as entitles the People to sue ? In this case the People have no money to gain by a recovery. But the interest which entitles or requires the Attorney-General to sue in the name of the People may be something other than a right to the recovery of money or property. This appears from the fact that without the direction of any statute it is the duty of the Attorney-General in the name of the People to sue out writs of quo warranto with or without a relator ; to sue out writs of mandamus; to proceed by scire facias to revoke grants improperly made or forfeited by the grantee; to proceed in ■equity if necessary to restrain public nuisances. In these matters, or several of them, the People have no pecuniary interest whatever, The right to interfere arises solely because the right to be asserted or the wrong to be redressed affects the whole or a large part of the community, and is, therefore, public in nature. Where the matter is public, in that sense the People are interested. Is, then, a devise for a charitable purpose a public use ? If it is, the People have an interest in its proper administration and the Attorney-General has the right and it is his duty to bring an action. (The Executive Law, § 52.) That a charitable use is a public use cannot be denied. Indeed, the validity of a trust for charitable purposes turns in many cases upon the fact that such trusts are public and not private in their nature. (Perry on Trusts, § 687.) In order to be a good trust for a. charitable use, there must always be some public benefit open to an indefinite and vague number, and unless that is the case the trust is not charitable. (Jackson v. Phillips, 14 Allen, 571; Perry on Trusts, §§ 710, 712.) In view of that well-settled principle, it has always been.held iii England that the Attorney-General representing' the king as parens patrim, might proceed by information in a court of equity to establish a trust for charitable purposes, or to prevent or correct a misuse of the funds, and that Chancery took jurisdiction of such a suit by virtue of its general jurisdiction. The English law books are full of cases brought upon that principle and referable to that jurisdiction. While such actions are not. so common in this country, yet they are known. In Parker v. May (5 Cush. 336), which was brought by the public prosecutor-then acting as Attorney-General, the question was presented of his right to sue, and it was said by Shaw, Ch. J., that such a. suit by the public prosecutor in the name of the Commonwealth for establishing and sustaining charitable trusts was in truth as well as in form a suit to protect public interests, and he held that it should have been brought in that way. Many years later, in the same State, the Attorney-General filed an information against certain persons who were trustees of a charitable fund, alleging that they refused to pay over the fund or to apply it to the purposes of the trust, and it was held that the information was sufficient, and that it was the right and duty of the Attorney-General to interfere in behalf of the proper administration of a public charity independent of the statute on that subject; and the remarks of Chief Justice Shaw were approved. (Attorney-General v. Parker, 126 Mass. 216.) In Attorney- General v. Garrison (101 Mass. 223) the court, upon the information of the Attorney-General, removed some of the trustees of a charitable trust, because they refused to carry out the trust according to its terms. The history of the litigation with regard to the trust in that case is interesting to show how far the People have an interest and the right to intervene in such cases. (Jackson v. Phillips, 14 Allen, 539.) Because of the interest of the public the text writers lay down the rule that in a proper case the Attorney-General may bring a bill to establish the trust or to correct abuses in its administration. (Story Eq. Juris. § 1191; Perry on Trusts, §§ 732, 744.) In this State the nature of the interest which would authorize the Attorney-General to sue in the name of the People, was discussed by Judge Duer in Davis v. Mayor (2 Duer, 666, 667). The learned judge held that wherever the wrong complained of was public in its nature, the People were proper parties, and he required the Attorney-General to be made a party to that action. His action was affirmed by the General Term (3 Duer, 119), but reversed by the Gourt of Appeals for reasons which did not at all conflict with his views on that subject. (Davis v. Mayor, 14 N. Y. 506.) In Owens v. Missionary Society (14 N. Y. 380) it is plainly stated by Judge Selden that the remedy by information at the suit of the Attorney-General in the name of the People is as available here as in England. Pour other judges concurred in his opinion, and gave to that dictum the weight of their authority.

