text:
    Grace A. Keyes, Appellant, v. William H. Manning and John Wood, Jr., as Executors, etc., of Seth C. Keyes, Deceased, Appellants, Impleaded with Amelia A. Norton and Others, Respondents.

      Trusts for the lives of three children — remainder to grandchildren —when the grandchildren talce as a class.

    A testator, by his will, after creating a trust in favor of each of his children, Amelia, Grace and Seth, during their lives, provided as follows: “At the death of said Seth 0. Keyes, Jr., my trustees shall give his one-third share in my estate (or so much thereof as may remain) to his lawful issue, to have and to hold to them, their heirs and assigns forever. Should he leave no such issue, then said share (or so much thereof as may remain) shall he distributed equally between the lawful issue of my daughters, Amelia A. Norton and Grace A. Keyes. Should said Grace A. Keyes leave no such lawful issue, then said Share (or so much thereof as may remain) shall be given to the children of said Amelia A. Norton, to have and to hold, to them, their heirs and assigns forever.”
    Seth 0. Keyes, Jr., after the death of the testator, died intestate, without issue, and without leaving a father or mother, and leaving him surviving his only heirs at law and next of kin, his two sisters, Amelia and Grace.

      Held, that the share of the testator’s son Seth went, at the time of his death, to the lawful issue of his two sisters as a class.
    Appeal by the plaintiff, Grace A. Keyes, and by the defendants, William H. Manning and John Wood, Jr., as executors of the last will and testament of Setb C. Keyes, deceased, from a judgment of tbe.Supreme Court, entered in tbe office of tbe clerk of the county of Kings on the 5th day of February, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, construing the last will and testament of Seth C. Keyes, deceased.
    The testator by his will gave his property to his executors and trustees.
    “In trust, nevertheless, for the following uses and purposes, to wit:
    “I. To receive and collect the rents, issues, income and profits thereof, to repair and keep insured all real estate, to pay all taxes and assessments, whether on real or personal property, to invest the same and keep the same invested.

      “ II. To sell and dispose of the same in their discretion, and when sold to divide the same, or the proceeds thereof, into three equal shares, and to hold one of said parts for each of my children, to wit: Amelia A. Norton, wife of Charles E. Norton, Seth C. Keyes, Jr., and Grace A. Keyes, during his or her natural life, and to give, apply and pay over to each one the income or interest of the part or share so set apart so long as he or she shall live for him or her.
    “ III. To give or apply to either or all of my said children the whole or any part of the principal of the share so set apart for him, her or them, should my said trustees in their discretion consider that the best interests of such child or children will be promoted by such payment of principal; it is my will, however, that my said trustees shall have absolute control of the said principal, and that my children- shall have no right to require from them the payment of anything beyond the net income of my said estate.
    “IY. At the death of said Amelia A. Norton, said trustees shall give the principal of the share so set apart for her (or so much thereof as may remain) to her children, to have and to hold to them, their heirs and assigns forever.
    “Y. At the death of said Grace A. Keyes, should she leave no lawful issue her surviving, then my trustees shall give her one-third share in my said estate (or so much thereof as may remain) to the children of the said Amelia A. Norton, to them, their heirs and assigns forever; but should the said Grace A. Keyes leave lawful issue her surviving, then such one-third share (or so much thereof as may remain) shall be given to ber said children, to have and to hold to them, their heirs and assigns forever.

       “ Y. At the death of said Seth C. Keyes, Jr., my trustees shall give his one-third share in my estate (or so much thereof as may remain) to his lawful issue, to have and to hold to them, their heirs and assigns forever; should he leave no such issue, then said share (or so much thereof as may remain) shall be distributed equally between the lawful issue, of my daughters, Amelia A. Norton and Grace A. Keyes; should said Grace A. Keyes leave no such lawful issue, then said share (or so much thereof as may remain) shall be given to the children of said Amelia A. Norton, to have and to hold to them, their heirs and assigns forever.

       “ IY. I authorize and empower my said executors and trustees, in their discretion, to sell, convey, mortgage or lease any real estate of which I may die seized or entitled unto.”

      Samuel W. Bower, for the plaintiff, appellant.

      Russell, Poste & Percy, for the executors, appellants.

      William J. Carr, for the respondent Norton.

      Farnham & Stevens, for the respondent Hilliard.

       Sic.

   Dykman, J.:

This action was Commenced by the plaintiff, who was a daughter and legatee of Seth 0. Keyes, deceased, against the executors and other legatees and next of kin, to obtain a judicial construction of the will of her father, and for judgment directing the executors to pay to her such share as she may be entitled to receive.

The testator, Seth C. Keyes, died on the Tth day of January, 1893, leaving him surviving his only heirs at law and next of kin three children, to wit: Amelia A. Norton, Grace A. Keyes and Seth C. Keyes, Jr.

The will was proved and admitted to probate on the 26th day of January, 1893, and letters testamentary were issued to the defendants YTlliam IT. Manning and John Wood, Jr., and they took possession of the estate which amounted to about the sum of $15,000.

Seth C. Keyes, Jr., died on the 11th day of June, 1893, intestate, without issue and without leaving father or mother, and leaving him surviving Ms only beirs at law and next of kin, Ms two sisters, Amelia A. Norton and Grace A. Keyes. The scheme of the will of the testator is obvious. The entire property is given to the executors in trust, to receive the rents and profits of the same, sell and dispose of the same, and divide the property or the proceeds thereof into three equal shares, and hold one of the said parts for each of the children, Amelia, Grace and Seth, during his and her natural life, and pay over to each one the income of the share so set apart for him or her so long as they live. To give or apply to either a part or the whole of the principal of the share so set apart to him or her, in the discretion of the executors.

