text:
    London and Brazilian Bank, Limited, Respondent, v. R. St. George Walker, as Superintendent of the Coffee Exchange of the City of New York, Impleaded with Others, Appellants.

      Injunction ■ — - damages — interested pa/rty.

    A party occupying tlie position of superintendent of the New York Coffee Exchange, was hy an injunction prevented from performing the functions of his position under the rules of the exchange, and from directing the payment of money to which others were entitled, until a modification of the injunction was obtained hy him, which enabled him to perform the functions of his position and to pay out such moneys. The action was subsequently discontinued.

      Held, that it could not be said that he was not directly or personally interested in the fund in suit, so as to have a right to an ascertainment of the damages sustained by him by reason of such injunction.
    Appeal by the defendant, R. St. George Walker, as superintendent of the Coffee Exchange of the city of New York, from an order of tlie Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on tlie 25th day of October, 1893, denying his motion for a reference to ascertain the damages sustained by him by reason of an injunction obtained by the plaintiff.

      I. M. Perry, for the appellant.

      J. W. Greene, for the respondent.
   Van Brunt, P. J.:

The plaintiff in this action was a bank corporation organized and existing under the laws of Great Britain and having an office for the transaction of business in the city of New York; and in March, 1893, at the request of the firm of Barr & Co., also doing business in this city, issued its certain letter of credit for £9,100; and thereafter the plaintiff, pursuant to the terms of said letter of credit, duly accepted for account of said firm of Barr & Co. a certain bill of exchange drawn under said letter of credit for over £8,000; and as security for the payment of said draft Barr and Co. caused to be consigned to the plaintiff 2,000 bags of coffee, together with the invoices thereof, properly certified. The plaintiff subsequently delivered to said firm at its. request said bill of lading upon the express understanding and agreement that upon the sale of said merchandise by said Barr & Co., they should hand over the proceeds of said sale to the plaintiff. On the 14th of April, 1893, Barr & Co. sold the whole of said 2,000 bags of coffee, and received in part consideration therefor the sum of $53,000, and in violation of their agreement failed to pay said sum of $53,000, or any part thereof, to the plaintiff, but deposited the whole of said sum in the Corn Exchange Bank, which bank, upon its» receipt, issued and delivered to said firm a certificate, or cashier’s check representing the sum so deposited, by which said bank agreed to pay such sum to the order ■of said firm of Barr & Co., or to such persons as the superintendent of the Coffee Exchange of the city of New York might direct. On the eighteenth of April Barr & Co. made an assignment for the benefit of creditors to one Sherman. The defendant Walker was the superintendent of thS Coffee Exchange, and upon the allegation that said Walker was about to direct said bank, pursuant to the provisions of said certificate, to pay the sums named therein, amounting in the aggregate to $53,000, to various firms, individuals or corporations to plaintiff unknown, the plaintiff commenced this action against Barr & Co., their assignee, Walker, as superintendent of the Coffee Exchange, and the Corn Exchange Bank to enjoin and restrain the Corn Exchange Bank from paying over or in any way parting with said sum of $53,000, and the defendant Walker from directing said bank to pay said sum, or any part thereof, to any firm, person or corporation. An injunction was issued, as prayed for in the complaint, with an order to show cause embraced therein. Upon the return day of said order to show cause, Bari' & Co., their assignee, the Corn Exchange • Bank, and Walker appeared by their respective attorneys, and it having been made to appear to the court that said defendant Walker had on and after the 14th of April, 1893, received and deposited in said bank, in all, the sum of $178,500, and had received certificates of deposit therefor, .payable to said Barr & Co., which sum was received as security for the performance by Barr & Co. of contracts between them and members of the Coffee Exchange, upon which contracts Barr & Co. had defaulted, and that by the rules and regulations of the exchange said sum of $178,500, less about $15,250, had become payable to said members, and that it became the duty of the defendant to direct, and he was about to direct, said bank to pay said sum; and that by said injunction order he was prevented from making such direction, the court directed a partial dissolution of the injunction and a modification thereof. Subsequently to this time the plaintiff and Barr & Go. and their assignee settled this action and desired to discontinue the same. The Corn Exchange Bank and the defendant Walker refused their assent thereto, and a motion was made for discontinuance, which the court granted upon payment of the costs, which costs-have been paid. Subsequently the defendant Walker moved for a reference, under the provisions of the undertaking given upon the injunction, to ascertain the damages sustained by him by reason of the injunction, which was denied upon the ground that the discontinuance was the result of an amicable settlement between the plaintiff and the only defendants who were interested in the fund ; and that the defendant Walker was not directly or personally interested in the fund, and was made a party only because his presence was essential to a complete adjudication as between the plaintiff and the defendants who were thus interested and who consented to the discontinuance, and that, therefore, the motion was controlled by the-case of Palmer v. Foley (71 N. Y. 111), and was distinguished from the cases of The Pacific Mail S. S. Co. v. Toel (85 N. Y. 646) and Wynkoop v. Van Beuren (63 Hun, 500).

In this conclusion we cannot concur. The injunction, as it was-originally issued against the bank and Walker, was so broad that it affected them in respect to their relations to others. They were compelled to retain counsel and to procure the modification of the-injunction in order that the ordinary business in which they were engaged might be prosecuted with other persons whose money had been deposited by Walker with tlie bank, and this modification was. made. It was not until this modification had been made that-it could possibly be said that Walker was not personally interested in the result of this controversy, because he was thereby prevented from performing the functions of the position which, he occupied,, and from directing to be paid out money to which others were entitled.

It seems to us that under these circumstances the plaintiff cannot .get rid of Mr. Walker against bis will without to some extent indemnifying him for the expenses which lie has incurred in the procuring of the modification of this injunction so that it would not affect others than those against whom it was issued.

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

O’Brien and Eollett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    David R. Morison, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      When a street is not covered by the description in a deed — no adverse possession of a highway.

    •Certain real estate was described in a deed as being on the west side of Greenwich street, beginning at the northeast corner of a certain lot, being a point distant fifty feet from the corner formed by the intersection of the southerly side of Duane street with the westerly line of Greenwich street; running thence northerly along Greenwich street twenty-five feet; thence westerly along lot No. 39, sixty feet; thence southerly along lot No. 32, twenty-five feet; thence easterly along lot No. 37, sixty feet, to Greenwich street, to the place of beginning.

      .Held, that there was no conveyance thereby of any part of Greenwich street to the grantee therein named.
    A person cannot obtain title by adverse possession to any portion of a highway . used by the public.
    Appeal by the defendants, The New York Elevated Railroad ■ Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 8th day of April, 1893, upon the . report of a referee.

      Julien T. Davies, for the appellants.

      L. H. Andrews, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover past and fee damages against the defendants for the erection and operation of their elevated railroad in front of premises No. 318 Greenwich street.

The learned referee found that the plaintiff was the owner of the fee of the street in front of the premises described in the complaint to the center thereof, and- that the public had no rights in said street except to use it as an ordinary public street. And he refused to find, at the request of the defendants, that the plaintiff did not own the roadbed of any part of Greenwich street, and that the only property of plaintiff in said street fronting slid premises consisted of easements of light, air and access.

It is apparent from an examination of the descriptions by which the plaintiff derives title that the deeds conveyed no part of .the street to the grantee therein named.

The description of the property is as follows : “ All that certain dwelling house and lot of land situate, lying and being in the fifth ward of the city of New York, on the west side of Greenwich street, known and distinguished as No. 301, now known as No. 318, in said street, being one of two lots part of lots which were sold at auction by the rector and inhabitants of the city of New York in communion of the Protestant Episcopal church in the State of New York, and conveyed by them to James Walker of the city of New York, merchant, by deed dated the first day of June, 1795, and in a map or chart of the same lots distinguished by the Nos. 38 and 39, lot No. 38, one of the said lots and hereby conveyed or intended to be, being bounded as follows, viz.: Beginning at the northeast corner of lot No. 37, being a point distant fifty feet from the corner formed by the intersection of the southerly side of Duane street with the westerly side of Greenwich street, running thence northerly along Greenwich street aforesaid, twenty-five feet; thence westerly along lot No. 39, sixty feet; thence southerly along lot No. 32, twenty-five feet; thence easterly along lot No. 37, sixty feet to Greenwich street, the place of beginning, be the said dimensions more or less.”

Under the rules laid down in the case of Kings Co. Ins. Co. v. Stevens (87 N. Y. 287) the grantee under such a description does not take to the center of the street, and we are not aware that this case has been overruled by any subsequent adjudication.

It is claimed that some modification lias been made in that rule by the case of Ilolloway v. Delano, recently decided by the Court of Appeals (139 N. Y. 390), but we fail to find that the court lias overruled tlie principles laid down in tlie case first cited.