In Attorney-General v. Utica Ins. Co. (2 Johns. Ch. 371) Chancellor Kent, denying the power of the Court of Chancery to interfere with private corporations by way of restraining violations of law at the suit of the People, admitted that in the case of a charitable institution the Court of Chancery at the suit of the People had jurisdiction to redress abuses of their trusts. In People v. Miner (2 Lans. 396) it is held by Judge Mullin, delivering the opinion of the court, that the Attorney-General may sue i'n equity to enforce trusts or prevent the use of trust powers. Erom these holdings and dicta I think I am warranted in the conclusion that the People have such an interest in the administration of a public charity as to warrant the Attorney-General here, as in England and Massachusetts, in bringing a suit to enforce it where his interference is necessary.

Is this a proper case ? It appears from the complaint that the donee of the power repudiates it and refuses to carry it into effect and claims the fund himself; that the five corporations named refuse to sue, although five years have passed of the six or ten which must elapse before their claim will be barred; that there are others than the five who might sue does not appear. If there are such no action has been taken by them. The result of this is that the fund will speedily be lost unless the People interfere. The five corporations undoubtedly might sue if they would, but they refuse. If they were private corporations, having no public duties, that would be the end of it, but they are not that alone. Their duties are public and such as the People have an interest in and can control. If they, having this fund in possession, had mismanaged or wasted it, or refused to apply it to the purposes of their trusts, the court no doubt would have the power to correct their action or even to remove them. (Perry on Trusts, § 744; Story’s Eq. Juris. § 1191; Atty.-Genl. v. Parker, 126 Mass. 216.)

The reason is that the People have an interest that the fund shall be devoted to the purpose for which the testatrix intended it. The corporations have by law the right to the fund for public purposes. It is, therefore, their duty to take steps to procure it. If they refuse, and by that refusal they lose the fund, it. is quite as much a breach of their duty as though having it, they had misapplied it. I can see no difference in principle between the refusal of a charitable corporation to claim and collect a fund which is undoubtedly its and a refusal to collect any securities which it might own and allowing them to be lost. But, in the latter case, no one would question the right of the People to interfere. In either case the effect of its action would be to waste the fund to which it was entitled and which it was its duty to protect and apply.

The foundation of the duty of the Attorney-General to sue is that unless he proceeds the fund will be lost or wasted. If that condition of affairs exists it is no matter whether it comes to exist because of lack of power of some one to sue, or because the person who should sue, through collusion pr otherwise with the wrongdoer, refuses to act. In each case the interests of the People are jeopardized and the duty of its law officer begins. The case of The People v. Simonson (126 N. Y. 299) is vastly different. There there was no trust for charitable purposes, and nothing but that was decided or discussed.

It is said that the Attorney-General might have proceeded against these corporations under section 1181 of the Code of Civil Procedure. Possibly that is true. But the statutory power given in that section does not, in terms or otherwise, affect or take away the duty of the Attorney-General to proceed under the provisions of the Revised Statutes, now incorporated into the Executive Law, or at common law, by prosecuting such suits as are necessary to protect the interests of - the People. But a suit, as provided by section 1181, would be of no avail here. All that could be done under that section would be to charge the officers with the consequences arising from a breach of their trust. The fund here could not be reached. It is doubtful whether Powers could even be made a party defendant in his capacity of executor or trustee.

Such an action would by no means accomplish the purpose which is sought, or which the necessities of the case require. That purpose is to reach this fund and compel its application to the public purpose for which the testatrix intended it and thus prevent its waste and misapplication. Not only the corporations, who refuse to act, but the person who wrongfully withholds the estate that has been devoted to their use, must be made parties that the full relief may be granted.

It can be done in this action, and because it can be so done and done in no other way, and because, if not done, the fund will be lost to public charity, I think this action can be maintained.

The plaintiff must have judgment on the demurrer, with costs, with leave to defendant to withdraw the demurrer and answer on payment of the usual costs.

       Laws oí 1892, chapter 683 — [Rep.


