text:
    Horace A. Reynolds, Individually and as Administrator, etc., of Celia A. Reynolds, Deceased, Respondent, v. William Penn Sisson, Appellant, Impleaded with Others.

      Tmstee — when chargeable with the profits resulting from his purchase of the trust estate — when a trustee is chargeable with interest — how computed —when not allowed for services.

    Where a trustee, the plaintiff in an action brought for the partition of certain real estate, upon the sale of such property, under the judgment recovered therein, purchases the property in his own name, and thereafter sells the same at a profit, upon his accounting as trustee he is properly chargeable with the profit realized on the transaction; one holding an interest in property as trustee is not entitled to retain as his individual property the profit realized upon the purchase and resale of such property by him.
    When a trustee improperly retains possession of trust funds and uses the same for his own purposes, he is properly charged upon his accounting with six per cent interest on the annual debit balances, compounding the interest annually. Where a trustee improperly brings an action in relation to the trust estate, he cannot, upon" his accounting, be allowed for his services rendered in it.
    Appeal by tbe defendant, William Penn Sisson, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of tbe county of Cayuga on tbe 29th day of March, 1893, upon tbe report of a referee.

      William, P. Bisson, appellant, in person.

      Fred. F. Btorlce, for the respondent.
   Lewis, J.:

'■ This action was brought by the plaintiff, as administrator of his mother’s estate and as the assignee of the interests of three of the devisees under the will of Almeron Durkee, deceased, to terminate a trust arising under a voluntary assignment by the plaintiff’s testatrix, the plaintiff and the defendants J. Frances Beane, Carrie Beane, Thomas and Horace T. Durkee to the defendant Sisson, and to compel an accounting by said trustee in respect to his receipts and disbursements under the assignment.

The action was referred and judgment was entered upon the report of the referee, and this appeal was taken by the defendant Sis-son, and comes here upon exceptions only, no ease having been made.

The facts found by the referee, so far as it is necessary that they should be stated for the purposes of this decision, are as follows : One Almeron Durkee departed this life in 1867, leaving him surviving five children, Morton E. Durkee, Celia A. Reynolds, Mary Durkee, Horace T. Durkee and J. Frances Beane. He left a last will and testament, which was duly admitted to probate, and letters testamentary were granted to William Alexander, the executor named in the will; the testator gave to his children the use of his estate during their lives respectively, and at the death of each life tenant to the heirs at law and next of kin of such life tenant.

A portion of the property devised was the, homestead known as the “ Durkee homestead,” consisting of a dwelling house and about seven acres of land, worth $2,000.

The affairs of the estate became somewhat involved, and as a result a judgment was rendered in favor of Jason Alexander, the administrator of the executor named in the will, against the five children mentioned, for the sum of $3,216.03.

The defendants in the judgment were persons of limited business capacity and ignorant of the proper means to be adopted to arrange for the payment of the judgment. They called upon the appellant, who was a law student at the time, and was afterwards admitted as. a lawyer. He resided in their neighborhood, and was a person in whom they all had confidence. They consulted with him as to the best means to be adopted to pay the judgment; the interview resulted in their executing and delivering to the defendant a written transfer and assignment of the entire interest of all the heirs in the estate with the exception of that of .Morton E. Durkee.

The assignment was absolute in its terms, but the defendant gave back a writing called a “ certificate of trust,” which stated, in substance, that whereas the persons named had united in conveying to him all their right and interest in said estate, he acknowledged that the assignment was made for the purpose of enabling him to raise the necessary money to satisfy the judgment mentioned, and for the further purpose of obtaining from Alexander an assignment of a judgment which he had recovered against Morton E. Durkee for $2,754.50, and that after payment to the defendant of a reasonable compensation for his services, the estate was to be restored by the trustee to the parties entitled thereto. These instruments bore date in January, 1887. The two judgments mentioned were based upon one and the same cause of action.

The defendant Sisson entered at once upon the performance of the trust, taking possession of the estate assigned, and very soon thereafter with his own funds he paid $2,258.39, which was the amount of the judgment remaining unpaid after applying a payment made thereon by the defendant Morton E. Durkee out of his own funds. He caused the judgment to be satisfied of record. The defendant received moneys belonging to the estate amounting to $11,000 or $12,000.

He mingled them with his own funds; neglected to keep any separate account thereof; he involved the estate in unnecessary litigation, instituting and prosecuting several actions and proceedings which were ill-advised and which resulted in large expenditures of the trust property and in ultimate defeat of the objects for which said actions and proceedings were instituted and prosecuted.

The trust was fully performed prior to the 1st day of October, 1888. Defendant refused to make any statement of his accounts as trustee, or to give the assignors any information relating to the trust; he, in effect, repudiated the trust created by the instruments aforesaid, and by dilatory px-oceedings hindered and delayed the assignors in their efforts to compel him to render an account; he gx'eatly exaggerated the importance off his services in the execution of the tx’ust, and made chai’ges therefor grossly in excess of what they wex’e reasonably worth.

His conduct toward the assignors was hostile and defiant; he claimed that he did not owe them anything, but, on the contrary, that they were indebted to him in a large amount.

One of the actions instituted by him was to partition the Durkee homestead mentioned in the will; the property was sold under the judgment of partition, and the defendant bid it in upon the sale in his own name for the sum of $1,200. He very soon thereafter sold it for $2,000.

He claimed that he was entitled to the $800 profit, and only accounted for the sum bid, $1,200. The referee charged him, and we think correctly, with the $800 advance on the sale of the homestead. Holding it as a trustee, he was not entitled to retain to himself the profit made upon the sale.

The referee found that there was a balance due from the defendant to the plaintiff of $3,693.30. In arriving at that sum, he charged the defendant with six per cent interest on annual debit balances, compounding the interest.

The defendant complains of this rate of interest, and suggests that the trust agreement did not contemplate investments of the funds, but that the trustee should hold them in hand so that they would be available for the payment of any costs and expenses which might arise and for the adjustment thereof among the assignors equitably. There would be some force to his claim were it not for the findings of the referee heretofore stated.

Having improperly retained possession of the funds and used them for his own purposes, there would seem to be no good reason why he should not pay the usual established rate of interest. Had the money been paid over to the beneficiaries, they presumably could have invested it at the legal rate of interest, and they could have invested the interest from time to time as it was received by them.

Mr. James Cox had charge, as attorney, of the litigation in which, the estate was improperly involved by the trustee; he was familiar with the amount of work done by the defendant in the prosecution of the cases. He was called as a witness, and the defendant sought to show by him the value of his, defendant’s, services.

The evidence was excluded and the defendant excepted. The referee allowed the defendant five per cent commissions upon the amount of money received by him belonging to tbe estate, which amounted to the sum of $596.50.

He did not allow anything for the labor of the defendant in the actions commenced by him; having determined that they were improperly prosecuted, he could not with any propriety have found that the defendant’s services were of any value to the estate. Having so determined, no harm resulted to the defendant from the exclusion of the evidence of Mr. Cox. We have examined all of the exceptions of the defendant and find nothing in them calling for a reversal of the judgment.

The judgment should be affirmed, with costs.

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

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Annie M. Keating, Respondent, v. William B. Hayes, Appellant.

      Order obtained by fraud •— vacated upon proof thereof.

    "Where an order of the court, opening the defendant’s default in an action and permitting him to answer, is obtained by fraud, such order is properly vacated by the court upon proof of the fraud on the part of the person obtaining the same.
    Appeal by the defendant, William B. Hayes, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 17th day of April, 1893, vacating an order entered in said clerk’s office on the 29th day of April, 1891, opening a default, striking out the defendant’s answer and directing that the judgment entered in said clerk’s office on the 31st day of January, 1891, stand as the final judgment in the action.

      Eugene Va/n Voorhis, for the appellant.

      Joseph W. Taylor, for the respondent.
   Lewis, J.:

The plaintiff, as the owner and holder of a promissory note made by the defendant, dated October 27, 1887, payable to the order of the plaintiff, for the sum of $2,000, brought an action thereon against the defendant by the service upon him of a summons and complaint.

Defendant made default, and judgment was entered against him in favor of the jfiaintiff for the amount of the note.

Thereafter the defendant made a motion to vacate and set aside the judgment, upon the ground that the summons and complaint were never, in fact, served upon him, but were served upon his brother,- Joseph J. Hayes.

The motion was denied, and he then made a motion for an order opening the default and permitting him to answer, which motion was granted.

The order, however, provided that the judgment might stand as security. The latter motion was founded upon what purported to be the affidavits of the defendant and his brother, Joseph J. Hayes, purporting to be verified on the 15th of April, 1891, before a notary public in and for the county of New York. The.defendant thereupon served his verified answer denying all of the allegations of the complaint. The defendant was thereafter indicted, tried and convicted in the city of New York of the crime of perjury, in verifying the said affidavit, and was sentenced to imprisonment in State prison for the term of eight years, and is now serving such sentence.