The fifth subdivision of the third clause of the will has created the embarrassment, and it reads as follows: At the death of said Seth 0. Keyes, Jr., my trustees shall give his one-third share in my estate (or so much thereof as may remain) to his lawful issue, to have and to hold, to them, their heirs and assigns forever. Should he leave no such issue, then said share (or so much thereof as may remain) shall be distributed equally between the lawful issue of my daughters, Amelia A. Norton and Grace A. Keyes. Should said Grace A; Keyes leave no such lawful issue, then said share (or so much thereof as may remain) shall be given to the children of said Ameba A. Norton, to have and to hold, to them, their heirs and assigns forever.”

It is the claim of the plaintiff that the provision in said fifth clause is void because it suspends the power of alienation for more than two lives in being at the death of the testator, to wit, Amelia, Grace and Seth, and that one-third share therein mentioned descends to the plaintiff and her sisters as heirs at law and next of kin of the testator and Seth 0. Keyes, Jr., and she seeks a judgment to that effect.

The fund is separated into three shares, and the income upon each share is given to a beneficiary. In effect there are three distinct trusts, or, more properly speaking, a trust in relation to the three distinct funds. The absolute ownership of the fund is not suspended at any time. The title is in the trustees until the death of the life tenant. Then each share vests in the remaindermen. No disposition of income after the death of each life tenant is made, because then the fund goes to the owner. The testator contemplated his grandchildren as the object of his bounty as a class, because be denominated them as children and not individually. They became tenants in common, and the language employed is equivalent to a direction to pay to the grandchildren.

There is, therefore, no embarrassment in relation to the shares of Amelia and Grace. When the time arrives for the distribution, the share of Amelia is to be given over to her children, and the share of Grace is to be given to the children of Amelia, unless Grace leaves lawful issue, but if she leaves lawful issue her surviving, then her share is to be given to them.

In relation to the fifth clause, which relates to the testator’s son Seth, his share went to his issue, but if he left none, then it went to the lawful issue of his two sisters as a class. It was a fluctuating class to be ascertained and determined at the time of the death of the son.

Such is the natural inference from the phrase, at the death of said Seth C. Keyes, Jr.,” at the commencement of the clause.

As no class answered to that description at that time, except the children of Amelia, they must be deemed to have taken the share of the testator’s son, Seth. We think, therefore, the will received the proper construction in the court below, and the judgment should be affirmed, with costs to Amelia A. Norton to be paid from the estate.

Pratt, J., concurred; Brown, P. J., concurred in result.

Judgment affirmed, with costs to Amelia 0. Norton to be paid out of the estate.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Jeremiah Mead, Appellant, v. The National Bank of Pawling Respondent.

      Promissory note— agreement that it shall not be enforced— when, nugatory.

    Where a promissory note is given for a proper consideration an agreement that it shall not be collected or that its payment shall not be enforced is entirely nugatory, and an action may be maintained upon the note when the note becomes due notwithstanding such promise.
    'Appeal by the plaintiff, Jeremiah Mead, from a judgment of the Supreme Court in favor of the defendant, entered in the ofiice of the clerk of the county of Dutchess on the 3d day of October, 1894, upon th.e verdict of a jury rendered by direction of the court after a trial at the Dutchess County Circuit.

      W. Farrington, for the appellant.

      William Downing and Hackett & Williams, for the respondent.
   Dykman, J.:

This is an action brought by the plaintiff against the bank for the recovery of a balance • alleged to be due the plaintiff from the defendant. The plaintiff, in his complaint, alleged that between the 1st day of October, 1891, and the commencement of this action, he had deposited with the defendant various sums of money amounting in the aggregate to the sum of $42,106.46, and that he withdrew from the defendant the -sum of $33,745, and demanded judgment for the balance, $8,361.46.

The defendant, in its answer, alleged that between the dates mentioned in the complaint the plaintiff deposited with the defendant divers sums of money, amounting in all to $74,289.03, which sum includes all the items mentioned in plaintiff’s complaint except the deposit of $800, alleged to have been made on June 1, -1893. That deposit was denied by the defendant, and the plaintiff did not prove it or attempt to do so on the trial. The defendant further alleged in its answer that the plaintiff, by his checks and orders, drew from the defendant out of his deposits the sum-of $74,197.54 between the dates mentioned in the complaint, leaving a balance on deposit to his credit of only $91.49.

The defendant also set up a counterclaim in its answer against the plaintiff, amounting to the sum of $3,435.76, with interest. That claim was not denied by the plaintiff, and it was admitted upon the trial.

The real controversy upon the trial had relation to certain notes which had been given by the plaintiff to the bank. It was his theory and his testimony that the cashier and the teller of the bank requested him to permit them to use his name in stock speculations, and stated that they desired his name on notes which would be discounted by the bank for that purpose, for the reason that their names ought not to appear in that way by reason of their official relations with the bank, and that they agreed that the bank would take care of the notes as they became due. It was also his claim that none of the transactions connected with these stock speculations were to affect his account with the bank, but that they were matters entirely between the defendant and its cashier and teller; that he should not be charged with any of the notes given or discounted, nor should he be credited with anything received on the sale of the stock. The difference between the parties is the amount charged and credited to the plaintiff in these stock speculations.

The cause came on for trial at the Circuit before a jury, and at the close of the plaintiffs case the court directed a verdict in favor of the defendant for $3,419.86, to which the plaintiff excepted. The plaintiff also asked to go to the jury upon certain questions of fact, which the court denied.

The plaintiff, upon the trial, admitted all the items on the debit and credit side of his account with the bank to be correct, and his counsel stated in an affidavit, read upon the opening of the trial, that the items of the defendant’s account and the dates were not disputed, but claimed and insisted that the only question to be tried was whether the items were chargeable to or properly credited to the plaintiff. Such an admission seemed to eliminate every other question from the case, and it devolved, therefore, upon the plaintiff to show why it was not proper for the defendant to credit him with the amount which appeared to his credit on the account, and also to show why he should not be charged with his checks, notes and orders, all of which were admitted by him to be correct, and which were the only charges against him in his account.

