author: Kennedy, J.:

text:
    ABBIE WATKINS, Respondent, v. HENRY J. VROOMAN, EBEN C. REYNOLDS and HELEN REYNOLDS, Appellants.
    vim agreement made by a remainderman to pay a mortgage given by the tenant for life — what creates a lien upon his interest— the agreement need not be an instrument capable of conveying a fee — a purchaser from the remainderman is liable for any purchase-money remaining in his hands at the time when he has actual notice of the agreement.

    In 1843 William Miller died, leaving a last will and testament, by which he gave and devised an equal undivided third part of the residue of his real and personal estate to a person therein named, in trust, to pay the interests, rents and profits thereof to his daughter, Eliza Ann, the wife of Adam Yrooman, to and for her sole use and benefit, and upon the further trust that, upon the decease of the said Eliza Ann, the trustee should convey and deliver the said estate, real and personal, “ to the right heirs then living of the said Eliza Ann.” The lands so devised in trust were occupied by the said Eliza Ann Yrooman from the death of Miller to the 32d day of June, 1879, on which day she died, leaving her surviving the defendant Henry J. Yrooman and Helen Reynolds, her only heirs-at-law and next of kin.
    On January 17, 1879, Henry J, Yrooman having applied to the plaintiff for a loan of the sum of $1,000 to the said Eliza Ann Yrooman, represented to the plaintiff that the said Eliza Ann was the owner of the premises. The money was loaned, and, to secure the payment thereof, the said Eliza Ann executed and delivered to the plaintiff a mortgage, describing the lands constituting the trust estate created by the will of Miller, which mortgage was recorded in the proper clerk’s office on January 17, 1879. The plaintiff at the time she lent the money did not know in whom the title to the land was vested, and supposed it to be in the mortgagor.
    The interest which fell due January 1, 1880, on this mortgage, was not paid, and the plaintiff, having been informed that the mortgagor had no title to the mortgaged premises, applied to Henry J. Yrooman for additional security; whereupon, he, on March 15, 1880, executed and delivered a paper, signed and sealed by him (the certificate of acknowledgment to which was defective and to which there was no subscribing witness), certifying that the mortgage was a lien on the premises therein described,, was good for the face thereof, with interest, and that the same was thereby made as against himself and his heirs a lien on the said property, and thereby covenanted and agreed to pay the $1,000 and interest. On March 18, 1880, this paper was recorded in the Oneida county clerk’s office, in the book of assignments and satisfactions, and, about July 80, 1880, was copied by the clerk into the book of mortgages but not in its regular order.
    Upon the trial of this action, brought to orec.ose the said mortgage and to have it declared a lien upon the premises described therein, the summons was served on Yrooman, July 15, 1880.

      Held, that as the court found that the defendant Henry J. Yrooman duly executed and delivered the agreement of March 15, 1880, and as the action was in equity, that a judgment against him for the sum of money due, with interest, was properly entered.
    On July 19, 1880, Yrooman conveyed all his interests in the lands to Eben O. Reynolds, for the consideration of $3,000, which was to be paid to Yrooman by discharging certain mortgages and notes and other debts owing by Yrooman, and by paying to him in cash $875. Upon the trial of this action the court found that before Eben O. Reynolds had paid any part of a sum of $860 (being the balance of the purchase-price which he had agreed to pay to the creditors of Yrooman), he had actual notice of the plaintiff’s mortgage and of the above agreement.

      Held, that, upon the death of Eliza Ann Yrooman, the trust terminated and ónehalf of the trust estate passed immediately to Henry J. Yrooman, one of the two heirs-at-law of Eliza Ann, her surviving, and that no conveyance from the trustee was necessary to vest the title in him as the transfer was made by the operation of the statute of uses.
    That while the agreement of March 15, 1880, was not an instrument which could convey a fee, as the agreement was not duly acknowledged or attested by a witness, as required by section 137 of 3 Revised Statutes (7th ed.), 3194, it created an equitable lien or mortgage on Vrooman’s part of the land 'which could be enforced.
    That, as this agreement had not been properly recorded, a purchaser of the premises in good faith and without actual notice would have acquired a title free from such lien; but as the court had found that $860 of the purchase-price was unpaid at the time that Reynolds, the grantee, received actual notice of the existence of this equitable mortgage, the lien of the equitable mortgage given by Vrooman attached to this part of the purchase-money, and the plaintiff had a right to have the same appropriated to that purpose, and that a judgment against Bben 0. Reynolds for that amount should be affirmed.
    Appeal from a judgment entered in the office of the county clerk of Oneida county, on November 9, 1887, upon the trial of the action at the Oneida Special Term. The material facts are stated in the opinion.

      E. D. Matthews, for the appellant Reynolds.

      F. C. Ingalls, for the appellant Vrooman.

      Cookingham & Sherman, for the respondent.
   Kennedy, J.:

William Miller died in 1843, the owner and in possession of certain real estate, a portion of which is that described in the complaint. He left a last will, which was afterwards proven before the surrogate of Oneida county, and the same was recorded in the office of the clerk of said county, as a will of real estate, on the 1st day of November, 1878. The following is the fifth clause in said will: “Fifth, One equal, undivided third part of the said rest and residue of my estate, real and personal, I give, devise and bequeath to my friend, William Broadwell, in trust, to pay the interest, rents, profits and increase, of whatever nature, to my daughter Eliza Ann, the wife of Adam Vrooman, to and for her sole use and benefit, discharged and free from all control of her present or any future husband; and I direct that the receipt or acquittance of said Eliza Ann shall be a sufficient voucher and discharge to the said Broadwell for the payment of any such interest, rents, profits or increase ; and upon the further trust that upon the decease of the said Eliza Ann, the said William Broadwell shall and will convey and deliver the said estate, real and personal, and all the increase in his hands, to the right heirs then living of the said Eliza Ann; which said conveyance, as well as that before mentioned, to be made by the said Ithaca Thompson, shall be in fee, with the proper words of perpetuity to vest an estate of inheritance.” The lands described in the complaint form the above-mentioned trust estate. Eliza Ann Vrooman, the beneficiary named, from the death of Miller down to her death, which occurred on the 22d day of June, 1879, was in the actual occupation of the land. She left her surviving the defendant Henry J. Vrooman and Helen Reynolds, her only heirs-at-law and next of kin.

On the 17th of January, 1879, Henry J. Vrooman applied to the plaintiff for the loan by her to the said Eliza Ann Vrooman of the sum of $1,000. He represented at the time that said Eliza was the owner of the premises, and the money was loaned. To secure this the said Eliza Ann executed and delivered to the plaintiff the mortgage set forth in the complaint, describing the lands constituting the trust estate provided for in the above-mentioned clause in the deceased Miller’s will. The interest was payable annually from January 1, 1879. The mortgage was recorded in the clerk’s office in Oneida county on the 17th day of January, 1879. At the time the plaintiff lent the money and took the mortgage she did not know in whom the title vested, but supposed it to be in the mortgagor. The interest becoming due January 1, 1880, was not paid. About that time the plaintiff learned that said mortgagor' had no title to the premises mortgaged, but that the same became vested in said Henry Vrooman and Helen Reynolds upon her death. She thereupon applied to said Vrooman for additional security ; and he, on the 15th day of March, 1880, as is found by the court, executed and delivered to her the following paper :

“This agreement certifies that I, Henry Vrooman of Trenton, New York, do covenant and agree to and with Mrs. Abbie G-. Wat kins of Prospect, New York, that a certain mortgage for the sum of one thousand dollars, given about the 1st day of January, 1879 to the said Abbie G-. Watkins by Eliza A. Vrooman, and which said mortgage was a lien on the premises therein described, is good for the face thereof, with interest; and the same is hereby made as against myself and my heirs, a lien on the said property in said mortgage described; and I further covenant and agree to pay the said sum of one thousand dollars and interest.
“ (Signed.) HENRY VROOMAN. [l. s.]
“ March 15, 1880.
“ Oneida County, ss. :
On the 15th day of March, 1880, before me came Henry Yrooman, the person named in and described in the above paper, and acknowledged to me that he executed the same.
“ A. E. JONES,
Justice of the PeaoeP

On March 18, 1880, this paper was recorded in the Oneida county clerk’s office in the book of assignments and satisfactions; about July 30, 1880, the clerk copied said record into the hook of mortgages, but not in its regular order.

The summons in this action was served on Yrooman about the 15th day of July, 1880. The defendants Reynolds were brought in as defendants May 9, 1881. On the 19th day of July, 1880, Yrooman conveyed all his interest in said lands to the defendant Eben C. Reynolds, for the consideration of $3,000. This deed was recorded July 30, 1880. On the 29th day of March, 1881, the defendants Eben O. Reynolds and Helen E. Reynolds, his wife, conveyed the whole.premises to one Theodore Johnson, for $6,539.50-Tlie $3,000 Reynolds was to pay Yrooman for his half was adjusted, as follows: He assumed a mortgage on the land to one Hodges, for $1,165; a mortgage thereon to Spriggs & Matthews for $100 ; paid in cash $875 ; he was to pay to his wife and take up a note she held against the grantee Yrooman, dated April 14, 1876, for $400, amounting then to $520; one-half the funeral expenses, and a monument to Eliza Ann Yrooman, $100; he also agreed to pay to Mrs. Reynolds, his said wife, for the use of one-half of the farm, that and other debts sufficient in amount to make up the whole of the purchase-price. The court finds that Eben C. Reynolds, before he paid any part of the $860 om Yrooman’s debt, had actual notice of the plaintiff’s mortgage and of the above-mentioned agreement. Nothing has been paid upon the plaintiff’s mortgage.