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    In the Matter of the Examination of Veronica Lynch, Judgment Debtor, in Proceedings Supplementary to Execution, in an Action Entitled Brackett H. Clark v. Veronica Lynch. Veronica Lynch, Appellant; Brackett H. Clark, Respondent.

      Vraternal society imurance — money payable to the beneficicury thereunder, exempt from the claims of creditors — chapter 116 of 1884 and chapter 520 <?fl889.
    The amount received by a widow, as beneficiary under a policy of insurance issued to a member of a fraternal society, organized under chapter 74 of the Laws of 1877, insuring her husband’s life in such society, if received by her while chapter 116 of the Laws of 1884 and chapter 520 of the Laws of 1889 were in force (although such fraternal society was not reincorporated under the latter act), is exempt from the claims of her creditors as well as from those of the creditors of her deceased husband.
    The exemption provided by such acts is general in its terms; it exempts the fund from execution for the debts of the widow no matter when or how contracted. The purpose is to afford protection to the widow and children of a deceased member of such society at a time when they are likely to especially need assistance.
    Such acts are beneficent statutes and should be liberally construed to effectuate the intention of the Legislature.
    Appeal by the judgment debtor, Yeronica Lynch, from an order of the Monroe county judge, made on the 19th day of March, 1894, directing such judgment debtor to pay to the sheriff of Monroe county the amount of a judgment recovered against her in an action brought by Brackett II. Clark, and the costs allowed in proceedings supplementary to execution issued upon such judgment, or in default thereof directing that a precept of commitment issue.

      George W. Thomas, for the appellant.

      Myron T. Sly, for the judgment creditor, respondent.
   Lewis, J.:

The defendant’s husband was a member of the Ancient Order of Hnited Workmen, a fraternal society organized by chapter 74 of the Laws of 1877.

Her husband’s life was insured by said society for the sum of $2,000 ; the defendant was named in the policy as sole beneficiary. Her husband died and she received the fund in April, 1892. Thereafter the defendant contracted a debt to the plaintiff for the rent of ■a dwelling house and he recovered a judgment therefor against defendant.

On the return of an execution unsatisfied, proceedings supplementary to execution were instituted upon the judgment, and upon examination of the defendant it was disclosed that she then had in her possession a part of the fund she received from the society, and the county judge of Monroe county ordered her to pay the judgment and costs of the proceedings out of said money, and from said order this appeal was taken.

It is the contention of the appellant that the money was by law exempt from execution. The act by which said society was incorporated provided that the beneficiary fund should be exempt from execution and should not be liable to be seized, taken or appropriated by any legal or equitable process to pay any debt of the deceased member.

It was held by this court in the case of Bolt v. Keyhoe (30 Hun, 619) that money received from this same society by a widow of one of its members who was named as beneficiary was not exempt from the claims of her creditors. The decision was made in October, 1883, and the following winter chapter 116 of the Laws of 1884 was passed which extended the exemption to the beneficiary fund paid the widow as to her debts.

A general act providing for the organization of fraternal beneficiary societies was passed in 1889 (Oliap. 620). It contained a provision permitting any such society theretofore incorporated to reincorporate under said act. It contained a like provision as to exemption as the act of 1884. The United Workmen’s order never reincorporated under the act of 1889. Article 7 of the General Insurance Law of 1892 (Chap. 690) also provided for the incorporation of such societies and for the reincorporation of societies theretofore incorporated.

Section 292 provided that the provisions of the act, so far as they were substantially the same as those of the laws existing on September 30, 1892 (the day before the act of 1892 took effect), should be construed as a continuation of such laws modified or amended according to the language of the act of 1892, and not as new enactments, and should be applicable to all corporations formed under laws repealed by said act. The acts of 1884 and 1889, above referred to, were repealed by the act of 1892; but, as we have seen, the provisions of said acts as to exemption were retained in force; the 1892 act entertained a like exemption as the former acts referred to.