The plaintiff was a witness in his own behalf upon the trial, and he admitted the genuineness of all the notes, checks, drafts and orders with which he was charged in the account. His theory was that he was not liable upon notes given by him, and discounted by the bank, because he claimed that the proceeds of the notes were to bo used by the cashier and the teller to purchase and speculate in stocks, and the checks and orders given by him, upon which the bank paid the money, were void for the same reason. In support of this theory he testified as follows: “ In the fall of 1891 I had a conversation with Mr. Haight with reference to stock. Mr. Haight asked me for my name, he said he wanted to speculate in stock and they would take care of me, the bank would take care of me. (Haigbt was the teller.) * * * He said his name eoidd not appear in the bank and wanted to use my name. * * * I signed a note at that time. I think it was about $6,200.” (The cashier of the bank was Mr. Chase.) The plaintiff further testified as follows: “Chase asked me to sign that--note. * . * * This conversation * * * was on the street. Q. “What was your and Chase’s conversation? A. About the same as with Haight. * * * The next transaction that I recollect of, Chase sent me to Danbury with an $8,400 note. By the Court.— Signed by you ? Tour note, was it? A. Tes, sir.”

That testimony was denied by the cashier. The question of fact thus raised was quite immaterial upon the trial of this action.

Conceding his testimony to be true, and that he' expected the officers of the bank to take care of his notes as they became due, and that they were given for the purpose of raising money as he states, yet that was no defense for him against the notes in the hands of the bank. Having made the paper, he was under obligation to pay it. In any case where a promissory note is given for a proper consideration, an agreement that it shall not be collected, or that its payment shall not be enforced, is entirely nugatory, and an action may be maintained upon it when it becomes due, notwithstanding such promise. That principle is sufficient to defeat the plaintiff in his contention in this case, and the verdict was properly directed by the trial conrt.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


text:
    John G. Murphy, Respondent, v. James F. Carey, Appellant, Impleaded with James F. Gillen.

      Promissory note given to take up another note —failure to surrender the old note, not a defense to an action on the new note.

    In an action brought upon seven promissory notes, it appeared 'that one Murphy, the plaintiff, held a note made by Carey, one of the defendants, drawn to the order of one O’Brien and indorsed by O’Brien, which had been protested for non-payment. In 1891, Murphy was prosecuting an action against Carey involving other matters. On the eve of the trial, a settlement was reached, and the O’Brien note, not then in suit, was brought into the settlement, which settlement provided that Carey should have an extension of time for the payment of the O’Brien note upon condition that he would procure an indorser, whereupon the notes in suit were given and one Grillen became the indorser upon them. The old note was not surrendered. The new notes became due and were protested. Shortly afterwards, Carey paid §250 on account.

      Held, that the failure to surrender the old note constituted no defense to the action; that there was a full and valuable consideration for the notes in suit, and after their delivery the old note ceased to have any validity or vitality.
    Appeal by the defendant, James F. Carey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the Yth day of February, 1895, upon the verdict of a jury, rendered after a trial at the Kings County Circuit, and also from an order entered in the office of the clerk of the county of Kings on the 12th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      J. Stewart Ross, for the appellant.

      James McKeen, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury and from an order denying a motion upon the minutes of the court for a new trial.

The action was based upon seven promissory notes of which Carey, the defendant, was the maker and James F. Gillen was the indorser.

The appeal is by the maker alone. The facts were substantially these: The plaintiff in this action held a note made by Carey, the defendant, for $5,000, drawn to the order of Michael 0. O’Brien, and indorsed by him, and protested for non-payment. In January, 1891, Murphy was prosecuting an action against Carey, involving other matters, and on the eve of trial, a settlement was reached and Mr. Hewitt, counsel for plaintiff, suggested that the O’Brien note, not then in suit, should be brought into the settlement. It was accordingly arranged at that time to give Carey an extension of time for the payment of that $5,000 note upon condition that he would procure an indorser. Thereupon the notes involved in this suit were given, and Gillen became the indorser upon them. The first of the series of notes became due and were protested August 28, 1892. Shortly thereafter, Carey sent to Mr. Hewitt, the lawyer, his check for $400. The cheek was not paid, but Carey afterward paid $250 in money, which was allowed on the note due August twenty-eighth. The only substantial defense urged is, that there was a failure to carry out an alleged condition that the note for $5,000 should be given up or surrendered.

Upon the facts disclosed at the trial, no defense to the action was established.

The failure to surrender the old note constituted no defense to this action. There was a full and valuable consideration for the notes in suit, and after their delivery the old note ceased to have any validity or vitality.

The plaintiff was entitled to a verdict upon his claim, and the judgment must be affirmed unless some of the exceptions taken to the rulings on the question of evidence or to the charge of the judge, present error.

After a careful examination of the exceptions taken to the charge of the trial judge, and his refusals to charge, we find no error, and the judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


author: Dykmau, J.:

text:
    Moses P. Prout, Appellant, v. Alexander R. Chisolm and William F. Carey, Respondents.

      Money had and received — implied promise to repay it — fraud—pra/yer for relief — complaint alleging fraud, when a recovery can be had on contract — duty of a broker to 7ceep boolcs of account.