In her complaint the plaintiff asks relief upon several grounds: First. That the plaintiff’s mortgage be adjudged a lien upon the premises described therein from the time of making the same and the said agreement of Henry Yrooman, and that the same be foreclosed. Second. That all the right title and interest which said defendant, Henry Yrooman, had in said premises on the 15th day of March, 1880, be sold and the proceeds applied to pay the mortgage and costs. Third. For a judgment against him for any deficiency. Fourth. That Eben C. Reynolds be declared to have purchased of Vrooman, subsequent to the mortgage and agreement, and that he acquired no title against the plaintiff by such purchase. Fifth. That Vrooman be enjoined from receiving and Reynolds from paying to him any of the purchase-money. Sixth. For such other and further relief as may seem just and equitable.

On the trial it was claimed by the appellant that a money judgment could not be ordered in the case because not claimed in the complaint. The evidence given upon the theory upon which the case was disposed of was sufficient to justify the granting of the relief awarded. It is a general rule in equity that the relief to be administered will be adapted to the exigencies of the case as they exist at the close of the trial. (Spears v. The Mayor of New York, 87 N. Y., 359, 376; Benedict v. Benedict, 85 id., 625; Day v. Town of New Lots, 107 id., 154.) The court, upon conflicting evidence, found that the defendant Henry J. Vrooman duly executed and delivered the agreement of March 15, 1880. We think this finding-justified by proof. By this agreement, under seal and for sufficient consideration, the said Vrooman covenanted and agreed to pay the plaintiff $1,000 and interest, being the sum secured by said mortgage. . Ho good reason can be suggested why this obligation was not incurred by him, and the whole of the mortgage -remaining unpaid, why the judgment against him for that sum, with interest, is not just and fully warranted by the evidence ; or why, within the rule suggested as to the granting of relief in equity cases, it was not properly adjuged against him. The case shows no judgment against the defendant Flelen Reynolds. She has joined with her husband Eben O. Reynolds in the appeal; as to her the same should be dismissed.

After this action was commenced the defendant Henry J. Vrooman sold and conveyed his interest in the real estate described in said mortgage to the defendant Eben O. Reynolds, by deed dated, and recorded as before stated. The consideration for the deed was $3,000 ; the grantee assumed the payment of two mortgages, liens upon the lands, amounting to $1,265, and he paid -the grantor, in cash, $875; and out of the balance of the purchase-price he was to pay a note his wife held against the grantor, the amount of which was $520; also one-half of the funeral expenses and other obligations owing by Vrooman, amounting to $340, being the balance of the purchase-price. For this sum, $860 of the purchase-money, with interest, judgment was ordered against the appellant Eben 0. Reynolds, upon the ground that by the before-mentioned agreement of Henry J. Vrooman with the plaintiff, an equitable lien was created and attached to his interest in said real estate in behalf of the plaintiff, and as security for the payment of said mort-gage debt; that the agreement to pay the debt and discharge the obligation of Vrooman by Reynolds not having been performed by him by making such payments before he had actual notice of the existence of said equitable lien, he was bound to account for that part of said purchase-money, and to pay the same over to her in discharge" pro tanto of the mortgage debt.

Upon the death of Eliza Ann Vrooman, the cestui que trust in the will of William Miller, the trust terminated, and one-half of the trust estate passed immediately to Henry J. Vrooman, one of the two heirs-at-law of Eliza Ann, her surviving, freed from said life estate, until the death of Eliza, the interest of Henry J. was in the nature of a contingent remainder. The question whether this should ripen into an actual estate in fee depended upon the contingency of his surviving the life tenant. When that event occurred he became the absolute owner of an undivided one-lialf of the lands comprising said trust estate, and notwithstanding the provision in the will that upon the happening of this event the trustee was directed to convey the trust estate, real and personal, to the remainderman, no such conveyance was necessary to vest the title in him. The transfer was made by operation of the statute of uses. (3 R. S. [7th ed.], 2183, § 67; In the Matter of the Petition of Livingston, 34 N. Y., 555.) Henry J. Vrooman, therefore, was the ownerin fee of an undivided one-half of the premises described in the plaintiff’s mortgage at the time he entered into the above-mentioned agreement.

The contention by the plaintiff is, that by said agreement, as between him and the plaintiff, an equitable lien was created, by which his said .portion was charged with the payment of said mortgage debt. The defendant Reynolds urges, upon the other hand, admitting the execution of the agreement, that the effect of it was to convey an interest in the fee in said real estate, and because it was not executed pursuant to the requirements of the statutes in such case provided, nothing passed under it to affect his rights as a subsequent purchaser. The statute referred to -provides: “ Every grant in fee or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, according to the provisions of the .third chapter of this act, its execution and delivery shall be attested by at least one witness, or if not so attested it shall not take effect as against a purchaser or incumbrancer until so acknowledged.” (3 R. S. [7th ed.], 2194, § 137.) The agreement in question was not duly acknowledged, the officer failing to certify that he knew the person making the same. It was not attested by a witness. The claim by the appellant that the justice who took the acknowledgment may be regarded as an attesting witness is not tenable, since, if he did not know the maker and was not present at the time of its execution, he could not be regarded as a subscribing witness.

The question then presented is, what, if any, estate in the rands in question did the agreement effect % It is quite apparent that the most which can be claimed is that it amounted to an equitable mortgage, intended to secure by lien thereon the debt owing the plaintiff. If this is the only character to be given it, it would seem to follow that it was not a grant in fee, and did not convey a freehold estate. A mortgage upon real estate is a mere chose in action, a security of a personal nature alone, a pledging of the land as security "for the payment of a debt. The fee does not pass to the mortgagee by -virtue of the mortgage. (Westbrook v. Gleason, 79 N. Y., 23; Kortright v. Cady, 21 id., 343 ; Power v. Lester, 23 id., 527, 531; Merritt v. Bartholick, 36 id., 44; Trimm v. Marsh, 54 id., 599.) The agreement was, therefore, not an instrument conveying a fee and not within the provisions of the statute quoted. An equitable" mortgage may be constituted by any writing from which the intention to create it may be gathered. (Miller on Equitable Mortgages, 1; In the Matter of the Petition of Howe and Wife, 1 Paige, 125 ; Chase v. Peck, 21 N. Y., 581; Payne v. Wilson, 74 id., 348.) The paper executed by the defendant Vrooman created an equitable lien or mortgage upon his part of the land, and a security which could, therefore, be enforced.

This agreement not having been recorded, a subsequent purchaser of the premises in good faith, and without actual notice, would acquire a title free from such lien. The defendant Eben 0. Reynolds, having become such purchaser, took his title unaffected by this equitable hen, and had he paid the full purchase-price before notice of its existence, no obligation to the plaintiff would have remained.

The court below has found that $860 of the purchase-price was unpaid at the time Reynolds, the grantee, received actual notice of the existence of this equitable mortgage. It was, by agreement, provided that he should pay this by assuming a debt owing his wife by the grantor, and certain other obligations against him. These the grantee has not, in fact, paid, and said balance of the purchase-price remains due and owing by him. The lien of the equitable mortgage of Yrooman attaches to this part of the purchase-money, and unless the agreement to assume the debts of the grantor above referred to operated as an actual appropriation of the same, equity will compel its payment in discharge of the mortgage debt.

Upon this question the court below found: “The consideration for said transfer from said Yrooman to Reynolds was made up as follows: Mortgages on land conveyed, $1,265; cash paid, $815; debts owing by the grantor, Yrooman, $860.” He also finds that Reynolds, on the 31st day of July, 1881, and before the payment by him of any part of said $860, had actual notice of said mortgage and agreement, and of plaintiff’s claim thereunder. These findings, do not, bring the case within the principle of Lawrence v. Fox (20 N. Y., 268), and kindred cases, asserting the doctrine that an . action lies upon a promise made by the defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration. There is no finding that the grantee Reynolds undertook or promised the grantor Yrooman to pay these debts, if they, in fact, existed, out of the consideration for the conveyance. So far as the rights of the plaintiff are concerned, defendant Reynolds still owes Yrooman $860; and to that sum in Ms hands the equitable lien attached in favor of the plaintiff upon her mortgage, and she had a right to have the same appropriated for that purpose. In the- disposition made of the case, .we do not see how Johnson, the subsequent grantee of Reynolds and Ms wife, was a necessary party to the action.

Judgment against the appellants Henry J. Vrooman and Eben 0. Reynolds affirmed, with costs; as against the appellant Helen Reynolds, the appeal is dismissed, without costs; order appealed from affirmed, without costs.

Follett and Martin, JJ., concurred.

