author: Daniels, J.: Barrett, J.

text:
    JAMES W. KELLY, as Executor of CATHARINE CASEY, Deceased, Plaintiff, v. ANN CASEY and Another, as Executors of LUKE CASEY, Deceased, Defendants.

      Will — a, legacy to one during the life of a widow and a subsequent provision for the legatee after the widow’s death — effect of the death of the legatee before that of the widow.

    One Luke Casey, by the second clause of bis will, gave to bis sister, who was six years older than bis wife, an annual income of $200 during tbe life of bis wife; by tbe third clause be gave to bis wife tbe residue of the income of all bis estate, and by tbe fourth clause be directed that upon her death tbe estate should be divided into three shares, one of which be gave to bis sister. Tbe sister died before the widow.
    Upon tbe submission to tbe court of certain questions arising between tbe widow and tbe executors of the sister as to tbe legacy of tbe sister:

      Held, that it was tbe testator’s intention to give tbe legacy of $200 a year to bis sister only during her life, and that upon her death before tbe widow such income passed to tbe widow for her life, and not to tbe legal representatives of tbe sister during tbe rest of the widow’s life. (Barrett, J., dissenting.) '
    Submission of a controversy between James W. Kelly, as executor of Catharine Casey, as plaintiff, and.Ann Casey and Hugh Keegan, as executrix and executor of Luke Casey, deceased, as defendants, under the Code of Civil Procedure (§ 1279 et seq.)

      Horace K. Doherly, for the plaintiff.

      John Weber, for the defendants.
   Daniels, J.:

The will which it is the object of this proceeding to construe, was made and executed by Luke Casey, who died on the 21st of May, 1S85. By this will he directed to be paid to his sister Catharine Casey, an annual income of $200 during the life of his wife Ann Casey. And he then gave and bequeathed to his wife the residue of the income of his estate, both real and personal. At the time when the will was executed Catharine Casey was of the age of sixty years, and Ann Casey was of the age of fifty-four years. Catharine Casey died on the 5th of October, 1887. And since her decease the legacy directed to be paid to Catharine Casey has been claimed by her executors for the benefit of her legatees. And. the point to be determined for the disposition of the case is whether these executors or the widow of Luke Casey became entitled to the legacy after the decease of Catharine Casey.

If the second and third paragraphs of the will, which are as follows : — “ Secondly. I give and bequeath to my sister Catharine Casey, an annual income of two hundred dollars during the life of my wife Ann Casey. Thirdly. I give and bequeath to my said wife all the remainder of the income of my estate, real and personal ” — stood entirely alone, then the legacy of $200 directed by the testator to be paid to his sister Catharine would continue and be payable to her executors during the lifetime of his widow Ann Casey. The cases of Savery v. Dyer (Ambler, 139) and of Morgan v. Williams (66 How., 139), are authorities directly supporting this conclusion. But this case is attended by the additional circumstance that, by the fourth paragraph of the will, the testator directed his estate to be divided into three shares on the death of his widow, one of which he bequeathed to his sister Catharine. And that evinces his belief and expectation to have been that this sister would survive the decease of his widow. And from that circumstance it may well be inferred that his intention was that the legacy, in this manner provided for the sister, should continue only during her lifetime. These paragraphs of the will, taken together, indicate his purpose to have been to provide this legacy of $200 yearly for his sister Catharine, and upon the decease of his widow that she should become the devisee and legatee of one-third of his estate absolutely. . In this respect this case differs from those which have been already mentioned. For, in the case of Savery v. Dyer, there was no gift whatever to the legatee out of the residue of the estate. And that was a circumstance that attracted some attention in the disposition and decision of that case.

While here, from these paragraphs of the will taken together, the intention of the testator appears to have been to give to his sister this legacy during the life of the widow, upon the plain supposition that the sister would be the survivor of the two. And that upon the decease of the widow she would then be in no further need of a legacy, but wouid become the owner of one-third of the real and personal property left by the testator. The intention in all cases of this description is the controlling fact to be considered. (Phillijps v. Devies, 92 N. Y., 199.)

And the intention of the testator, to the effect already stated, seems to have been quite plainly disclosed in this manner. It was not that .the legacy should continue at all events during the life of his wife, hut upon the supposition that the legatee would survive her, that she .should receive the legacy dui’ing. the life of the widow and then .absolutely take this share in the testator’s estate upon her decease. And that appears to exclude the intention that the sister should, at .all events, become entitled to this legacy during the lifetime of the widow in case the sister should be previously deceased. Judgment ¡should, accordingly, be directed in favor of the defendants on the points presented by this case for the determination of the court, ■directing payment of the income of the estate, under the second paragraph of the will, to the testator’s widow dui’ing her life.

Van Brunt, P. J., concurred in result.

Barrett, J.

(dissenting) :

There is no material distinction between the facts of this case and those passed upon in Savery v. Dyer and Morgan v. Williams. It may be that the testator here expected his sister to outlive his wife, although that is uncertain, as the sister was six years older than the wife. But even if he had that expectation, why should an intention be inferred to continue the annual income given to his sister only d/urmg her Ufetime ? He has expressly said that it should continue during the lifetime of his wife. Our decision frustrates this explicit direction.

As Lord Hardwicks intimated in Savery v. Dyer, there is here no question of intent. "We are dealing with the legal import of plain words. The bequest over to this sister upon the death of his wife, instead of limiting the legacy in question to the life of the sister, plainly leaves such legacy to run on until stopped by the vesting of the estate in enjoyment.

Thus the whole income is effectually disposed of until the death of the wife, and the whole estate is then disposed of. Again, what is the widow to have during her own life ? The residue of the income after the payment of the annual $200 to the sister. There is not a hint anywhere in the will that, upon the death of the sister, this $200 per annum is to go to the widow. Nor is there an intimation that, under any circumstance, the widow is to have more than the residue of the income after paying the $200 per annum. The defendants claim that, upon the death of the sister, the $200 per annum fell into this residue by operation of law, for the reason that Catharine Casey was personally the sole object of the testator’s bounty, and that consequently the legacy was to her, and not to-her estate.” It might as well be argued that the estate over fell into the remainder for the same reason. But that is not pretended. The annual sum in question vested in Catharine Casey and her legal representatives quite as effectually as the estate o.ver vested in her heirs, and for the same reason. There is no distinction in legal principle between this income and the estate over arising from the fact that Catharine was the object of the testator’s bounty. Neither the annual income nor the estate over was limited upon the life of that object, and consequently each took effect according to the ordinary rules of succession and devolution. There is no gap between the cessation of the vested income and the enjoyment of the vested estate. They run into each other. Thus Catharine Casey or her representatives take the one until the death of the widow, and then she or her heirs take the other.

This is the scheme of the will, and it accords with its plain language, and also with such implications of intent as may possibly be gathered from its clear directions.

I think the judgment should be in favor of the plaintiffs for all the income which has accrued since Catharine Casey’s death, with interest and costs.

Judgment for the defendants as directed in opinion.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    THE McELWEE MANUFACTURING COMPANY, Respondent, v. BENJAMIN A. TROWBRIDGE, Appellant.

      Bills and notes — bona fide holder — when a corpoi'ation, which is in effect the successor of a firm, receives notes from the latter, the maker of the notes, homing «• defense against the fii'm, may assert it against the corporation.

    A corporation brought an action upon notes alleged to have been transferred to it. for value before maturity by a firm It appeared, upon the trial of the action, that the corporation was the successor of the firm; that the firm had first transferred the notes to the corporation, which, before maturity, transferred them for value to a third person; that they were not paid at maturity, and were taken back from the third person by the corporation after protest.

      Meld, that the corporation was not a hona fide holder of the notes, and that the maker was entitled to assert against it any defense which he had against the firm.
    Appeal by the defendant Benjamin A. Trowbridge from a judgment, entered in the office of the clerk of the city and county of New York on the 22d day of June, 1891, upon a verdict for the plaintiff for $828.25, after a trial at the New York Circuit before the court and a jury.

      B. O. Ohetwood, for the appellant. .

      J. E. Eustis, for the respondent.
   Yan Brunt, P. J.:

This action was brought by the plaintiff, a foreign corporation, te recover upon two promissory notes, made by the defendant, whereby he promised to pay to the order of Don A. Gaylord & Co. the sums m said notes mentioned. The complaint alleged that before maturity Gaylord & Co. assigned the notes for value to the plaintiff.

The answer admitted the making of the notes, but denied their indorsement to the plaintiff, and alleged want of knowledge or information sufficient to form a belief as to the incorporation of the plaintiff, and set up, by way of a separate and distinct defense, an offset against the amount of said notes, because of a breach of contract by Gaylord & Go., out of which these notes arose.

It appears from the evidence that the plaintiff in this action succeeded to the business of Gaylord & Co., and that Mr. McElwee, of said firm, was the treasurer of the plaintiff, and Mr. Gaylord, also of said firm, was the secretary. It further appeared that one R. D. Cotter had paid for these notes to the plaintiff, and upon their being protested at maturity they were taken up by the plaintiff, payment being made to Cotter therefor. It would thus appear that the plaintiff was not the holder for value before maturity of this paper, but the mere successors to the rights of Gaylord & Co., whatever they were.