It is urged upon tlie part of tlie respondent that if tlie deeds in the chain of title under which plaintiff takes, did not convey the fee of the street, the result will be just the same, because there is no evidence that the fee was ever conveyed to the city of New York, and that if it remained in any grantor then the plaintiff acquired the fee of the land occupied by the vaults by adverse possession. ^

It is perfectly clear that the referee did not proceed upon any such theory, and the vaults did not extend to the center of the street; and it is a little difficult to see how a party can obtain title by adverse possession to any portion of a highway used by the public.

The referee erred, therefore, in his finding that the plaintiff owned to the center of the street, and the judgment should be reversed and a new trial ordered before another referee to be appointed by this court, with costs to appellants to abide event.

O’Brien and Parker, JJ., concurred.

Judgment reversed and a new trial ordered before another referee to be appointed by this court, with costs to appellants to abide event.


text:
    Seaboard National Bank, Respondent, v. Henry G. Burleigh and Another, Appellants.

      Premise to accept a draft tobe d/i'awn — money advanced on the faith of the promise— a draft payable “ after date” distinguished from one payable “ after sight.”

    When money is advanced on the faith of a promise to accept a draft to be drawn, to bear date the day of the advance, and to be payable a certain time from such date, and not after sight, it is immaterial when the draft is actually drawn; the moment such draft comes into existence the promise to accept attaches to it and becomes an acceptance, and the drawee becomes liable for the amount thereof to the person who advanced money on the faith of his promise to accept, although such person may have been ignorant at the time he made the advance of the period such draft had, under the promise to accept it, to run, and may, at that time and before the draft for the prescribed length of time was drawn, have taken a draft drawn payable in a shorter time than that prescribed in the promise to accept.
    An acceptance of a draft payable “after date,” distinguished from one payable after sight.
    Appeal by the defendants, Henry G. Burleigh and Brackett ~W. Burleigh (co-partners under the name of H. G. Burleigh & Bro.), from a judgment of the Supreme Court in favor of the plaintiff, entered in the ""office of the clerk of the city and county of New York on the 22d day of May, 1893, upon a verdict directed by the court after a trial at the New York Circuit, and also from an order denying the defendants’ motion for a new trial made upon the minutes.

      John J. Adams, for the appellants.

      A. Taylor, for the respondent.
   Van Brunt, P. J.:

It is apparent from a reading of the complaint in this action that the attorneys who drew the same did not know exactly upon what theory a recovery was to be had, whether upon a draft to be deemed accepted by the defendants under the statute, or for money paid out at their request. It is now claimed by the plaintiff that the action is for money paid out at defendants’ request. It appeared upon the trial that the plaintiff was a National bank on the 1st of December, 1892, and that the firm of Morse & Crombie kept an account with it, and that a note of $1,815, previously given for value to the defendants by Morse & Crombie, and indorsed by them, and then held by the Garfield National Bank, fell due that day, which note was payable at the plaintiff’s bank. The Garfield National Bank had presented the note for payment, and Morse & Crombie had not sufficient funds at the bank to pay it. Crombie, one of the firm, then called at the plaintiff’s bank and presented the following letter from the defendants to the vice-president:

Messrs. Morse & Crombie, New York:
Gentlemen — The last day of your note of $1,815 is December 1st. Ye have been thinking to-day that you will not have time to get the other note back here in time. It was discounted at the Garfield bank, and of course will be presented at the Seaboard bank to-morrow, the 1st.
“ Please pay this note and draw on us for $1,815 for one month, and we will accept the draft and pay it when due. You can show this to the cashier of the Seaboard bank, and this will be your authority for drawing the draft.
“ Yours truly,
“(Signed) H. G. BURLEIGH & BRO.”

Orombie said to the vice-president: “You see this letter from Burleigh, of Burleigh & Brother, authorizing us to draw on them for payment of this draft. Burleigh & Brother are perfectly good. Will you initial this note to be paid to-day and allow us to draw.” The cashier then looked at the rating of the defendants, and found them very highly rated, and after consultation with the president the vice-president said to Orombie : “ Yery well, you draw your draft; I will initial this note to be paid.” The note was thereupon paid, and Orombie drew the draft and brought it back to the vice-president, who, noticing that it was drawn at thirty days, said: “We don’t take any draft as long as that; I won’t accept that.” He then tried to recall the messenger of the Garfield bank, but he had gone. The note had been certified. Orombie then said to the vice-president: “Yery well, we will make it three days, and I think Mr. Burleigh won’t object.” The vice-president replied: “ I am perfectly willing to do that.” Orombie drew the draft at three days’ sight, which plaintiff accepted and sent forward for collection and payment. Upon this draft reaching the defendants they refused to accept it, and on the twelfth of December wrote a letter attempting to withdraw their offer to accept the draft at one month, as per their letter of November thirtieth. Subsequently a draft was drawn at thirty-days, which was sent to the defendants and not accepted, and on the twenty-ninth of December another draft at 'one month, antedated to December 1,1892, was sent to the defendants and not accepted, and thereujion this action was brought.

It is urged upon the part of the appellants that the complaint ought to have been dismissed upon the ground that while it alleges an agreement by defendants to áccept a one month’s draft, it also alleges that said draft was due one month from December first, and was not presented to the defendants for acceptance until December twenty-ninth; that the authorization from the defendants was to draw ■on them for one month, and that that meant one month’s sight, and not one month from date. In support of this proposition attention is called to the case of Ulster Co. Bank v. McFarlan (5 Hill, 432). In that case the defendant had sent to W. IT. De Forest & Co. a letter in the following language:

“ Gentlemen • — ■ I hereby authorize you to draw on me at ninety days from time to time for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed three thousand dollars. The above letter of credit to be good and binding for one year from this date.” And it was held that the only authority to draw was at ninety days’ sight and not ninety days from date, upon the ground that the object of executing a draft at ninety days was to give the drawee ninety days to prepare for payment of the draft after he learned that it was in .existence, which was entirely in harmony with the authorization to draw. It was a letter of credit, drafts on which were to be made from time to time at uncertain intervals, and unless this construction was placed upon it, as the court said, The words 90 days in the letter are of no practical importance.”

But the case at bar is entirely different. The defendants authorizing the draft upon them knew that the money was to be paid on the first o'f December, when Morse & Orombie’s note fell due, and they promised Morse & Crombie that they would pay a draft in one month, plainly in one month from the time the money was paid upon Morse & Crombie’ note. It was upon this draft that the money was expected to be raised to pay the note then falling due, and of which the defendants were to receive the benefit. It was undoubtedly understood by them that Morse & Crombie would draw their draft upon the first of December, and that it should have one month to run. But it was never intended that that draft should be payable one month from sight, and no such construction can be placed upon the letter written by them on this subject. If Morse & Crombie had drawn the draft for one month from date at the time their note was paid there can be no question but that they would have been acting within the letter of authorization, and that the defendants would have been bound as acceptors of such draft. But it is said that the bank refused their offer in the first instance. The bank advanced the money upon the faith of an agreement of the defendants to accept a draft of Morse & Crombie. It is apparent that the officers of the plaintiff did not understand the length of time of the draft which was to be drawn, and they probably would not have agreed to accept such a draft had they noticed the fact in the letter. But they .made the payment upon the faith of a promise of the defendants to accept a draft, and the fact that they were disappointed when they learned the length of time such draft was to run in nowise released the defendants from their obligation. The plaintiff parted with its money upon the promise of the defendants, and it certainly cannot be claimed that it must lose it because it was ignorant of the full import of the promise. It is entitled to the full benefit of the contract, even though if, at the time it advanced the money, it had known its full import it would have refused so to do. The most that defendants can claim is that they should have the benefit of the stipulations in the contract which were favorable to them.

We are of opinion, therefore, that it was the understanding of the defendants that the draft to be drawn pursuant to their authorization was to bear date on the 1st of December, 1892, and to be payable in one month from such date. And it was immaterial when such draft was drawn. The moment that it came into existence the promise to accept attached to it and became an acceptance, the plaintiff having advanced the money upon the faith of an acceptance by the defendants of a draft to be drawn, although it may have been ignorant at the time it made the advance of the length of time such draft had to run.

The judgment and order should be affirmed, with costs.

' Follett and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Central Trust Company of New York, Appellant, v. New York Equipment Company, Respondent.

      Construction of contracts — a writing shown try a contemporaneous instrument to he a promissory note.