Order entered December 23,1887, affirmed, without costs; appeal of Helen Reynolds dismissed, without costs; judgment against Henry J. Vrooman and Eben 0. Reynolds affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    ELLA UPTON, Respondent, v. DANIEL UPTON and LOVINA UPTON, Appellants.

      When the meaning of words, alleged to be actionable per se, should be submitted to the jury—a na/i'row&r limit of exemplary damages exists in actions brought against an innocent husband and his wife because of slanderous words uttered by the wife.

    Upon the trial of an action against the defendants, as husband and wife, to recover damages for slanderous words uttered by the wife, in the absence of her husband, of and concerning- the plaintiff, the plaintiff, who claimed to be a married woman, was allowed, against the defendant’s objection and exception, to prove by a witness, that in May or June, 1886, she heard the defendant say “the plaintiff had a bad disease.”
    The court, in passing upon the question raised by the defendant’s objection, said “ I think it relates to her chastity.”

      Held, as the words referred to were not charged in the complaint, and as they furnished of themselves an independent cause of action, and if they did not charge a want of chastity were in no way connected with the cause of action alleged, and as a judgment in the present action would not be a bar to any future action based upon the utterance of such words, that it was error to allow the evidence.
    It was urged by the plaintiff that the evidence was admissible because the cause of action was barred by the statute of limitations.

      Held, that, although the court was constrained by the cases of Root v. Lowndes (6 Hill, 518);Inman v. Foster (8 Wend., 602), and other cases, decided at nisi prius, to hold that the evidence was admissible, the trial court erred in holding, as a matter of law, that the words related to the chastity of the plaintiff, as that was peculiarly a question for the jury, to be determined by them in the light of the circumstances.

      That the court erred in refusing to instruct the jury that a narrower limit of exemplary damages existed where the husband was an innocent party, free from malice, and made defendant simply because of his marital relation; and that an exception taken by the defendant to the court’s instructions, that “ the,husband’s liability with the wife makes no difference with the amount of exemplary damages, " was well taken.
    Appeal from a judgment entered in the office of the clerk of Oswego county on June 15, 1888, upon the verdict of a jury after a trial at the Oswego Circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice presiding at the trial The material facts are stated in the opinion.

      S. C. Huntington & Son, for the appellants.

      J. W. Shea, for the respondent.
   Kennedy, J.:

Action against the defendants, as husband and wife, to recover damages for slanderous words uttered by the wife in the absence of her husband, of and concerning the plaintiff. The words charged as slanderous were sufficiently proven on the trial, and their utterance by the wife was not disputed. The defendants allege, in their respective answers, that at the time she uttered the slanders the said Lovina was of unsound mind and not responsible. Evidence was given tending to show that such was her mental condition, and that she had been thus afflicted for some time previous thereto. On the part of the plaintiff proof was given, in some degree, at least, rebutting this contention. Perhaps the finding of the jury upon this issue may be fairly regarded as conclusive.

On the trial the plaintiff was allowed to prove, against the defendant’s objection and exception, by a witness, Mary Weldon, that in May or June, 1886, she heard the defendant say “ the plaintiff had a bad disease.” If by these words the plaintiff was charged and intended to be charged, as suggested by the trial judge, with having the venereal disease at the time of their speaking, they were actionable per s& / and for the speaking of them an action could be maintained. Odgerson on Libel and Slander (Big. ed.), 63, says: “Words imputing to the plaintiff that he has an infectious or contagious disease are actionable without proof of special damage, since the effect of such imputation is naturally to exclude the plaintiff from society. Such disease may be either leprosy, venereal disease,” etc. The author cites many authorities in support of the doctrine. The same is stated to be the rule in Townsend on Libel and Slander (§ 175). The question was passed upon in Williams and Wife v. Holdredge (22 Barb., 396), Mason, L, writing the opinion; and it was held that to say of a married woman that she had the venereal disease is actionable per se -without proof of special damage. This is undoubtedly the rule as now settled. Whether to say of a married woman that she has a “ bad disease ” is equivalent to charging her with having the venereal disease is not quite certain. It would appear to be a question for the jury, to be determined in the light of all the circumstances. The court, however seems to have regarded it as. doing so, saying, in passing upon the question raised by the defendant’s objection, “I think it relates to her chastity.” And the jury, assuming that they followed the suggestion, must have found that the words charged the plaintiff with having the venereal disease at the time they were uttered.

The words referred to were not charged in the complaint, and furnished of themselves an independent cause of action; and if they did not charge a want of chastity, they were in no way connected with the cause of action alleged, and it was error to allow the evidence. After having proven the words charged, the plaintiff may show a repetition of the same slanders as tending to show malice. (Bassell v. Elmore, 18 N. Y., 561, and cases cited.) But he cannot prove the speaking of other and different actionable words, charging a different offense. (Johnson v. Brown 57 Barb., 126.) The plaintiff being a married woman, or at least claiming that relation, to'charge her with having the venereal disease did riot necessarily impute unchastity to her; but to charge it was to utter language which was slanderous per se. If, then, as interpreted by-the court, the objectionable language charged the plaintiff with such disease, the judgment in this action could not be pleaded in bar to one brought for that cause.

It is urged by the plaintiff that the evidence was admissible because the cause of action was barred by the statute of limitations; and Root v. Lowndes (6 Hill, 518), and Inman v. Foster (8 Wend., 602) are cited in support of this proposition. The question was not in the Eoot ease; it was incidentally discussed by Bronson, J., in the opinion. I do not see how the doctrine can logically be upheld as suggested in the case quoted. Evidence of this character must, more or less, influence the minds of the jury. The ground upon which it is claimed to be admissible is to show malice. The object in showing malice, beyond that evidenced by the words charged in the pleading, is to enhance the damages. The logical deduction necessarily follows that, by the admission of the evidence, the plaintiff gets the benefit of a cause of action, the right to maintain which is barred, and in reference to which, if an action had been brought, the statute, if pleaded, would have been an absolute defense. The words charged in the complaint and proved upon the trial were not equivocal, and of themselves furnished evidence of malice. It was not, therefore, necessary to the plaintiff’s rights to recover that she should show it outside of and beyond these*

To allow evidence to be given of words, slanderous, per se, not charged in the complaint, to show malice and at the same time to instruct the jury that they are not to allow damages therefor, involves contradictions not easily harmonized. Malice is shown to enhance damages alone, and to say to the jury that they are not to give it that effect is to declare the evidence inadmissible for any purpose.

The authority for the admission is at best uncertain, and was the question original we should have no doubt that it was error to receive it, especially when the right of action is barred by the statute, although constrained by the authorities referred to, and others of less weight at nisi prints, which might be cited to hold the evidence admissible, we still think the court erred in holding that the words related to the chastity of the plaintiff. That question was peculiarly one for the jury, to be determined by them in the light of the surroundings. The plaintiff claimed to be a married woman. The charge was she had a “bad disease.” Whether it was intended to charge her with having the venereal disease, or any other involving the question of her chastity was for the jury to say; and it should have been left to them to determine what might not have been actionable, per se, without showing special damage as the result of their utterance, the court assumed to determine, and the jury must have understood they were to so regard it.

We think the court erred in refusing to instruct the jury that a narrower or lesser limit of exemplary damages existed where the husband was an innocent party, free from malice or wrong, but made defendant simply because of his marital relations ; at least the jury should have been told that that fact was to be considered by them in passing upon the question of exemplary damages, instead of this the court’s instructions were: “ The husband’s liability with the wife make no difference with the amount of exemplary damages.” To this also the defendants excepted. We think the instructions asked for should have been given, and that those given upon the question of the husband’s liability for exemplary damages were erroneous.

Upon the evidence it is a very serious question whether the wife, at the time she uttered the slanderous words, was responsible, and whether the defendants should be held chargeable for them. The jury may very well have found that she was non compos. Notwithstanding the evidence of her mental condition, by the verdict the husband is made to suffer in an .amount which does him injustice, especially in the light of the evidence given by the several witnesses who testified to the slanders that they did not believe them to be true. A new trial should be granted.

Judgment and order reversed and a new trial granted, costs to abide the event.

Martin, J., concurred; Follett, J., concurred in the result.

Judgment and order reversed on the exceptions, with costs.


author: Kennedy, J. :

text:
    ELLEN I. BALLARD, as Sole Executrix of the Last Will and Testament of WILLIAM P. BALLARD, Deceased, Respondent, v. THE HITCHCOCK MANUFACTURING COMPANY, Appellant.

      The duty of a manufacturer to Ms employees to furnish boilers suitable and fit for the pu/rpose to which they are to be.applied, stated—when it is error to chw'ge that he is bound to apply all known tests, whether they are lenown to him or not.