Upon the trial the defendant offered, to prove the defense set up in the answer. This defense was ruled out and an exception taken, and a verdict directed for the plaintiff. We think this was error. Whether the defendant could or could not establish the defense which he set up as an offset to the note it is not now necessary to consider. But it is clear that the plaintiff was not the holder of this paper for value before maturity without notice. It was the mere successor of Gaylord & Co. All of the officers, as far as the record shows, with the exception of the president, were members of the firm of Gaylord & Co., and there is no proof that the plaintiff paid any special consideration upon the transfer of the notes to it.

The jury, under these circumstances, would have had the right to find that plaintiff merely represented Gaylord & Co., and if there was any defense or offset to the notes, had they been sued upon by Gaylord & Co., the defendant had a right .to establish it.

. The claim that there was no evidence to show that the plaintiff had any knowledge of any agreement between the defendant and Gaylord & Co. is not well founded. As already stated, the evidence showed that the plaintiff had full knowledge because it was the mere successor of Gaylord & Co., and the members of that firm were the officers of the plaintiff.

The objection that the incorporation of the plaintiff was not established would have been well taken had not improper evidence proving the incorporation been admitted without objection.

The judgment should be reversed and a new trial ordered, costs to appellant to abide the event.

Barrett and Andrews, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appelant to abide event.


text:
    GEORGE PENNIMAN, Respondent, v. THE FULLER & WARREN COMPANY, Appellant.

      Venue —motion to change, hecemse it is not the proper county — the demand therefor is too late when served, with an amended, answer.

    In an action brought to recover money on a written instrument neither party resided in the county where the venue was laid. The defendant served its answer nineteen days after the service of the complaint. Thirty-seven days thereafter it served an amended answer and a demand that the place of trial be changed to the county of the defendant’s residence as the proper county.

      Held, that the demand was too late.
    That the answer, and not the amended answer, fixed the time for the service of the demand. (Code of Civil Procedure, 984, 985, 986.)
    Appeal by the defendant, the Fuller & Warren Company, from an order, entered in the office of the clerk of the city and county of New York on the 20th day of July, 1891, denying a motion for an order changing the place "of trial of the action from the county of New York to the county of Rensselaer.
    The plaintiff resided in Kings county, and the defendant was a corporation, whose certificate was filed in the Rensselaer county clerk’s office, and whose principal place of business was in that county.

      A. Smith, for the appellant.

      Barlow do Wetmore, for the respondent.
   Yan Brunt, P. J.:

There is no question but that if the defendant has served its demand to change the place of trial in time that it is entitled to the granting of tlie motion. This action was brought to recover a sum of money on a written instrument. The place of trial in the complaint being named, as New York county. Nineteen days after the service of the complaint an answer was served by mail; and thirty-seven days thereafter the defendant served a demand that tlie place of trial be changed from New York county where tlie venue was laid on tlie ground that it was not the proper county because neither of the parties resided there, and on the same day served an amended answer, and the question presented is whether this demand was served in time.

Section 984 of the Code provides that an action not specified in the last two sections (of which the action in question was not one)' must be tried in the county in which one of the parties resided at the commencement thereof., If neither of the parties then resided in the State, it may be tried in any county which the plaintiff designates for that purpose in the title of the complaint. Section 985 reads . “ If the county designated in the complaint, as tlie place of trial, is not the proper county, the action may, notwithstanding, be tried therein, unless the place of trial is changed to the proper county, upon the demand of the defendant, followed by the consent of the plaintiff, or the order of the court.” Section 986 provides that where the defendant demands that the action be tried in the proper county his attorney must serve upon the plaintiff’s attorney with the answer, or before service of the answer, a written demand accordingly.. The demand must specify the county where the defendant requires the action to be tried. If the plaintiff’s attorney does not serve his written consent to the change as proposed by the defendant within five days after service of the demand, the defendant’s attorney may, within ten days thereafter, serve notice of a motion to change the place of trial.”

In the case at bar no demand was served with the answer, but such a demand was served with the amended answer. And it is claimed, upon the part of the plaintiff, that as the amended answer becomes the answer after it is served, such an answer comes within the spirit of the Code.

We do not think, however, that this construction can be sustained. It is evidently the intention of the Code that this demand should be-made either at or before the time of joining issue. Issue is joined by tbe service of an answer, and although that issue may be waived by tbe service of an amended answer, tbe service of an amended answer cannot extend tbe time thus limited by tbe Code for tbe service of the demand.

The demand must be made at or before the service of the answer, and tbe first answer served in tbe case is the one which necessarily limits tbe time. Tbe issues are then joined, and, as already stated, it is tbe evident intention of the Code that this demand should be made either at or before tbe joining of issue.

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

Barrett and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    CARLOS D. SIEGERT and Others, Respondents, v. CORNELIUS W. ABBOTT, Appellant, Impleaded with CORNELIUS F. ABBOTT, Defendant.

      Partnership — summons served upon only one pan'tner — a judgment containing an injunction against the firm is eri'oneous — the partner not served is entitled to contest the question of pa/i'tnership.

    In an action brought by a firm to prevent the use of a trade-mark by two partners, who were both residents of a foreign State, the summons was served only upon one of the defendants. Upon the trial of the action the court gave judgment for the plaintiffs and enjoined both the defendants as partners, and also the defendant served, as an individual, from further use of the trade-mark.

      Held, that this judgment was erroneous.
    That the defendant not served had a right to contest the question whether he was a partner; and the court not having jurisdiction of him could not, in his absence, find that to be the fact, nor make any judgment based upon such finding which would be operative against him.
    Appeal by tbe defendant, Cornelius W. Abbott, from an order, entered in the office of tbe clerk of tbe city and county of New York on tbe 15th day of September, 1891, denying a motion to set aside a judgment entered against him in tbe above-entitled action,, be having appeared specially for tbe purpose of this motion.

      The order appealed from further provided:
    Ordered, That the judgment be and the same is hereby modified, as follows: The words “ jointly and severally ” are hereby stricken out, and in their place are inserted the following words: “As copartners composing the firm of C. W. Abbott & Co., and the said Cornelius F. Abbott individually.”
    And further ordered, that the clerk of this court be and he is hereby directed to amend said decree as heretofore filed to comply with the foregoing order, and in all other respects said motion is hereby denied.

      John Brooks Lea/oitt, for the appellant.

      Arthur Furber, for the respondents.
   Daniels, J.:

The action was brought to restrain the use a trade-mark attached to what has been called and known as Angostura Bitters. These bitters were manufactured and sold by the plaintiffs under that name or designation, and had acquired a somewhat extensive sale to the profit and advantage of the plaintiffs. It was alleged in their complaint that the defendants had infringed upon these rights by manufacturing and selling a compound under the same name. The plain tiffs were engaged in this business in the city of New York, while the defendant appealing, together with Cornelius F. Abbott, were residents of and engaged in business in the city of Baltimore, in the State of Maryland. The summons in the action was not served upon the appealing defendant, neither did he appear or answer the complaint. The other defendant, Cornelius F. Abbott, appeared, and also served an answer to the complaint, taking issue with its material allegations, and also setting up as a bar to the action a decision made in the State of Maryland against the plaintiffs in a similar action prosecuted there. The court upon the trial concluded that this preceding decision was not a bar to the action, and determined the issues framed by the answer of the defendant, Cornelius F. Abbott, in favor of the plaintiffs, and found as a fact that Cornelius W, Abbott, the appellant, was a partner with the defendant who appeared and answered in the action; and directed judgment against the defendants jointly in favor of the plaintiffs, establisting their right to the use of this name as a trade-mark, and directing the defendants, jointly and severally, to be perpetually restrained and enjoined from putting up, selbng, or offering for sale, any article in imitation of the plaintiff’s compound, or using the name Angostura Bitters or Angostura Aromatic Bitters, or any imitation of the same; and also directing the defendants to deliver up to the plaintiffs to be destroyed all circulars, wrappers and labels in their possession or under their control of the form or character, used by the defendants in putting up their article for sale. And judgment was entered against the defendants conformably to this decision. A motion was thereafter made, on behalf of the defendant, Cornelius W. Abbott, to vacate so much of the judgment as was recovered against him on the ground that he had not been served with the summons or appeared in the action. And on the decision of the motion an- order was made striking out from the judgment so much of it as perpetually enjoined both of the defendants jointly, and severally, and their servants, etc., and inserting in place of that direction the clause, “ as copartners, composing the firm of C. W. Abbott & Go., and the said Cornelius F. Abbott, individually,” thereby so far' modifying the judgment as still to enjoin and restrain Cornelius "W. Abbott as a partner from making use of the phrases already mentioned in the manufacture and sale of these bitters.