After the trial and conviction of the defendant, plaintiff made a motion to vacate and set aside the order aforesaid opening the default of the defendant and allowing him to serve his answer.

It was made to appear to the court, by the affidavits read upon said motion, and by an inspection and comparison of signatures presented to the court, that the said order opening the defendant’s default was procured by the defendant’s practicing fraud and deception upon the court, in the use upon the motion of papers purporting to be affidavits made by the defendant and his brother which had not in fact been verified.

It was also made to appear that a paper which purported to be the affidavit of Jose|fii J. Hayes, and used upon said motion by the defendant, was never in fact signed or verified by him. These fictitious papers formed the basis of the order opening the default.

These facts being made to appear to the satisfaction of the court, the order appealed from was granted vacating and setting aside the order opening said default and striking out the answer, and directing that the judgment stand as the final judgment of this action, and that the same be enforced in the usual manner.

It would certainly have been a travesty upon the administration of law to have permitted the defendant to retain and enjoy the benefits of an order which he obtained by practicing upon the court fraud and imposition.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

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

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


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    Charles Murch, as Administrator, etc., of Charles Murch, Deceased, Appellant, v. The Western New York and Pennsylvania Railroad Company, Respondent.

      Locomotive engineer — 7m duty upon discovering a human being on the tráete.

    It is not the duty of an engineer on a locomotive running on a steam railroad to slow up or stop his train upon seeing an object on the track 400 or 500 feet distant before he becomes aware that such obj ect is a human being. He has the right to assume in the first instance that if it is a man he will leave the track, but when he discovers that the trespasser is not aware of the approach of the train, it is his duty in good faith to do all that he reasonably can to avert the disaster.
    Appeal by tbe plaintiff, Charles Murch, as administrator, etc., of Charles Murch, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 8th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Monroe Circuit.

      John H. JJophins, for the appellant.

      Frcmk Rumsey, for the respondent.
   Lewis, J.:

The deceased wandered upon the defendant’s track in the city of Rochester, and either fell or voluntarily laid down upon the track and went to sleep. He was intoxicated at the time.

He had been seen a short time before, walking along by the side of the track, staggering like a drunken man. He was run over and killed by one of defendant’s trains of cars, which was running into the city of Rochester upon the track upon which the deceased was. lying.

It was in the middle of the afternoon and was snowing at the time.

The engineer, fireman, conductor and one of the brakemen were upon the engine at the time. There was one other brakeman upon the train and he was on one of the cars. Six freight cars composed the train.

When the engine had reached a point about 400 to 500 feet distant from the deceased, the brakeman upon the engine' discovered an object upon the track, but was not able to determine what it was. He called the engineer’s attention to it, and he was not able to distinguish what it was until the engine had reached a point about six or eight cars’ length of the object, a distance of about 200 or 250 feet, when he discovered that the object was a man. The engineer immediately reversed his engine, gave the signal to apply the brakes, and did everything he could to stop the train, but failed to do so until the engine and two cars had passed over the deceased.

There was quite a sharp curve in the track at the place of the accident. The engineer’s place upon the engine was upon the other side of the track from where the deceased was lying.

This fact, and the falling snow, probably prevented his seeing the deceased as soon as he otherwise might.

The deceased was lying upon the company’s land between two highway crossings. There is no evidence that the train was running at an improper rate of speed, nor that anything was omitted by the persons having charge of the train to avert the disaster after it was known that the object upon the track was a man.

It cannot, with any propriety, be claimed that it was the duty of the engineer to slow up or stop his train before he became aware that the object upon the track was a human being. He had the right to assume in the first instance that if it was a man he would leave the track. "When he discovered that the trespasser was not aware of the approach of the train, it was his duty, in good faith, to do all he reasonably could to avert the disaster.

The plaintiff failed to show that the employees in charge of the train were guilty of any negligence in its management after they became aware of the peril.

It is suggested by the appellant’s counsel that the brakeman, who was shown to have been upon the engine, should have been upon one of the cars; that if he had been he might have assisted in stopping the train by applying the brake.

It was not shown that the brakeman who was on one of the cars had time to apply the brake after the danger signal was given, and before the engine reached the deceased.

The plaintiff did not furnish any facts from which the jury would have been justified in finding any negligence on the part of the defendant in failing to stop the train sooner than it did.

Ve fail to find in the case any evidence of negligence on the part of the defendant which would have justified the jury in giving the plaintiff a verdict, had the case been submitted to them.

The judgment should be affirmed.

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

Judgment appealed from affirmed.


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    Vincent M. Allen, Appellant, v. Edward C. Lardner and Others, Respondents.

      Infant — necessaries for which he must pay — when he may disaffirm a bond and mortgage —when restoration by him is unnecessary.

    The necessaries which an infant may- be compelled to pay for, if he has agreed to do so, are supplies, which are personal, either for the body, as food, clothing or lodging, or those necessary for the proper cultivation of the mind, as suitable instruction, etc.
    A house was built by contractors upon land owned by an infant, pursuant to a contract made with the infant, who furnished a portion of the materials, and did some of the work upon the building. The infant executed a bond and mortgage covering such land to the contractors to secure the cost of the erection oí such house, and thereafter, when he became of age, disaffirmed the said bond and mortgage upon the ground of infancy.

      Held, that the bond and mortgage could be avoided on the plea of infancy ;
    That upon disaffirming the bond and mortgage no restoration by the infant was necessary.
    Appeal by tbe plaintiff, Yincent FL Allen, from a judgment of tbe County Court of Niagara county in favor of tbe defendants, entered in tbe office of tbe clerk of tbe county of Niagara on tbe 25th day of November, 1893, upon tbe decision of tbe court dismissing tbe plaintiff’s complaint.

      Charles M. Southworth, for tbe appellant.

      Washington EC. Hansom, for tbe respondents.
   Lewis, J.:

This action was brought to foreclose a mortgage upon real estate in tbe county of Niagara, and was tried before tbe county judge, and be found as facts that tbe defendant Edward C. Lardner was tbe owner of a lot in tbe city of Lockport; that be was engaged to be married to tbe defendant Ida 1VL, and, in contemplation of such marriage, and for a home for bis wife and himself after such marriage, be entered into a contract with James A. Williams and John C. Fogle to build a house on said lot for tbe consideration of $88J ; that tbe contractors built such bouse, and completed tbe same about April 13, 1891; that a part of tbe labor and materials for tbe construction of the bouse were furnished by Edward C. Lardner. Tbe bouse was worth tbe contract price, and was a suitable one for tbe home of tbe defendants. Tbe bond and mortgage in suit were given by Lardner and wife to the contractors to secure them for tbe building of the bouse. The defendants Lardner were married December I, 1891, and moved into and occupied tbe bouse from tbe time of its completion until tbe month of April, 1893, when they moved out of tbe bouse and leased tbe same to another occupant. The bond and mortgage were duly assigned to tbe plaintiff January 4, 1892. No part of the debt has been paid except fifty dollars. Tbe defendants were infants at the time of the making of tbe contract and of the execution and delivery of tbe mortgage. Tbe defendant Ida became twenty-one years of age April 28,1892, and Edward became twenty-one years of age November eighth of the same year. The contractors did not know that the defendants were minors at the time they executed the bond and mortgage. The contractors guaranteed the payment of the bond and mortage when they assigned it. Neither of the defendants in any way ratified the bond and mortgage after they arrived at the age of twenty-one years. The mortgage was given solely to secure the debt of Edward; no part thereof was for any indebtedness of Ida. Edward, after becoming of full age, and immediately after demand was made upon him for payment of said bond and mortgage, disaffirmed the same, upon the ground of his infancy when the same was given.

The court found as conclusion of law that the defendants were not liable upon the bond and mortgage; that they had sufficiently disaffirmed the same, and dismissed the complaint.

The, findings of facts are sustained by the evidence. It cannot be successfully maintained that the house was a necessary for the infant. We are not aware of any decision giving so broad a construction to the word necessaries.” They refer to supplies, which are personal, either for the body as food, clothing, lodging, or those necessary for the proper cultivation of the mind, as suitable instruction, etc. (Tupper v. Cadwell, 12 Metc. 559 ; Freeman v. Bridger, 4 Jones L. [N. C.] 1; McCarty v. Carter, 49 Ill. 53; West v. Greggs’ Admrs., 1 Grant [Penn.], 53 ; Hassard v. Rowe, 11 Barb. 22 ; Putnam v. Ritchie, 6 Paige, 390.)

To hold that a dwelling house comes within the definition of necessaries would make an infant liable for the purchase price of any property necessary for the cultivation of his land, or for the carrying on of any business in which he might be engaged.