    "Where money is received by one person which belongs to another, without any valuable consideration being given therefor on the part of the receiver, an action for money had and received will lie; the law implies a promise on the part of the person so receiving the money to repay the same, or to account for it in some manner.
    Fraud cannot be presumed, but must be proved.
    "Under the Code of Civil Procedure it is the better practice-to pray for the precise relief to which the allegations of a complaint entitle the plaintiff, but where an answer has been interposed the form of the prayer for relief is quite immaterial. The court will give the relief required by the allegations in the complaint and the proofs upon the trial.
    "Where the complaint in an action brought to recover for money had and received is sufficient it is not rendered insufficient by reason of an additional allegation therein to the effect that the defendant obtained the money from the plaintiff by false representations, and such allegation will not defeat a recovery upon contract.
    It is the duty of a broker or agent to keep accounts showing the names of the persons with whom he deals for his principal.
    Appeal by tbe plaintiff, Moses P. Prout, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 25th day of March, 1895, ujton the dismissal of the complaint directed by the court after a trial at the Kings Couuty Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

      Edward M. Shepard and G. H. Crawford, for the appellant.

      George Putmam Smith, for the respondents.
   Dykmau, J.:

This is an appeal from a judgment entered upon the dismissal of the plaintiff’s complaint at the Circuit, and also from an order denying a motion for a new trial on the minutes of the court.

At the close of the testimony on the part of the plaintiff, the trial judge, upon a motion for a dismissal of the plaintiff’s complaint, stated that the question he was called upon to determine was, whether the evidence was sufficient for the jury to find that there was fraud practiced, and he dismissed the complaint, holding that the evidence was insufficient to permit a recovery for money had and received, and that the proof the plaintiff had given did not sufficiently support the allegations of fraud to justify their submission to the jury. The answer of the defendants admits the allegations of the complaint that the defendants, as stock brokers, had received from the plaintiff, as their principal, a large sum of money, and also property of value solely by way of security, or partial payment upon supposed actual purchases and sales of stocks and bonds made or to be made by the defendants for the plaintiff.

It is conceded that the defendants received the plaintiff’s money for that purpose and for no other.

The complaint alleged that in fact no such purchase or sales were made, and, therefore, it sufficiently presented a cause of action for the money plaintiff had deposited with the defendants.

Where money is received by one person which belongs to another, without any valuable consideration therefor on the part of the receiver, an action for money had and received lies in all cases, for the law implies a promise on the part of the person so receiving the money to repay the same or to account for it in some particular manner. (Freer v. Denton, 61 N. Y. 492.)

The complaint, therefore, being sufficient, is not rendered insufficient by reason of the additional allegation that the defendant had obtained the money from the plaintiff by false statements that purchases and sales had been actually made, or by other fraudulent representations.

That doctrine has been repeatedly enunciated. In Byxbie v. Wood (24 N. Y. 607) the plaintiff sued to recover an overpayment by the assignor of the plaintiff to the defendant upon purchases made by the latter on a joint venture. The complaint of the plaintiff charged that the moneys were obtained by false and fraudulent representations. The objection was taken that the cause of action was in tort lor deceit, and not, therefore, assignable. In the opinion delivered in that case, the court said: “ What valid objection is there to treating these words (‘fraudulently and by deceit ’) as mere inducement, containing a statement of the facts which show that Marvin’s payment was not a voluntary one, with knowledge of the facts ? * * * How, without some such statement was he to show that'it was not a voluntary payment, or that his settlement of the accounts was not final and binding on him ? * * * n [g entirely immaterial (in our present modes of pleading) whether the plaintiff anticipates what would be matter of defence, and says, in advance, that it was so obtained as to be invalid and no defence, or whether he omits all mention of it, and on the trial when it is interposed as a defence proves the fraudulent obtaining of it which makes it void and no defence.”

So in the cases of Conaughty v. Nichols (42 N. Y. 83); Ledwich v. McKim (53 id. 307); Sparman v. Keim (83 id. 245); People v. Wood (121 id. 522) the courts refuse to permit allegations of fraud to disable the pleadings as a complaint on contract. In the present case it was clear that the defendants would rely, as upon the trial they did rely, upon their monthly accounts as accounts stated. It was'inevitable that the truth of those accounts must be tried and must be the principal subject of-investigation. There was no valid objection to the plaintiff’s express dealing with the matter in his complaint. Neither is there any validity in the objection-raised to the form of the prayer for judgment.

At common law it would have been sufficient in an action for money had and received.

Hnder our Code it is the better practice to pray for the precise relief to which the allegation entitled the plaintiff, but where an answer has been interposed, the form of the prayer is quite immaterial. The court will give the relief required by the allegations in the complaint and the proofs upon the trial. (Bell v. Merrifield, 109 N. Y. 202.)

The charges in the complaint presented a case of money and property obtained from the plaintiff by deceit. The rule laid down by the learned trial judge was correct, that fraud could not be presumed, but must be proved, and the facts proved were proper evidence and should have been submitted to the jury on that issue.

Without pausing to consider the question whether the system of clearing and weekly statements maintained at the exchange of whiek the defendants were members, was in any proper sense, a system of real purchases and real sales, it is sufficient to say, that the testimony introduced by the plaintiff tended to show that he desired to make actual purchases and actual sales, and that the defendants insist that purchases made according to the system of their exchange were actual and not nominal. There was evidence for the jury tending to show that no such purchases or sales as they reported to the plaintiff were ever made by the defendants on the exchange, according to its rules or practice or in any other maimer. The defendants, when pressed by the plaintiff, did not give the name of a single broker or person from whom they had bought or to whom they had sold, and stated that they were unable to do so; that they had kept no record of such names, except on certain slips sent by them to the clearing house of the exchange where all the sales were made, and that such slips had been destroyed within thirty days. The duty of a broker or agent to keep accounts showing names of persons with whom he deals for his principal is plain to the last degree.

In no other manner could the transaction of the agent be possibly verified. There is no reason in this matter to distinguish between the duty of a consignee selling merchandise and that of a broker buying or selling stocks.