    In an action, brought by the plaintiff, as executrix of William P. Ballard, who was killed by the explosion of a steam boiler owned and used by the defendant, a corporation organized for manufacturing purposes, which carried on and conducted an extensive business at Cortland, it appeared that the deceased had, for some years prior to the accident, been in the defendant’s employ, and that his duties frequently called him into the boiler-room where the explosion occurred., Upon the trial of the action evidence was given tending to show that the defendant had a large steam boiler made for it by a firm of the city of Elmira, which was extensively engaged in the manufacture of boilers, and was of good credit and reputation in its avocation and business; that this boiler was set up in the defendant’s manufactory and used down to the time of the explosion. Late in the fall of 1886, and in the middle of February, 1887, it having been discovered that steam escaped from the middle of the horizontal seam on the left-hand side, and from the seam on the top of the boiler, an experienced person was immediately called in by the defendant, who remedied the difficulty by calking. Evidence was also given tending to show that it was discovered, after the explosion, that the boiler was made from an inferior quality of iron, and that it was improperly built, in this, that in riveting the plates the holes were not properly drilled or the rivets properly set.
    Upon the trial the defendant requested the judge to charge that if the jury find that the explosion was caused by defects in the boiler which the defendant did not know of, and it used reasonable care to ascertain all defects, then the verdict must be for the defendant. This request was refused by the court, and' the judge instructed the jury that “if the defects in this boiler were such as were known or discoverable by examination, or the application of known tests, then the defendants are chargeable whether they knew it or not.”

      Held, that, in refusing the instructions asked for, and in charging the jury as aforesaid, the court erred.
    That while the defendant was required to exercise reasonable care and diligence to ascertain that the boiler was reasonably safe and fit for the purposes to which it was to be applied, yet as the evidence given upon the trial showed that the defendant had obtained the boiler from reputable manufacturers, and that the inferior quality of the iron could only be discovered by cutting or breaking it, the defendant was not required to make this test in order to free itself from the charge of negligence.
    The defendant’s counsel also requested the judge to instruct the jury that if the jury find that the accident was caused by the unskillful manner in which the riveting was done in the boiler by the manufacturer, and this defective riveting could not be discovered by reasonable inspection, and was unknown to the defendant, that negligence cannot be imputed to the defendant for such unskillful riveting. The court denied this request and said: “ I say, if it could be discovered by examination and the application of known tests.”

      Held, that, as the evidence given upon the trial tended to prove that the defect claimed to exist was that the riveted holes were not drilled true, and that the rivets did not properly fit them, and that this defect was discoverable only by the taking of the boiler apart and by removing the rivets, as the heads and battened ends entirely covered the defect from view, that the refusal to charge and the instructions given were erroneous.
    That, in the absence of evidence as to what "known test” it would have been proper to apply or resort to, the jury were left in confusion and doubt as to their duty, and were improperly left at liberty to determine for themselves wliat test the defendant was hound to apply and what inspection it was hound to make to bring itself fully up to a discharge of the obligations it owed the deceased.
    Appeal from a judgment entered upon the verdict of a jury, after a trial at the Cortland Circuit, in the office of the clerk of Cortland county, February, 2,1888, and, also, from an order denying a motion for a new trial, made on the minutes of the justice presiding at the trial, entered in the same office on the same day.

      Duell & Benedict, for the appellant.

      Franklin Pierce, for the respondent.
   Kennedy, J. :

The plaintiffs testator, William P. Ballard, was killed by the exjfiosion of a steam boiler owned and used by the defendant, on the 30th day of May, 1881. The defendant was a corporation organized for manufacturing purposes, and carried on and conducted an extensive business at Cortland, N. Y., and had for some years prior to the accident. Deceased was in its employ, and had been for a considerable time before his death. _ ITis duties frequently called him into the boiler-room where the explosion occurred, and he was familiar with the boiler, the manner of its use and its surroundings.

About the month of December, 1884, the defendant procured a large steam boiler, of some 100 horse power, to be built for it by B. W. Páyne & Co., of the city of Elmira. - This firm was extensively engaged in the manufacture of boilers, and was of good credit and reputation in their avocation and business. The boiler was set up in the defendant’s manufactory and commenced being used by it about that time, and continued to be so used down to the time of the explosion. The engineer and those employed by the defendant in and about the running and operating of the boiler were, so far as the evidence shows, competent for the places they filled, and the 'explosion was in no way chargeable to any negligence on their part. While the boiler was being used, and late in the fall of 1886, it was discovered that steam escaped from the middle of the horizontal seam on the left hand side and near the second plate on top. An experienced person was immediately called in by the defendant, and remedied the difficulty by calking. It appeared that it was not unusual for steam to escape at the seams, and that the proper remedy was to calk. In the middle of February, 1887, steam was again discovered escaping from the seam on top of the boiler, and again a competent person was called in, and again calked it at that place. There is no evidence that steam of consequence escaped after that. In the month of April, before the explosion, the boiler was inspected and examined quite thoroughly by persons qualified for the duty, and found to be all right.

Evidence was given tending to show (as discovered after the explosion) that the boiler was made from an inferior quality of iron, and that it was improperly built, in this, that in riveting the plates the holes were not properly drilled or the rivets properly set. It also appears that, so far as shown upon the surface, the iron appeared good, and that its defective character could only be discovered by cutting or breaking, and the defective riveting only by taking them out, because the heads entirely hid the holes from view.

The boiler was inspected and examined by experienced men, giving their attention especially to the business, as often as once in four months during the whole time of its use, and pronounced safe. Flow the explosion occurred, or what caused it, does not appear. Some evidence was given tending to show that the defendant, through its officers, had personal knowledge of the leakage of steam, and some other claimed defects in the boiler. The ordinary life of a steam boiler, properly cared for, is from twenty to twenty-five years.

Upon submitting the case to the jury, the learned judge, among other things, instructed them, “ if the defects in this boiler were such as were known or discoverable by examination or the application of known tests, then the defendants are chargeable whether they knew it or not.” To this the defendant excepted. The defendant requested the following instructions: “If the jury find the explosion was caused by defects in the boiler, which the defendant did not know of, and they used reasonable care to ascertain all defects, then the verdict must be for the defendant.” This request the court refused, remarking that he would adhere to the rule before stated. In connection with this matter, the defendant also requested the following instructions to the jury: “ If the jury find that the accident was caused by the unskillful manner the riveting was done in the boiler by the manufacturer, and this defective riveting could not be discovered by reasonable inspection, and was unknown to the defendant, then negligence cannot be imputed to the defendant for such unskillful riveting.” This request the court denied, and, instead, the court say: “ I say if it could be discovered by examination and the application of known tests.” To this and the preceding instructions and refusals the defendant excepted. These several propositions are closely allied.

In refusing the instructions asked for, and in charging the jury as aforesaid, we think the court erred. It is the duty of the master, and forms a part of the contract of hiring, to furnish for the use of the servant, in the business in which he is to engage, proper machinery, materials and appliances necessary for the work to be performed, and also competent and skillful fellow-servants; and if he fails in these obligations, and an injury occurs to the servant by reason thereof, he is liable, and this is as far as his liability extends. (Wright v. The N. Y. Central, 25 N. Y., 562; Besel, Admr., v. The N. Y. Central, 70 id., 173; Coughtry v. Globe Woolen Co., 56 id., 124; De Graff v. The N. Y. Central, 76 id., 125 ; Hickey v. Taaffe, 105 id., 26.) And he is liable for an injury to the servant caused by defective machinery, the defects in which could have been discovered by the exercise of proper care. {Stevenson v. Jewett, 16 Hun, 210.) In measuring the master’s duty and reasonable care which he is bound to exercise, reference must be had to the business in which the employment is had and the exigencies which serve to measure the vigilance required. The master is not absolutely bound to furnish his servant with safe machinery. Such a rule would make the former an insurer, and liable for injuries, though he exercised the greatest diligence and care in the construction or purchase, or in the operation of machinery. The master does not guarantee that the machinery is perfect. The law only requires him to use due care and diligence in its selection and use. The amount of care is measured by the circumstances of each case, dependent upon the kind of machinery used and the risks incident' to its . use, and the hazard of the business in which it is used. (Follett, J., in Jones v. New York Central, 22 Hun, 286.)

The deduction from the foregoing rules is that the master is bound to exercise reasonable care and diligence in the selection of and in the maintaining of machinery used in the business. What is reasonable care depends upon the kind of machinery furnished, and it measured by the hazard attendant upon the conduct of the business. Having these in view, the master is required to exercise reasonable care and diligence to ascertain that the machinery is reasonably safe and lit for the purposes to which it is to be applied. The instructions given, and to which exceptions were taken, went further than this, and required the defendant to show that he had applied all known tests to determine the safety of the boiler. If an obligation as onerous as this rests upon the master, it can only be found in those cases where the hazard is great, and where it is shown that known tests exist and could be applied to discover any latent or concealed defect, and to guard against the results which might reasonably be expected to flow therefrom, and that the master' had failed to apply them. (Cahill v. Hilton, 106 N. Y., 512.) In this case we find no evidence showing what known tests existed which the defendant could apply to discover the alleged defects and which were omitted ; and the jury were left to determine of their, own volition what tests, in their judgment, the defendant ought to have applied.