It is the contention of the appellant that the defendants, in order to avail themselves of the plea of infancy, should have restored the consideration. The house was built upon a lot belonging to the defendant Edward, and a portion of the materials and some of the work upon the building were furnished by him. Manifestly he could not restore the house without surrendering the possession of the land upon which it stood, and also the materials furnished by him and the labor he had bestowed upon the house, which would have amounted to his surrendering that which he did not receive from the contractors. Such a rule, instead of protecting the acts of infants, would work to their disadvantage, and would extend their liability beyond that which would be required of them if they were adults. (See Hassard v. Rowe and Putnam v. Ritchie, supra.) We find no reason for disturbing the judgment. It should be affirmed, without costs of the appeal.

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

Judgment of the County Court of Niagara county appealed from, affirmed, without costs of this appeal to either party.


text:
    Sarah E. Kane, Plaintiff, v. Lura E. Aldridge, Defendant.

      Action to recover money alleged to be held for plaintiff’s use — when a judgment of nonsuit is properly granted.

    If the plaintiff, upon the trial of an action brought to recover a sum of money which the complaint alleged was held and received by the defendant for the plaintiff’s use, fails to prove what amount of money had been received by the defendant, or, if the defendant received any money, fails to prove that it was received with an express or implied agreement to pay the same to the plaintiff, a cause of action is not established and a judgment of nonsuit is properly granted.
    Motion by the plaintiff, Sarah E. Kane, for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance, upon a judgment of nonsuit granted by the court after a trial before the court and a jury at the Monroe Circuit.

      Eugene Yarn, Yoorhis, for the plaintiff.

      P. Ohamberlam,, Jr., for the defendant.
   Lewis, J.:

This action was brought to recover $1,380, which the plaintiff alleged was had and received by the defendant to the use of the plaintiff. It appeared from the pleadings and proof that the plaintiff was one of the heirs at law, and a legatee named in the will of Sarah A. Aldridge, deceased, which will had been duly admitted to probate ; that Walter S. Aldridge was the executor named in the will, and that letters testamentary were duly issued to him; by the terms of said will the testatrix gave and bequeathed to each of her heirs, five in number, the plaintiff being one of the five, the proceeds arising from a sale of the land and premises known as her homestead, in the city of Rochester, the proceeds to be divided equally, share and share alike, after the sale; the executor was, by the will, authorized to sell and convey the real estate for the best price he could obtain therefor; that the plaintiff thereafter conveyed her interest in the property to the defendant in order to facilitate the sale thereof. The conveyance was without consideration; the property was thereafter conveyed by the defendant and the other heirs to one Ashton; Aldridge, as executor, executed and delivered to the purchaser, Ashton, a deed of said premises; the proceeds of the sale were paid to the defendant; the plaintiff duly demanded of the defendant her portion of the proceeds before the commencement of the action.

After proving the foregoing facts the plaintiff rested her case. Upon a suggestion from the court that he was about to nonsuit the plaintiff, her counsel offered to show that, prior to the executor’s deed of the property in question, Walter Aldridge applied to the plaintiff and asked her to give a quit-claim deed of these premises to the defendant Lura, and told her it was to enable him to facilitate the sale of the property and that when the property was sold she should be paid her share of the money, and that in pursuance of that arrangement she did execute such a deed to Lura, receiving nothing therefor; that Walter Aldridge conveyed the property as executor and permitted Lura to take the money, and she has never turned over any share to the plaintiff.

“ The business was done by Philetus Chamberlain, who was the attorney for Walter Aldridge, as executor, and also Lura. He sent the deed to Walter Aldridge to California to be executed, delivered the deed on its receipt by him, received the money and paid it over to Lura.”

The court excluded the offer and the plaintiff excepted.

There was no proof that the defendant received the proceeds of the sale of the plaintiff’s interest with any understanding or agreement with any one that she would hold them for or would pay them, or any part of them, to the plaintiff. The case is barren of any evidence showing what amount was received from the sale of the property, or what sum, if any, was paid to the defendant by the executor. The executor was called as a witness and denied that he had paid anything to the defendant.

Note. — The rest of the cases of this term will he found in the next volume (79) Hun.— [Rep.

The plaintiff produced upon the trial and had marked for identification an account of the executor filed in the surrogate’s office, which contained a statement of the amount received for the sale of the property, but the account was not offered nor received in evidence.

The plaintiff having failed to prove what amount of money had been received by the defendant, or, if she received any money from the sale of plaintiff’s share, that it was received with an express or implied agreement to- pay the amount to the plaintiff, failed to establish a cause of action, and was, therefore, properly nonsuited.

It is consequently not necessary to examine the question whether, if the amount paid to the defendant had been shown, the facts would have justified a verdict for the plaintiff.

The motion for a new trial should be denied and judgment directed for the defendant on the nonsuit.

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

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.


author: Lewis, J.: Haight, J.

text:
    Edwin G. S. Miller, Appellant, v. Solomon Eheinzweig and Others, Respondents.

      “Incumbrances” — when “taxes” are not included therein — construction of a contract — when extrinsic evidence may be given to aid the construction thereof.

    "While, in a general sense, the word “ incumbrances ” will be held to include a tax, it is not generally used in that sense in conveyances, in which, if it is desired to provide against the lien of taxes, assessments and incumbrances, all of such words are used.
    It is the duty of a court to construe a contract in such a way as to give force and validity to all its parts and the language used therein, if it be possible. When a contract is ambiguous and uncertain extrinsic evidence is admissible to aid in the construction thereof, and the facts surrounding the making of such contract and the practical construction given thereto by the acts of the parties in carrying it out, aTe important aids in construing the same.
    (Haight, J., dissenting.)
    Appeal by the plaintiff, Edwin G. S. Miller, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 2d day of March, 1893, upon the decision of the court rendered after a trial at the Erie Special Term.

      Fremk O. Ferguson, for the appellant.

      Tracy O. Becker, for the respondents.
   Lewis, J.:

Tliis action was brought to foreclose a land contract made by one Baptist Kahabka, as the party of the first part, and the defendants, as parties of the second part.

The defendants had organized themselves into an unincorporated company or syndicate called the “ Arthur Avenue Land Company,” for the purpose of purchasing the land described in the contract, and subdividing it into lots, and placing them upon the market for sale. There were about ten acres of it, and it was located in the city of Buffalo. The vendor, Kahabka, transferred his interest in the contract to the plaintiff. The sole question litigated upon the trial was as to which of the two parties was obligated by the contract to pay the paving tax, amounting to $1,542.39, which was a lien upon the land at the time of the execution and delivery of the contract.

The trial court held that it was incumbent upon the plaintiff to pay the tax, and from an interlocutory judgment entered upon that decision this appeal was taken.

The contract bears date January.5, 1887. The party of the first part agreed to sell to the parties of the second part the land described in the contract, for the sum of $21,252.00, which said parties of the second part hereby agree to pay as follows : Not less than $1,000 on or before the tenth day of January, 1887, and balance in such weekly sums as shall be derived by said second parties from the sale of lots or parcels of said premises.” The parties of the second part agreed to use their best endeavors to sell lots and parcels of the premises, and pay to the credit of the party of the first part all sums received from such sale over and above running expenses, and they guaranteed that the payments should not be less than $300 every three months. Of the quarterly payments specified in this contract at least 75 per cent shall be applied on the incumbrances now resting on said premises until the same are fully paid, and the treasurer of the purchasers is hereby authorized to pay said 75 per cent upon such incumbrances when ever said 75 per cent shall amount to the sum of $300 and upwards. The party of the first part further agrees to give deeds of subdivision lots of said premises free and clear of all liens and incumbrances now resting thereon or placed thereon by the party of the first part whenever said lots shall be sold, and the purchase price applied in full on this contract, provided that the prices so paid and applied shall not be less than $12.00 per foot front on Walden avenue, and $10.00 per foot front on Kahabka avenue, and $8.00 per foot front on Doat street.” Said second parties agreed to pay interest semi-annually on portions of the principal sum remaining from time to time unpaid. Said parties of the second part also agree to pay all taxes and assessments which shall be levied or assessed on said premises after the date hereof, but said party of the first part hereby guarantees that all taxes and assessments heretofore levied or assessed are fully paid, except the paving tax on Walden avenue.” Then follows a provision to the effect that whenever the sum of $5,000 shall be paid upon the contract the vendor will, at the option of the parties of the second part, give a deed of such portions of the premises not theretofore deeded and take back a purchase-money mortgage, which mortgage shall contain the same covenants and conditions as are contained in the contract. The vendor agrees to give releases of subdivision lots of said premises from the operation of such mortgage upon the same conditions as are provided in the contract for the giving of deeds. The only remaining part of the contract material to the question before us is as follows: And said party of the first part, upon receiving payment at the time and in the manner above mentioned, shall, at his own proper cost, execute and deliver to said second parties or to their assigns a warranty deed of said premises for the portion thereof not theretofore deeded, at the request of said second parties, free and clear of all liens and incumbrances, except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the aforesaid paving tax on "Walden avenue.”