The judgment, as it has been modified by the order, still contains an adjudication against the appellant. In the findings of the court he is found to be a partner with the defendant who was served with process and appeared and contested the action. And that finding necessarily involved the trial of so much of the action against the appellant, in his absence, as included the taking of proof of the fact of the partnership and justified the finding of this fact by the court. And in the determination directed by the findings, and included in the judgment, the judgment proceeds against the appellant. It is made to operate upon him.as a member of a partnership composed of himself and the other defendant. To do that it was necessary to try the question whether he was or was not a partner with the other defendant, and to take proof to establish the existence of that fact. And that could not be legally done as long as the appellant was not a party to the action. The court could no more try the question whether he was a partner-with the other defendant to affect him individually, and, therefore, liable to be enjoined and restrained as such, than it could try any other part of the controversy intended to affect him by the judgment to be recovered. It acquired no jurisdiction whatever to try any question concerning him that had been included in the complaint as long as he was not served with the summons and did not appear. And the court exceeded its jurisdiction in taking proof of the fact that the appellant was a member of a firm composed of himself and the other defendant, and also in the direction that he should be enjoined with the other defendant from using the phrase in controversy. And the modification of the judgment did not relieve it from this objection, but it still left the judgment operative against the appellant as a member of this firm, and enjoined him not as an agent or servant of the other defendant, but as a member of the firm itself, when the most that the court had jurisdiction to do was to try and determine the action against the other defendant and to enjoin him, his agents and servants, from the use of these phrases, Angostura Bitters, or the word Angostura, or any imitation of it, or Angostura Aromatic Bitters.

The law has, in certain cases, permitted a judgment to be entered in form against two or more persons upon the service of the summons on one of them. But those are cases where they have become jointly liable upon a contract, and do not include actions of this description. And the fact that statutes have been enacted to permit that to be done. in actions upon joint contracts is very decisive evidence that, without such legislation, the courts would have no authority to permit a judgment to be entered against one person upon the service of the summons only on another. The legal principle, on the contrary, is, that no person can be affected by a hearing or adjudication of a court of justice without his voluntary appearance or affording to him, by means of the service of process upon him, or upon his property, an opportunity to appear and contest the claim that may be made against him. And within that principle the coui’t had no power to make any adjudication whatever against the appellant, either in the findings of fact or by the judgment finally entered in the action. And when the motion was made he was entitled, as he appeared only for the pui’pose of the motion, to have the judgment so far vacated as it was in form and effect entered against himself.

The order should be reversed, with ten dollars costs and the disbursements, and an order directed striking out so much of the judgment as has been entered, and is intended to be operative upon this defendant individually.

Yan Brunt, P. J., concurred.

So ordered.


text:
    JOHN I. GOODRICH, Respondent, v. JOHN GILLIES, Appellant, Impleaded with Others, Defendants.

      New York consolidation act — evidence required to sustain a lien filed under section 1824 of chapter 410 of 1882 — effect of neglecting to state that a case contains all the evidence.

    In order to entitle a party to file a lien, under section 1824 of the consolidation act, relative to the city of New York (chap. 410 of the Laws of 1882), he must either have performed labor or furnished material towards the performance or completion of a contract made with the city; and such work must be performed, or such material used, in the execution and completion of the contract. A finding by the court that a person had a contract with the city, and that another furnished materials to him, is not enough.
    Where a case does not contain a statement that all the evidence given upon the trial of an action is contained within it, the questions of fact are not before the General Term for review.
    Appeal by tbe defendant John Gillies from a judgment, entered in the office of the clerk of the city and county of New York on the 21st day of May, 1891, upon a recovery by the plaintiff of $571.74 damages and for costs, and adjudging the same to be a lien upon certain moneys payable under a certain contract made by the defendant, John Gillies, with the defendant, the Mayor, Aldermen and Commonalty of the City of New York, acting by the department of docks of the said city of New York, for building a wooden pier and making certain changes and improvements at Pier 61, on the East river, in the said city of New York, which said contract bears date the 25th day of April, 1889, and which said moneys withheld under the said contract amount to the sum or balance of $750.
    The judgment appealed from was entered after a trial, by the court without a jury, at the New York Special Term.

      Thomas F. Magn&r, for the appellant.

      G. 8. Hastings, for the respondent.
   Yan Brunt, P. J.:

This action was brought to foreclose an alleged lien of the plaintiff, upon moneys in the hands of the comptroller of the city of New York, and due from said city to the defendant Gillies,, upon a contract between him and the city, to build a pier and bulk-head at the foot of Rivington street, East river.

Upon the trial of the action the court found that the plaintiff was a dealer in builders and contractors’ materials, having a place of business in the city of New York; that on the 23d of April, 1889, the plaintiff made a proposal to the defendant Gillies to furnish certain material; that on the twenty-sixth of April the defendant Gillies accepted the proposal with a modification; that, in pursuance of the agreement, the plaintiff did furnish and deliver to the defendant Gillies certain sticks of timber and material of a certain value; that the defendant Gillies has failed to pay the claim of the plaintiff for said merchandise, and that there was justly due on the 15th of July, 1889, for the material delivered by the plaintiff, and accepted by the defendant Gillies, a sum stated; that the defendant Gillies had, at the time of the agreement and delivery of the merchandise pursuant to the agreement, and at the time of filing the notice of claim thereinafter mentioned, entered into a certain contract with the defendant, the mayor, etc., for building a wooden pier on the East river; and that at the time of the filing of-the notice of claim by and on behalf of the plaintiff, as thereinafter set forth, certain moneys in the control of the defendant, the mayor, etc., were due and to grow due to the defendant Gillies under said contract; that on or about the 15th of August, 1889, .before the completion of the whole work to be performed by the defendant Gillies, and while said moneys were due and owing to said defendant Gillies on account of said work of construction, the plaintiff duly filed a notice of his claim in the form required by law for the perfecting of a lien against the city of New York upon the said moneys so due to said defendant Gillies; that the comptroller of said city duly entered the claim described in said notice in a book kept for that purpose by him, called the lien-book, and that neither the lien nor the claim upon which the same is founded had been paid, waived, satisfied or discharged ; and that no other proceedings had been commenced for the foreclosure of said -lien or the recovery of said demand; and that one Murray had some interest in or lien upon the moneys, which was subsequent to the plaintiff’s. And the court, as conclusion of law, adjudged that the plaintiff had a lien to the extent of the value of the merchandise furnished, upon the money due on said contract between the mayor, etc., and the defendant Gillies, with costs, and the defendant, the mayor, etc., and the comptroller of said city were adjudged to pay to said plaintiff the amount due to said defendant Gillies.

From this judgment this appeal is taken by the defendant Gillies. Yarious objections in support of the appeal were urged arising upon the evidence which it was claimed was introduced upon the trial, and brought up by exceptions to the findings of the court. But as we have been unable to find in the case any statement that all the evidence given upon the trial is contained within it, questions of fact are not before the General Term for review; and the only questions which we can properly consider are those of law. (Howland v. Howland, 20 Hun, 472; Spence v. Chambers, 39 id., 193 ; Davis Sewing Machine Co. v. Best, 50 id., 76; Wellington v. C. C. and I. C. Co., 52 id., 408 ; Murphy v. Board of Education, 53 id., 171; Brayton v. Sherman, 28 N. Y. State Rep., 854; Porter v. Smith, 107 N. Y., 531; Halpin v. Phenix Ins. Co., 118 id., 165; Aldridge v. Aldridge, 120 id., 614.)

There are no questions of law presented by exceptions to evidence. But the exceptions to the conclusions of law of the learned court bring up for review the question as to whether the facts found by the court sustain those conclusions, and it will be seen by a brief examination of the law under which this lien is claimed that they do not.

Section 1824 of chapter 410 of the Laws of 1882 provides as follows:

“ Any person or persons who shall hereafter as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of any contract made between any person or persons, and the city, perform any labor or furnish any material toward the performance or completion of any contract made with the city, on complying with the next section, shall have a lien for the value of such labor or material, or either, upon the moneys in the control of the city, due or to grow due upon said contract with said city to the full value of such claim or demand.”

The next section reads as follows: “ At any time before the whole work to be performed by the contractor for the city is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the comptroller, notices stating (among other things), that the work was done or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city; but no variance as to the name of the contractor shall affect the validity of the said claim or lien.”

Then follow various provisions in reference to the docketing of the lien, and a provision that any claimant who has filed the notice in question may enforce his lien against the fund therein designated, and against the person or persons liable for the debt, by a civil .action in any court of competent jurisdiction.

It will thus be seen that, in order to entitle a party to file a lien, he must either have performed labor or furnished material toward the performance or completion of a contract made with the city; and such work must be performed or material used in the execution and completion of the contract. And these requisites are absolutely essential to the existence of a lien, and in their absence no lien can be acquired. It is, therefore, necessary, in order to establish a lien as against the fund, to establish these facts; and in order to entitle the court to grant a judgment enforcing the lien these facts must appear.

In the findings of the learned court, upon which the judgment in this action was based, there is no finding that a single particle of this merchandise which was furnished by the plaintiff to the defendant Gillies was furnished towards the performance or completion of any contract made with the city, or that any part of these materials were used in the execution and completion of any contract with the city.