Evidence was given upon the trial tending to show that the iron out of which the boiler was constructed was of an inferior quality. This could only be discovered by cutting or breaking. Yet it will hardly be concluded that the defendant, having obtained the boiler from reputable manufacturers, was required to make this test in order to free itself from the charge of negligence by its employee. So, also, it was attempted to be shown, and evidence was given tending to prove, that the sheets of this boiler were not properly riveted, a fact which, if it existed, was only discovered after the explosion. The defect in this regard consisted in the claim that the rivet holes were not drilled true, and that the rivets did not properly fit them. It also appeared that this defect was discoverable only by taking the boiler apart by removing the rivets; that the heads and battened ends entirely covered the defect from view or other inspection. It cannot be claimed that to free itself from negligence in this regard it was defendant’s duty, before putting the boiler in use, to make this examination or test. And yet, under the instructions given, the jury were left at liberty to find that this duty devolved upon the defendant, and having omitted it that it thereby was guilty of negligence. In the absence of evidence as to what known tests it would have been proper to apply or resort to, and that the same were not applied by the defendant, the jury were left confused and in doubt as to'their duty, and were at liberty to determine for themselves what tests the defendant was bound to apply and what inspection to make to bring itself fully up to a discharge of the obligations it owed the deceased. While a juryman might think he knew what known tests were, or at least imagine he did, still his ideas in this regard might be far from accurate, and the rights of the party be left to the uncertain elucidation of a confused notion upon the question submitted.

Judgment and order reversed and a new trial granted, costs to abide the event.

All concur.

Judgment and order reversed on the exceptions and a new trial granted, costs to abide event.


text:
    SAMUEL FLYNN, as Assignee of RUFUS DIEFENDORF, Respondent, v. CORDELIA A. DIEFENDORF, as Executrix of the Last Will and Testament of JOHN H. I. DIEFENDORF, Deceased, Appellant.

      Short statute of limitations, created by section 1822 of the Code of Givil Procedure— an executor' can plead it on a hearing before a referee appointed pursuant to an agreement made by theparties.

    When an executor or administrator disputes or rejects a claim against the estate of the decedent, presented to him either before or after the commencement of the publication of the notice requiring the presentation of claims as provided by law, and the claimant fails to commence an action for the recovery thereof against the executor or administrator, within six months after the dispute or rejection, he, and all persons claiming under him arc, by section 1822 of the Code of Civil Procedure, forever barred from maintaining an action thereupon, and from every other remedy to enforce payment out of the decedent’s estate.
    The fact that, in this case, the defendant had on the 22d day of October, 1883, served on the plaintiff a written notice that she disputed and rejected a written claim against the estate, presented by him, and that no negotiations were had between the parties in relation thereto until March 2,1885, when the parties entered into a written agreement, in form as provided by the statute, to refer the same, which was approved by the surrogate, and that, on March fifth, an order was entered in the Supreme Court referring the matter, in pursuance of that agreement, to a referee, did not prevent the executrix from interposing as a defense the short statute of limitations created by the said section of the Code.
    Appeal from a judgment entered upon the report of a referee in the office of the clerk of Oswego county, on December 21, 1887, and from an order of the Oswego Special Term confirming the report of the referee herein, and denying a motion to set aside the referee’s report and for a new trial, on a reference under the statute, entered in the same office on. the same day.

      Avery & Merry, for the appellant.

      Howe & Rice, for the respondent.
   Kennedy, J.:

The only question presented on this appeal is, whether the" right "of recovery upon the demand of the respondent, and for which the judgment was ordered, was barred by the provision of section 1822 of the Code of Civil Procedure.

The facts are as follows : The defendant was duly appointed executrix of the estate of John H. I. Diefendorf sometime in 1882. The 22d day of March, 1883, said executrix, by order of the surrogate of Oswego county, duly advertised for the presentation of claims, and continued the same down to September 28, 1883. On the 22d day of September, 1883, the plaintiff served upon her a written claim against the estate, duly verified, and which was then all due, and apparently barred by the six-year statute of limitations. On the 22d day of October, 1883, the defendant served on him a written notice that she disputed and rejected the claim. The matter continued without any action or proceeding on the part of the plaintiff to collect, nor were any negotiations between the parties in relation thereto had until March 2, 1885, when the parties entered into a written agreement in form, as provided by statute, to refer the same. This was approved by the surrogate of Oswego county, and on the 5th day of March, 1885, an order was entered in the Supreme "Court referring the matter in pursuance of said agreement. The case was brought on and tried, and on July 25, 1885, said referee made his report, finding there was due and owing the plaintiff from said estate $1,948.31. Exceptions were filed to the same, and, on plaintiffs motion, the report was confirmed and judgment ordered for said sum, with costs against the estate. „

The contention by the appellant is, that at the time said agreement to refer the claim was entered .into by said executrix the same was barred by the short statute of limitations, and that she, as representative, could not revive the same as a debt against the estate to the prejudice of the creditors, heirs to the estate or beneficiaries finder the will. This claim is based upon section 1822 of the Code of Civil Procedure, as follows: “ Where an executor or administrator disputes or rejects a claim against the estate of the decedent, exhibited to him either before or after the commencement of the publication of a notice, requiring the presentation of claims as prescribed by law, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or if no part of the debt is then due, within six months after a part thereof becomes due. In default whereof, he and all persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment out of the decedent’s property.” W e think the appellant is right in her position. The provisions of the statute quoted are not doubtful in expression or difficult of construction.

When a claim against the decedent is presented and the same is disputed or rejected by his personal representative, if it is not referred within six months thereafter, or an action is brought by the claimant to recover it in that time, he is forever barred from maintaining such action and from every other remedy to enforce the same out of the decedent’s estate. The executor holds the estate of his testator in trust for his creditors and for his beneficiaries. After a debt or claim presented, as existing against the same, has been paid, or in any other manner discharged as an obligation in fact against the estate, the executor or administrator has no power voluntarily to renew it and reinstate it to the prejudice of the rights of the parties interested. The construction which the court below gave the statute, it seems to us is dangerous, as a power, to confer upon a simple agent, and is in conflict with the fair interpretation of the intent as expressed in the act.

Judgment was ordered against the estate of the decedent because the executrix had entered into an agreement to refer, notwithstanding the six months limitation of the statute, eighteen months after the claim was rejected, and twelve months after it ceased to have any validity or legal existence as a demand against the estate. That such agreement served to revive the claim and restore it as an existing obligation; that the bar the statute provides does not depend upon the omission of the parties to refer or the claimant to bring his action within six months from the dispute or rejection of the claim, but instead was simply contingent upon the question whether the reference had at any time been agreed upon, although the same was made after the expiration of the limitation. If this construction shall be given the statute, it will be in the power of an executor or administrator, at any time during his official life, to revive any claim which may have been presented, however remote from the time of its rejection, and subject the estate to the contingency of- its payment, notwithstanding the law had before pronounced it discharged.

It is held' in Selover v. Coe (63 N. Y., 439), under a preceding statute similar to the above, “ where the creditor has presented his claim and the same has been rejected, and six months have elapsed without the bringing of an action to enforce the same, as required by. the statute (2 R. S., 89, § 88), this is a defense, not only to an action against the personal representatives of the deceased, but also to any action brought to enforce the claim against heirs-at-law or. next of kin.” In Cornes v. Wilkin (79 N. Y., 129), it is held that an offer to refer by the personal representative, made within six months after the claim was rejected by him, did not prevent the operation of the short limitation upon it. The law is settled that a personal representative cannot, by any act of his, restore a claim against the estate he represents which is barred by the six-years statute of limitations. (Bucklin v. Chapin, 1 Lans., 443; Bloodgood v. Bruen, 8 N. Y., 362; McLaren v. McMartin, 36 id., 88; Matter of Kendrick, 107 id., 108.) These cases seem to me analogous, and the rule alike applicable to each. While the executor may enter into the agreement to refer, such agreement does not restore the demand, and the limitation having run the same may be interposed as a defense upon the trial.

The respondent cites The National Bank of Fishkill v. Speight (47 N. Y., 668), in support of the doctrine contended for by him. The case does not aid him. The claim was presented on the 9th of February, 1869 ; the personal representatives proposed and agreed, in writing, to refer the claim; and a referee was named therein on the 20th day of February, 1869. No order of reference was entered. Negotiations were conducted between the parties looking to a settlement down to the 18th day of August, 1869, when the defendant informed the plaintiff that the six months had expired since the claim was rejected and he would not pay. The court held that the short statute was not available to defeat the claim upon the ground, principally, that the defendant, the executor, was byjiis own act estopped from availing himself of the defense. The principle of an equitable estoppel was directly in the case. In this no such question arises. The case of Hoyt v. Bonnett (50 N. Y., 538) holds the statute penal in its character, and that it must be strictly construed. This principle does not aid the plaintiff since, as we view the case, it is free from all extraneous matter at all affecting the application of the statutory provisions, as they existj to it; and leaves it to stand upon the naked proposition as to whether, after the demand ceased as a claim against the estate, the personal representative can enter into an agreement to refer, and whether such agreement, if made, has the effect to revive the claim. We think, both upon principle and upon the authorities, no such effect can be given to the agreement.

Judgment reversed and a new trial granted before another referee, costs to abide event.

All concur.

Judgment reversed on the exceptions and a new trial granted, costs to abide the event.


author: Van Brunt, P. J.:

text:
    FREDERICK WAGNER, Appellant, v. JOHN H. PERRY, Respondent.