    Contracts are to be construed in such a manner as to have the efEect intended by the parties, if that can be done consistently with the rules of law.
    In order to ascertain the intention and meaning of the parties, where different instruments in relation to the same subject-matter are executed at the same time, the several instruments are to be read together.
    The following instrument:
    “§4,500.00. New York, April 1st, 1889.
    “Without grace, on the first day of July, 1891, will be due to the order of the New York Equipment Company forty-five hundred dollars, for rental of 300 box cars, under contract of lease of even date herewith, payable at the office of the Central Trust Company in the city of New York.
    “THE NEW YORK EQUIPMENT COMPANY,
    “By Jas. Irvine,
    “No. 9. President."

    read together with a contemporaneous instrument of lease, whereby the United States Rolling Stock Company leased for five years 300 box cars to the New York Equipment Company, and in which the equipment company acknowledged that it had leased and received the cars, and agreed in consideration thereof to pay the rolling stock company as rent, “ $4,500 per quarter, which rent is evidenced by the twenty promissory notes executed by the lessee for §4,500 each.”

      Held, in accordance with the disclosed intention of the parties to the contract, to be a promissory note, although it contained no promise on the part of the defendant to pay it, and hence actionable as a promissory note, on non-payment at maturity, at the suit of a transferee for value before maturity after indorsement by the maker.
    Appeal by tbe plaintiff, Tbe Central Trust Company of New York, from an interlocutory judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 6tb day of July, 1893, upon a decision made at tbe New York Special Term sustaining tbe defendant’s demurrer to tbe plaintiff’s complaint.
    Tbe instruments in suit, declared upon separately as promissory notes, differed only in tbe dates following tbe words “ without grace.”

      A. H. Joline, for tbe appellant.

      T. Thaoher, for the respondent.
   Van Brunt, P. J.:

This action was brought upon eight instruments in writing, declared upon separately. The complaint alleges as to each the plaintiff’s incorporation and that of the defendant, and that on the 1st of April, 1889, the United States Rolling Stock Company and the defendant made and executed a certain agreement of lease, a copy of which is annexed to the complaint, and that at the time of the execution and delivery of said agreement said defendant made and executed its twenty certain promissory notes in writing, in accordance with said agreement of lease, and that on or about the 1st day of April, 1889, said defendant made its certain promissory note, being one of the twenty promissory notes in writing above referred to, dated on the last-mentioned day, wherein and whereby for value received it promised to pay without grace on the first day of July to the order of itself at the office of the plaintiff in the city of New York, $4,500, and said promissory note is then set out in haeo verba.

“ $4,500.00. New York, April 1st, 1889.
“Without grace, on the first day of July, 1891, will be due to the order of the New York Equipment Company forty-five hundred, dollars, for rental of 300 box cars, under contract of lease of- even date herewith, payable at the office of the Central Trust Company in the city of New York.
“THE NEW YORK EQUIPMENT COMPANY,
“ By Jas. Irvine,
“No. 9. • President.”

The complaint then alleges that said note was thereupon duly indorsed in blank by the defendant, and as so indorsed duly transferred to the plaintiff before maturity thereof, and for value, and the plaintiff is now, and ever since has been, the holder thereof ; that at the maturity of said note the same was duly presented for payment at the place therein specified and payment demanded and refused, and that the whole amount thereof, with interest from July 1, 1891, is now due and payable to the plaintiff from the defendant.

The lease referred to in the complaint between the United States Rolling Stock Company and the defendant, the New York Equipment Company, so far as it is necessary to state the same for a proper consideration of the question presented upon this appeal, is as follows:

“ Equipment lease by The United States Rolling Stock Company, hereinafter called the lessor, to The New York Equipment Company, hereinafter called the lessee.
“ The lessee above named hereby acknowledges that it has leased from the lessor for a period of five years, and has taken into its custody at Memphis, Tenn., the following railroad equipment and rolling stock, to wit: Three hundred (300) box cars, marked ‘ Central Railroad & Banking Company of Georgia,’ and numbered 2,600 to 2,899, both inclusive, and in consideration of the use of the said property and the stipulations hereinafter contained, said lessee agrees with said lessor as follows :
“ The said lessee agrees to pay to the said lessor, as rent for the use of said property, the sum of $4,500 per quarter, which rent is evidenced by the twenty promissory notes executed by said lessee for the sum of $4,500 each, payable, respectively, on the first day of each successive quarter on and after the first day of July, 1889. Said railroad equipment and rolling stock were at the time of shipment, and still are, the exclusive property of said lessor, and said lessee agrees to hold the same until the determination of. this lease, on or before the first day of April, A. D. 1894, at the lessee’s own risk, and on said first day of April, 1894, or the prior determination of this lease, the lessee shall and will return the same to the lessor in their present good order and condition, reasonable wear and tear alone excepted, and without excuse for non-delivery on account of any accident, unavoidable or otherwise, unless the same shall have been purchased by the said lessee from the lessor within the time and in the manner hereinafter specified.”

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained upon the ground that the written instruments set up in the complaint were not negotiable promissory notes, there being no promise on the part of the defendant to pay.

It is a familiar rule in the interpretation of statutes that the great’ principle which is to control is the intention of tlie Legislature in passing the same, which intention is to be ascertained from the cause or necessity of malting the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which is to be regarded in its interpretation, and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some of the provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers. (People ex rel. Wood v. Lacombe, 99 N. Y. 43.)

The same principle obtains in the interpretation of contracts. Contracts are to be construed so that they may have effect according to the intention of the parties, if that can be done consistently with the rules of law. (Parshall v. Eggert, 54 N. Y. 18.) Many other cases might be cited sustaining this proposition, which seems to be so self-evident as not to require the support of adjudications.

There is another familiar rule, that in order to ascertain the intention and meaning of the parties where different instruments in relation to the same subject-matter are executed at the same time, these instruments are to be read together. (Marsh v. Dodge, 66 N. Y. 533.)

Applying these rules of construction to the instruments declared upon in the complaint, can it be for a moment doubted that it was the intention of the parties to the lease, out of which the instruments particularly declared upon arose, and which were executed at the same time, that these latter instruments should be treated as promissory notes ? By the terms of this lease they say that the rent which is to become due is evidenced by the twenty promissory notes executed by said lessee for the sum of $4,500 each, payable respectively, etc.

Now, the parties to the lease having declared that these evidences of rent shall be promissory notes and considered as promissory notes, how can one of the parties to that instrument recede from the definition which it has put upon its own contract ?

It is not necessary to go to law books and to quote -adjudications in order to understand what the intention of the parties to this contract was. The defendant has declared what these instruments are, and has induced the other party to the contract to take them in that form, declaring them to have a certain legal effect, and when called upon to pay, it says its declaration is untrue. We do not think for a moment that the defendant can stand in a court of justice and be permitted to raise such a plea.

It is urged upon the part of the respondent that these writings are not promissory notes because they do not contain any promise to pay; and that they are not acknowledgments of anything which is due, but of something which is to become due. But, referring to the instrument out of which these papers grew, there is an express promise to pay the sum evidenced by these twenty promissory notes. The lessee, the defendant, agrees to pay to the lessor as rent for the use of said property the sum of $4,500 per quarter. The lessee is recited to be in possession of the property, which is recited to have been leased from the lessor for the period of five years, and that the lessee has promised to pay the rent evidenced by these promissory notes. Here is a.promise to pay, if nowhere else; although, we think, it is a forced construction that in the instruments themselves a promise cannot be inferred when they are construed in connection with the instrument of which they formed a part. It seems to be clear, therefore, that the claim that these writings are mere statements that amounts will be due from the signer, cannot for a moment prevail. This seems to be another absolutely convincing consideration that these parties supposed that they were making negotiable promissory notes to evidence the amount of rent which would fall due under the lease and for the use of the property of which the lessee, the defendant, was in possession.

We are of opinion, therefore, that the judgment should be reversed, with costs and with leave to the defendant to answer over upon payment of the costs below and of this appeal.

O’Brien and Parker, JJ., concurred.

Judgment reversed, with costs and with leave to the defendant to answer over upon payment of the costs below and of this appeal.


text:
    James E. Howell, Appellant, v. William Donegan, Respondent.

      Specific performance — conveyance by an insolvent debtor aecompamied with a declaration of trust by the grantee.

    A conveyance by a deed absolute on its face, shown by a declaration of trust executed by the grantee, as a part of the same transaction, to be in reality a conveyance by an insolvent debtor of his property to a trustee with the purpose of enabling the insolvent debtor to use, occupy and enjoy the same and to receive the rents, issues and profits thereof for his own use so long as the title of the land should remain in the trustee, is a nullity, and the grantee (trustee) cannot compel a purchaser to accept a title.thereunder.
    "Where a deed and an instrument of defeasance are executed pursuant fo an original agreement and constitute part of the same transaction, though not written at the same time, nor of even date, they must be read together.
    Appeal by the plaintiff, James E. Howell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 5th day of May, 1893, upon a decision of the court rendered after a trial by the court at the New York Special Term dismissing the complaint upon the merits.