The defendant, coming into possession of the fund when the acts of 1884 and 1889 'were in force, was entitled to the benefit of their provisions, which, as we have seen, exempted the fund from the claims of her creditors as well as those of her deceased husband.

The exemption provided for is general in its terms; it exempted the fund from execution for the debts of the widow, no matter when or how contracted. It is suggested that if it is exempt as to debts contracted prior to the time the fund is received, the exemption should not be extended to debts thereafter contracted. If such a distinction is to be made the reason for it is not found in the language of the statute; its language is clear and explicit, “ any debt or liability.”

The purpose of the statute was to afford protection to the widow and children of the member at the time when they were likely to especially need assistance ; it being a beneficent statute, it should be liberally construed to effectuate the intention of the Legislature.

It is suggested that such a construction will be likely to work injustice to creditors who may extend credit, relying upon the fact that the widow, has the fund; not so; if the fund is exempt the creditor would not be likely to be deceived and give credit upon the strength of it, knowing that he is helpless to reach it.

Our attention has not been called to any case where the precise question has been adjudicated. Analogous cases have arisen under the law exempting pension moneys (Code Civ. Proc. § 1393). The following cases sustain our conclusions : Youmans v. Boomhower (3 T. & C. 21); Holmes v. Tallada (125 Penn. St. 133); Stockwell v. The National Bank of Malone (36 Hun, 583); People ex rel. Scott v. Williams (6 Misc. Rep. 185); People ex rel. Breed v. Wells (10 id. 195).

We are of opinion that the fund was exempt, and this leads to a reversal of the order.

The order appealed from should be reversed and the motion denied, with ten dollars costs and disbursements.

Dwight, P. J., and Bradlet, J., concurred; Haight, J., absent.

Order of the county judge of Monroe county appealed from reversed and motion denied, with ten dollars costs and disbursements.


author: Haight, J.:

text:
    William G. Crisp, Appellant, v. Francis Rice, Respondent.

      Adjournments in a Justice’s Ooui't, on plaintiff’s application — waiver of the right to question the power of the court.

    The power of a justice of the peace to adjourn a case upon the application of the plaintiff, except in the cases provided for in section 2944 of the Code of Civil Procedure, is restricted to an adjournment on the return of the summons or the joining of issue, unless a commission has 'been issued, in which case the plaintiff is entitled to one or more adjournments of the trial, as may be necessary] in order to procure a commission to be executed and returned.
    The fact that the defendant, in an action brought in a Justice’s Court, after opposing the second adjournment of the case applied for by the plaintiff therein, appeared on the adjourned day, answered to his name, and offered the same objections, in writing, made to the prior adjournment, does not amount to a waiver by the defendant of his right to question the power of the justice to grant the plaintiff’s second application for an, adjournment.
    Appeal by the plaintiff, William G-. Crisp, from a judgment of the County Court of Livingston county in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 6th day of December, 1893, upon the decision of the court reversing the judgment of a justice of the peace of the town of York, Livingston county.

      Charles D. Newton, for the appellant.

      Shrcrng c& Doty, for the respondent.
   Haight, J.:

It appears from the return of the justice that the summons was issued by him March seventh, returnable March fifteenth, and that it was personally served. On the return day the parties appeared and the plaintiff filed his complaint in writing.

The defendant answered by denying each and every allegation of the complaint. The case was then adjourned until April twelfth, and on that day the parties again appeared and the defendant filed an amended answer in writing. The plaintiff then asked for an adjournment for the reason that his counsel was unexpectedly detained in Rochester and had in his possession a note which was material evidence in the case. The defendant objected to a further adjournment. The court thereupon adjourned the case •until April thirteenth at nine o’clock. On the latter day the following appears from the return : “ Parties appeared and answered. Defendant offered.the objections in writing his counsel made to the adjournment and went away. The plaintiff then went on with his claim, after hearing which I rendered judgment for the plaintiff.” The written objections filed by the defendant were to the effect that the court had no authority to adjourn the case on the plaintiff’s motion, as the case had been adjourned once before, and asked for a dismissal of the case.