It is true the court found that the defendant Gillies had a contract with the city, and that the plaintiff furnished material to the defendant, but there is no intimation or finding that this material was furnished for the completion of that contract or had any connection with it; except, perhaps, as it is stated in the lien filed, that all of the materials specified therein had actually been used in the execution and completion of the contract between the defendant Gillies and the city. But this allegation of the notice of claim is not found by the court to be true, and the findings are silent in this respect.

It is undoubtedly true that the court may look into the evidence to support a judgment where there is no express finding upon a particular point. (Marvin v. Iron Mining Co., 55 N. Y., 547.) But as the case at bar, as already stated, nowhere shows, upon its face, that all the evidence is contained in the record, the court cannofi examine this imperfect record for the purpose of determining whether there is evidence sufficient to .justify the finding which is necessary to support the judgment. Upon this point, therefore, the appeal comes up upon the judgment-roll alone.

"We think, therefore, that, without a finding showing that the material was actually used in the work of the city, no lien could be filed, and the plaintiff was not entitled to a judgment impressing a lien upon the funds of the defendant Gillies in the hands of the city.

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

Barrett and Daniels, JJ., concurred.

Judgment reversed and new trial granted, with costs to the appellant to abide event.


author:
Van Brunt, P. J.:
      Ingraham, J.:
     Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE NORTH RIVER BANK, in the City of New York, Defendant. In the Matter of MANLEY.

      Bills and notes — notice of protest — “place of business" — service by mail upon anindorser having an office in this State but residing in another.

    It is provided by chapter 416 of the Laws of 1857, section 8, that whenever the residence or place of business of the indorser of a promissory note shall be in the city or town where such promissory note is payable, all notices of non-payment of such promissory note may be served by depositing them in the post-office of - the city or town where such promissory note is payable, directed to the indorser at such city or town.
    In a proceeding involving' the sufficiency of a notice of protest under this statute, where such a notice had been mailed to an indorser in New York city, the indorser testified that he did not reside in that city, but in the State, of New . Jersey; that he had an office in New York city where he received his mail, but that he did not conduct any business at the office.

      Reld, that the service of the notice of protest, if mailed to the indorser at his office in New York, was sufficient.
    That the statute, in its use of the words “place of business,” has not defined what is meant by the phrase or how much business must be done at the place; and that, as the indorser received his mail in New York, a notice mailed to him at that address came within the spirit of the statute, and the service thus made was a good service.
    The question as to what evidence of the mailing of a notice of protest is sufficient, considered.
    Appeal by Francis Higgins, as receiver of the North River Bank, in the city of New York, the defendant, from an order, entered in the office of the clerk of the city and county of New York on the 30th day of June, 1891,- confirming the report of a referee and directing the receiver to pay to one George Manley, or his attorneys, a dividend of thirty per cent upon the amount of the indebtedness of said bank to him, with interest thereon from February 4, 1891. George Manley lived in New Jersey.

      Durnin <& Hendrick, for the receiver, appellant.

      N. 8. Speneei% for the petitioner, Manley.
   Van Brunt, P. J.:

George Manley, the petitioner, was a depositor in the North River Bank in November, 1890, the time of the commencement of this action for its dissolution, and of the appointment of the appellant as receiver. There is no dispute as to the amount which the respondent had upon deposit at the time of the appointment of the receiver. On the 30th of January, 1891, the receiver was directed by the court to pay a dividend of thirty per cent on the amount of all deposits. The receiver refused to pay the petitioner the amount of this dividend on his deposit. The petitioner then applied to the court for an order directing the receiver to pay him a dividend.

On this application the receiver excused his refusal upon the ground that he held an unpaid note for $850, made by one Townsend and indorsed by the petitioner, which he claimed should be set off upon the petitioner’s dividend. ' The petitioner claimed that he was not liable upon the note upon the ground that he had not been charged as indorser. A reference was ordered to take proof of the facts as to the petitioner’s liability on the note; and the referee reported that the said petitioner had no place of business in the city •of New York, and that the only notice of protest which was sent in time was addressed to him at No. 115 Broadway, in the city of New York; and that as the indorser had no place of business or residence in the city of New York, he was not charged as indorser.

"We think that the learned referee, in coming to this conclusion, has adopted a too stringent definition of the words “ place of busimess ” contained in the statute (Laws of 1857, chap. 416, § 3). The statute has not defined what it means by place of business, nor how much business a man must do at a given locality in order that it may be considered his place of business within the meaning of the statute. The object of requiring notice of protest to be sent to the indorser promptly after a commercial paper has been dishonored is to give the indorser notice of the fact of the dishonor in order that he may protect himself, and the whole course of legislation upon this subject has been to adopt such a course as will be most likely to give the indorser notice and render it possible for the holder ■of the paper to comply with the requirements of the statute. In none of the adjudicated cases has any question similar to the one presented at bar come up for discussion.

The course of decisions prior to the passage of the act of 1857, where the indorser did not reside in the town or place where the notes were payable, seems to have been to allow service of notice by mail, addressed either to the place of residence of the indorser or to the post-office at which he was accustomed to receive his letters and papers. Such was the decision in the case of Remer v. Downer (23 Wend., 620) and Montgomery County Bank v. Marsh (7 N. Y., 481); and the statute of 1857 seems to have been intended to extend the right to serve by mail to those cases in which the residence or place of business of the indorser was in the same city or town where the note might be presented for payment.

The learned referee, in referring to this statute of 1857, seems to have fallen into an error by limiting the effect of this statute to those cases in which the indorser resides in the city or town where the note is made payable. Such is certainly not the language, and evidently was not the intention of the legislature.'' The language is* “ whenever the residence or place of business of the indorser of a promissory note, * * * shall be in the city or town * * * where such promissory note * * * is payable, * * * all notices * * * may be served by dejiositing them, with the postage thereon prepaid, in the post-office of the city, * * * directed to the indorser * * * at such city or town.

But it is claimed that the evidence in this case does not show that the indorser had a place of business within the city of New York; and this notwithstanding the fact that the indorser swore that he had. Upon cross-examination, the respondent testified distinctly to the question:

“ Q. Have you a place of business in New York? A. Yes.

“ Q. Where is that ? A. 115 Broadway; the Boreel Building.

“Q. And that is where your mail is received, is it not? A. Yes, sir; the mail to New York.”

He was further asked whether he and his son had not an office at 115 Broadway, and his answer was: “We have an office, but don’t do any business in New York.” His son also swore that he had an office at 115 Broadway, but that he did not conduct any business there.

We think that, within the spirit of the cases cited, the respondent, having a place in the city of New York where he was accustomed to receive his mail, having in his own judgment a place of business in the city of New York, although he did not carry on there mercantile business in the ordinary sense of the term, yet, within the provisions of the statute, he had a place of business to which a notice of protest might be mailed.

We think, therefore, that the referee erred in holding that notice of protest mailed to the indorser abll5 Broadway was not sufficient service in order to charge him as indorser.

Upon an examination of the evidence offered for the purpose of establishing the mailing of this notice, in view of the evidence that, no such notice was ever received at No. 115 Broadway, it may well be claimed that no such notice was ever sent even to that address; the evidence offered to prove the sending of such a notice shows that the witnesses examined have no recollection whatever of the mailing of that notice, and that- it is mere guess-work on their part when they testify in respect thereto. The witness Connell, in his examination, states that he received certain notices in reference to the note in question as to its not being paid, and he produced two of them, but-he could not give the date exactly as to when they were received, his impression being that they were received the day they were dated, the twenty-sixth of January. When asked whether there were any other notices with them his reply was, “ My recollection is there were notices to Mr. Manley and Mr. Townsend.” And then in answer to the question: “What was done with those other notices ? ” He answered: “ They were sent to Mr. Manley.” “ Q. By whom ? A.. By Mr. Robertson.” Why the notices to Townsend should be sent to Mr. Manley he does not explain. When Mr. Robertson comes to be examined, he is asked:

“Q. You have heard the testimony of Mr. Connell, and you are the Mr. Robertson referred to by him ? A. Yes, sir.

“Q. Now tell us what you did about mailing those notices? A. Those notices were sent to the bank.

Mr. Spencer — Do you know they were sent to the bank of your own knowledge ?

“ The Witness — I know because I have seen them addressed a great many times.

Mr. Spencer — These particular notices you know must have been sent to the bank ?

“The Witness — They must have been or I would not have seen them. I received them from Mr. Connell.

“What did you do with them? A. They were handed tome and I sorted them out; they came in two sets, and those to outside parties, except Mr. Higgins and Mr. Ingersoll, the cashier, were put in envelopes and directed to the parties to whom they belonged.

“ Q. How did you direct them and where ? A. I directed them to the addresses of those parties.

“■ Q. Ho you now recollect what address you directed the one to Mr. Manley to? A, His address was 115 Broadway. I, of course, must have addressed it to that address; I do not remember any other address.”