      H. W. Goodrich, for the appellant.

      A. G. Todd, for the respondent.
   Van Brunt, P. J.:

This action was brought to compel the specific performance by the defendant of a contract for the purchase of real estate. The defense denied that the plaintiff was able to give a good title, and alleged that in the contract he was named as trustee, but the defendant had been unable to ascertain the nature of the trust. Upon the trial it appeared that the premises in question had been conveyed by one Alfred Lister to the plaintiff by a deed absolute on its face. Concurrently with the receipt of the deed by the plaintiff, he executed a declaration of trust, in which, after reciting that the firm of II. S. Miller & Co., composed of one Miller and the said Lister, and the corporation of H. S. Miller &- Co., had found it necessary to ask for an extension of time in which to pay their creditors, and had formulated a plan therefor, a copy of which was set out in said deed of trust, and that certain of the creditors of said firm and corporation had consented to the extension agreement, which is also set out in full; and after reciting the conveyance by the said Alfred Lister of certain lands in the State of New Jersey, and by a separate deed of the tract of land in question in this action, which deeds were by said declaration of trust made part and parcel of the same, the said declaration proceeds:

“Now, therefore, in consideration of the premises, I, James E. Howell, do make known hereby, and declare that I do now, and that I and my heirs and assigns shall and will at all times hereafter, hold the said lands and premises so conveyed to me upon the following trusts:
First. To permit the said Alfred lister to use, occupy amd enjoy the sarnie, amd to receive the rents, issues amd profits thereof to his own use, so long as the title to the said lands shall remaim in me, he, in the meantime, paying all interest on mortgages thereon, dmd all imsurance premitims, taxes amd other public impositions amd expenses.
Second. To sell and convey the said lands and premises, at such times, in such portions and for such prices as I may in my discretion determine.
Third. To pay the necessary and reasonable expenses attending the consummation of the plan of settlement hereinabove set out, including a reasonable compensation to myself, and to the attorneys of the said Alfred Lister for their services in connection therewith.
Fourth. To disburse the balance of the moneys received by me from the sale of the said lands for the purpose of carrying into effect the said plan of settlement as the same shall be necessary for that purpose.
Fifth. Hpon the payment and settlement of the debts of the said firm and corporation, or upon the consent of their creditors thereto, to retransfer what shall remain of the said lands and premises to the said Alfred Lister, his heirs and assigns.”

The court dismissed the complaint upon the merits, and gave judgment for the defendant for the amount paid upon the contract, and also for the counsel fees in searching the title, and the costs of the action. And from the judgment thereupon entered this appeal is taken.

It is perfectly apparent that the title tendered was absolutely bad, and that the plaintiff could convey no title that could not be assailed by any of the creditors of Lister. The whole scheme upon its face shows that it was gotten up to hinder, delay and defraud the creditors of Lister. A conveyance by an insolvent debtor to a trustee of his property to permit the insolvent debtor to use, occupy and enjoy the same and to receive the rents, issues and profits thereof for his own use so long as the title of the land should remain in the trustee, does not require argument to show its nullity.

The deed and the declaration of trust formed but one instrument. Where a deed and instrument of defeasance are executed pursuant to an original agreement and constitute part of the same transaction, though not written at the same time nor of even date, they must be read together. (Kraemer v. Adelsberger, 122 N. Y. 461; Knowles v. Toone, 96 id. 534.)

It is not necessary to consider the other points raised in the case, as it is apparent that the respondent was justified in refusing to take a title which would not have been of the slightest value.

The judgment should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.


text:
    Peter Hart, Respondent, v. Isaac L. Kip, Appellant.

      Statute of Limitations- — meaning of “ resides without the State ” in Code, §401 — “residence” distinguished from “domicile.”

    The provision of the Statute of Limitations (Code Civ. Proc. § 401) that if, after a cause of action has accrued against the person, he departs from and resides without the State, and remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited • for the commencement of the action, applies when the person has departed from and has lived out of the State and remained continuously absent therefrom for a year or more, although his legal domicile during that time may have been in the State of New York.
    Appeal by the defendant, Isaac L. Kip, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 26th day of July, 1893, upon the report of a referee.

      I. L. Miller, for the appellant.

      J. R. Farrar, for the respondent.
   Van Brunt, P. J.:

An examination of this record leads us to the conclusion that it is more remarkable for its omissions than for its contents.

This action was brought to recover for services alleged to have been performed by the plaintiff as janitor of premises No. 110 West Fortieth street, in the city of New York, upon the employment of the plaintiff from the 1st day of May, 1819, until the 1st day of March, 1890.

The defendant by his answer denied upon information and belief any contract of employment. The evidence showed that from the 1st of May, 1819, up to March, 1890, the plaintiff had occupied apartments in the premises No. 110 West Fortieth street without paying any rent therefor so far as the record shows, and that he certainly occupied such premises and acted as janitor thereof from May, 1819, to the 1st of January, 1880, and that in December, 1819, and January, 1880, the defendant paid him for his services as such janitor, notwithstanding the fact that he had no knowledge or information sufficient to form a belief that he had ever been employed there as janitor.

There is no evidence whatever that after the payments made in January, 1880, the employment'of the plaintiff as such janitor was terminated. But the evidence of the plaintiff shows that he continued to occupy the premises which he had occupied when he was janitor, and which were a part of his compensation for his services performed as janitor, up to March, 1890, and that he performed the duties of janitor in such building.

The defendant claimed upon the hearing that from the 1st of January, 1880, the plaintiff ceased to act as janitor, but the case is absolutely barren of evidence as to any other person having occupied that position or performed the duties thereof during this period of time; and there is no contradiction whatever of the statement upon the part of the plaintiff that he performed those duties, or caused them to be performed when he was personally unable to do the same. It further appears that the defendant visited the premises upon several occasions during the period in controversy. The plaintiff was there and there is no pretense that he paid any rent or that any rent was demanded of him, and all that the defendant states in opposition to the sworn statement of the plaintiff is that from the 1st of January, 1880, Hart rendered no services to his knowledge.

It is true that there was some evidence tending to show that in February, 1880, the defendant paid Mrs. Hart some money; and also that in January, 1886, he paid her an additional sum. But the only evidence connecting the plaintiff with the sum paid in 1886 was the fact that his indorsement appears upon the check under that of Mrs. Hart. And we find no evidence in the record showing upon what account these payments were made. There seems to be no reason, therefore, for disturbing the referee’s conclusion that this employment continued as found by him.

It is urged, however, that the referee did not make the proper application in respect to the Statute of Limitations. Although a cause of action was proved from the 1st of January, 1880,'the •referee held as matter of law that the plaintiff could not recover for services rendered prior to August, 1884, the Statute of Limitations having been pleaded by the defendant. This action was commenced on the 17th of February, 1893; and it is conceded that the defendant departed from this State on the 28th of May, 1890, and remained continuously absent therefrom until the 23d of November, 1892; and the referee found that he resided during such period out of the State. But it is urged, because during this period the defendant had a house and office within the city of New York, that, therefore, this finding cannot be sustained.-' But we think that the learned counsel for the appellant confuses the terms domicile and residence. A person may temporarily reside out of the State while domiciled within the State. And it is clear from the language of the Code as it now obtains, that where a person is absent from the State for more than a year, he is to be considered as residing out of the State within the term as used in the Statute of Limitations.

It seems to us that the same interpretation as to the residence in the Statute of Limitations must be given as obtained in the case of Hanover Bank v. Stebbms (69 Hun, 309) where such word was interpreted as used in section 636 of the Code to mean the abode or place where one actually lives and not where he is legally domiciled.

The Statute of Limitations provides that if after a cause of action has accrued against a person, he departs from and resides without the State and remains continuously absent therefrom for one year or more, the time of his absence is not a part of the time limited for the commencement of the action. In the case at bar the defendant departed from the State, lived without the State, and remained continuously absent therefrom for more than a year, and consequently he resided ont- of the State within the meaning of the statute.

The judgment appealed from should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    William A. Baldwin, Respondent, v. Jane E. Baldwin and Others, Appellants.

      Partition between joint tenants — extinction of right of survivorship — Code Civ. Proc. § 1533.
    Through the medium of equity and by means of statutory enactments the right to compel partition has become an incident to ownership in joint tenancy, as well as to tenancy in common.
    An action for compulsory partition is maintainable between the tenants of land conveyed to them, “ as joint tenants, and not as tenants in common,” by a deed executed and delivered since the enactment of section 1533 of the Code of Civil Procedure, which provides that, “ Where two or more persons hold and are in possession of real property, as joint tenants or as tenant in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property,” etc. Such conveyance will be deemed to have been made with reference, and in subordination, to the above statutory provision, by which the parties to the conveyance were apprised, at the time of its making and execution, that the right of survivorship would depend iipon the consent of the joint tenants.
    Appeal by tbe defendants, Jane E. Baldwin and others, from an interlocutory judgment of the Supreme Cojirt, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 30th day of August, 1893, directing a sale of real property in an action brought for its partition.