There appears to be no question that the power of the justice to adjourn the case upon the application of the plaintiff, except in cases provided for in section 2944 of the Code of Civil Procedure, is restricted to the return of the summons or the joining of issue, unless a commission has been issued, in which case the plaintiff is entitled to one or more adjournments of the trial as may be necessary to procure a commission to be executed and returned. (Code Civ. Proc. §§ 2960, 2983; Redford v. Snow, 46 Hun, 370.)

It is claimed, however, that the defendant waived the question by appearing on the adjourned day. As we understand the return, the parties were present and the case was called. It says “they answered,” from which we conclude that the names of the parties were called by the justice and each answered present. The return then states that the defendant offered the objections in writing his counsel made to the adjournment. It appears to us that this act tends to show that his appearance and answering to his name was for the purpose only of filing the objections to the jurisdiction of the justice, which his counsel had prepared, and that it was not .his intention to appear generally in the action. It is not claimed •.that any step was taken in the trial by him before such paper was :filed. We think, therefore, that it cannot be said that he waived the question as to the power of the justice to adjourn.

In this case the plaintiff did not comply with the provisions of section 2944 of the Code of Civil Procedure.

The judgment appealed from should be affirmed.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Livingston county appealed from affirmed. •


author: Yan Brunt, P. J.:

text:
    Clinton Bank, Appellant, v. August M. Collignon, Respondent.

      Action on a promissory note— allegations of fraud and an order of arrest procured — the fraud must be proven by the plaintiff — gift by a husband to his wife — when void as to creditors.

    If, in an action brought to recover the amount of a promissory note, the plaintiff, in pursuance of the provisions of subdivision 4 of section 549 of the Code of Civil Procedure, alleges a fraudulent disposition by the defendant of his property, and procures an order of arrest upon that ground, he must, in order to succeed upon the trial of such action, prove such fraud.
    Where money has been given by a husband to his wife, with the expectation that it would be returned and without the expectation that she would retain possession of the same, such gift confers no title on the donee which will stand against the claims of the creditors of the donor.
    Appeal by tbe plaintiff, the Clinton Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of March, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 2d day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Olarence Lexow, for the appellant.

      JR. W. Todd, for the respondent.
   Yan Brunt, P. J.:

The respondent states this action to have oeen brought to recover the sum of $6,000 and interest from June 6, 1892, as damages alleged to have been sustained by plaintiff on account of an alleged disposition by defendant of his property with intent to cheat and defraud his creditors and particularly the plaintiff, after he had incurred the indebtedness herein to the plaintiff. "We do not understand this to have been the nature of the action, but rather that the action was to recover upon a promissory note made by the defendant on the 1st day of February, 1892, for $6,000, payable four months after date; and, pursuant to the provisions of subdivision 4 of section 549 of the Code of Civil Procedure, the plaintiff alleged a fraudulent disposition of the property to support an order of arrest upon that ground ; and, pursuant to such provisions, it was necessary in order that the plaintiff should succeed upon the trial of the action that he should prove such fraud.

It is claimed upon the part of the appellant that the learned court upon the trial of this action erred in refusing divers requests to charge made by the appellant’s counsel. Upon an examination of these requests it appears that they all except one were couched in language which contained expressions laying down a more stringent rule than was consonant with the law, as we understand it, applicable to the case. It is not necessary that we should consider these requests in detail, because they all presented the same general features in this respect and called for a class of proof which does not obtain ordinarily in civil cases. In respect to the request which is not subject to this criticism it does not seem to be applicable to the facts as established upon the trial.