The provisions of the contract upon which the defendants rely to sxistain their contentions are : First, that the consideration they were to pay for the property is stated' in the contract to be $21,252. They insist that if they are held to be liable to pay the tax, the amount of the tax will be added to the purchase price, and they, further insist that the tax was an incumbrance upon the land within the meaning of the contract, and they call attention to the provision permitting them to apply seventy-five per cent of their payments upon the incumbrances, and further to the clause providing for the giving of deeds of subdivision lots free from all liens and incumbrances upon payment of tbe prices per foot mentioned, and also tbe clause in the contract providing for the vendor giving a deed of the property upon payment of $5,000, and taking back a mortgage for the unpaid purchase price, the mortgage to contain like conditions as to releases as.are provided for in the contract. Were it not for other provisions in the contract it would be difficult to resist the defendants’ contention. The strength of the defendants’ case must, we think, mainly rest upon the clause mentioning the consideration to be $21,252. If, however, upon a reading of the whole contract, it shall appear that the sale was made subject to the paving tax, the importance of this provision disappears. If, upon reading the entire contract, it fairly appears that the land was sold subject to the paving tax, then there is no ground for the defendants’ contention. While, in a general sense, the word “ incumbrances ” would be held to include a tax, it is not generally used in that sense by scriveners in drawing contracts. When it is desired to provide against the lien of taxes, assessments and incumbrances all of those words are used, and the person who drew this contract thought it was necessary to mention them all. What the incumbrances were the contract fails to state, but we learn from the evidence that there were two mortgages which were liens upon the property; one was held by a Mr. Werner and was for $12,000; the other was owned by the plaintiff and was for $5,000. Whether the clause of the contract providing for the deeding of subdivision lots free and clear of all liens and incumbrances was intended to cover the tax in question depends, as before stated, upon the intention of the parties, as expressed by the contract.' If the sale was in fact subject to the tax this clause amounts to nothing. It does not occur to us that the clause giving the defendants the option to apply seventy-five per cent upon the incumbrances strengthens the defendants’ contention. That clause manifestly was inserted for the protection of the defendants. It provided that they might personally make the application of the séventy-five per cent upon the incumbrances, and not trust to the responsibility or good faith of the vendor to make such application. It appears from the evidence that the paving tax could have been paid in five equal annual installments if the installments had been paid when they became due, but that was not done, and hence the entire tax became due at once; and while the holders of the mortgages might be willing, to accept payments of principal at any time, the paving tax could not be thus paid, and if it were not paid within the time provided by the charter the land was liable to be sold for the tax. That being the situation of the tax, it is not probable that the parties understood that this tax was included in the clause relating to the payments upon incumbi’ances. We do not see that the clause as to the deeding of the premises upon the vendees paying the sum of $5,000 is of any particular importance in the case, for, as we have seen, the mortgage given for the unpaid purchase price was to contain the same covenants and conditions as were provided by the contract. If these provisions of the contract upon which the defendants rely were all there are bearing upon the question, we would probably not hesitate to affirm the judgment; but they are not. There are other portions of the contract having a material bearing upon this question, and it is our duty to construe the contract in such a way as to give force and validity to all of its parts and the language used, if that is possible. (Pars, on Cont. 622.)

This paving tax is referred to but twice in the contract, and we have heretofore quoted the provisions in which it is mentioned. In neither instance was it necessary to refer to it if the construction contended for by the respondents is the correct one. It first appears in the clause where the vendor guarantees that all the taxes and assessments levied or assessed upon the property at the date of the contract are fully paid, “ except the paving tax on Walden avenue.” If this tax was to be paid by the vendor there does not seem to have been any necessity or propriety in mentioning the exception. Again, upon the defendants’ theory of the case it is impossible to give full force and effect to the last clause of the contract heretofore quoted, providing for the vendor giving a deed of the premises upon receiving full payment of the purchase price free and clear of all liens and incumbrances “ except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the aforesaid paving tax on Walden avenue.” Unless the words last quoted are meaningless, they must be construed, we think, in favor of the plaintiff’s contention. The vendor would have fully complied with the requirements of the contract on his part, so far as the form of his deed is concerned, if he had tendered to the vendees a warranty deed containing a covenant against all liens and incumbrances upon the property at the date of the contract, “except the aforesaid paving tax on Walden avenue.” The scrivener who drew the contract failed to express as clearly as he should have done the obligations of the respective parties touching this tax. The contract is so worded as to leave its construction in some doubt. It was so considered upon the trial, for both parties, without objection, introduced extrinsic evidence as to what was said and done while the contract was being prepared, and what occurred subsequently, with a view of showing the intention of the parties when they made the contract. Its meaning is perhaps so ambiguous and uncertain as to have made the introduction of extrinsic testimony proper. The facts surrounding the making of a contract and the practical construction given thereto by the acts of the parties in carrying it out are frequently important aids in construing it. A careful examination of the extrinsic facts in this case has strengthened our views of the true meaning of the contract. As before stated, there were two mortgages which were liens upon the land at the time of the sale, and there was in addition this paving tax. The defendants, after obtaining the contract, commenced the sale of lots, making payments from time to time to the vendor, and applying upon the mortgages seventy-five per cent of their payments. They sold a portion of the land fronting upon the paved street, with an understanding with the purchaser that he should take it subject to its proportion of this paving tax. They fail to explain why they were requiring their vendee to assume a portion of a tax they were under no obligations to pay. Kahabka testified, and in this respect his evidence was not contradicted, that he applied to the defendants from time to time to pay this tax; that they replied that they had not the money to pay it, and would be obliged to make an assessment upon their stockholders to raise the money. He says that he thereafter paid the tax, and that the defendants reimbursed him for the whole amount that he paid. The secretary, Chilcott, one of the defendants, testified as follows: “ Our company has paid that tax. We gave Mr. Kahabka money to pay part of it, and part of it I paid direct.” The defendants in making their payments to Kahabka while he owned the contract, and to the plaintiff after he became the owner thereof, paid interest upon the balance due without taking any account of tlieir having paid the tax, paying interest from their standpoint upon the amount of this tax, $1,542.39, which they were under no obligation to pay. Two years after the date of the contract, and after a number of payments had been made thereon to Kahabka, lie applied to the plaintiff to purchase the contract, and the plaintiff required him to obtain a statement from the defendants of the amount that was unpaid thereon, and Kahabka applied to the secretary of the company, Mr. Chilcott, for such a statement. Chilcott furnished it and Kahabka used it with the plaintiff in making the sale. The plaintiff testified that he relied upon it as showing the true amount due from the defendants upon the contract. It showed the amount due upon the contract over and above the amount unpaid upon the two mortgages to be $3,736. If the amount of the tax were charged as a payment upon the contract the .amount due was only $2,293.61. The account, as appears from the evidence, was copied_ from the defendants’ books, and contained some thirty odd items on both the credit and debit side of the account.

The first -item upon the account is: “ To purchase price of land ”................................ $21, 252 00
The next entry is: “ To expense ”................. 4, 547 52
■-» -
$25,799 52

The latter sum is made up as appears from the statement of eight different items, of which this paving tax of $1,542.39 is the first, and then appear the following:

To amount paid on sidewalk..................... ' $284 92
do. water pipes................... 230 15
do. surveying.................... 40 00
do. interest...................... 1,640 15
do. city and county tax............ 198 24
do. commissions, secretary’s salary, etc........................ 553 01
cash on hand................. 58 66”