      Thos. J. McKee, for the appellants.

      James A. Donegcm, for the respondent.
   Parker, J.:

This appeal brings up for review a judgment in partition of certain premises conveyed to the plaintiff and defendants as joint tenants ; the deed declaring that the estate was conveyed to them “ as joint tenants and not as tenants in common.”

The joint tenants, other than the plaintiff, deny his right to maintain an action of partition, and insisted upon the trial, and again upon this appeal, that compulsory partition of lands owned and possessed by joint tenants cannot be made. And their contention is founded on the doctrine of survivorship, which is the distinguishing incident of title by joint tenancy.

That as the whole estate or interest held in joint tenancy may pass to the last survivor, and become vested in him absolutely, there is secured to him a right to such interest as may accrue to the survivor — a right which cannot be taken away from him without his consent.

A serious consideration of the appellants’ contention is embarrassed by the fact that section 1532 of the Code ’of Civil Procedure expressly authorizes partition of such an estate as was conveyed to these parties as joint tenants.

It reads as follows : “ Where two or more persons hold and are in possession of real property, as joint tenants or as tenant in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the pei’sons interested therein, and for a sale thereof, if it appears that a partition thereof cannot be made without great 'prejudice to the owners.”

It is suggested by the appellants that a joint tenant cannot be deprived of his right of survivorship by statute. If that suggestion be seriously made it certainly requires no other answer than that prior to the execution and delivery of the deed by which the joint tenancy in question was created, a statute was enacted providing that in case an estate of inheritance, or for life, or for years, should be vested in two or more persons as joint tenants, any one of them may maintain partition. Thus the parties to the conveyance were apprised, at the time of its making and execution, that the right of survivorship would depend upon the consent of the joint tenants. And tlieir conveyance will be deemed to have been made with reference, and in subordination, to this provision of the statute.

The right to maintain such an action has been recently considered in Cloos v. Cloos (55 Hun, 450). The conveyance was to the husband and wife “ as joint tenants, and not as tenants in common.” The wife subsequently commenced an action of partition, and the Special Term, reaching the conclusion that the action was not maintainable, dismissed the complaint. This judgment the General Term reversed, holding that where husband and wife hold lands as joint tenants an action of partition will lie at the suit of either.'

In Jooss v. Fey (129 N. Y. 23) the premises in controversy were conveyed to husband and wife as joint tenants ; subsequently the wife conveyed her interest to the plaintiff, who brought an action of partition. The court held that the interest acquired by the wife was alienable by her, and plaintiff having acquired title through her conveyance to him, he was entitled to maintain partition under section 1532 of the Code quoted supra.

But the authority to partition lands held by joint tenants is not by any means of modern creation, as its discussion at this time would seem to suggest. At common law it w&s the rule that neither joint tenants nor tenants in common could compel partition. (Alnatt on Partition, 55.)

To remedy this evil, in 1540 the statute of Henry YIII, chapter 1, was enacted, providing for the partition of estates of inheritance vested in joint tenants, or tenants in common, and the year following, by chapter 32, the provisions of the first act were extended so as to include estates for life or for years. The procedure provided by those acts was simplified by statutes 8 and 9 William III, chapter 31.

“ At the close of the revolution, and in 1788, the above-mentioned English statutes were re-enacted. (2 Greenl. 13.) These statutes put the right to compel partition between tenants in common and joint tenants upon the same footing as co-parceners.” (Willard’s Eq. Juris. 699, 700; Kent’s Comm. [6th ed.] 364.)

The inadequacy and inefficiency of the statutory remedies led Courts of Chancery to assume jurisdiction in partition. (17 Am. & Eng. Ency. of Law, 679 ; Story’s Equity Juris. § 651.)

An investigation of the subsequent development of the subject of partition fully.bears out the statement in 11 American and English Encyclopaedia of Law, 1144, in which the matter is accurately summed up as follows: Through the medium of equity and by-means of statutory enactment, the right to have partition made has become an incident to ownership in joint tenancy and tenancy in common in all of the United States and'in England.”

The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. The Edison General Electric Company, Appellant, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments for the City and County of New York, Respondents.

      Tax assessments in New York city — value of capital stock of a corporation — effect of the statement made on clairping a reduction — certiorai'i — value of patent rights — decla/i'ation of a dividend.

    When the facts which induce the commissioners of taxes and assessments for the city and county of New York to determine that the claim of a corporation, liable to be taxed upon the actual value of its capital, for a reduction of its assessment, as provided by section 820 of the Consolidation Act (Laws of 1882, chap. 410) is not founded in truth, may be found in the sworn statement made on behalf of the corporation to the commissioners, which forms a part of the petition in a proceeding to review the assessment by certiorari, it is not necessory that such facts should be also set up in the return.

      People ex rel. Edison Electric Illuminating Go. v. Barker (139 N. Y. 55), construed and applied.
    If, however, the commissioners rely on facts not otherwise appearing in the proceeding, they must state them in their return to the court. If this is not done, a refusal of the commissioners to decide in accordance with the evidence furnished by the sworn statement of the aggrieved corporation, if sufficiently full, apparently truthful, and not contradicted, constitutes legal error.
    When the sworn statement made on behalf of such a corporation on its application, under the statute, for a reduction of the assessment of the actual value of its capital, by excluding the value of patent rights owned by it, alleges that the value of the patent rights is unknown, although their cost is stated, such statement cannot be deemed to furnish controlling evidence on the question of their value. Under such circumstances, and in the absence of proof, it will not be presumed by the court, on the hearing upon the return to a writ of certiorari, that the commissioners erred in their estimate of the value of the patent rights, assuming (but not deciding) that patents are subject to State taxation.
    When the sworn statement presented by a corporation to the commissioners, for a reduction of its assessment, states that it has declared a dividend for the year then just ended on its entire capital, such statement amounts to an assertion on the part of the corporation that, shortly before its application to reduce the assessment, the value of the corporate assets equalled its capital, and will justify the commissioners in preferring such evidence to that furnished by other allegations in the statement, which it is claimed requires a reduction to be made in the assessed value of the assets, when, if the capital were impaired to the extent so claimed, it would follow that the directors of the corporation acted in violation of law in declaring the dividend.
    Appeal by tbe relator, Tbe Edison General Electric Company, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of the clerk of tbe city and county of New York on tbe 4th day of January, 1893, dismissing tbe writ of certiorari theretofore issued herein.

      Charles E. Miller, for the appellant.

      William H. Clark, and D. J. Deane, for the respondents.
   Parker, J.:

The appellant, a New York corporation with a capital stock actually paid in, or secured to be paid in, of $14,964,900, was assessed by respondents for tbe year 1892 at $15,000,000.

The corporation feeling aggrieved made application, pursuant to section 820 of tbe Consolidation Act, to have the assessment corrected.

It submitted a statement in writing and under oath which it claimed demonstrated that tbe assessment complained of was wholly erroneous and should be taken off.

Thereupon respondents reduced tbe assessment from $15,000,000 to $2,6Y0,Y00, but tbe corporation being still dissatisfied, it became tbe relator in certiorari proceedings to review tbe assessment.

The writ was dismissed at Special Term, and the relator having appealed, insists that a recent decision of the Court of Appeals (People ex rel. Edison Electric Illuminating Co. v. Barker, 139 N. Y. 55) commands a reversal.

In that case it was determined :

1. That when the evidence of a corporation as to the value of its assets is so full and complete as to establish the basic facts upon which its claim for reduction rests, and they are not contradicted, and no good reason is made to appear for doubting their truth, a refusal of the taxing officers to decide in accordance with such evidence constitutes legal error.

2. While the assessing officers are not bound by the sworn statements, when they have fair reason or ground for disbelieving them, they must return the information inducing such disbelief so that the court may understand what it was upon which they acted.

This of course does not mean that if the facts which lead to the conclusion that the contention of the aggrieved corporation is not founded in truth, may be found in its statement to the taxing officers, and which forms a part of its petition, must also be set up in the return. But if the assessors rely on facts not otherwise appearing in the proceeding they must return them.

Now, the return in this proceeding is in the usual form, and does not set up any of the special facts, if such there were, which induced the determination made.

Unless, then, the contention is well founded which is made in hehalf of the respondents, that they were supported in their decision by the evidence presented by the corporation, the assessment made was erroneous.

The statement furnished the tax commissioners showed the following matters:

Capital stock paid in, or secured to be paid in, $14,964,900. But its gross assets, exclusive of patent rights, value unknown, it alleged to be only $9,459,500; thus giving its gross assets a valuation of about $5,000,000 less than the sum of money actually paid in, or secured to be paid in, for its stock.