This leaves the question as to whether the verdict of the jury was against the evidence, and whether the court below, upon the motion of the plaintiff, should have set it aside upon that ground. Upon an examination of the case we are of opinion that the court erred in this respect. IVIuch of the story as told by the defendant and his witnesses is in the highest degree improbable, and some of its features show beyond question a fraudulent disposition of property by the defendant, in which the preponderance of evidence would seem to indicate the defendant’s wife, who is alleged to have received the property fraudulently misapplied, participated. It appears'from the evidence that the defendant had been in business for a number of years prior to the time of his failure in April, 1892. Before such failure he conveyed a considerable amount of property to his wife for tbe purpose of paying an alleged indebtedness to her of $14,600, and it is the consideration for this transfer which is attacked. The defendant claimed that this consideration was made up of a note bearing date June 1, 1870, for $1,000, and of another note bearing date January 1, 1892, for $13,600. It is the consideration for this latter note which is more particularly called in question. It appears that for twenty years prior to the time of his failure the' defendant had been keeping house; that he had paid the rent of the house, and had made certain allowances to his wife for running the house. It appears from the testimony of the wife that at various periods during this time she kept boarders or let out furnished rooms, and she claims that a lai’ge part of the money which formed the consideration of this note on January 1, 1892, for $13,600, was what she had accumulated in the business of keeping boarders in the way stated, and which she turned over to her husband, he giving her from time to time notes therefor. The wife was unable to recollect whether it was $3,000 or $4,000 of boarders’ money and interest, or evidently exactly what amount, came from this source. The balance of the note was made up of money which had been given for Christmas and birthday presents made by the defendant to his wife during this long course of years, ranging from twenty-five dollars to $1,000 The defendant claims to have been in the habit of giving his wife money as presents at Christmas and upon her birthday, and that she was in the habit of returning these moneys to him, he giving her notes therefor. But notwithstanding the observance upon the part of the defendant of the anniversary of his wife’s birth by these large and munificent presents, he was unable to give its date. It further appears that no entries whatever were made in the defendant’s books according to his own testimony in reference to these notes, and the only account that he had were the notes held by his wife. Then on the 1st of January, 1892, when he desired to lump the thing, his wife holding two or three notes for different amounts given at different dates, interest was calculated, and t.hia one note was given at $13,600. But there is no explanation, if the thing was to be lumped, why they did not lump the $1,000 note of June, 1870, which probably may have had some foundation outside of the imagination of the parties to the transaction. It was sought to reinforce the evidence of the defendant and his wife in regard to the consideration for the $13,600 note by the testimony of their daughter, who it is stated at the time of the giving of the note of January 1, 1892, calculated the interest, etc. She swears that she was present, and that her mother had some notes, but she knew nothing as to the consideration of the note, and her testimony is of little weight in considering the main question as to whether this was 'not a scheme gotten up by this defendant for the purpose of k laying aside something for a rainy day at the expense of his creditors. That the defendant is utterly unworthy of belief is clearly established. He says in accounting for the diminution of his assets, that he lost some $20,000 speculating in stocks in the office of Henry Clews & Co. He then states that he lost $20,000 more in a broker’s office down town, whose name he does not know, and of the location of which he is ignorant; and that although he kept a bank account and was perfectly familiar with the methods of business, he carried his money down there in bills, at one time having $12,000 in his pocket, and that he was recommended to this place by somebody he did not know, but he thought it was all straight. How this defendant could possibly expect anybody but children of very credulous years to believe such a story it is impossible to imagine. It is so false upon its face that it does not need comment to point its incredibility. We further find that the defendant seems to have- made representations in regard to his property which were inconsistent with the truth if this indebtedness to his wife existed. And it seems to us that the whole story is of such a fictitious character that it can have but little weight in a court of justice. If these moneys were ever given by the defendant to his wife, it is manifest from the evidence that it was with the expectation that they should be returned — loaned by her as he calls it — and that there was no expectation that she should retain possession of the same. Such an alleged gift could confer no title in the defendant which could stand against the claims of his creditors. It seems to be unnecessary to discuss the evidence in detail, as the general features which have been above mentioned are sufficient to characterize the whole attitude of the defendant and to show that, in order that he might secrete some of his property from his creditors, it was necessary that he should invent losses which he had never sustained. With this feature in the case it was evident that the defendant’s intentions were fraudulent, and that was all that was necessary to maintain the action.