It is clear that the witness had no recollection whatever when he testified as to what address he had put on the envelope. He is testifying as to what his custom was, not as to what he recollects having done with these particular notices. He is speaking about a great many notices. He says: “ They (the notices) were handed to me and I sorted them out. They came in two sets and those to outside parties, except Mr. Pliggins and Mr. Ingersoll, were put in envelopes and directed to the parties to whom they belonged,” and that he directed them to the addresses of those parties, evidently referring to the manner in which business was ordinarily done, but without any present recollection. He is then asked:

“ Q. Did you mail those yourself ? A. No, sir.

“ Q. What did you do with them ? A. I addressed them and sealed them and put them in the box — our letter-box.

“ Q. You recollect sealing them, and addressing them, and putting them in the box? A. Yes, sir.”

Upon cross-examination he is asked:

“ Q. Plow many other notes were protested on the 26th of January, 1891 ? A. That I could not tell you — how many were protested.

“Q. Were there a number? A. I could not state how many there were.

“ Q. Were there more than one ? A. I could not say that either.

“ Q. Do you mean you do not recollect anything about it A. I recollect that there was notices on that day, but how many there were I do not know; undoubtedly there were, because, on the twenty-sixth — I do not say that the notices came on the twenty-sixth, they might have been posted on the twenty-sixth and come the next morning or that day.

“ Q. Were there notices coming every day? A. There were.

“ Q. A number of them all the time ? A. Coming in, quite a good many at this time, protested paper, quite a number of them coming in; I could not keep track so as to say or tell how many were coming in; of course, they were coming in, and I had charge of those as well as sending them off; I turned those over every day; I had charge of those myself, and had a file, and I sent off those to be sent off, and those received I put on this file to be kept for the receiver and cashier of the bank.

“ Q. Did you keep any record of the notices you sent off ? A. Only those.

“ Q. You only kept those notices which were sent to Mr. Higgins and Mr. Ingersoll ? A. That is all the record of the notices I kept.

“Q. You kept no record of the notices you sent off? A. No.”

He is asked: “You have no independent recollection of these particular notices ? A. I have recollection that I sent those off, that is, they have all been sent off, according as they came in, by me.

“ Q. That is all the, recollection you have ? A. That is all the recollection I have.”

Again clearly showing that the witness had no recollection in respect to the transaction, and was only testifying as to his method of business.

He is asked how he addressed the letter inclosing the notice to Manley. He says: “ I think it was George A. Manley.”

“ Q. Is that all ? A. I guess the street, number and city.

“ Q. T.ell me precisely what it was ? A. "Well, I cannot exactly say just what it was; I know that the notice would read George A. Manley, and whatever his address was.”

And finally, as his best recollection' as to what was written on the envelope, he says: “George A. Manley, 115 Broadway, City; we generally put city on it.”'

“ Q. You say that because you think that is what it ought to be? A. I do not say it from what it ought to be; of course, that is what I. put on; I say I must have put it on ‘ George A. Manley, 115 Broadway,’ as that is the address we got, and the address we got would be the address I would naturally take to put on.”

It appears that there was no such person as George A. Manley ; that it was Geoi’ge Manley.

And further on when asked: “ Do you recollect it apart from the other notices sent out that day? ” lie says: “Not particularly apart from the others because I sent them all out.” And when asked what he did with the notices, he says he put them in the tin box alongside of the collection desk; that he generally put them in himself — he would not say that he always did — but if he subscribed them he generally put them in himself. But when asked as to the day or the hour in which this had been done by him he was entirely unable to say ; and his whole testimony in that respect is evidently based upon what the course of business was. It is true, upon redirect-examination, he said that he knew what those notices were, and as soon as he received them from Connell he immediately mailed them away, which clearly was not the fact, because he admits that he did not do any mailing at all, but only put them in the box alongside the collection desk.

In order to prove the mailing of the notice, the witness Flood was examined, and his testimony was simply to ^the effect that it was a part of his duty to take charge of the mailing of letters from the North River Bank; that he took the letters out of the box, stamped them and took them to the post-office, but that he had not the slightest recollection of mailing any letters whatever to Manley. When asked if he knew that he took all the letters he found in the box he only says : “ If there were any letters sent to him that day I took them; there was nobody else to take them.” He did not testify as to any date at the time this answer was made; he kept no record of the letters he mailed and could not say how many times he went to the post-office on the 26th of January, 1891, or on the twenty-seventh, but was only testifying as to his practice in mailing the letters which he found in the box. »

I do not think that upon testimony of this kind the court ought to hold that the mailing of the notice is established in this proceeding. It should be left to a jury to determine as to whether any such notice was sent or not.

I think, therefore, that the order, apjjealed from should be affirmed and the motion granted, with leave, however, upon the part of the receiver of the bank, to sue the petitioner upon his indorsement upon the note in question, these jiroceedings to be no bar to such an action.

Ingraham, J.:

I concur with the presiding justice that the petitioner had a place of business at 115 Broadway, New York, and that a notice of protest mailed to him there was sufficient to charge him as indorser upon the note in question. I do not think, however, that there should be a new hearing.

The reference was not to hear and determine, but to take testimony as to a question of fact arising upon a motion, and to report to the court. The testimony has been taken and is now before the court.

It is not suggested that either party has any additional testimony that can aid the court in determining the question, and I think it our duty to either affirm the order or reverse the order as the facts require.

The only question the determination of which is necessary in order to decide this motion, except the one discussed by the presiding justice, is whether it is established by the evidence that the notice of protest was mailed on the 2Tth day of January, 1891, addressed to the petitioner at his place of business, 115 Broadwa)7, New York.

The referee finds that such notice was so mailed, and I think his finding is sustained by the evidence.

Connell, who was in the employ of the receiver, testified that he received the notice of protest from the notary either on the twenty-sixth or twenty-seventh of J anuary; that at the time he received the notices he handed them to his assistant Robertson. Robertson swears that two notices were handed to him by Connell; one addressed to Townsend, the maker of the note, and one to the petitioner, the indorser; that he put them in envelopes and addressed them to the respective parties, and put them in the letter-box. He was then asked the question: “You recollect sealing them, and addressing them, and putting ■ them in the box; ” to which he answered: “Yes sir; ” and he remembered it from getting the petitioner’s address from the “ address-book ” kept by the bank.

Flood, who was a messenger in the employ of the receiver, testified that it was his duty to take the letters from the letter-box, put stamps on them, and deposit them in the post-office. That on this day he took all the letters from the letter-box, stamped them and deposited them in the post-office, and that he had full charge of the mailing of letters; and it would appear that the notice of protest to the maker of the note, sent at the same time, was duly received by him.

There was not the slightest evidence tending to contradict this testimony, except the fact that the son of the petitioner says that he never received the letter at 115 Broadway, but this does not overcome the direct evidence before referred to.

It appears that there was no one employed at the office No. 115 Broadway; that the petitioner’s son was in the habit of coming to the office every day. That when his business called him out of the office he locked the door, and that any letters coming when he was absent would be put through a slit in the door and fall on the floor.. That a letter coming when Mr. Manley was absent from the office might have been overlooked on the floor and so swept away and lost is not improbable; and I think on the evidence before us that the petitioner is liable for the note.

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

Daniels, J.:

I think that the evidence of the witnesses, together with the probability arising out of the mode of transacting the business, supports the conclusion that the notice of the dishonor of the note was, in fact, properly and legally given. And the order should be reversed and the motion denied, as directed by Mr. Justice In&raham.

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


author:
Daniels, J.:
      Barrett, J.:

text:
    THE MADISON SQUARE BANK, Respondent, v. WARHAM N. PIERCE, Appellant.

      Bills and notes — the malcer thereof compelled to pwy the face value although a part thm'eof has been paid to the holder by cm indorser — real pai’ty in interest — trustee of an express trust — Code of Givil Procedure, sec. 449.
    The maker of a note, payable to bis own order, indorsed and delivered it to a corporation, which, before maturity and for value, transferred it to a bank. The corporation subsequently failed and a receiver of its property was appointed, who paid to the bank a dividend upon the note.
    The bank thereafter brought an action upon the note against the maker.

      Held,, that the bank was entitled to recover the full amount of the note, and that the payment made thereon by the receiver was not a defense to the maker pro tanto.

    The authorities upon this question reviewed.
    Permitting the holder of a note to recover its face value against the maker, although the indorser has paid a part of the sum secured to be paid thereby to the holder, is not inconsistent with section 449 of the Code of Civil Procedure requiring every action to be prosecuted in the name of the real party in interest.
    The trustee of an express trust is excepted from the section, and such a trustee is thereby defined to be “a person with whom, or in whose name, a contract is made for the benefit of another.” (Per Daniels, J.)
    In this view the holder may be deemed a trustee for the indorser.
    Appeal by the defendant 'Warham N. Pierce from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 10th day of March, 1891, upon a decision of the court in favor of the plaintiff for $1,000, and interest from July 26, 1890, after a trial before the court at the New York Circuit (a jury having been waived.)

      Dmid Kecme, for the appellant.