But, according to the statement, the gross assets were chargeable with the payment of an indebtedness of the corporation amounting to $4,740,174, making the net value of its assets only $4,719,326, or less than one-third of the amount of money paid in, or secured to be paid, for its capital stock.

The statement further alleges that other property of the corporation, amounting to $2,116,000, was permanently invested and taxable in other States; that the gross assets included real estate of the assessed value of $982,500, while $3,526,800 of the gross assets were invested in the stocks of other corporations and otherwise taxed, making an aggregate of $11,365,414 to be offset, according to the contention of the relator, against gross assets amounting only to $9,459,400, necessarily leaving no basis for an assessment.

There are two grounds upon which the respondents challenge the statement of gross assets made by the relator:

1. It expressly excluded the value of its patent rights, asserting that such value was unknown.

If, then, it was proper for the tax commissioners to consider their value, the relator did not present any evidence to them which was controlling on the question. And it has not presented any evidence in this proceeding which will support a determination that they were not of such a value that, added to relator’s admitted valuation of its gross assets, their total value would not be equal to the sum which the tax commissioners found them to be worth.

It is true that relator stated their cost, to have been $326,000, but having further said that their present value is unknown, it cannot be assumed, for the purposes of this proceeding, that the commissioners erred in their estimate. It must be proven that they did, if such is the fact.

Whether an assessment against a corporation for the value of its patents is legal, was suggested but not decided by the Court of Appeals in the case above referred to, because not necessary for its decision.

' We shall not consider that question how, because the second ground on which the commissioners challenge the truth of relator’s representation as to the gross value of its assets, seems to us sufficient not only to have raised a doubt, but to have justified an inference of fact that they were of greater value than claimed by relator. And, if so, then relator could only succeed by showing in this proceeding that there was an over-valuation. (Laws 1880, chap. 269.) This was not attempted.

As has already been observed, the relator stated to the commissioners that, after deducting the amount of its indebtedness from the gross valuation of its assets, the net value would be only $4,719,326. Yet, in the same statement, the relator admitted that for the year just ended it had declared and paid a dividend of eight per cent on its capital stock of $15,000,000.

- A moment’s examination will show that the tax commissioners would naturally and properly attach considerable importance to this statement.

The statute declares that it shall not be lawful for the directors or managers of any incorporated company in this State to make dividends except from the surplus profits arising from the business of the corporation.

If the capital of the corporation was impaired (counting the patents at cost) to the extent that the affidavit presented to the commissioners was intended to assure them, it would follow that the directors acted in violation of law. The presumption, of course, is that they acted legally and properly. This presumption, which attached to each of the members of the board of directors participating in declaring a dividend, amounted to an assertion on their part, but shortly before the application to reduce the assessment, that the value of the corporate assets was $15,000,000.

This evidence the relator placed before the tax commissioners, and they decided that the evidence furnished by an officer of the company, for the purpose of securing a pecuniary advantage to it, was overborne by the testimony furnished by the action, of the directors and managers of the company ivliile proceeding in the discharge of the trust committed to them.

These facts so far distinguish this case from the one cited as to require a different determination.

The #order should be affirmed, with fifty dollars costs and printing disbursements.

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

Order affirmed, with fifty dollars costs and printing disbursements.


text:
    Henry W. Steinway, Appellant, v. William Steinway and Steinway & Sons, Respondents.

      Pleading — reply required by the court under § 516 of the. Code of Civil■ Procedure — definiteness of the reply.

    When the plaintiff is required by the court, under section 516 of the Code of Civil Procedure, to reply to new matter set up in the answer which constituted a defense by way of avoidance, averring the presentation and acceptance of an offer in writing containing sundry terms of sale and providing for the execution of mutual releases, and tendering an issue fatal to the plaintiff unless its legal effect can be avoided, a reply is not sufficient which merely denies knowledge or information sufficient to form a belief as to whether the offer is correctly set forth in the answer.
    The court will require such an insufficient reply to be made more definite and certain.
    It is not an excuse for such an insufficient reply, that the plaintiff cannot be expected to remember accurately the terms of a writing read in his presence several years ago, when he could have demanded an inspection of the original, and, on refusal, the court would have compelled its production.
    Appeal by tlie plaintiff, Henry W. Steinway, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 14th day of June, 1893, directing the plaintiff to make his reply more definite and certain.
    The action was brought by the plaintiff, as a stockholder in the defendant corporation Steinway & Sons, upon a complaint which alleged, in substance, that the defendant William Steinway owned or controlled a majority of the stock of Stein way & Sons, and was. the president thereof; that he established a business under the name .of the “ Steinway Piano Fabrik,” in Germany, and caused to be furnished to the fabrik parts of pianos manufactured in the city of New York by Steinway & Sons, which were in part made up int$ complete pianos by the fabrik and then sold to the London branch; and that subsequently he caused to be sold to Steinway & Sons in New York the business of the fabrik, all of which was done at a profit to himself, which the plaintiff seeks to recover in this action.

      William J. Curtis and Edward B. Hill, for the appellant.

      G. W. Cotterill, for the respondents.
   Parker, J.:

This court held on a former appeal herein (68 Hun, 430) that the answer sets up one defense to which the defendant was entitled to a reply, and plaintiff was ordered to make one, pursuant to the authority conferred by section 516 of the Code of Civil Procedure.

The defense to which the reply was required was briefly but substantially as follows:

A meeting of the stockholders and trustees of Steinway & Sons was held on the 26th day of December, 1889, at which meeting the plaintiff, as stockholder, was present, and a written offer was made., containing the sundry terms alleged, to sell the business of the fabrik to Steinway & Sons, which offer was accepted, and the business, good will and property were so sold without opposition from the plaintiff, and ever since has been conducted under the management of Steinway & Sons, and has become large and profitable, and annual dividends have been declared and accepted by all the stockholders, including the plaintiff.

By the terms of this accepted offer, mutual releases were agreed to be executed of all claims and demands in behalf of Steinway & Sons and the said piano fabrik as against each other, and the business and property were sold at. inventory prices.

A reply was thereupon served, in which plaintiff admitted that he was present at the meeting, and in respect to the form of the offer made by defendant he averred: “ But as to whether the offer so made is correctly set forth in said paragraph of said answer, this plaintiff is ignorant, and has no knowledge or information sufficient to form a belief.”

Now, a reply was required because the defense did not appear to tender an issue of fact, but rather an issue which would be fatal to plaintiff unless its legal effect could be avoided. For this reason it was held that defendants were entitled to know whether the issue tendered would be admitted or denied, and if admitted, how plaintiff would seek to escape the apparent legal consequence of the admission.

Plaintiff seeks to avoid a full compliance with the order by alleging ignorance as to whether the offer is correctly set forth in the answer.

This is not in compliance with the requirements of the Code, which makes it necessary, where a reply is required, that it should contain a general or specific denial of each material allegation controverted by the plaintiff, or of any knowledge or information sufficient to form a belief.

In the case at bar, not only is there an offer alleged containing sundry terms and material allegations, but it is further averred that mutual releases were made a part of it.

A denial generally of knowledge or information sufficient to form a belief as to whether the offer is correctly set forth, is not a denial of each material allegation to which the plaintiff is required to reply.

He urges that he cannot be expected to remember accurately the terms of a writing read in his presence several years ago.

A similar reason was assigned in Wesson v. Judd (1 Abb. Pr. 254), but the court made answer that if he had doubt as to the correctness of what purported to be a copy of the writing, he could have demanded an inspection of the original, and if refused, the court would compel its production.

The order should be affirmed, with ten dollars costs and printing disbursements.

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

Order affirmed, with ten dollars costs and printing disbursements.


author: Per Curiam :

text:
    Fred Williams, Appellant, v. Bernard Lande and John B. Powell, Respondents, Impleaded with Thomas J. Montgomery and The State Trust Company.

      Contract suspending the transfer of personal property — suspension for a period other than during two'lives.

    A contract which provides that certain shares of stock shall not be sold, but shall be delivered to and held by a third party, for a given period, is condemned by the statute relating to accumulations of personal property (1 R. S. 773), unless the period of such suspension of “absolute,” that is, unconditional and unincumbered “ownership,” is measured by two lives in being.
    The statute applies alike to wills and other written instruments.