As to a large number of the supposed transactions stated on the defendants’ account, it was shown that although they were claimed by the defendants to have been had on the Consolidated Exchange, and to have been entered on the slips furnished by the defendants to the clearing house of the exchange, still the records kept by the clearing house of the total sales and purchases by the defendants were highly inconsistent with the defendants’ statement of sales and purchases made by them for the plaintiff. As to many transactions, it was shown by the official record of sales kept by'the exchange, that no transactions like those reported had taken place at all. As to certain of the securities stated by the defendants to have been bought and actually held by them for the plaintiff, there was evidence tending to show a course of conduct by defendants quite inconsistent with the truth of their statements.

It may be that the defendants had some answer or explanation to the case made against them. If they had its production was essential, and if they had not, the evidence was sufficient to carry the case to the jury, and justify a verdict in favor of the plaintiff for the full amount of his claim. If satisfied by the evidence that in many cases the defendants’ accounts and statements of their transactions with the plaintiff were intentionally false and spurious, the jury' might have inferred in the absence of sufficient proof to sustain such accounts or statements that they were altogether fictitious. The evidence given charged the defendants with the money they had received from the plaintiff. It had been received by them from him, and instead of procuring a dismissal of the complaint because he had not convicted them of fraud, their duty was to show its proper application, and if they failed to sustain the burden thus cast upon them the plaintiff was entitled to recover.

The judgment and order denying the motion for a new trial should be reversed, with costs.

Brown, P. J., and Pratt, J., concurred.

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


text:
    Edward B. Lynch, Respondent, v. George W. Lynch, Appellant.

      Code of Qivil Procedure, seetion 392 — complaint thereunder, when sufficient.

    The complaint in an action alleged that one Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff was one and the defendant another; that plaintiff was five years old at the time of his mother’s death, and that the defendant converted the property of his mother to his own use more than six years before the commencement of the action; that plaintiff learned of such conversion one year before he brought his suit, and had demanded his share of the property, which was refused. The relief demanded was for the possession of the plaintiff’s share of the property or for an accounting.
    Upon an appeal from a judgment overruling a demurrer interposed to the plaintiff’s complaint,

      Held, that the action could be maintained under section 392 of the Code of Civil Procedure; that it was entirely unnecessary to state whether Sophia Lynch died testate or intestate, or whether any executors or administrators of her property or estate were ever appointed, or whether an action had been commenced by them in respect to the cause of action stated in the complaint; that such facts, if they existed, were matters of defense and could be set up by the defendant in his answer.

      Appeal by the defendant, George "W. Lynch, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 29th day of January, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the defendant’s, demurrer to the plaintiff’s complaint.

      W. Wickham Smith, for the appellant.

      Horace Graves, for the respondent.
   Dykman, J.:

This is an appeal from a judgment overruling a demurrer to the plaintiff’s complaint, which contained the following allegations in substance: Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff is one and the defendant is another.

The plaintiff was five years old at the time of his mother’s death, who at that time was the owner of a market stand, stocks and household furniture. The defendant converted this property to his own use more than six years before the commencement of this action, and the plaintiff learned of such conversion one year before he brought his suit, and demanded his share of the property. His demand was refused. . The plaintiff now claims possession of his share of the property or for an accounting.

The defendant demurred to the complaint on the ground, first, that it stated no cause of action; second, that there was a misjoinder of causes, plaintiff having sued both in trover and for an accounting.

The action is based upon section 392 of the Code of Civil Procedure, which reads as follows: “ For the purpose of computing the time within which an action must be commenced in a court of the State by an executor or administrator to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration, or to recover damages for taking detaining or injuring personal property within the same period, the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section any of the next of kin, legatees or creditors who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may within five years after the cessation of such a disability maintain an action to recover damages by reason thereof, in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate if an action had been seasonably commenced by the executor or administrator.”

The cause of action set up by the plaintiff in this suit falls within the foregoing section. The plaintiff-is within its provision, for the reason that an action for the recovery of the property owned by the mother was barred by this section, and the plaintiff, at the time of the transaction upon which the action might have been founded, was within the age' of twenty-one years. Moreover, this suit was' commenced within five years after the cessation of such disability. The children of Sophia Lynch succeeded to the property which she owned at the time of her death by right of succession as her heirs, at law. There is no legal presumption that the mother died testate or intestate, or, that letters testamentary or of administration were ever issued upon her estate, an$ it was, therefore, unnecessary to negative either of those facts by any allegation in the plaintiff’s complaint.

Neither is there any presumption that a suit was brought within six years after the death of the party by the executor or administrator.

It appears from the complaint that the plaintiff became twenty-one years of age in 1892. Under the provisions of the section quoted he had then five years in which to bring this suit. Under our construction of the section quoted it was entirely unnecessary to state whether the plaintiff died testate or intestate, or whether any executors or administrators of her property or estate were appointed, or whether any action was commenced by them in respect to the cause of action stated in the complaint, but that such facts, if they existed, are matters of defense to the action, and must be so alleged by the defendant in his answer.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs.


author: Dykman, J.: Pratt, J.

text:
    James A. Baker, Respondent, v. Albert B. Byrn and Marcus L. Byrn, Appellants.

      'Fraudulent assignment of a mortgage and foreclosure judgment — nothing is conclusive which is obtained by fraud — complaint in an action to set aside amoiigage assignment and judgment, when sufficient.