      J. Delahunty, for the respondent.
   Daniels, J.:

The judgment which has been recovered is for the full amount of a promissory note made by the defendant to the order of himself for the sum of $1,000 payable at the Madison Square Bank in six months from the 23d day of January, 1889. This note was indorsed by him and transferred to the L. M. Bates Company, which company, before the maturity of the note and for value, indorsed and delivered it to tbe plaintiff. After that tbe L. M. Bates Company became insolvent and a receiver of its property and effects was appointed and duly qualified, and took ¡jossession of all the assets of the company. The note together with other claims were presented to the receiver, and, under orders made by the court, he paid to the plaintiff seventy-three and one-quarter per cent of the amount due upon the note. And that payment was relied upon by the defendant as a defense to the extent to which it had been made. But this defense was overruled, and the amount of the note was held to be recoverable by the plaintiff.

Whether this was a correct application of the law to the facts of this case, upon principle, certainly admits of some doubt. For by the payments which the receiver made, a right of action vested in him to recover from the maker of the note this sum of seventy-three and one-quarter per cent. It was a right of action entirely independent of the plaintiff, and capable of being enforced by him against the defendant. And this view was adopted and followed by early cases decided by the English courts (Bacon v. Searles, 1 Henry Black, 88; Hemming v. Brook, 1 Carr. & Marsh., 57; Pierson v. Dunlop, Cowp., 571, and in Walwyn v. St. Quintin, 1 Bos. & Pul., 652), which, however, is not a decisive authority in support of this position. These cases, and the others bearing upon the same point, were fully considered in Jones v. Broadhurst (9 C. B. [Manning & Scott], 173); and the conclusion was there maintained, in view of all the preceding decisions, that a defense of> this nature was not available to the maker of a note or the acceptor of a bill of exchange. But that, notwithstanding the payment, the holder of the paper was still entitled to proceed against the principal debtor and recover the full amount for which the obligation had been created. And as a result of that recovery the plaintiff would hold the excess, beyond that due upon the paper, as a trustee for the benefit of the indorser by whom the payment had been made.

The principle is somewhat arbitrary, it is true, but it was considered to be the fair result of the authorities applicable to this subject, and it was not disaffirmed in Thornton v. Maynard (L. R., 10 C. P., 695). The circumstances in that case were peculiar, and the court there held the plea to be good as an equitable defense on account of the equities which had vested in the defendant.

In Goodwin v. Cremer (16 Eng. Law and Equity, 90), the same principle is applied. But in that case the question was disposed of more as a matter of pleading than otherwise. And it was followed in Kemp v. Balls (28 Eng. Law and Equity, 498), where, however, the suggestion was made, in the course of the discussion, that the amount paid might be proved by way of mitigation of damages. And this it was also held might have been proved in Wattles v. Laird (9 Johns., 327). But that was in favor of a surety in an action upon a bond given on the arrest of the debtor, and for that reason it has no special application to this controversy. And Agra, etc., Bank v. Leighton (L. R., 2 Exchequer Cases, 56), so far as it extends, is in tlie same direction. And a quite similar view of the law was expressed in President, etc., v. Hazard (13 Johns., 353). The existence of this legal principle followed at the trial has also been assumed in 2 Parsons on Notes, etc , 218, where the author has collected the cases bearing upon it in a note to the statement of it. And a like conclusion of the law has been stated in 2 Daniel on Negotiable Instruments, section 1237. And the authority, although not without conflict, appears now to be sufficient to entitle the holder of commercial paper to collect the entire amount against the principal debtor, although a part payment may have previously been made by an indorser to the holder. And this right is not inconsistent with section 449 of the Code of Civil Procedure, requiring every action to be prosecuted in the name of the real party in interest. Eor the exception to that requirement has been made that a trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted. And a person with whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section, and that appears to include this obligation. Eor the contract of the defendant, held by and under' the circumstances made with the plaintiff, was not only for its own benefit, but also for the benefit of the indorser by whose indorsement the paper was transferred to the plaintiff. The judgment in the action, therefore, appears to be sustained by the law, and it should be affirmed.

Yan Brunt, P. J., concurred.

Barrett, J.:

I concur in the conclusion arrived at by Mr. Justice Daniels. The precise question to be here determined depends for its solution, in the first instance, upon the effect of the defendant’s answer. Under this answer, the equities, as between the plaintiff and the indorsers, are not in the case. We have simply to decide, therefore, whether a part of the note has been paid to the plaintiff by the defendant or on his behalf. ’Nothing of the kind is set up in the answer. The defendant says that the plaintiff has received seventy-three and one-fourth per cent of the note, and that there is only due it on account of said note twenty-six and three-fourths per cent thereof. But he does not aver that this percentage was received from him or from some one who paid it on his account. The averment, therefore, is not a plea of payment fro tanto, and it is irrelevant to say that the plaintiff has received a part of the note without adding that it was so received from the defendant, or from some one who made the payment on his behalf. The answer was demurrable, and no other judgment could have been rendered upon such a plea than that which was rendered. But even if the matter set forth in the agreed statement of facts had been pleaded, the defendant’s case would not have been helped. For it thereby appears that the payments made by the receiver of the indorsers were made, not by or on behalf of the defendant, but on account of their independent contract. The payments were so made, not because the maker was liable therefor, but because the indorsers were themselves liable therefor. Such payments were not upon account of the maker’s primary obligation, nor can the maker take advantage of such payments to relieve himself from his distinct contract obligation to the holder. It is true, that the indorsers, upon payment under their contract, have a right of action over against the maker. And it may be asked, how, then, can the holder have a right of action against the maker for the full amount of the note ? And how can the holder, under any circumstances, be allowed to recover from any one more than the amount of his note ? There need be no inconvenience in these particulars, and the logic of the legal situation may be preserved without subjecting the maker to payment twice, or permitting the holder to receive more than his due, or frustrating the indorser’s action over. In the first place, payment to the holder by the maker fully extinguishes the latter’s obligation. In the nature of things this must be so, and that, too, although the indorser may have previously paid a part of the amount duei

If the indorser has paid such part and is unwilling to permit the holder to collect from the maker the part so paid as well as the remainder, he has his direct action against the maker, and the latter can interplead the holder and bring the whole amount of the note into court for equitable division. Whether the maker be sued by the holder or by the indorser, he can interplead the other party and bring the whole amount of the note into court, thus at one and the same time satisfying the holder for the whole amount due on the note and the indorser for the amount paid thereon by him. The right of the holder to sue for the whole amount of the note is not affected by the rule of the Code which require all actions to be brought in the name of the real party in interest. The holder is not a trustee for the indorser when, after part payment by the latter, he proceeds against the maker fdr the whole amount of the note. It is true that after he has collected the whole amount the law implies a trust obligation to repay to the indorser the amount of his previous payment. In that sense he holds part of the money collected as trustee for the indorser. But as between the holder, as plaintiff in the action, and the maker as defendant, the action is not brought by a trustee but by the owner of the paper. And as such owner he is the real party in interest.

Any other view of this relation overlooks the true nature of the original contract and the obligations which the maker and indorser respectively assume. Besides, it has been repeatedly held that he who holds the legal title to the instrument is the real party in interest, and that the defendant has no right to show the equities under which the transfer was made, or otherwise to prove that the recovery would be for the benefit of some one other than the plaintiff in whom the legal title is vested. I agree, therefore, with Baron Creswell in Jones v. Broadhurst, cited by Mr. Justice Daniels, that “ the only question in which he (the defendant) has any interest is whether the party seeking to enforce payment by him, is the legal owner of the bill, and whether recovery by, and payment to, such party will enure as a satisfaction a/nd Absolute discharqe of his liability upon the bill.” Baron Creswell demonstrates the latter proposition with convincing logic and certainly the defendant here, who has not paid the indorsers, nor offered to pay them, nor even pleaded liability to pay them, cannot escape his contract obligation upon a mere suggestion aliunde his a/nswer that, perhaps, the indorsers may prefer to hold him directly rather than look to the plaintiff as their trustee.

Thus the defendant, without offering to pay anyone, insists that he should be relieved from a part of his contract obligation. His case does not differ from that of the defendant in Jones v. Broadhurst (supra), and his situation is well described in the opinion in that case as follows: “ The plaintiffs stand upon the record the legal owners of the bill, and the defendant as having failed to perform his contract, without any legal excuse for the breach. The defendant was the party primarily liable, and by his plea, he sets up, by way of discharge, satisfaction by one not in privity with him in relation to such satisfaction, and which, we think, did not inure to his discharge.”

I may add to the list of authorities cited by Mr. Justice Daniels, Thornton v. Maynard (L. R., 10 C. P., 696), where Lord Coleridge, speaking of Jones v. Broadhurst, said that “ the judgment of Creswell, J., in that case reviews the authorities, and finally decides that payment, either partially or in full by the drawer to the indorsee, does not dis-entitle the indorsee to sue the acceptor for the full amount of the bill.”

He also cites Byles on Bills (10th ed., 210), where Sir John Byles says : “ To an action against the acceptor, payment by the drawer is no plea, but only converts the holder into a trustee for the drawer when the holder afterwards recovers from the acceptor.”