These sums added make the amount of the expense item mentioned $4,547.52. From this it appears that the paving tax was included with other items which legitimately belong to the expense of carrying the property. Immediately' over these expense items in the statement is the entry: “ To amount paid on contract, $4,300.” This is significant evidence that the secretary understood that the defendants were obligated to pay the tax. This statement, as we have seen, was taken from the books of the defendants, and there is an absence of any evidence from them showing that they were ignorant of the contents of their books. The defendants were all interested in this enterprise, and we must assume that they were familiar with the condition of the account and of what their books showed as to the amount of their indebtedness, and it would seem to follow that they must have understood that this paving tax was a part of their expense in connection with the purchase of the land. John F. Smith, one of the defendants, testified that he knew that the account was given to Miller, and that he thereafter as treasurer from time to time paid the plaintiff the interest on the balance due without deducting therefrom the paving tax, and that he had made like payments to Kahabka before he assigned the contract to the plaintiff. There were several witnesses called who testified as to what occurred at the time of the drawing of the contract. The attorney who prepared it testified that the talk on the part of all the parties was that the company was to pay this Walden avenue paving tax. He says: “ There was no controversy. * * * It was thoroughly understood as much as any proposition could be possibly understood, * * * and that talk was participated in by everybody connected with it.” The testimony of Kahabka and Mr. Floss, who is one of the defendants, corroborated the testimony of the attorney. Several of the defendants were called as witnesses and testified that they were present at the time the contract was being prepared; that the question came up as to who was to pay the tax, and that the attorney who was preparing the contract replied that Kahabka was to pay it and would pay it. In view of the conduct of the defendants in relation to the tax, as heretofore stated, their recollection as to the conversation at the time of the making of the contract is manifestly incorrect. With a view of breaking the force of the very significant fact that the defendants voluntarily continued to pay interest to the holder of the contract upon an amount without deducting the tax, the defendant’s counsel became a witness on the trial, and, under objection from the plaintiff’s counsel as to its competency, testified that he was consulted by the defendants as to the sub-contract above referred to, which they had made with a purchaser for a portion of the property fronting upon the paved street, with the view of ascertaining whether they could compel their vendee to pay his proportion of this paving tax, it not having been provided in the written contract that the vendee should pay it. The counsel testified that after having advised them in reference to that question they asked his opinion as to which party was obliged to pay the tax in question, and he says he was informed that the defendants had already paid the tax to Mr. Kahabka. He testified that he advised the defendants that the construction of the contract was somewhat doubtful in that respect, but that in his judgment they were not obliged to pay the tax; and he further testified as follows: I advised them that they could go on making these payments, and when the time came that there was only so much due on the contract as would be sufficient to meet this paving tax then they could offset the paving tax with interest as a payment on the contract. They wanted to raise the question then. I said, ‘ No ; you have got to ask these people for releases. You cannot sell that land without you get releases; and the minute you get into any row about this paving tax this question of releases will come up, and they will shut down on you about giving releases, and, therefore, I should advise you to go on and pay this as long as you can, and not have any row with these folks, and when the matter is finally determined why you can offset it, or claim it as a payment of so much money advanced on the contract under the lien and incumbrance clause in the contract.’ ”

It is difficult to resist the conclusion, from all the evidence in the case, that the defendants, up to the time of receiving this advice from their counsel, fully understood that they were obligated to pay the tax. If, as the defendants now claim, their statement of the account furnished Kahabka was incorrect, and the paving tax should have been credited to the defendants, both Kahabka and the plaintiff were misled by the statement furnished, and the plaintiff was induced to pay Kahabka for the contract the amount of the paving tax more-than was actually due thereon.

In view of all the facts and circumstances of the case we are persuaded that it was the understanding and. intention of the parties when they made the contract that the land was sold subject to this tax, and that the defendants were obligated to pay it.

It follows that the judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

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

Haight, J.

(dissenting):

This action was brought to foreclose a land contract. The defendants claim credit for the sum of $1,542.39 paid to the city of Buffalo, being the amount of taxes assessed against the premises contracted for, for the paving of Walden avenue. These taxes were duly levied and assessed on the 16th day of August, 1886, and then became a lien and an incumbrance thereon. Hnder the provisions of the charter then in force the tax could have been paid in five equal annual installments, but upon the failure for two months to pay any installment the whole assessment became due by operation of law, and thereafter drew interest at the rate of one per cent a month. The owner of the land had failed to pay the first installment, so that when the contract was executed the whole assessment in question was overdue and payable, and the land was liable to be sold therefor. The contract for the sale of the land was made on the 5th day of January, 1887, and the only question to be determined is as to whether this tax is to be paid by the vendor or the vendees.

The contract, after giving the names of the parties, Witnessetli, that said party of the first part has agreed to sell and does hereby agree to sell unto said parties of the second part, their heirs and assigns, all that certain piece or parcel of land (particularly describing the same) for the sum of $21,252, which said parties of the second part hereby agree to pay as follows: Not less than $1,000 on or before the 10th day of January, 1887, and the balance in such weekly sums as shall be derived by said second parties from the sale of lots or parcels of said premises. Said second parties hereby agree to use their best endeavors to sell lots and parcels of said premises, and all sums received by them from such sales over and above necessary running expenses shall be paid weekly to the credit of said first party hereto, and said second parties hereby guarantee that such payment shall not be less than $300 every three months. Of the quarterly payments specified in this contract at least 75 per cent shall' be applied on the incumbrances now resting on said premises until the same are fully paid, and the treasurer of the purchasers is hereby authorized to pay said 75 per cent upon such incumbrances whenever said 75 per cent shall amount to the sum of $300 and upwards.”

It appears that at the time of the executing of this contract the premises were incumbered by two mortgages, one for $12,000, and the other for $5,000, and the Walden avenue paving tax, $1,542.39. We thus have the covenant on the part of the vendor to sell for $21,252.' We have a covenant on the part of the vendees to purchase the premises and pay therefor that sum, and no covenant nor agreement on their part appears in the contract to pay a,ny other or greater sum. .It appears that the defendants purchased the premises for the purpose of again selling it in small parcels or building lots, and that the payment of the purchase price was to be made out of the sales so made by the defendants, they guaranteeing, however, that the payments should not be less than $300 per quarter; but it is provided that seventy-five per cent of such payments shall be applied upon the incumbrances resting upon the premises and that such payments shall be made by the defendants’ treasurer. The word “'incumbrances” is used, and that word as ordinarily understood includes the taxes as well as the mortgages that were at that time a lien on the premises.

Again, the contract provides: Said parties. of the second part also agree to pay all taxes and assessments which shall be levied or assessed on said premises after the date hereof.” Here we have an express provision that, as to the taxes thereafter to be levied or assessed, they are to be paid by the defendants, but nothing in reference to the taxes then a lien, thus leaving the inference that it was not intended to include the taxes theretofore levied.

Again, it is provided: Said party of the first part hereby guai*antees that all taxes and assessments heretofore levied or assessed are fully paid except the paving tax on Walden avenue.” This clause was doubtless inserted for the protection of the defendants. They are apprised by it of the existence of the Walden avenue tax, and the vendor guai’antees that all the other taxes ai’e fully paid. So far, the provisions of the contract seem to be in harmony, and under the well-settled rules of construction, giving to words tlieir ordinary meaning, it would seem to be tbe intention of the parties to have the Walden avenue tax paid out of the proceeds of the sales of lots, as one of the incumbrances existing upon the premises.

We now approach the consideration of the troublesome provision. It is provided that whenever $5,000 should be paid upon the contract, the defendants, at their option, were entitled to have a deed given to them of the premises not theretofore conveyed, and that they should give back a mortgage for the amount of the purchase price unpaid, which mortgage “ shall contain the same covenants and conditions as are contained in this contract,” and then “ said party of the first part, upon receiving payment at the time and in the manner above mentioned, shall, at his own proper cost, execute and deliver to said second parties, or to their assigns, a warranty deed of said premises for the portion thereof not theretofore deeded at the request of said second parties, free’and clear of all liens and incumbrances except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the aforesaid paving tax on Walden avenue.” Under this provision the argument is made.that a warranty deed free and clear of all liens and incumbrances was to be given, except the aforesaid paving tax on Walden avenue, from which the inference is drawn that it was the understanding that that tax was to be assumed and paid by the defendants, but such is not the reading of the provision. A warranty deed free and clear of all liens and incumbrances is to be given, “ except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the aforesaid paving tax on Walden avenue.” Here we have two exceptions. Was it intended that both of the exceptions should be to the covenant contracted to be contained in the deed? If so, they should have been connected with the copulative conjunction and, but the clauses are not so connected. Grammatically construed the latter exception would be to the exception that precedes it. But the court has the power to supply words and phrases if necessary to give effect to the intention of the parties. Should the necessary word be supplied in this cáse so as to make both exceptions relate to the covenant ? This intention must be determined from all of the provisions of the contract. As we. have seen, upon the payment of $5,000 of the purchase price, the defendants, at their option, were entitled to demand a deed. True, here is a provision that the deed should be a warranty deed, free and clear of all liens, and yet, evidently, it was not the intention of the parties that all the liens should then be discharged, for the payment of $5,000 of the purchase price would not discharge the mortgages. The premises would still be incumbered for a large sum, and it evidently was not intended that the vendor should pay and discharge these mortgages in order to execute a deed. As we have seen, under the provisions of the contract, the incumbrances were to be paid by the treasurer of the defendants, and for that purpose he was authorized to take seventy-five per cent of the proceeds of the sales and to devote it to that purpose, and after the payment of the $5,000 part of the purchase money, and the delivery of the deed provided for, the purchasers were to give back a mortgage upon the premises, which mortgage shall contain the same covenants and conditions as are contained in this contract ”— in other words, providing that seventy-five per cent of the money to be paid upon the mortgage shall be devoted to the payment of the incumbrances upon the premises. We think, therefore, that the contract was properly construed by the trial court, and that that court properly disposed of the other questions raised in the case.

The judgment should be affirmed, with qosts.

Interlocutory judgment appealed from reversed and new trial granted, costs to abide the final award of costs.


author: Haight, J.:

text:
    Caroline V. Fitzsimons, as Executrix, etc., of Charles Fitzsimons, Deceased, Respondent, v. Francis P. Fitzsimons, Appellant, Impleaded with Another.