    Nothing is conclusive in law which is procured by fraud, as fraud vitiates everything into which it enters.
    The fraudulent manufacture of a claim, and of evidence to secure a judgment upon it, cannot escape the vigilant eye of a court of equity, which is always open to a party injured by a judgment obtained by fraud.
    The complaint in an action, brought to set aside as fraudulent a judgment of foreclosure and sale, alleged that the plaintiff purchased certain property in the year 1862, subject to a mortgage made by one Warner to one Yan Mater; that this bond and mortgage had been assigned to James Bowne in 1857, and had
    . been assigned by Bowne to one Reid in 1858; that the assignment of the mortgage to Reid had never been recorded; that in 1868 the plaintiff paid the bond and mortgage to Reid’s representatives, and that the bond and mortgage since the last-mentioned date had been in his possession, but that the satisfaction piece of the mortgage had never been filed; that in August, 1887, the defendant Albert B. Byrn obtained from Bowne an assignment of all his right, title and interest in the bond and mortgage in question, and thereupon proceeded to foreclose the mortgage. An order of publication of the summons was obtained which dispensed with the depositing of the same in the postoffice. Upon the reference to take proof of the facts and circumstances stated in the complaint, proof of the mortgage and assignment was made by reference to the county clerk’s records and to the bond by reference to the records of the mortgage which recited a bond.
    The complaint also alleged that plaintiff had removed to the State of New Jersey in 1864, and was wholly ignorant of the proceedings taken to deprive him of his property; that the assignment of the mortgage from Bowne was procured with the intent to cheat and defraud plaintiff out of his property by the fraudulent and pretended foreclosure of the mortgage which, though uncanceled, had been paid; that plaintiff was ignorant of the attempt taken to foreclose the mortgage until very recently; that the judgment and decree of foreclosure in said action was obtained by fraud and in pursuance of an intent to cheat and defraud the plaintiff out of his property and by a series of gross impositions upon the court, of which the defendant Marcus L. Byrn, who was the purchaser on the sale under the foreclosure judgment, had full notice and knowledge.
    Upon appeal from a judgment overruling a demurrer interposed to the complaint, on the ground of insufficiency,

      Held, that a cause of action was stated in the complaint.

      Appeal by the defendants, Albert B. Byrn and another, from an interlocutory judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of February, 1895, upon the decision of the court rendered at the Kings County Special Term overruling the demurrer of the defendants to the plaintiff’s complaint, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 7th day of February, 1895, upon which said judgment was entered.

      Geo. W. Stephens, for the appellants.

      Howland M. Hall, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon an order overruling a demurrer interposed by the defendants to the amended complaint of the plaintiff.

The demurrer was for insufficiency. The action was brought to set aside as fraudulent a judgment of foreclosure and sale, entered in the Supreme Court, in the county of Queens, on the 6th day of Februaiy, 1888, by the defendant Albert B. Byrn, under which the land of the plaintiff was sold and the defendant Marcus L. Byrn became the purchaser. The complaint states substantially that the plaintiff purchased the lots in 1862, at which time they were subject to a mortgage made by one Warner to one Yan Mater, dated March 31, 1857, and due by its terms March 31, 1862. This bond and mortgage were assigned to one James Bowne, July 3,1857, and were assigned by Bowne to one Reid, April 1, 1858. On July 20, 1868, the plaintiff paid the bond to Reid’s representatives, and took up the bond and mortgage, and has had them in his possession since that time. On the 24th day of August, 1887, the defendant Alfred B. Byrn, finding the record of the mortgage uncanceled, procured an assignment from James Bowne of all his right, title and interest in the bond and mortgage in question, and thereupon proceeded to foreclose the mortgage. An order for the publication of the summons was obtained dispensing with depositing the same in the post-office, and the summons was served by publication. Upon the reference to a referee to take proof of the facts and circumstances stated in the complaint, the plaintiff herein being an absent defendant in that action, proof of the mortgage and assignment thereof was made by reference to the records of Queens county, and of the bond, by reference to the record of the mortgage which recited a bond. The plaintiff had removed to the State of New Jersey in 1864 and was wl lolly ignorant of the proceedings taken to deprive him 'of his property. The plaintiff alleges that the assignment of the mortgage from James Bowne was procured with the intent to cheat and defraud him out of liis property by a fraudulent and pretended foreclosure of the mortgage, which, though uncanceled, was then paid.

It is further alleged that, in pursuance of that intent to cheat and defraud the plaintiff, the action to foreclose the mortgage was commenced by the defendant Albert B. Byrn against James Thomas Warner, James A. Baker and all persons or owners unknown, claiming an interest in the premises sought to be foreclosed in that action. It is further alleged in the complaint that the plaintiff was ignorant of the several attempts taken for a foreclosure of the mortgage until very recently. It is further stated that the plaintiff is informed and believes that the attempted assignment of the bond and mortgage by James Bowne to the defendant Albert B. Byrn, unaccompanied by the bond and mortgage, was wholly null and void and of no effect, and that the judgment and decree for the foreclosure of the mortgage was obtained by fraud, and in pursuance of an intent to cheat and defraud the plaintiff out of his property and by a series of gross impositions upon this court, of which the defendant Marcus L. Byrn had full 'notice and knowledge. The principal insistauce on the part of the defendants in favor of the demurrer is that relief should have been sought in the foreclosure suit, and they cite a class of cases in which the courts have refused to entertain an action to nullify a judgment when the relief sought would require a retrial of the case already tried in the original suit. Such was the case of N. Y. C. R. R. Co. v. Harrold (65 How. Pr. 89). But such cases have no application here.

The trial of this action requires proof of an original fraud, concocted and perpetrated against the plaintiff and upon the court. Chancellor Kent, in the case of Foster v. Wood (6 Johns. Ch. 87), states the rule and its application as follows: The rule is that chancery will not relieve against a judgment at law on tlie ground of its being contrary to equity, unless tbe defendant in the judgment was ignorant of tbe fact in question pending the suit, or it could not have been received as a defense, or unless be was prevented from availing himself of tbe defense by fraud or accident or tbe act of tbe opposite party, unmixed with negligence or fault on bis part.” Again, it is said in Ross v. Wood (70 N. Y. 10): " Tbe fraud which will justify equitable interference in setting aside judgments and decrees must be actual and positive and not merely constructive. It must be that which occurs in the very concoction or procuring of tbe judgment or decree, and something not known to tbe opposite party at the time, and for not knowing which he is not chargeable with negligence.” It is said in the case of Whittlesey v. Delaney (73 N. Y. 571) that whenever the party, liable to be injured by a judgment tainted by fraud, has had no opportunity to protect himself against it at law, a court of equity is open to him.”