      What facta justify the cancellation of a notice of pendency of action, heca/use of un/reasonable neglect and refusal to proceed in the action.

    A notice of pendency of action was filed in an action, brought to recover money paid by the plaintiff to the defendant on account of the purchase by the former of a house and lot, and for moneys paid by the plaintiff for examining the title of the said premises in a case in which a judgment dismissing the complaint was entered in August, 1887, which was affirmed at the General Term in March, 1888. ' The plaintiff, although requested to do so by the defendant, refused to take an appeal to the Court of Appeals.
    Upon an appeal from an order canceling and discharging such notice of lis pendens from the records of the county clerk’s office.

      Held, that it was evident that the sole object of the plaintiff, in filing his notice of pendency of action, was to harass and annoy the defendant and tie up his property; and that his neglect and refusal to take an appeal from the judgment of the General Term to the Court of Appeals, as he was by the defendant’s attorney requested to do, was unreasonable, and that he, therefore, brought himself within the provisions of section 1674 of the Code of Civil Procedure,'"authorizing the court to cancel a notice of Us pendens where the plaintiff unreasonably negle.cts and refuses to proceed in the action.
    Appeal from an order of the New York Special Term, entered in the office of the clerk of the city and county of New York, on August 5, 1887, canceling and discharging upon the records of the county clerk’s office the notice of pendency of this action.

      Chas. Miehling, for the appellant.

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

This action was brought to recover $250 paid by the plaintiff to the defendant on account of the purchase by the former of a house and lot in this city, and $120.31 money paid by plaintiff for examining the title to said premises, with interest.

At the time of the commencement of the action, a notice of Us pendens was filed in the office of the cleric, etc. The action was tried in July, 1881, and judgment entered in August, 1881, dismissing the plaintiff’s complaint. The plaintiff appealed to the General Term, where the judgment was affirmed and judgment of affirmance entered on the 9th of March, 1888. At the time of making this motion, namely, June, 1888, the plaintiff had not appealed to the Court of Appeals, and had refused to take such appeal, the defendant having requested him so to do in order that he might move to dismiss the same, claiming that the action was not appealable to the Court of Appeals, without leave of the General Term. The defendant thereupon moved for an order canceling the notice of Us pendens, which motion was granted, and from the order entered thereon this appeal is taken.

By section 1614 of the Code it is provided that if the action was stayed, discontinued or abandoned, or final judgment rendered against the party filing the notice, and the time to appeal has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may direct that the notice be canceled.'

Under the facts above stated, it is clear that the sole object of the plaintiff, by his notice of pendency of action, was to harass and annoy the defendant and tie up his property, and that his neglect and refusal to take the appeal, as requested by the defendant’s attorney, was unreasonable, and he, therefore, brought himself within the provisions of the Code, authorizing the court to cancel the notice where a plaintiff unreasonably neglects and refuses to proceed in the action.

The order should be affirmed, with costs.

Daniels ,and Bartlett, JJ., concurred.

Order affirmed, with costs.


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    In the Matter of the Citation of THEODORE K. HAZARD, Administrator, with the Will Annexed of JABEZ H. HAZARD, Deceased, to Settle the Accounts of JABEZ H. HAZARD, Deceased, as a Trustee Under the Last Will and Testament of ELIZA EAGLE, Deceased.

      Power of a surrogate to compel the administrator of a deceased trustee, appointed by the Supreme Oourt, to account.

    Upon an appeal from an order of a Surrogate’s Court requiring the appellant to account, as the administrator of Jabez H. Hazard, a deceased trustee, it appeared that Jabez H. Hazard had been appointed by an order of the Supreme Court a trustee, under the will of Eliza Eagle, in the place of William Nelson and John M. Nixon; Nixon having died, and the said Nelson having been discharged from the duties of the trust; that the said Jabez H. Hazard, after his appointment had acted as trustee until the time of his death, in 1888, and that, upon the happening of that event, the appellant was duly appointed his administrator by the surrogate of New York city and county, who thereafter made the order appealed from.

      Held, that the Surrogate’s Court had no power to call the' administrator of Jabez H. Hazard a trustee who had been appointed by the Supreme Court, to account, and that the order should be reversed, with costs.
    That no jurisdiction had been. conferred by section 2606 of the Code of Civil Procedure upon the Surrogate’s Court to compel an administrator of a trustee appointed by the Supreme Court of this State, to render an account of the trust estate.
    Appeal by Theodore K. Hazard from an order of the Surrogate’s Court of New York city and county, entered in the office of the clerk of that court on April 19, 1888, requiring him to account as the administrator of a deceased trustee.

      E. H. Benn, for the appellant.

      Avery T. Brown, for the respondent.
   Van Brunt, P. J.:

William Nelson and John M. Nixon were trustees under the will of Eliza Eagle. Nixon died and Nelson was discharged from the duties of the trust, and Jabez H. Hazard was appointed trustee in Ms place by an order of the Supreme Court, made in Dutchess county on March 26, 1870. Hazard, gave the bond required by the-order and acted as trustee until the time of his death, in 1888, upon the happening of which event the appellant was duly appointed his administrator, and the surrogate of this county made an order by which he assumed to appoint Albert W. Seaman, the respondent in this proceeding, trustee under Eliza Eagle’s will. The Surrogate’s Court subsequently made an order, at his instance, requiring the appellant, as administrator, to file an account of the. proceedings of Jabez H. Hazard, deceased, as trustee under Eliza Eagle’s will. It is from this order that the present appeal is taken.

The grounds which the appellant urges upon this appeal seem to be two: 1st. That the surrogate acted without jurisdiction in the appointment of the respondent as trustee. 2d. That Hazard having-been appointed trustee by the Supreme Court, the surrogate had no-power to call his administrator to account for his proceedings as. trustee.

It is true that the pendancy of an action for an accounting in the Supreme Court is also urged, but this plea cannot prevail, as it. seems that the action in the Supreme Court was begun subsequently to the initiation of the proceeding before the surrogate.

Neither is it necessary to consider the first objection, in view of the conclusion at which we have arrived, in respect to the power of the surrogate to call the administrator of a deceased trastee who has, been appointed by the Supreme Court to account for the proceedings of such deceased trustee. Such power the respondent appears to claim is conferred by sections 2472 and 2606 of the Code. Subdivision 3 of section 2472 of the Code provides that each surrogate must hold within his county a court which has jurisdiction, amongst other things: To direct and control the conduct and settle the accounts of executors, administrators and testamentary trustees, to remove testamentary trustees and to appoint a successor in place of a testamentary trustee so removed,” and because the expression testamentary trustee ” lias been defined by subdivision 6 of section 2514 of the Code to include every person * * * who is designated by a will or any competent authority to execute a trust under a will, it is claimed that the provisions of subdivision 3 of section 2472 apply to the case of a trustee who has been appointed by the Supreme Court.

The Supreme Court certainly has the. power to direct and control the conduct of trustees appointed by it, and if the Surrogate’s Court has acquired the jurisdiction now claimed for it, we have two separate and distinct tribunals who are authorized to direct and control the conduct in the administration of his trust of the same trustee, a condition of affairs which never could have been intended by this Code. Such a construction would lead to endless confusion, and trustees could never know upon which authority to rely. That such was not the intention of the Code is-evidenced by the provisions of section 2606, which provides that, where a testamentary trustee dies the Surrogate’s Court has the same-jurisdiction upon the petition of his successor to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate’s decree. The section does not say if his letters or his appoinment has been revoked,” as it might very well have done if it was intended to confer the wholesale jurisdiction claimed, but confínes the jurisdiction to the case of revocation of letters and says nothing of the case of revocation of appointment irrespective of letters; evidently referring to those cases where provision is made by the Code for the revocation of letters testamentary by the Surrogate’s Court. It is apparent that the codifiers thought that no power was conferred by subdivision 3 of section 2472 upon the Surrogate’s Court to compel the personal representative of a deceased trustee to-account, and, therefore, added section 2606 to, in certain cases, confer this jurisdiction, and such jurisdiction so conferred should not be enlarged by judicial'legislation, especially as there is no means provided for the cancellation of the bond of a trustee appointed by the Supreme Court. The trustee who, under these circumstances, had accounted in the Surrogate’s Court would be left with his bond' outstanding and no means of disposing of the same, except by a new proceeding in the Supreme Court.

It could never have been intended that there ■ should be this conflict of authority, and it should he avoided if possible. The respondent urges that by the provisions of section 2606, the Surrogate’s Court has the same jurisdiction over the trustee’s administrator as it would have over the trustee himself. "Whatever jurisdiction may he conferred upon the Surrogate’s Court over a trustee appointed by the Supreme Court by the provisions of subdivision 3 of section 2472, it is not necessary to determine now, but no jurisdiction has been conferred upon the administrator of a trustee so appointed by section.2606, as the administrator of such a trustee is in no wise embraced within the terms or spirit of the language conferring jurisdiction to compel the administrator of a deceased trustee to account.