      Judgment■ — -that ground exists for opening a default does not per se invalidate the judgment.

    After the commencement of an action the plaintiff therein represented to one of the defendants that she made no personal claim against him, and would not let the judgment to he recovered therein stand in his way in business, and would satisfy it at any time when he wanted it satisfied. In consequence of which representations such defendant neglected to interpose a defense to the action.

      Held, that such facts might furnish grounds for opening the default in the action, and permitting such defendant to answer therein, but did not, in the absence of such permission, affect the validity of the judgment, which, when regularly obtained and entered upon default, gave the plaintiff the right to impose such conditions as to its satisfaction by her as she saw fit, and even to insist upon the payment thereof in full.
    Appeal by the defendant, Francis P. Fitzsimons, from an order of the Supreme Court, made at the Monroe Special Term , and entered in the office of the clerk of the county of Monroe on the 6th day of September, 1893, and in the office of the clerk of the county of Oneida on the Ith day of September, 1893, vacating and setting aside a satisfaction of judgment, with notice of an intention to bring up for review on such appeal the report of the referee in said action and the decision of the court confirming the same, and the order appealed from entered thereon.

      William Herna/n, for the appellant.

      Frank J. Hone and Henry J. /Sullivan, for the respondent.
   Haight, J.:

The plaintiff is the widow and executrix of Charles Fitzsimons, who died in 1888. The defendant Francis P. Fitzsimons is a son of Michael Fitzsimons, a brother of said Charles Fitzsimons. Michael died in April, 1890. In 1884 Michael Fitzsimons failed in business, and thereafter continued insolvent and transacted business in the name of Francis, his son, who signed all the papers requested by his father, in ignorance of their contents and of the personal obligations incurred by him. Charles in Ms lifetime assisted his brother financially, and at the time of his decease provided in his will that his executrix should continue to indorse Ms brother’s paper as he himself had done, to the amount of $10,000, to aid him in Ms business pursuit, and if loss be made to the estate by such indorsement, or otherwise, it should be charged to the whole estate. Pursuant to such direction the plaintiff, as such executrix, continued to indorse Michael’s paper until his death. It further appears that Michael Fitzsimons was interested in the Clark Mills, and that at the time of his failure these mills were sold upon a foreclosure and bid in by Milton H. Thompson; that Thompson thereupon conveyed the property to. Francis P. Fitzsimons, and that Francis executed a bond and mortgage tliereon to Thompson for $37,500, and also another bond and mortgage on the property to Charles Fitzsimons for $12,500. That thereafter, and in February, 1885, the Clark Mills Manufacturing Company was incorporated with a capital stock of $150,000, with Michael Fitzsimons as its president, and Francis P. Fitzsimons deeded the property so received by him from Thompson to the. corporation, for which the stock of the company was issued to him. In 1890 the corporation became insolvent, and Thompson foreclosed his mortgage upon the property, and bid the same in upon the sale. Thereupon the plaintiff brought an action against Francis and the Clark Mills Manufacturing Company upon the bond accompanying the mortgage running to her testator for $12,500, and also brought another action upon á promissory note made by the Clark Mills Manufacturing Company for $1,200, indorsed by her, and which she had been compelled to pay. Judgments were recovered on default in these actions, and upon the $1,200 judgment an execution was issued to the sheriff, who, by virtue thereof, levied upon certain personal property in the mills of the defendant (including two boilers therein), and sold the same, which was bid in' by her for the sum of $1,200. In September, 1890, Francis P. Fitzsimons and Mary S. F. Sweeney, a daughter of the 'plaintiff, contracted with Thompson to purchase the property bid in by him at the foreclosure sale, and also contracted to resell the mill to Hind & Harrison Plush Company at a very advantageous price, and in order to enable them to carry out these transactions Francis, under date of November 10, 1890, wrote Hone, one of the attorneys for the plaintiff, asking him to procure a satisfaction of the judgment procured against him upon his bond then amounting to $16,000 and upwards. At this time the plaintiff was in New York, and Hone immediately addressed her a letter asking her to telegraph him on receipt what to do, saying that it was desirable that the matter should be closed before Saturday. It also appears that Bernard J. Sweeney, the husband of the plaintiff’s daughter, who was concerned with the appellant in the repurchase and resale of the mills, saw the plaintiff, his mother-in-law, in New York in reference to the matter and received certain instructions and communications in reference thereto, which he was directed to explain to Mr. Hone, her attorney; that he returned to Utica where he met Mr. Hone; had a consultation with him in reference thereto, and thereafter Hone, as one of the attorneys of record, executed a satisfaction of the judgment which it is claimed was without authority from the plaintiff and which was vacated by the order appealed from.

We think we must treat the judgment as valid. If, as is claimed, when the action was commenced against Francis, the plaintiff represented to him that she made no personal claim against him and would not let the judgment stand in his way in business and would satisfy it at any time he wanted it, and if in consequence of such representations he neglected to interpose a defense, good grounds may exist for opening the default and permitting him to answer, but such a motion is not now before us. The judgment was regularly obtained and entered upon default, and, treating it as valid, the plaintiff had the right to impose such conditions to its satisfaction by her as she saw fit, even to his payment thereof in full. What were the conditions imposed by her ? It is quite possible that there was no intentional fraud practiced upon her in procuring the satisfaction of the judgment. It .is, however, quite apparent that her instructions were not understood, or at least not carried out by the jiersons charged therewith — the effect of which was to deprive her of the judgment she held against the appellant.

It appears that the appellant was the nephew of the plaintiff and that their relations up to this time had been friendly; that upon the execution issued upon-her $1,200 judgment she had jmrchased the personal property found in and about the mills, together with the boilers, which were worth about $1,000; that this property would make good her judgment upon the note of the corporation indorsed by her, and would also satisfy, in part, the $16,000 judgment. It is also apparent that at this time she did not intend to enforce the judgment against him personally. She sq states in her letter to Hone of November 16, 1890, but it appears that the boilers were in the mill and that the purpose was to convey them with the mill to the plush company. It seems that an application had been made to her for a loan of $5,000 to enable Francis and plaintiff’s daughter May to purchase and resell the mill, and that the plaintiff was -willing to make the loan. Her terms in this respect were specifically stated in the instructions accompanying her letter of November fourteenth to her attorney. In -it she says: “ Bernard (referring to her son-in-law) will explain to you that they need to complete their sale the sum of $5,000. I am willing to advance that amount upon terms which I will write on separate sheet. * 'x‘ * In making these terms, I have in mind the notes which I have paid and the fact that my chattels there must be worth, including boilers, about $7,000.” Upon the separate sheet was the following: “ I will advance $5,000 to complete the purchase, providing: First. That the whole property be conveyed to me by deed from Mr. Thompson, and that a clear title of the whole be assured me. Secondly. That the sale of the part which is now contracted for by the new purchasers be made by me. The purchase money to be paid to me, and the new mortgage of $25,000 to be taken by me and in my name. The whole be held by me until I am ready to convey to Frank and May. Thirdly. All taxes, insurance, expenses of purchase to be paid by Frank and Bernard. In consideration of the above: First, I promise to release Frank from the judgment. Secondly, I give to May my entire claim on the boilers and other chattels. Thirdly, at any time upon payment to me of $12,000 I promise to convey to Frank and to May, share and share alike, the remainder of the Clarks Mills property, viz., that not included in the present sale to new purchasers, and also the mortgage for $25,000 above mentioned. Fowrthly, the agreement to sell in last claim is to hold good for two years; if in that time the $12,000 is not paid I shall reserve the right to dispose of it to the best advantage possible.”

It appears that other arrangements had been made, so that the loan from her of $5,000 was not made, and her proposal was not accepted. It is, however, evident that she made a claim for $7,000 upon the boilers, and that she was willing to discharge the judgment upon receiving payment or security therefor. In her letter of November 16, 1890, she says : “ It is true I did not intend to enforce the judgment against Frank personally, but finding a disposition to take possession of the most valuable chattel remaining to me as an offset for my losses, I sent word to you by Bernard that my consent for the release of the judgment was given for the purpose of removing an obstacle to the sale of the mill, and only upon condition that my interests should be otherwise fully protected.” As we understand, she demanded payment for the boilers, or security therefor, • as a condition for discharging the judgment. As we have shown, this condition she had the right to impose. It is quite possible that she may not have had good title to the boilers for the reason that they were a part of the realty, and passed under the foreclosure sale; but whether she did or not, it makes no difference, for she had the right to demand payment of the $7,000 before she discharged the judgment. Exact justice may be done as between the parties by carrying out her demands in that regard.

The order appealed from should be affirmed, with ten dollars costs and disbursements, unless the appellant, within such time as shall be fixed by the Special Term, upon notice, pays to the plaintiff the sum of $7,000, with interest thereon from November 14, 1890; and if such payment is -made, the order appealed from is reversed, and motion denied, without costs of this appeal to either party.