By the payment of this judgment the defendant will have paid the note and extinguished his entire obligation thereon. The indorsers will no longer have any right of action over against him, but will have to look to the plaintiff for the amount already paid on account of their obligation. ¥e must not speculate as to why the receiver of the indorsers has not already sued the defendant, nor why he has suffered the plaintiff to proceed as the owner of the note for tlie recovery of tlie whole amount thereof from the maker Such speculations would be unprofitable, and would only tend to confuse the real question, namely, whether the payment by the indorser Under his contract of .indorsement is a- payment by or on behalf of the maker operating pro tanto to extinguish the maker’s obligation. Upon both principle and authority, we think such payment is in extinguishment of the indorser’s liability, and of that alone, and that it is not a payment for or on behalf of the maker. We think, too, that the single payment by the maker to the holder of the entire sum due and payable by his contract inures as a satisfaction and absolute discharge of his liability upon the note.

I agree that the judgment should be affirmed, with costs.

Judgment affirmed, with.costs.


author: Andrews, J.:

text:
    In the Matter of the Application of the BOARD OF STREET OPENING AND IMPROVEMENT, of the City of New York, Relative to Acquiring Title to Certain Lands for a Public Park on Grounds Known as St. John’s Cemetery.

      JSminent domain —a cemetery may be taken for a public prn'k — the expense of reinterment is a charge upon the city.

    The Board of Street Opening and Improvement of the city of New York was authorized to lay out parks below One Hundred and Fifty-fifth street, in said city, by chapter 820 of the Laws of 1887, which conferred upon it the powers usually granted in such cases, including authority to condemn “any and all lands, tenements and hereditaments ” within the territorial limits stated.
    Upon an appeal by the corporation of Trinity Church, owners in fee of St. John’s Cemetery, proposed to be taken for a park, from an order appointing commissioners to appraise its value:
    Held, that the board had power to condemn a cemetery for park purposes, the language of the statute being explicit and without- any reservations.
    The legislation relative to the status of a cemetery reviewed.
    That, in case the cemetery was^ taken, and the relatives of the persons buried there or the church did not attend to the matter, of reinterment, it would be the duty of the city authorities to do so.
    That such power was to be found in the laws which place all parks under the cozltrol of the park department, and which authorize the board of estimate and apportionment to make annual appropriations for the construction and maintenance of the parks, and, also, in chapter 820 of the Laws of 1887.
    That, in any event, the expense of reinterment must be borne, directly or indirectly, by the city.

      Appeal by the Hector, Church Wardens and Vestrymen of Trinity Church, in the city of New York, from an order, entered in the office of the clerk of the city and county of New York on the 23d day of June, 1891, appointing commissioners of estimate and apportionment, in proceedings to condemn St. John’s Cemetery, in the Ninth ward of the city of New York, for the purpose of a public park.
    The title to the land was in Trinity Church prior to 1801, when it was set apart by the church as a cemetery, and was so used until 1839, when burials were forbidden by a city ordinance. The church has since maintained and preserved the grounds.

      Stephen P. Nash, for Trinity church, appellant.

      William N. Ciarle,, for the Corporation, and John P. Punn, for the Board of Street Opening and Improvement, respondent.
   Andrews, J.:

Chapter 320 of the Laws of 1887 authorizes the Board of Street Opening and Improvement, of the city of New York, to select, locate and lay out such and so many public parks in the city of New York, south of One Hundred and Fifty-fifth street, as said board shall from time to time determine. Said act also authorizes the said board, and all persons acting under its authority and by its direction, to enter upon any and all lands, tenements and hereditaments which the board shall deem necessary to be used and converted for the laying out of any park so selected. The said statute also authorized the Board of Street Opening and Improvement, through the counsel to the corporation, to institute proceedings in this court to condemn the lands, tenements, hereditaments and premises required for the purpose of the parks so located.

Pursuant to the authority so conferred, said board selected, located and laid out for a public park certain lands in the Ninth ward of said city, known as St. John’s Cemetery, and thereafter, through the counsel of the corporation, having given due notice of the application, presented a petition to a Special Term of this court praying for the appointment of commissioners of estimate. Upon the hearing of such application, the corporation of Trinity Church appeared, through its counsel, and filed a written answer containing objections to the granting of such application, based principally upon the ground that the said statute did not confer the power to condemn a cemetery for a public park. The court took the matter under advisement, and subsequently an order was made granting the application and appointing three commissioners of estimate, and from that order this appeal is taken.

The statute, under which it is sought' to condemn the property, authorizes a condemnation for public parks “ of any and all lands, tenements and hereditaments,” situated in the city of New York> south of One Hundred and Fifty-fifth street. It would have been impossible for the legislature to. have conferred upon the city authorities any broader or. more comprehensive authority with regard to the land which might be selected and taken for public parks; neither cemeteries nor any other lands being excepted by the statute. The learned counsel for the appellant concedes that the legislature has the power to authorize- the city authorities to select and take the cemetery in question for a public park, but he claims that the power to do so ought not to be deemed to have been conferred upon the board of street opening by the general language of the act. In other words, it is desired to have the court incorporate into the statute an exception in favor of cemeteries, which the statute itself does not contain. The rules applicable to cases of this ■character have been frequently laid down by the Court of Appeals, .and are adverse to the claim made by the counsel for Trinity Church. In McCluskey v. Cromwell (11 N. Y., 601) the court said: “It is beyond question the duty of courts in construing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way.' But in the construction both of •statutes and contracts the intent of the framers and parties is to be sought, first of all, in the words and the language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language^ without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction the contracts of parties. The office of interpretation is to bring sense, out of the words used, and not to bring a sense into them.” In the People ex rel. Brown v. Woodruff (32 N. Y., 364), the court said “ It is a dangerous principle to imply power when it is not conferred by legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation,, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of a legislature in the emergency which, may have arisen. It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus than, attempt to do it by judicial construction.” In Johnson v. Hudson River Railroad Company (49 N. Y., 462), the court said: "Where the language is definite and has a precise meaning, it must be presumed to declare the intent of the legislature; and it is not allowable to go elsewhere in search of conjecture to restrict or extend the meaning. (McCluskey v. Cromwell, supra.) The provision here is clear and precise, and courts cannot go beyond or outside of it, under pretext of interpretation, to cure any supposed blunder of the legislature.” Again in Benton v. Wickwire (54 N. Y., 223), the court said: “"We do not feel it necessary to go into any discussion of the distinction in construction between remedial, penal or other statutes, because we regard it as settled that all statutes must have a. construction according to the language employed, and where no ambiguity exists courts cannot correct supposed defects.”

In the case at bar the language used is free from all ambiguity and there is no room for interpretation. The authority given is to select and take “ any and all lands, tenements and hereditaments,” south of One Hundred and Fifty-fifth street, and for the court to hold that this language does not include land used for cemeteries, would be to do precisely what the court of last resort has repeatedly decided cannot be done.

It is conceded by the learned counsel for the appellant, and it is a fact, that in this State there is no express statutory prohibition against the taking of cemeteries under the power of eminent domain,, but he claims that the general legislation of the State has indicated a plain policy, that such property shall not be taken unless specifically authorized by legislative act, and he cites, in support of this claim, chapter 843 of the Laws of 1868; chapter 133, section 10 of the Laws of 1847; chapter 203, section 34 of the Laws of 1878, and chapter 273 of the Laws of 1866. An examination of the provisions of these statutes does not sustain the claim made by counsel as to what the jiolicy of the State has been, but seems rather to warrant the inference that, in the absence of an express prohibition against taking cemeteries, general statutes authorizing the taking of lands for public purposes will include the same. The said act of 1868 provides that no private or public road shall be laid out or constructed through any grave-yard or burial-ground in this State, unless the remains therein contained are first carefully removed and properly reinterred in some other burying-ground at the expense of the persons desiring such road. This statute certainly does not imply that grave-yards and burying-grounds cannot be taken for roads. On the contrary, it clearly implies that they can be taken for roads, but that the remains must first be removed and reinterred. The act of 1847, to establish rural cemeteries, provided that no street, avenue or thoroughfare should be laid out through any such cemetery without the consent of the trustees of such association, except by special permission of the legislature. The act of 1866, incorporating soldiers’ monument associations, contains a similar provision ; and the act of 1873, incorporating pipe-laying companies, provided that no pipe line should be constructed through any cemetery or burying-ground. The said acts of 1847 and 1866 undoubtedly indicate that the legislature was of the opinion that when the trustees of rural cemeteries, or of soldiers’ monument associations, do not consent to the laying out of streets or roads through the lands held by such corporations, special permission of the legislature for such laying out must be first obtained; but such statutes also indicate that the legislature was of the opinion that, in the absence of such prohibition, the general laws authorizing the laying out of streets and roads through private property would authorize the laying out of streets and roads through such lands. So, in regard to the act of 1878, the provision above cited indicates that but for the prohibition the general power conferred by the statute to construct pipe lines would have authorized the construction of the same through cemeteries and burying-grounds. The inference to be drawn from the prohibition contained in said statutes against the invasion of cemeteries and grave-yards, is, that if the legislature, when it passed the act of 1887, now under consideration, had intended that cemeteries in the city of New York should not be taken for public parks, it would have expressly so declared, and would have inserted in the statute a positive prohibition against taking the same.