In the case of The State of Michigan v. The Phœnix Bank (33 N. Y. 27) it is said : “ It is needless to multiply cases showing that the courts, upon bill filed, will set aside as a nullity a judgment, decree or award obtained by fraud.”

In the case of The United States v. Throckmorton (98 U. S. 65) it is said : Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court (by) a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff * * * or' where the attorney regularly employed corruptly sells out his client’s interest to the other side — these and similar cases which show there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to set aside and annul the former judgment.”

This case falls within the authorities cited, and the complaint states a cause of action.

The appellant insists that the judgment is conclusive, but it is to be observed that nothing is conclusive in law which is procured by fraud, for fraud vitiates everything into which it enters. The fraudulent manufacture of a claim and of evidence to secure a judgment upon it, cannot escape the vigilant eye of a court of equity which is always open to a party injured by a judgment obtained by fraud.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

Pratt, J.

(concurring):

We think that this demurrer was properly overruled. This disposition of the case does not militate against the application of the general rule, that a judgment between the same parties cannot be attacked collaterally. The precise point here is that this judgment is not between the same parties and this is not a collateral attack. The purchaser, Marcus L. Byrn, who is now in possession of the land which plaintiff claims to own, and which he undoubtedly at one time did own, was not a party to the foreclosure suit. He bought at the foreclosure sale, with notice, as plaintiff alleges, of the fraud of which jdaintiff complains. Plaintiff alleges that he bought the premises in question subject to a mortgage held by Bowne, which Bowne subsequently assigned to Reid, and that he paid off the mortgage debt, principal and interest, to Reid or his representatives; that Reid did not record his assignment nor did plaintiff, and the satisfaction piece was not filed; that in 1887, nearly twenty years later, defendant Albert Byrn, with intent to cheat plaintiff, procured an assignment of the mortgage from Bowne, which he recorded, and thereupon began the foreclosure suit making plaintiff a party defendant, and proceeding by publication ; that plaintiff was never served with process, and heard nothing of this suit until long after the foreclosure judgment and sale, indeed, until just prior to the commencement of the present action; that the premises were sold and were purchased by defendant Marcus L. Byrn, who was not a party to the foreclosure suit, but who purchased with knowledge of the facts on which plaintiff relies, etc. Of course, plaintiff might have appeared in the foreclosure suit if he had known of it, and, on proof of his present allegations, would have beaten that plaintiff. But he did not know of that suit. On his allegations, the institution of the suit, indeed the procurement of the assignment from Bowne on which it was based, was a fraud upon him. The entry of the judgment in his absence and without his knowledge, was no less a fraud, and still operated as a fraud. .True, as against that plaintiff, he might obtain relief by motion in that suit. But the purchaser under that judgment is now entitled to be heard, not simply on affidavits and in the usual haste of a motion, but deliberately, with that care and consideration which we give to trials, especially trials involving allegations of fraud. If plaintiff had sued Marcus L. Byrn in ejectment, very likely he would have been estopped by this judgment in foreclosure. He is bound to take no such risk. He, by thi§ action, attacks this judgment and proceedings thereunder directly. They give color of title to his property, and, if valid, one of these defendants may deprive him of his property.' ¥e feel clear that such an action is proper both in principle and authority.

Judgment affirmed, with costs, but with leave to answer within twenty days on payment of costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs, with leave to defendants to answer in twenty days on payment of costs.


author: Brown, P. J.:

text:
    Susanne L. Emmer, Respondent, v. The Title Guarantee and Trust Company, Appellant.

      Qwwanty of the title to real estate— lialiUiy of the yua/rantor for a Ireaeh thereof.

    In an action, brought to recover damages sustained as alleged by reason of the negligence of a title guarantee company in failing to properly examine and guarantee the title to certain real estate, it appeared that the plaintiff verbally contracted with one O’Neil to purchase the premises known as No. 125 Fourth avenue, in the city of Brooklyn,, and employed the defendant to prepare the contract, examine and insure the title and to represent her in the transaction. The purchase price was to be -$4,000 and the premises were to be conveyed subject to a mortgage of $9,000. By an error of defendant the written contract of sale described No. 123 Fourth avenue, and the defendant accepted for the plaintiff from O’Neil a deed of No. 123, subject to a mortgage for $9,000, and paid to him $4,000 which it had theretofore received from the plaintiff. Defendant issued tc plaintiff a policy guaranteeing her against all defects in or incumbrances upon the title so conveyed. Plaintiff entered into possession of No. 125 Fourth avenue, and continued in possession thereof until June, 1893, when she was evicted by the then owner who was a purchaser under the foreclosure of a second mortgage thereon. At the time O’Neil entered into tho contract with plaintiff, he owned hoth premises, which were of equal value, and each was incumbered with a first mortgage of @9,000, and at the time of the conveyance No. 125 was subject to a second mortgage of $5,000. Plaintiff discovered the error in the conveyance about three months after the delivery of the deed to her, and thereafter recovered a judgment agaiDst O’Neil reforming the deed and inserting therein the description of No. 125 in place of No. 128.