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

So ordered.


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    Dennis C. Feely, Respondent, v. Gilbert E. Jones, as Treasurer of the New York Times, Appellant.

      Libel — justification—facts set up in an answer, not alleging the truth of the alleged libel, go only in mitigation of doomages.

    The answer in an action brought to recover damages for libel, in order to amount to a justification, must be as broad as the charges made in the complaint, and must aver the truth of the defamatory matter charged. It is not sufficient to set up facts which only tend to establish the truth of such matter, and facts so set up in an answer, without an averment of the truth of the defamatory matter, can be only available in mitigation of damages.
    Appeal by the defendant, Gilbert E. Jones, as treasurer of the New York Times, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of May, 1893, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 7th day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Henry Yonge, for the appellant.

      John Van Yoorhis, for the respondent.
   Lewis, J.:

This is an action of libel brought against the defendant for publishing an article charging the plaintiff, who is a lawyer, with dishonesty in his profession. The plaintiff was, at the time of the publication of the article, the nominee for the office of Attorney-General of the State upon the Henry George ticket.

A copy of the article was set out in the complaint. It was headed: “ A specimen George man. Engaged in eating up a widow’s estate. A leaf from the professional record of the George party’s candidate for Attorney-General.”

The article is dated Bochester, October nineteenth. It proceeds to state that “ The candidate of the George party for Attorney-General is D. O. Feely, a lawyer of this city. A cas.e is now before the surrogate of Monroe county, in which Mr. Feely figures in a role not altogether new to the legal profession, but one which invites criticism and contempt.

“ As attozmey and claiznant, he, sometime ago, set about eating up a widow’s estate. He has not concluded his meal, but that is more the fault of the authorities who have interrupted its progress.”

It further stated that a widow by the name of Anna Kane had died in the city, leaving a small estate of about $6,000, and that it seems to have occurred to kind neighbors that the proper disposal of this estate demanded its distribution among themselves. At all events plans were laid to seize it, and in their perfection Mr. Feely has played an eager lawyer’s part. A number of creditors have filed claims against it, which are as ingenious as they are exorbitant. Mr. Feely is their attorney, and nobly has he risen to meet their demands upon his talent.” That the sum total of the claizns is nearly $5,000, or almost the amount of the widow’s savings.

“ Their very nature suggests the extreme difficulty often encountered by lawyers in draftizig bills of particulars in delicate cases. Counsel Feely early sought to have an administrator of this estate, a fz-iend of his, appointed.

“ In this he was disappointed, for the surrogate selected the county treasurer, Alexander McYean, and upon him as administrator has fallen the examination of these so-called claims. * * *

“First upon the roll of creditors is D. C. Feely, who, for legal services rendered from June! 1880, to May, 1886, at the request of the deceased, wants the sum of $500. He does not specify the nature of his services otherwise than legal.” And then follow statements as to the particulars of other claims presented by other claimants, and states “ client No. 2 is Mary A. Kane, for whom Mr. Feely asks the sum of $1,268.10.

“ Her bill is longer than that of Barnstable and is brimful of particulars. Her memory carries her back no further than the law of limitation allows. * * * For instance, in November, 1880, she paid for cloth for two night dresses for the deceased the sum of $1.25, and for making the same $1.00.

“Her mind, presumably owing to the inspiring power of her lawyer, grips a large variety of details for the bill of 1881 as a feminine mind naturally would under a pressure of circumstances. * * * Administrator McYean, after some investigation, has practically decided that these claims are fishy. He will so report to the surrogate. If Mr. Feely is not ridiculed out of court by that time, he can go before a referee and take his chances of establishing these claims by testimony. Meanwhile the widow’s savings will remain in good hands, and the rights of the heirs will be respected and properly protected.”

The complaint alleges that the defendant intended thereby to charge the plaintiff with misconduct and fraud in the practice of his said profession; with being dishonest, and with distributing to himself and others property which did not belong to him or them, and with filing claims against the estate of Anna Kane which were fictitious and fraudulent, and manufacturing such claims, and attempting to get a friend of his appointed as administrator of that estate improperly, intending thereby to charge the plaintiff with breach of trust, extortion and larceny.

The first count of defendant’s answer denies the allegations of the complaint, except that the plaintiff was an attorney and had practiced law. in Rochester.’

For a second defense the answer alleges that the plaintiff was a candidate of the George party for Attorney-General, and that one Anna Kane, a widow, died intestate at Rochester, leaving an estate amounting in all to about $6,000, and that the plaintiff as attorney for Mary A. Kane, an alleged creditor of the deceased, applied to the surrogate of Monroe county for letters of administration upon the estate of the deceased; that his application was refused, and the surrogate appointed the county treasurer, and that thereafter the following claims were presented against the estate, viz.: Mary Ann Kane, for $1,268.16; Patrick J. Cumings, for $989.16; Mary Laddy or Leddy, for $800; Elizabeth Bostable or Barnstable, for $520, and D. C. Feely, for $500.

And then follow detailed statements of the items of the accounts. The answer further alleges that said claims were exorbitant and unjust, and that the administrator rejected all of them; that they were thereupon referred pursuant to the statute, except the claim of Elizabeth Bostable, which was withdrawn; that all the claims dated back to 1880, six years prior to the death of the deceased, and that there was no record that any of the claims were presented to the deceased prior to her death, and that if said claims had been allowed they would have eaten up the greater part of the estate, and that said claims, except that of Elizabeth Bostable or Barnstable, were finally allowed in part as follows: Mary A. Kane, $866.16; Patrick J. Cumings, $250; Mary Leddy or Laddy, $488, and Dennis C. Feely, $355 ; that the deceased was buried by an undertaker in Bochester, who gave the deceased a funeral, the grandeur of which was inconsistent with the position that the deceased had occupied during life, and charged her estate thereafter $35J.22.

The third count of the answer consisted of a repetition of the denials and allegations contained in the second count, which are pleaded as a partial defense and in mitigation of damages.

The trial court held that the answer was not sufficiently broad to amount to a justification, but that the facts alleged were proper to be proved in mitigation of damages.

An answer to amount to a justification must be as broad as the charges in the complaint. This answer manifestly did not come up to this rule. Notably, it failed to justify the charge that the plaintiff conspired with others as an attorney in preparing and presenting fraudulent claims against the estate.

Every allegation of the answer might be true and yet the plaintiff have been entirely innocent of any misconduct so far as his relations to the claims presented on behalf of his clients are concerned.

The answer does allege that the claims were exorbitant and unjust, but it nowhere alleges that the plaintiff had any knowledge or information which should have led him to suppose that they were improper claims.

Again, the answer failed to justify the charge that the plaintiff sought to have a friend appointed administrator of the estate. There wTas an imputation in the article in that regard that the plaintiff sought to procure the appointment of a friend as administrator with a view of thereby promoting the allowance of the claims. There was nothing in the answer, nor in the evidence, which tended to sustain this imputation.

It is the contention of the defendant that the accounts themselves furnished intrinsic evidence that they were fraudulent. There is no allegation in the answer to that effect, and we fail to find such evidence upon the face of the accounts. Neither was there anything in the disparity between the amount of the claims presented and the amounts allowed by the referee, which necessarily tended to show that they were fraudulently made.

The claimant Mary Ann Kane presented a claim of $1,268.16, and was allowed $866.16 ; Mary Leddy presented a claim of $800, and was allowed $188; the plaintiff presented an account for $500, and was allowed $355 ; Patrick J. Cumings presented an account for $989.16, and was allowed only $250.

While the disparity between Cumings claim, as presented, and the amount allowed by the referee, might be some evidence of its fraudulent character, the plaintiff is not charged with having acted as Cumings’ attorney, or with having had anything to do with him or his claim.

To constitute a justification in an action for libel the answer must aver the truth of the defamatory matter charged. It is not sufficient to set up facts which only tend to establish the truth of such matter. Without an averment of its truth the facts detailed can only avail in mitigation of damages. (Thrall v. Smiley, 9 Cal. 529; Newall on Defamation, Slander and Libel, 660, 661; Wachter v. Quenzer, 29 N. Y. 547-551.)

The trial court, we think, properly held that the allegations in the answer did not constitute a justification. We find nothing in the exceptions of the defendant calling for a new trial.

The judgment and order appiealed from should be affirmed.

Dwight, P. J., and Haight, J., concurred; Bradley, J., not sitting.

Judgment and order appiealed from affirmed.


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    The People of the State of New York, Respondent, v. Daniel Linzey, Appellant.

      Children called as witnesses — ichen an appeal is founded on an error of fact, when determined upon affidavits — communications with a jury during its deliberations.