      Appeal by tlie plaintiff, Fred Williams, from an order or decree of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 17th day of May, 1893, dismissing the complaint as to the answering defendants, Bernard Lande and John B. Powell, and also from a judgment entered in accordance with such order on the 6th day of June, 1893.
    The action was brought by the plaintiff (claiming to be entitled to $543,750 of the capital stock of the Hydraulic Brake Company, a corporation organized under the laws of the State of New Jersey with a capital of $5,000,000) to compel the specific performance of an agreement entered into between the defendants Montgomery, Lande, Powell and himself, whereby it was agreed that each of such parties should deposit the certificates of the stock of that company belonging to each of them respectively (which were thereafter to be issued) in the Central Trust Company of the city of New York, not to be withdrawn therefrom within a period of six months from the date of the agreement (the agreement was dated November 2, 1892), without the written consent of each and every party thereto, unless sufficient of the treasury stock of the company should be sold to realize the sum of $30,000, in which event either of the parties was at liberty to withdraw his stock upon giving to the others five days’ notice of such intention to withdraw.
    The defendant Montgomery, as appears by this agreement, was the owner of $1,006,250 of the stock, and the defendants Lande and Powell of $775,000 each.
    The plaintiff claims that the defendants have violated their agreement in that they have failed to deposit the stock in question with the Central Trust Company, and that the defendant Montgomery has made purchases of stock from the other parties to said agreement sufficient to insure to him a controlling interest, and that this is contrary to the spirit and letter of the contract referred to.
    It is also alleged that the defendants have deposited their stock with the defendant The State Trust Company, subject to the fulfillment by the defendant Montgomery of the terms of this contract with the defendants Lande and Powell for the purchase of their stock.
    The plaintiff asked for specific performance and for an injunction restraining the defendants from transferring or delivering their certificates of stock to any person or persons except to deposit them with the Central Trust Company, pursuant to the terms of the agreement above mentioned, claiming that the object of the agreement was to preserve the condition of each of the parties with respect to his interest in the stock of the company for a period of six months, and to prevent during the same period any sales by the defendants or the plaintiff of their respective holdings of said stock, until sufficient treasury stock has been sold to realize the sum of $30,000 ; that unless the agreement referred to was carried out, the defendant Montgomery would obtain a controlling interest in the company, and that it would be impossible to sell any part of the treasury stock for the purpose of paying the necessary current expenses of the company, and that the plaintiff would be a minority stockholder.
    The defendants Lande and Powell having answered, the cause was brought on for trial at Special Term, and upon motion of defendants’ counsel the complaint was dismissed for failure to set forth a cause of action.
    Judgment was entered accordingly, from which judgment the plaintiff has appealed.

      George H. Pinney, for the appellant.

      Charles E. Rushmore, for the respondents.
   Per Curiam :

We are content with the position taken in this case on the appeal from the order denying plaintiff’s motion for an injunction pendente lite. (68 Hun, 416.)

Further reflection induces us to .emphasize the assertion then made, that if the agreement was intended to restrain the disposition of the stock for a period of six months from its date, it was in violation of the statute relating to accumulations of personal property and expectant estates in such property; the statute reads: “ The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator.”

Justice Allen, speaking for the court in Converse v. Kellogg (7 Barb. 597), had under consideration the meaning which should be given to the word “ absolute,” which had, prior to that time, been introduced into the statute. He said that “ the word £ absolute ’ was doubtless used as the opposite of ‘conditional,5 and in the same sense as ‘perfect.5 It signifies without any condition or incumbrance.”

This construes the statute as if it read: “ The unconditional and unincumbered ownership of personal property shall not be suspended by any limitation or condition whatever.” And, clearly, a contract which provides that certain shares of stock shall not be sold, but shall be delivered to and held by a third party for a given period, is condemned by that statute, unless the period of suspension is measured by two lives.

Yice-Chancellor Hoffman, in Butler v. Butler (Hoff. Ch. 347), l’emarked : “ The rule is inflexibly established that there can be no limitation of personal estate by which the power of entire alienation shall be suspended for a longer period than the continuance of two lives ” — an interpretation of the statute which accords with the views of Justice Allen already alluded to, and has been followed in many subsequent cases, including Maniee v. Mmiiee (43 N. Y. 303), and nowhere, so far as we have observed, criticized. It commands the determination that an agreement which prohibits the sale and transfer of personal property for a period other than provided by the statute, is condemned by it and, therefore, invalid.

Instances in which efforts to outwit the statute have been brought to the attention of the courts have generally arisen under wills, but the statute applies alike to wills and other written instruments.

It follows that the authorities, in so far as they discuss what accords with and what' violates the provision of the statute, providing how the term of suspension shall be insured, are alike applicable to both wills and contracts. **■

A few instances of unsuccessful efforts to avoid the rigor of the statute may be cited. In Cruikshank v. Home of the Friendless (113 N. Y. 337) and People v. Simonson (126 id. 299), the trusts were to continue until the Legislature should authorize by. appropriate enactment an incorporation such as testator desired should receive the estate ; in Garvey v. McDevitt (72 N. Y. 556) the duration of the trust was sought to bo limited to a period of four years immediately after testator’s death; in Killam v. Allen (52 Barb. 605), until the payment and extinction of certain mortgages; in Moore v. Moore (47 Barb. 257), until the reformation of a person, not exceeding three years. Other cases might be cited, but need not be, for with one accord they declare the ■ statute violated whenever a suspension of the power of entire alienation of personal property is attempted for any other term or period whatever than that authorized by statute.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Edmund W. Converse and Others, Appellants, v. Daniel E. Sickles, Sheriff of the City and County of New York, Respondent.

      Recovery of money paid upon a judgment — replevin against a sheriff — framd and deceit.

    The general rule is, that money' paid in satisfaction of a legal, judgment cannot be recovered, though not justly due from the judgment debtor.
    An exception to the rule is where the money is paid in satisfaction of an erroneous judgment, which is subsequently reversed or set aside. In such case the money paid may be recovered.
    It is not necessary, in order to maintain an action to recover money so paid, that the payment should have been coerced by execution. It is sufficient if paid after judgment.
    An action is not maintainable to charge a sheriff as trustee, and recover from him money paid to him in satisfaction of a legal judgment, not appealed from or set aside, recovered by him against the plaintiffs in an action of replevin brought against the sheriff for the possession of goods taken by him under an execution against a third party, and claimed by the plaintiffs to have been obtained from them by such third party by fraud and deceit.
    Appeal by the plaintiffs, Edmund W. Converse and others (comprising the firm of Converse, Stanton & Cullen), from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 8th day of June, 1893, dismissing the complaint upon the merits upon a decision of the court rendered after a trial by the court at the New York Special Term.

      Frederick R. Kellogg, for the appellants.

      A. Blumenstiel, for the respondent.
   Parker, J.:

The defendant, as sheriff of the city and county of New York, about the 1st of May, 1890, took possession of the entire stock of goods then possessed by Eechheimer, Rau & Co. under executions issued against them.

Such goods included certain merchandise, which the plaintiffs contend were procured from them by Fechlieimer, Rau & Co. through fraud and deceit. Thereafter these plaintiffs elected to rescind the sales by reason of the alleged frauds, and commenced two replevin suits to recover the goods from the defendant, under which they obtained possession of them, and afterward sold them.

Subsequently, the actions coming on for trial, plaintiffs’ counsel stated in his opening that he would not be able to prove that plaintiffs had demanded possession of the goods from the sheriff before their commencement. The court held, following Goodwin v. Wertheimer (99 N. Y. 149), that, in the absence of such proof, plaintiffs could not recover, and in each action directed the jury to find a verdict in favor of the defendant for the return of the goods, or their value. In pursuance of such direction a judgment in each case was duly entered, execution thereon being stayed for a specified time.

At the expiration of the period for which a stay was granted, the plaintiffs, having reached the conclusion that an appeal could not be successfully prosecuted, paid to the sheriff the amounts of the two judgments, aggregating $5,312.99, at the same time serving upon the sheriff a written protest, in which they alleged* that payment was made under duress of execution and judgment, and demanded an immediate return of the sum so paid in.

Their demand being refused, this suit was commenced to compel restitution, the grounds assigned as a basis for the recovery being that the goods having been obtained from them by fraud and deceit, they were entitled to their return from Fechheimer, Rau & Co., or the sheriff, and, inasmuch as the goods had been disposed of, the plaintiffs assert the right to charge the sheriff as trustee of the money in his hands representing the goods.

The trial resulted, as we think, correctly in a dismissal of the complaint upon the merits. The general - rule is, that money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the defendant. (Federal Ins. Co. v. Robinson, 1 Norris [82 Penn. St.], 357-359; Travelers’ Ins. Co. v. Heath, 95 Penn. St. 333-340; 6 Am. & Eng. Ency. of Law, 75, and cases cited.)

An exception to the rule is where the money is paid in satisfaction of an erroneous judgment, which is subsequently reversed or set aside. In such case the money paid may be recovered back. (Scholey v. Halsey, 72 N. Y. 578; Peyser v. The Mayor, 70 id. 497; Travelers' Ins. Co. v. Heath, supra.)

And it is not necessary in order to maintain the action that the payment should have been coerced by execution. It is sufficient if paid after judgment. (Scott v. Swezy, 29 Barb. 87; Scholey v. Halsey, supra; Peyser v. The Mayor, supra.)