It is undoubtedly true that the loose and sweeping enactments of the Code relating to the jurisdiction of the Surrogate’s Court arc susceptible of different constructions, but this is no more true in respect to the provisions as to this jurisdiction than it is of almost every other subject treated therein ; and we must, therefore, find our way, as best we can, to an interpretation which seems to be reasonably consistent with some intelligent intention, and which interpretation will fix, with reasonable certainty and without circuity of action, the rights of all parties interested.

We are of opinion that the Surrogate’s Court had no power to call the administrator of Mr. Hazard, the trustee, to account, and that the order should be reversed, with costs, and the proceedings remitted to the Surrogate’s Court for further action.

Beady, J., concurred; Babtlett, J., concurred in the result.

Order reversed, with costs and proceedings remitted to Surrogate’s Court for further action.


text:
    GEORGE H. CROWNS, Appellant, v. JAMES W. VAIL and WILLIAM LANDOLT, Respondents.

      The rula as to the presumption that an attorney, malting an affidavit in which the facts a/re stated positively, had positive knowledge of such facts, stated—a creditor applying for an attachment need not swear as to counter-claims existing against an assignor of the claim—■ Gode of Givil Procedure, sec. 636.
    Upon an appeal from an order vacating an attachment, granted upon a motion made by a subsequently attaching creditor, upon the ground that the affidavit upon which such attachment was granted was defective, it appeared that the affidavit was made by one of the members of a firm, who were the attorneys of record for the plaintiff in the action, that it was positive in its terms, alleging a cause of action; that the defendants were non-residents of the State, and that the sum. claimed-was due and owing from the defendants to the plaintiff over and above all counter-claims known to the plaintiff or deponent.

      Held, that a claim made by the appellant that, where the affidavit states facts positively, the court will not presume or infer that the affiant had no such positive knowledge, could not under the circumstances of this case be sustained.
    That the true rule was that the statements in affidavits will be presumed to have been made on personal knowledge, unless staled to have been made on information and belief, except where it appears affirmatively or by fair inference that they could not have been, and were not, made on such knowledge.
    That where an affidavit, in respect to a transaction of his client, is made by one who is simply an attorney of record in the action, and who is, as far as the record shows, only the attorney for that action, the plain inference is that such attorney has no personal knowledge of the facts as to which he affirms.
    That the affidavit in question was entirely insufficient, as the facts alleged must be presumed not to have been within the knowledge of the attorney; and that such being the case they must have been made upon information and belief, and the sources of information and the ground of belief should have been stated.
    One Page, the creditor moving to set aside the prior attachment, sued on twenty-four several causes of action originally existing in favor of thirteen different persons, all non-residents of the State, and aggregating over $7,000, all these claims having been assigned to Page. The papers upon which his attachment was granted contained an averment by the affiant Page that all of the original drafts and certificates of deposit therein described were in his possession, and that he had personal knowledge of the contents thereof, and that he had also personal knowledge of the fact that no counter-claims or offsets on such causes of action existed against him in favor of the defendants; and, also, that the plaintiff was entitled to recover from defendants the sum of $7,000, besides interest, over and above all counter-claims known to him.

      Held, that the affidavit was sufficient; that he was not required by section 636 of the Code of Civil Procedure, which provides what must he done to pz'osecule a warrant of attachment, to swear as to counter-claims existing against his assignors; that the requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counter-claims known to him.

    Appeal from an order, made at the New York Special Term, vacating an attachment which was entered in the office of the clerk of the city and county of New York on June 25, 1888.

      W. A. Butler, for the appellant.

      F. C. Barlow, for the respondent.
   Van Brunt, P. J.:

This motion was made by a subsequently attaching creditor to set aside an attachment which had been granted in this case against the property of the defendants. The ground of the motion was the infirmity of the affidavit upon which the attachment was granted. The affidavit was made by one of the members of the firm who are attorneys of record for the plaintiff in this action. It was positive in its terms, alleging a cause of action; that the defendants were non-residents of the State, and that the sum claimed was due and owing from the defendants to the plaintiff over and above all counter-claims known to plaintiff or deponent. The appellant seeks to support this affidavit upon the ground that, where the affidavit states facts positively, the court will not presume or infer that the affiant had no such positive knowledge. An examination of the authorities cited by the learned counsel for the appellant does not seem to bear out the broad proposition just enunciated. The true rule seems to be that statements in affidavits will be presumed to have been made on personal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been and were not on such knowledge.

It seems to us that where an affidavit in respect to a transaction of his client is made by one who is simply an attorney of record in an action, and who, as far as the record shows, is only his attorney for this action, the plain inference is that siich attorney has not personal knowledge of the facts as to which he affirms. It is not even asserted in the affidavit that the 'affiant is the attorney, in fact, of the plaintiff, or that he had been the attorney of record of the plaintiff in any previous action, and all that can be inferred from the affidavit is that the retainer to bring 'this action was the first relation that had ever existed between the plaintiff and the affiant. Such an affidavit seems to be entirely insufficient, as the allegations must be presumed not to be within the knowledge of the attorney ; and, such being the case, they must have been made upon information and belief, and the sources of information and the grounds of belief should have been stated.

The appellants, however, further claim that the moving party has no standing in court, because of the infirmity in his own papers. It is a well-settled rule that, when a subsequently attaching creditor attacks the sufficiency of the papers upon which his prior attachment is granted, the court will examine his papers to see whether they comply with the statute which he invokes as against the prior attachment. The moving creditor sued on twenty-four several causes of action, originally existing in favor of thirteen different persons, all non-residents of the State, and aggregating over $7,000, all these claims having been assigned to the said creditor. The papers upon which his attachment was granted contained an averment by the affiant Page, that all of the original drafts and eertifioates of deposit therein described were in his possession, and that he had personal knowledge of the contents thereof, and that he had also personal knowledge of the fact that no counter-claims or offsets on said causes of action existed against him in favor of defendants; and also contained the allegation that the plaintiff was entitled to recover from defendants the sum of over $7,000, besides interest, over and above all counter-claims known to him. This affidavit is attacked upon the ground that the affiant- did not show that he had sufficient knowledge of counter-claims in favor of the defendant in the attachment existing against the assignor of the claims.

■A brief examination of the Code seems to show that this objection is not well taken. Section 636 of the Code, which provides what must be shown to procure a warrant of attachment, is as follows : “ To entitle the plaintiff to such a warrant he must show, by affidavit, to the satisfaction of the judge granting the same as follows: First, that one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him.”

The affidavit of the affiant Page swears to that fact absolutely, and it is of a fact in regard to which he is supposed to have some personal knowledge. He is not required to swear as to counterclaims existing against his assignors; the requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein over and above all counter-claims known to him, and not known to him or his assignors. The affidavit, therefore, upon which Page applied to vacate the attachment of the plaintiff was a sufficient compliance with the Code and that part of the affidavit in which he attempted to show that no counter-claims existed in favor of the defendants against his assignors was in excess of the requirements of the statute. The court cannot impose this additional condition to' the granting of an attachment, without expressing an intention upon the part of the legislature, which has nowhere been intimated. In other words, it would be judicial legislation.

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

Daniels and Bartlett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Application of CHARLES JAMES PHALEN for the Revocation of the Probate of the Last Will and Testament of JAMES PHALEN, Deceased.

      Petition to revolee a will must be filed within one year from the recm'ding of the dewee admitting it— Gode of Givil Procedure, secs. 2648, 2649 — the citation need not be served within that time nor within the sixty days required by section 2517 — when an order of a surrogate, refusing to dismiss a petition, is not appeodable — a surrogate may issue supplementa/ry citations to bring in necessa/ry pa/rties.

    Upon an appeal from an order of a surrogate denying a motion to dismiss a petition and amending the same, and also from an order directing that a supplementary citation be issued, it appeared that, on April 8, 1887, the will of James Phalen, deceased, was admitted to probate, and that, on the 5th of April, 1888, a petition for the revocation of such probate was, filed by the petitioner and that a citation was issued thereon.

      Held, that the order denying the motion to dismiss the petition was not appealable, as whether the surrogate should or should not upon the return of the citation decline the relief asked by the petitioner, was a matter to be then determined, and although the surrogate might, upon sufficient facts shown, have dismissed the application before such return day, his refusal to do so was in no way a final adjudication upon the matter from which an appeal could be taken.
    The appeal, from that part of the order which amended the petition and directed the issuance of the supplementary citation was taken upon the ground that the surrogate had no power to entertain the motion, inasmuch as the statute of limitations had run in favor of the parties cited, who were not parties to this proceeding at its initiation.

      jHeld, that, under the provisions contained in sections 2648 and 2649 of the Code of Civil Procedure, the presentation of a petition for the revocation of a decree admitting a will to probate, within one year of the time of the recording of the decree admitting it to probate, relieved the petitioner from the objection that the limitation of time fixed by these sections had expired.
    That there was nothing whatever in these sections requiring service of the citation in order to prevent the statute of limitations attaching, and that all that was required was that the petition should be presented within the year.
    A claim was made by the appellant that it was necessary, by reason of the pro. visions contained in section 2517 of the Code of Givi! Procedure, in order to prevent the statute of limitations finally attaching, that the citation issued should be served within sixty days after the presentation of the petition.