The order denying the motion for anew trial should be reversed and the verdict set aside and the judgment vacated, with costs of appeal, and a new trial granted upon the plaintiff’s paying the costs of the trial in the court below.

1 Pollett and Parker, JJ., concurred.

Order denying motion for new trial reversed and verdict set aside and judgment vacated, with costs of appeal, and new frial granted upon plaintiff’s paying costs of trial in the court below.


author: Per Curiam :

text:
    Catharine Comyns and Another, as Executors, etc., of William Comyns, Deceased, Respondents, v. William B. Riker, Appellant, Impleaded with Others.

      Transfer of personal property, valid as to the pan'ties thereto and void as to creditors — set aside only to the extent of the creditor’s claim and costs.

    Where a transfer of personal property is valid as between the transferrer $nd transferee, the court in an action brought by a creditor of the transferrer to set aside the transfer as fraudulent to him, will, in a proper case, set the transfer aside only as far as it is necessary to do so in order to pay the amount due to the plaintiff as fixed by his judgment and the expense of executing it.
    The judgment iri such action, setting aside the transfer and appointing a receiver of the defendant’s property, should provide that upon the satisfaction of the plaintiff’s judgment and the payment of the expenses of enforcing it, the property be returned to the transferee.
    Appeal by the defendant, William B. Riker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of May, 1894, upon the decision of the court rendered after a trial at the New York Special Term, adjudging certain transfers fraudulent and void and appointing a receiver of the property received by the appellant under or by virtue of the transfers so adjudged to be fraudulent and void.

      Dermis McMahon, for the appellant.

      John J. Adams, for the respondents.
   Per Curiam :

This action was begun June 30, 1892, by a judgment creditor of William IT. Riker to set aside a transfer of personal property by him to William B. Riker as fraudulent and void as against creditors. By the twelfth finding of fact it is found that the appellant, the transferee, was not the creditor of William IT. Riker, his son, the transferrer, in an amount equal to the value of the property transferred, and by the thirteenth finding the court found that the transfer was made by William H. Riker to said William B. Riker “ with the intent on the part of said William H. Riker to hinder, delay and defraud the creditors of said William H. Riker, including the said William Comyns, and said transfer was accepted by said William B. Riker, with notice of said fraudulent intent, and said William B. Riker was a party to said fraudulent act.” Upon an examination of the record we are of the opinion that the findings are sustained by the evidence.

The claim of the plaintiffs amounts to $5,095.92, with interest from April 7, 1892, besides the costs recovered by the judgment, $534.25. By the judgment the transfer of personalty, valued at more than $90,000, was set aside as fraudulent as against creditors, and a receiver was appointed, who was directed to convert the property into money. The following is the sixth conclusion of law:

“ 6. That the receiver be directed to take said moneys, notes and accounts, and out of the proceeds thereof to pay the plaintiffs’ judgments, with costs of this suit, and hold the balance subject to the further order of this Court.”

As between the transferrer and transferee the transfer was valid and the court should not have set it aside, except in so far as it was necessary to pay the amount due the plaintiffs as fixed by the judgment and the expenses of executing it.

The judgment should be modified by providing that the transfer be set aside as against the plaintiffs, and that upon the satisfaction of the judgment and the payment of the expenses of enforcing it, the property be returned to the appellant. In case other creditors have acquired liens on the property, it will remain subject to such liens. On the settlement of the judgment the appellant sought to have this provision incorporated in it, but was unsuccessful, and an appeal became necessary to remedy this error. The appellant is entitled to recover tlie costs of this appeal, to be deducted from the amount of the plaintiffs’ recovery. As modified tbe judgment is affirmed.

Present — Van Brunt, P. J"., -Eollett and Parker, JJ.

Judgment modified as directed in opinion, and affirmed as modified.