The cases cited by the appellants are not in conflict with the rule asserted. Aside from those already referred to, they call attention to Bank v. The Mayor (43 N. Y. 188) ; Phelps v. The Mayor (112 id. 216), and Vaughn v. Portchester (48 N. Y. St. Repr. 436). In Panic v. The Mayor a municipal corporation collected a tax from the plaintiff, which was unlawfully assessed, and the assessment being subsequently annulled in proceedings taken for that purpose, it was held that the corporation was bound to refund the money which it had unlawfully collected.

In Phelps v. The Mayor the right to recover the money paid on a void assessment was denied, on the ground that the ordinance was on its face illegal and void, and payment without coercion of assessment was, therefore, a mistake of law, furnishing no basis for a recovery.

In Vaughn's case the assessment was invalid, and the trustees of the municipality having passed a resolution for an advertisement and sale of all property upon which the assessment had not been collected, Vaughn offered to deposit sufficient money to abide the result of a test suit as to the validity of the assessment. Iiis offer being denied he paid the amount under protest. Subsequently the assessment was adjudged illegal, and the court held that the payment was made under such coercion of law as would permit a recovery back of the moneys.

In the case under consideration the judgment was legally rendered. No effort was made to reverse it on appeal, nor was it attacked by a motion to set it aside.

The money paid was, therefore, in satisfaction of a valid judgment, and under the rule established by the cases to which we have referred, there can be no recovery by the plaintiffs of the sum so paid.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Luigi de Matteis, Respondent, v. Carlo la Maida, Appellant.

      Malicious prosecution and false imprisonment — evidence — dismissal of complaint — direction of a verdict for the defendant.

    In an action brought to recover damages for malicious prosecution and false imprisonment, a request to dismiss the complaint at the close'of the plaintiff’s evidence, on the ground that the plaintiff had failed to meet the burden resting upon him of showing want of prohable cause for the action taken by, and ■ malice on the part of, the defendant, is properly refused, when the court would not be justified in holding, as matter of law, that the defendant had such reasonable ground of suspicion, supported by circumstances of such strength, as to warrant a cautious man in believing that the plaintiff was guilty of the offense with which he whs charged.
    Nor, when a dismissal of the complaint is not warranted at the close of the plaintiff’s evidence, is the situation changed so as to warrant the direction of a verdict for the defendant at the close of the case, by the fact that the evidence on the part of the defendant contradicted in substantial respects the evidence on the part of the plaintiff.
    Appeal by the defendant, Carlo la Maida, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 11th day of June, 1893, upon th,e verdict of a jury rendered at the New York Circuit.

      L. L. Van Allen, for the appellant.

      Herman Frank, for the respondent.
   Parker, J.:

The judgment awards to the plaintiff $1,250 damages in an action for malicious prosecution and false imprisonment.

The appellant calls our attention to two exceptions only. The first was taken to a refusal of the court to dismiss' the complaint after plaintiff had rested. And the second to the court’s denial of defendant’s motion to direct a verdict in his behalf after the case was closed.

It is not controverted that plaintiff was arrested about the 16th of September, 1891, under a warrant based on a complaint of the defendant, charging him with having feloniously stolen jewelry to the value of $1,000, and imprisoned for twenty-four hours, after which he was released on giving bail in the sum of $2,500. On the day set for the hearing defendant substituted for it a charge to the effect that plaintiff had feloniously stolen from the defendant a pair of diamond earrings. An examination upon such charge was had resulting in the plaintiff’s acquittal.

But defendant claimed upon the trial, and now insists, that he was entitled to a dismissal of the complaint at the close of plaintiff’s case, because, as he alleges, the plaintiff had failed to meet the burden resting upon him of showing want of probable cause for the action taken by, and malice on the part of, the defendant. (Anderson v. How, 116 N. Y. 336.)

It then appeared, without contradiction, that for a period of four years prior to the arrest plaintiff had been doing business for and with the defendant on the following basis:

In the morning of each day defendant gave to plaintiff a box containing jewelry for sale, the cost price of each article being designated by defendant; plaintiff could not sell below this cost price, but was to divide with defendant whatever he should realize above it. At the close of each day plaintiff gave to the defendant an account of the proceeds received, and retrfrned such jewelry as remained unsold.

Cash for the goods was obtained in some instances, and in others the sales were on the installment plan. Some days prior to plaintiff’s arrest he informed defendant of his intention- to sail for Europe on the sixteenth of September with his wife, who was then in ill-health, and made application to him for steamer tickets, which defendant had for sale. Defendant asked him to-wait for another month, and, finding that he would not, kept postponing from day to day a settlement of the accounts between them, but did not in any way intimate that he was dissatisfied with the manner in which plaintiff had conducted the business. Plaintiff remained the greater part of the day, preceding the one upon which he was to sail, with the defendant, at his place of business, but nothing was said by the defendant suggesting that he regarded himself as having been wronged by the plaintiff, still, just before the hour of sailing arrived, he was arrested on the first charge, which was subsequently withdrawn and another substituted in its place, upon which an examination was had.

This latter charge was to the effect that he had stolen a pair of diamond earrings of the value of thirty dollars. Of that charge plaintiff was acquitted. And in this action he describes the transaction which was the basis of defendant’s last charge as follows: I told the defendant that Mr. Savetto wanted to buy a pair of earrings, and he gave me three pairs to show to him. Savetto took them to his wife, who selected one pair, returning to me the other two, which I gave to defendant, telling him that he would pay for them in fifteen days.

Savetto testified in plaintiff’s behalf that he was acquainted with both plaintiff and defendant, and that he purchased the earrings upon a credit of fifteen days. Put had not paid the plaintiff anything for them.

It was defendant’s contention, during the criminal prosecution of the plaintiff, that he had sold the earrings to Savetto, received payment therefor, and kept the money.

Savetto not only disputed such contention, as did the plaintiff, but he further testified that the defendant came to his house after plaintiff’s arrest, and at a late hour of the night, and tried to persuade him to say that he had paid plaintiff for the jewelry. Upon this evidence, standing, as it did at the close of plaintiff’s case, uncontradicted, it is clear that the court could not have held, as matter of law, that the defendant had such reasonable ground of suspicion, supported by circumstances of such strength, as to warrant a cautious man in believing that plaintiff was guilty of the offense with which he was charged.

It is true that the evidence presented on the part of the defendant contradicted in substantial respects the evidence of the plaintiff and his witnesses, but that of course did not operate to take away the right which we have said plaintiff had established to go to the jury. It presented the further question for the jury to pass upon, whether plaintiff’s testimony was true. If true, the situation was precisely the same as when plaintiff rested.

The appellant calls our attention to what he alleges to be an error in the admission of testimony, but as no exception was taken we need not consider it.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    United States Vinegar Company, Respondent, v. Francis Foehrenbach and Another, Appellants.

      ''Objection to proof of incorporation in another State —■ a certificate under the seal of the State is prima facie evidence.

    An objection that there was a failure to prove the incorporation of a party to an action under the laws of the State of Illinois, because the certificate of its Secretary of State to such effect was not exemplified, as required by section 906 of the United States Revised Statutes, is without force.
    A certificate under the great seal of the State of Illinois is receivable in evidence as prima facie evidence of the facts therein stated. (Chap. 311 of Laws of 1877.)
    Appeal by the defendants, Francis Foehrenbach and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 28th day of March, 1893, upon the verdict of a jury .directed by the court at the New York Circuit.

      Benno Loewy, for the appellants.

      S. R. Ten Eyck, for the respondent.
   Parker, J.:

An examination of the argument of the appellants discloses that all of the questions discussed involving the merits were passed upon by this court in The U. S. Vinegar Co. v. Schlegel (67 Hun, 356). Their further consideration at this time we deem unnecessary.

Appellants’ contention that the plaintiff failed to prove its incorporation under the laws of the State of Illinois, because the certificate of its Secretary of State to such effect was not exemplified^ as required by section 906 of the United States Revised Statutes, is without force.

Section 27 of chapter 32 of the Revised Statutes of the State of Illinois reads as follows :

Certified copy of charter evidence.— The certified copy of any article of incorporation and changes thereof, together with all indorsements thereon, under the great seal of the State of Illinois, shall be taken and received in all courts and places as pri/ma facie evidence of the facts therein stated.”

This certificate is under the great seal of the State of Illinois, and, therefore, receivable in evidence by the courts of that State as prima facie evidence of the facts therein stated.

By chapter 311 of the Laws of 1877 it is provided that such certificates shall be received by the courts of this State with the same force and effect in all respects as prima facie evidence as in the State from which the certificate comes.

The judgment should be affirmed, with costs.

Van Brunt, P. J., aud Follett, J., concurred.

Judgment affirmed, with costs.