      Held, that an examination of this section showed that it had no application whatever to the proceeding which was initiated before the surrogate in this case.
    That the surrogate was authorized to issue the supplementary citation in question for the purpose of bringing into the proceeding, which had already been initiated, those parties whom it was necessary to have in court before him in order that there might be a complete adjudication upon the subject-matter presented.
    Appeal from an order of the surrogate of the county of New York, entered on September 27, 1888, denying a motion to dismiss a petition and amending the same; and, also, from an order directing that a supplemental citation be issued, entered on the same day.

      J. J. Macklin, for Catharine S. Phalen and others, appellants.

      E. W. Sheldon, for the executors, appellants.

      C. H. Woodruff, for Charles J. Phalen, respondent.
   Van Brunt, P. J.:

The order denying the motion to dismiss the petition is clearly not appealable, as whether the surrogate should or should not, upon the return of the citations, decline to grant the relief asked by the petitioner, is a matter to be then determined, and although the surrogate might, upon sufficient facts shown, have dismissed the application before such return day, his refusal to do so is in no way a final adjudication upon the matter upon which an appeal could be taken.

The appeal from that part of the order amending the petition and from the order directing the issuance of a supplemental citation, presents a different question, and one which' must be considered upon its merits. The principal grounds upon which the appeal is based is want of authority upon the part of the surrogate to entertain the motion in that the statute of limitations had run. There seems to be no question but that a court has no power to deprive a party of a statute of limitations which has run in his favor by bringing him in as a party to an action already pending. If the statute has attached, devices of- this kind cannot be successfully resorted to in order to deprive a party of that repose which the statute has given him; but it seems to us that a brief examination of the section of the Code under which this proceeding is initiated will show that, in favor of the parties who were not parties to this proceeding at its initiation, no statute of limitation had run.

On the 8th of April, 1S87, the will of James Phalen, deceased, was admitted to probate, and on the 5th of April, 1888, the petition for revocation by the petitioner was filed and a citation issued thereon. This was done pursuant to the provisions of section 2647 of the Code, which provides that a person interested in the estate of the decedent may, within the time specified in the next section, present to the Surrogate’s Court, in which a will of personal property has been proved, a written petition, duly verified, containing allegations against the validity of the will or the competency of the proof thereof, and praying that the probate thereof may be revoked, and that the persons enumerated in section 2649 may be cited to show cause why it should not be revoked, and the surrogate is required, upon the presentation of such a petition, to-issue a citation accordingly.

Section 2648 provides that such a petition must be presented within one year after the recording of the decree admitting the will to probate. And section 2649 prescribes that the petition must pray that the citation may be directed to the executor or administrator with the will annexed, to all the devisees and legatees named in the will, and to all other persons who were parties to the special proceeding in which probate was granted. It is to be observed, upon a consideration of these sections, that the. presentation of a petition of the character mentioned, within one year of the recording of the decree admitting the will to probate is in time, and prevents the petitioner from being shut out from the relief granted by the statute, because the limitation of time had expired. There is nothing whatever in the section in reference to the necessity of the service, of a citation in order to prevent the statute of limitar tions attaching. All that is required is that the petition shall be presented within a year.

In the case at bar a petition seeking the relief provided by section 2647 was presented within a year. It is true that such petition was defective in respect to some of the parties. But under the general power which the surrogate has to amend proceedings, he had a right to allow the amendment of this petition, which was defective in some of its allegations. By the filing of the petition the surrogate had acquired jurisdiction of the proceeding, and the proceeding had been initiated precisely the same, as by the service of a summons in an action upon an infant the court acquires jurisdiction, and the proceedings looking to the appointment of a guardian which may be upon their face fatally defective,- are the subject of amendment.

But it is claimed that by reason of section 2517 of .the Code, it is necessary, in order to prevent the statute of limitations finally attaching, that the citation issued should be served within sixty days after the presentation of the petition. An examination of this section, however, seems to show that it has no application whatever to the proceeding which was initiated by the surrogate in this matter. The language of this section is : “ The presentation of a petition is deemed the commencement of a special proceeding within the meaning of any provision of this act which limits the time for the commencement thereof.” In the section under which this petition was filed, there is no special proceeding referred to, nor is there any limit of time fixed in the succeeding section which is dependent upon the commencement of any special proceeding. The limitation is determined by the doing of a specific act; and although the provisions of section 2517 are in harmony with the provisions of section 2648, still there being no question of a special proceeding in this section, it could not have been intended that section 2517 should apply. That section applies to those provisions of the statute which provide that within a certain time a certain proceeding shall be taken, and the presentation of a petition is to be deemed the commencement of this proceeding, as in the caso of a summons tbs delivery of a summons to the sheriff for the purpose of service is equivalent to the commencement of an action against the defendant, and prevents the attaching of the statute of limitation, provided certain other requirements are subsequently complied with. In the case at. bar, therefore, by the presentation of the petition in ques-. tion the statute was prevented from running.

The authority of the surrogate in a proceeding which has already been commenced to issue a supplemental citation does not seem at all doubtful. By subdivision 2 of section 2481 the surrogate, in court or out of court, has power, where all persons who are necessary parties have not been cited or notified, to issue a supplemental citation for the purpose of bringing in these parties. Under this provision of the Code, therefore, the surrogate had ample authority to issue the supplemental citation in question for the purpose of bringing into the proceedings, which had already been initiated, those parties who were necessary to be in court before him, in order that there might be a complete adjudication upon the subject-matter presented. We are, therefore, of the opinion that the petition was filed in time to prevent the running of the statute, and that the surrogate had power to amend the petition and to bring in those parties who had not been previously named, and who were necessary parties for the complete determination of the subject-matter; and that it was a matter within the discretion of the surrogate, even if a proper case had been made out, whether or not to dismiss the petition upon the application of the adverse parties, and that, the not having done so, in no measure precludes him from disposing finally of the application upon the grounds presented upon .this preliminary application to dismiss.

The appeal from the order denying motion to dismiss the petition should be dismissed, and the orders amending the petition and directing the issuance of a supplemental citation should be affirmed, with ten dollars costs and disbursements.

Beady and Macombeb, JJ., concurred.

So ordered.


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    In the Matter of the Application for Ancillary Letters of Administration on the Goods, Chattels and Credits of PAUL TULANE, Deceased.

      Collateral inheritance tax—property owned by a resident of New Jersey, and passing by the intestate laws of that State, is not subject to the tax, although situated in this Stale.

    Upon an appeal from an order of a surrogate, holding that certain personal property within this State belonging to one Paul Tulane, deceased, was subject to the collateral inheritance tax imposed by the law of this State, it appeared that the deceased was, at the time of his death, which occurred in March, 1887, and for a long time prior thereto had been, a resident of the State of New Jersey, and that the property, the succession to which it was sought to affect by the tax, had been deposited by him in the vaults of a safe deposit company in the city of New York for safe-keeping. The deceased died intestate and letters of administration were granted upon his estate in New Jersey, and thereafter ancillary letters were issued in this State.

      Reid, that, in order to make the property subject to the said tax, it must pass by will or by the intestate laws of this State, -or must have been transferred by deed, grant, sale or gift, and as in this case it had neither passed by will, nor been transferred by deed, grant, sale or gift, but had passed by the intestate laws of the State of New Jersey, although situated in this State, the order appealed from should be reversed.
    Appeal from an order of the surrogate of the city and county of Rew York, entered on. October 13,1887; holding that certain personal property within this State belonging to one Paul Tulane, deceased, a resident of the State of Rew Jersey, was subject to the collateral inheritance tax imposed by the laws of this State.

      Rabe & Keller, for the appellants Paul M. Tulane and George O Vanderbilt, administrators.

      John R. Fellows, for the respondents.
   Van Brunt, P. J.:

The deceased at the time of his death, and for a long time prior thereto, which occurred in March, 1887, had been a resident of the State of Rew Jersey, and the property, the succession to which it is sought to affect by this tax, had been deposited by him in the vaults of a safe deposit company in this city for safe-keeping. The deceased died intestate, and letters of administration were granted upon his estate in New Jersey. The safe deposit company refused to hand over this property until ancillary letters were issued in this State.

The tax is claimed hy virtue of the provisions of chapter 483 of the Laws of 1885. This act provides that, after its passage, all property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while being a resident of this State, or which property shall be within this State, or any part of such property, or any interest therein or income therefrom, transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person other than those mentioned in the statute, shall be subject to a tax, etc. - It is evident, in order to come within the provisions of this act, that the property which forms the basis of the tax in question must pass by will or by the intestate laws of this State, or must have been transferred by deed, grant, sale or gift. In the case at bar the property in question has not passed under any of the conditions mentioned in the statute. Such property has neither passed by will or by the intestate laws of this State, nor has it been transferred by deed, grant, sale or gift; but it has passed by the intestate laws of the State of New Jersey, although situated in ■this State, a case not within the language nor the spirit of the statute.

The order appealed from should be reversed, with costs and disbursements.

Bbadt and Macombeb, JJ., concurred.

Order reversed, with costs and disbursements.