    The law fixes no precise age within which children are excluded as witnesses. Their competency depends upon their intelligence, judgment, understanding and ability to comprehend the nature and effect of an oath. If a witness is over the age of fourteen years the law presumes him to possess the requisite discretion and understanding, and, if under that age, the duty devolved upon the trial court (prior to the enactment of chapter 379 of the Laws of 1893), in the exercise of a sound discretion, of determining whether the witness had the requisite capacitj and intelligence to comprehend the nature and effect of an oath, and such discretion will not be interfered with upon appeal, except upon ‘ a clear showing of its abuse.
    Where an appeal is founded upon an error in fact, not appearing upon the record and not within the knowledge of the trial justice, the appellate court may determine the matter upon affidavits, but where the error charged is within the knowledge of the justice having reference to his own conduct pending the deliberation of the jury, the facts with reference thereto should be incorporated in his return. The affidavit of the justice in regard to such facts, attached to his return, may be considered upon appeal as a part of the return. After the jury on the trial of a criminal action had retired to consider its verdict, the justice before whom the case was tried entered the jury room during the deliberations of the jury upon such case, at the request of the officer in charge, supposing that a verdict had been agreed upon, and upon learning-, immediately after entering, that no agreement had been reached, he told the jurymen that he had no right to be there without the attorney, and turned to leave the room, when one of the jurymen asked with what crime the defendant was charged, and the justice answered “ petit larceny.”

      Meld, that the verdict of guilty rendered by the jury, and the judgment entered thereon, must be set aside; that it was not incumbent upon the appellant to show that he was prejudiced by the action of the justice in order to entitle him to a new trial.
    Appeal by the defendant, Daniel Linzey, from a judgment of tbe Court of Sessions lield in and for the county of Ontario, rendered on the 12th day of December, 1892, affirming the judgment of a Court of Special Sessions of the Peace held in and for the county of Ontario in the town of East Bloomfield convicting the defendant of the crime of petit larceny.

      John E. Robson, for the appellant.

      Royal B. Scott, District Attorney, for the People, respondent.
   Haight, J.:

The defendant was convicted of the offense of stealing a twenty-dollar bill from the money drawer in the coal office owned by John Hamlin at East Bloomfield Station in the county of Ontario.

Upon the trial Bobert Linzey was sworn as a witnesss for the People, and, under objection by the appellant’s counsel to the effect that he was not competent to understand the nature of an oath, was permitted to testify that he saw the appellant take the bill in question from Mr. Hamlin’s money drawer.

It appears that the witness was about ten years of age, and before he was permitted to testify was examined in reference to his qualification, and stated that lie had been to Sunday school; had been taught that it was wrong to steal or to tell a lie; said that he knew that it was wrong not to tell the truth, and knew there was some punishment to be administered when a witness swears to tell the ' truth and does not, and that he understood that to tell a lie under oath was wrong, and that he might be punished for it.

We think that the trial court, in the exercise of the discretion vested in it, properly permitted the witness to testify. The law fixes no precise age within which children are excluded as witnesses. Their competency depends upon their intelligence, judgment, understanding and ability to comprehend the nature and effect of an oath. If a witness is over fourteen years of age the law presumes him to possess the requisite discretion and understanding. If under that age, the duty devolves upon the trial court, in the exercise of a sound discretion, to determine whether the witness has the requisite capacity and intelligence, and this discretion will not be interfered with upon appeal except. upon a clear showing of its abuse. (Bapalje’s Law of Witnesses, § Y, and authorities there cited.)

The trial of this action took place before chapter 2Y9 of the Laws of 1892 took effect, so that the amendment of section 392 of the Code of Criminal Procedure, therein provided for, has no application.

The defendant’s counsel, in his affidavit to procure an allowance of an appeal from the judgment of the Court of Special Sessions, among other things, states that “he has been informed by said justice and one of the jurors who tried said case, that after the jury retired to consider their verdict, said justice went to said jury room and read to said jury the information upon which the warrant was issued in said case, and that it was done without the knowledge or consent of the defendant or his attorney, nor was either of them present when said statements were so read as aforesaid.”

The justice in his return says nothing in reference to this charge, but he attaches thereto his affidavit, in which he states, that he entered the jury room while they were deliberating upon the case, at the request of the officer in charge, supposing that a verdict had been agreed upon; that upon learning, immediately after entering, that no agreement had been reached, deponent told the jurymen he had no right to be there without the attorney, and turned to leave the room, when one of the jurymen said that they wanted to know with what crime the defendant was charged with, to which deponent replied, after opening the information, but not reading therefrom, ■* petit larceny; ’ that no other conversation was had by deponent while in the jury room, and no information or evidence was read to them.”

The practice is, that where an appeal is founded upon an error in fact, not appearing upon the record and not within the knowledge of the justice, the court may determine the matter upon affidavits; but the error here charged was within the knowledge of the justice, for it has reference to his own conduct pending the deliberation of the jury, and the facts in reference thereto should have been incorporated in his return. (Vallen v. McGuire, 49 Hun, 594.)

But, we think, in this case we may treat his affidavit attached to the return as a part thereof, and determine the question upon the facts presented.

In Sargent v. Roberts (1 Pick. 337) the foreman of the' jury wrote to the judge that they could not agree and that they waited for his directions. The judge answered in writing, saying that he was unwilling, after so much time had been consumed in the case, to permit them to separate, and gave some directions that would enable them to consider the ease in a more systematic manner, and added that the officer had directions to take them to a more convenient apartment if they desired. On review, the judgment was reversed and a new trial granted. Parker, Oh. J., in delivering the opinion of the court, says: “ It is impossible, we think, to complain of the substance of the communication; the omy question is ■whether any communication at all is proper, and if it was not, the party against whom the verdict was is entitled to a new trial, and we are all of the opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to the latter by the charge of the judge, unless in open court, and where practicable in the presence of the counsel in the case. The oath administered to the officer seems to indicate this as the proper course. lie is to suffer no person to speak to them nor to speak to them himself, unless to ask them whether they are agreed, and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person, and any direction to them from him, either verbal or in writing, is improper. It is not sufficient to say that the power is in hands highly responsible for a proper exercise of it. The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case except in open court in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration when compared to this great object.”

In Bunn v. Croul (10 Johns. 239), while the jury were deliberating on their verdict, the justice was requested to inform them whether a particular point of evidence had been given, stating it to him. The justice informed the jury that it had, and mentioned the name of the witness who had testified to the fact. A verdict was found for the plaintiff on which the justice gave judgment. On review the judgment was reversed, the court saying: It cannot fairly be inferred from the return that the explanation given by the justice to the jury after they had retired to make up their verdict was by the consent or in the presence of the parties. If it was not, the allowance of such a practice would be dangerous to the rights of parties. The justice’s recollection might not be accurate as to what the witness had said, and for that reason the testimony might be misstated. When, if the parties were present, or the witnesses again called and repeat their testimony, any mistake might be corrected.”

In Taylor v. Bettsford (13 Johns. 487) the justice went into the jury room at the request of the jury to answer certain questions-proposed to him, and the judgment was reversed, the court saying : The only error necessary to be noticed in this case is that the justice went into the room with the jury at their request, privately and apart from the parties, to answer certain questions proposed to him by the jury. This we have repeatedly held to be erroneous, unless done with the consent of the parties. Whether the information given by the justice was material or had any influence upon the verdict of the jury, is a matter which we will not inquire into.”

In Watertown Bank & Loan Co. v. Mix (51 N. Y. 558) it was held that a party to an action on trial by a jury is entitled to have all the proceedings public, both in respect to the production of proof and to the instructions to the jury by the court, and there ought to be no communication between the judge and the jury after the latter have gone from the bar to consider their verdict; that this right is a substantial one and is not in the discretion of the court. A party moving for a new trial upon this ground is not bound to show affirmatively that such communication tended to his injury.

So much for the authorities bearing upon the question. As we have seen, the justice is charged with having read to the jury the information upon which the warrant was issued. The appellant’s attorney states that he was so informed by the justice and one of the jurymen. The information consisted of the ex parte affidavits taken before the justice. It was certainly improper and might well have tended to prejudice the jury. The justice admits in his affidavit that he opened the information, but states that he did not read therefrom; that then he answered that the charge was petit larceny. As has been stated in the cases, his recollection might not be accurate as to what he did before the jury. It leaves an opportunity for a defeated party to suspect that an injustice has been done him, and in the language of one of the learned judges, to which we have referred, £! The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice.”

Undoubtedly, treating the .affidavit of the justice as a part of his return, we are bound by his statement as to the facts, but as we have already seen, it is not incumbent upon the appellant to show that he ha's been prejudiced in order to entitle him to a new trial.

The judgment of the Court of Special Sessions and of the Court of Sessions of Ontario county appealed from should be reversed and a new trial granted in the Court of Sessions of that county, and for that purpose the proceedings should be remitted to that court.

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

Judgment and conviction of * the Court of Special Sessions and judgment of affirmance of the Court of Sessions of Ontario county •appealed from reversed, and a new trial granted in the Court of Sessions of that county and for that purpose the proceedings are remitted to that court.