It is suggested by the. counsel for the appellant that, if the act had provided that the board of street opening might lay out as many parks in the city of New Yoi’k as it should from time to time determine, taking therefor any cemeteries and burying-grounds that the board might consider it advisable to take, the law would never have met with the approval of the legislature. This may or may not be so. The power conferred upon the city authorities by said act (chap. 320, Laws of 1887) to condemn lands for public parks, is substantially the same as was given to the city by the general act, chapter 86 of 1813. Indeed, many of the provisions of said act of 1887, and of similar statutes, are taken directly from said act of 1813. Now, the reports and records of the courts show that, in several proceedings instituted by the city under said act of 1813, and similar laws subsequently passed, parts of cemeteries have been condemned for streets and public parks. As far back as 1834, a portion of a cemetery belonging to Trinity Church was taken for the extension of Albany street. Later, under the same laws, a portion of the cemetery belonging to the Brick Presbyterian Church was taken for the extension of Beelcman street, and in later years a boulevard, several hundred feet in width, was extended directly through a cemetery in the upper part of the city, belonging to Trinity Church, cutting the cemetery completely in two parts, 'and rendering it necessary that the two parts should be connected by a bridge extending across the boulevard. It is stated by the counsel to the corporation, in his brief, that, in the extension of Lexington avenue, part of the burying-ground of the ILarlem Methodist Episcopal Church was taken ; and it appears by a statement, contained in the brief of the counsel for the appellant, that the board of education of this city, under the act, chapter 191 of the Laws of 1883, has recently acquired an old burying ground, situated between First and Second streets, and First and Second avenues, for school purposes; and in a number of other instances it is well known that portions of cemeteries in this city have been taken for public purposes under said statutes. Under these circumstances, it may be fairly presumed that the legislature which passed the act of 1887 was aware that, under similar statutes, portions of cemeteries and grave-yards had been repeatedly condemned. It is by no means certain, therefore, that if said act of 1887 had, in terms, authorized the taking of cemeteries for public parks, that it would never have met the approval of the legislature. On the contrary, in view of the proceedings which have been taken under similar statutes, and which are matters of notoriety, it is to be presumed that the legislature thought that, in some cases, it might be necessary and proper that old and disused cemeteries should be condemned for public parks, and that it might be safely left to the discretion of the board of street opening to determine in what cases this should be done; and it is to be presumed that, if the legislature had intended that no cemetery, nor portion of any cemetery, should in any case be taken for a public park, the statute would have contained a prohibition against such taking, similar to those found in the other statutes above referred to. At all events, whether the legislature would, or would not have passed the statute, if it had, in terms, authorized the condemnation of cemeteries, as matter of fact, it did pass the statute containing a power to condemn lands for public parks, as broad as that given by former statutes, under which portions of cemeteries have been condemned for streets, parks and other purposes; and if the failure to insert in the statute a prohibition against the taking of cemeteries for public parks was the result of an oversight on the part of. the legislature, or of a misunderstanding by it as to the extent of the powers conferred upon the city authorities, the defect in the statute must be remedied by the legislature itself, and not by the courts.

Again, the counsel for the appellant says that the constitutional provision, which allows private property to be taken for public use, embraces, such property only as can be used for the public; that there is no possible way in which the human remains contained in the cemetery can be so used, and, therefore, they cannot be taken; that decency, as well as the existing law, requires not that they should be used, but that they should be removed and reinterred in some suitable place; but that the power to do this is not given by the act, nor is it within the power of eminent domain.

It is quite true that such remains cannot be used for the purposes of a public park, and also that they cannot be taken by the city authorities under the power of eminent domain delegated to them by the legislature. The city authorities can, however, take the fee of the land, which is in the corporation of Trinity Church, and they can extinguish the right of burial in such land, however acquired and in whomsoever vested. It would seem that, as the land has been duly selected as a site for a public park, and proceedings for the condemnation thereof have been instituted, the relatives of persons who have been buried in the cemetery, or the church itself, which still owns the fee in the land, would feel called upon to cause such remains to be removed and properly reinterred. In case this shall not be done, common decency will doubtless require that the city authorities should cause such removal and reinterment. The relatives of the persons buried in the cemetery undoubtedly have authority to cause such removal -and reinterment, and the corporation of Trinity Church can easily acquire the same authority. (See chap. 215 of the Laws of 1842; chap. 349 of the Laws of 1873 and chap. 600 of the Laws of 1887.) The provisions of the two last-named acts are clear and explicit, and by proceeding in accordance therewith the church can exercise such power of removal and reinterment without the consent of the relatives of the deceased, and without any notice to such relatives beyond that required by the statute. In case neither the relatives nor the church shall cause such removal and reinterment, it will, undoubtedly, be the duty of the city authorities to cause such removal and reinterment; and there is no doubt but what the city authorities will have ample power in the premises. Such power is to be found in the general provisions of law which place all parks in the city under the control of the park department, and which authorize the board of estimate and apportionment to make annual appropriations for the construction and maintenance of public parks. It is also to be found in said chapter 320 of the laws of 1887, which authorizes said department to construct the parks acquired under that act, and which authorizes the issue of bonds to an amount not exceeding one million of dollars, each year, for the payment of all expenses to be incurred under the authority of the act, including the construction of such parks. The expense of the removal and of such reinterment must, of-course, be borne directly or indirectly by the city. If the removal and reinterment are taken charge of by relatives, or by the church, the expense incurred, or to be incurred, therefor will be one of the items of damages to be considered by the commissioners of estimate in making their awards. If the duty of causing such removal and reinterment is devolved on the city authorities, the expense thereof must be provided for either by an appropriation through the board of estimate and apportionment, or out of the proceeds of bonds provided for in section 10 of chapter 320 of the Laws of 1887.

The counsel for the appellant also claims that there is no authority to sustain the decision appealed from, and that it must rest upon the language of the statute conferring the power upon the board of street openings. As above stated, portions' of cemeteries have, in quite a number of instances, been condemned for public purposes under statutes whose provisions, so far as the question of the power to condemn is concerned, were substantially the same as those of said act of 1887. While it is true that there is no reported case, in which it has been expressly held that a statute, giving power to condemn any and all lands in certain portions of the city, includes the power to condemn cemeteries, it is equally true that there is no decision holding that such statute does not include that power. So far as the reported cases go, it does not appear that the objection lias ever before been taken that the statutes, under which condemnation proceedings have been instituted, did not confer the power to condemn cemeteries. " In the Matter of Albany Street (11 Wend., 149), it does not appear that any objection was made to the appointment of commissioners of estimate. In that proceeding a portion of a cemetery belonging to Trinity Church was condemned, and when the report was presented to the court, counsel for Trinity Church appeared .and objected, not that the statute did not authorize the condemnation of the cemetery, but that such condemnation was not necessary. The opinion of Chief Justice Savage indicates that the court entertained great doubt whether the decision of the corporation as to the necessity of the improvement could be reviewed, but it was held that, if it could be reviewed at all, such review could not be had at that late stage of the proceedings. It is to be presumed that if the learned counsel, who appeared for Trinity Church in that proceeding, had supposed that the statute did not confer upon the corporation the power to condemn a part of the cemetery, he would have made that objection, for as that objection would have gone to the jurisdiction of the court, to entertain the proceedings at all, it would.probably have been available at cmy stage of the proceedings.

In the Brick Church Case (3 Edw., 155), the chancellor declined to give his consent to a sale of the cemetery owned by that church to the city, because some of the vault owners objected to such sale. It appears, however, that a portion of the cemetery was subsequently taken for the extension of Beekman street, and the report of the referee as to the disposition of the award allowed to the property, as between the church and the owners of vaults and burial plots, is to be found in 4 Bradford’s Reports, page 503. The most that can be said upon this branch of the case is, that various proceedings have been taken, at different times, under different statutes, similar to the statute of 1887, for the condemnation of cemeteries or parts of cemeteries for public purposes. There is no reported case in which it appears that the objection of the want of power to condemn cemeteries, as well as other property, was raised, and there is, consequently, no decision to be found, either holding that the statute gave, or did not give, such power. If, therefore, we are to indulge in presumptions at all, it would seem that the fair and natural presumption is that if a proper respect for the remains of the dead, and the feelings of the living, require that cemeteries should never be taken for public purposes, every possible objection to such proceedings would heretofore have been raised; and the fact that no decision can be found holding that the objection of want of power was a valid one affords strong grounds for the presumption that such objection was never taken, and the further presumption that it was never taken because it was not considered available.

The fact that the board of aldermen urged upon the board of street opening the importance of taking this particular cemetery for a public park is not a valid ground of objection to the order-appointing commissioners. The legislature saw fit to vest in the board of street opening an absolute discretion as to what land should be taken under the act, and it appears that such discretion has been exercised. Whether the board of street opening was influenced in its action by the representations of the board of aldermen, or by representations made by any other board, or by any person not connected with the board of street opening,' is wholly immaterial. The order appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Order affirmed, with costs.'