      Held, that the duty which the defendant owed to the plaintiff under its contract, was not to pay over to O’Neil tho sum of $4,000 which it had received from the plaintiff, until it had received from him a conveyance of No. 125 Fourth avenue, subject tono other incumbrance than a mortgage of $9,000 ; that this obligation the defendant was bound to perform with reasonable care, and that if, by reason of its negligence, it parted with the money which it had received from the plaintiff without obtaining for her a title to the property named, it immediately became liable to return to her that sum; that the plaintiff had a right to a conveyance of the lot of her choice, and she was not bound in her relations with the defendant to accept some other piece of land, although of equal value, for the sole purpose of relieving it from the loss arising from its neglect.
    Appeal by the defendant, Tbe Title Guarantee and Trust Company, from a judgment of tbe S upreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Kings on tbe 25th day of February, 1895, upon tbe verdict of a jury rendered after a trial at tbe Kings County Circuit.
    Tbe action was brought to recover damages sustained by tbe plaintiff, as alleged, through the negligence of the defendant, a title guarantee company, in failing to properly examine and guarantee tbe title to certain real estate which tbe plaintiff bad agreed to purchase under a verbal contract of sale with one John M. O’Neil.

      Edward E. Sprague, for the appellant.

      Josiah T. Marean, for the respondent.
   Brown, P. J.:

The questions raised by this appeal relate to tbe measure of damages applicable to the facts of the case.

Tbe material facts, as determined by tbe jury and now agreed upon by counsel, are substantially as follows:

The plaintiff, having verbally contracted with one O’Neil to purchase tbe premises known as No. 125 Fourth avenue in tbe city of Brooklyn, employed the defendant to prepare the contract, examine and insure the title and to represent her in the transaction. The purchase price was to be $4,000, and the premises were to be conveyed subject to a mortgage of $9,000. By an error of defendant the written contract of sale described No. 123 Fourth avenue as the premises to be sold to the plaintiff, and defendant accepted for the plaintiff from O’Neil a deed for No. 123, subject to a mortgage for the amount aforesaid, and paid to him the sum of $4,000 which it had theretofore received from the plaintiff, and thereupon issued to plaintiff a policy guaranteeing her against all defects in or incum-brances upon the title so conveyed. Plaintiff thereupon entered into possession of No 125 Fourth avenue and continued in possession thereof until June, 1893, when she was evicted by the then owner thereof, who appears to have been a purchaser under a foreclosure of a second mortgage. At the time O’Neil entered into the contract with the plaintiff he owned both premises. Tlie were of equal value and each was incumbered with a first mortgage of $9,000, and at the time of the conveyance No. 125 was subject to a second mortgage of $5,000.

Plaintiff discovered the error in the conveyance about three months after the delivery to her of the deed, and subsequent thereto, in an action brought for that purpose, recovered a judgment against O’Neil reforming the deed, and inserting therein the description of No. 125 in lieu of No. 123 Fourth avenue.

The court charged the jury that if they found for the plaintiff she was entitled to recover $4,000, with interest from June 1, 1893, the date of the eviction, if the property was then worth that sum above the incumbrance. And it refused to charge that it was the duty of the plaintiff upon discovering the mistake in the description to sell the premises actually conveyed to her for the highest price obtainable and thus reduce the damages, and that in the absence of any evidence that there was a difference in the value of the two houses, defendant was not liable for more than nominal damages. The exception to these rulings presents the question to be considered on this appeal.

The duty which the defendant owed to the plaintiff under its contract was not to pay over to O’Neil the sum of $4,000, which it had received from the plaintiff, until it received from him a conveyance of No. 125 Eourtli avenue, subject to no other incumbrance than a mortgage of $9,000. This obligation the defendant was bound to perform with reasonable care, and if by reason of its. negligence it parted with the money which it received from the plaintiff without obtaining for her a title to the property named, it immediately became liable to return to her that sum. The proposition that, because it received for her a deed for property of equal value, she suffered only nominal damages, is plainly uusound. The purchase of a piece of land cannot be likened to the purchase of corporate stocks or merchandise. Each piece .of land has a character and location of its own, and differs in some essentials from all other real estate. The plaintiff had a right to the conveyance of the lot of her choice, and she was not bound in her relations with the defendant to accept some other piece of land for the sole purpose of relieving it from the loss arising from its neglect. When it appeared, therefore, that the result of the defendant’s management of the business was that it had obtained from O’Neil the title to a piece of land other than that which the plaintiff intended to purchase, it became immediately liable to> restore to her the money it had received from her. Nothing that the plaintiff did after she discovered the mistake relieved the defendant from the liability to restore the money. It has not been charged with the costs of the action against O’Neil to reform the deed as it might have beeii if that action was prosecuted in good faith, and the fact that a second mortgage on No. 125 was foreclosed, and the plaintiff evicted from the property, has not increased the defendant’s liability.

The pertinent and material fact in the case is that it received from the plaintiff $1,000 with which to acquire for her the title to a specific piece of land. It has not acquired the land, and it has paid away the money.

The jury having found this to be the result of negligence, the obligation to restore the money is plain.

The judgment must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Richard M. Winfield, Relator, v. Charles F. Bruning and Others, Aldermen of and Composing the Common Council of the City of Mount Vernon, Respondents.

      City of Mount Vernon — § 181 ofcha/p. 182 of 1892 not violative of § 17 of article 3 of the New Toi'lt State Constitution.

    The act of the Legislature (Chap. 182 of the Laws of 1892, § 181), providing that “All general laws or special acts in relation to sewers applicable at the time of the passage of this act to the village of Mount Yernon, shall apply with equal force to the city of Mount Vernon, to all sewers hereafter to he constructed therein, and any sewerage loan bonds which may be issued by said city under chapter 608 of the Laws of 1886, and the several amendments thereto shall be designated ‘sewerage loan bonds of the city of Mount Yernon,’ ” is not in violation of section 17 of article 3 of the Constitution of the State of New York which provides that “no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.”
    Said statute does not re-enact the statute to which it refers; it simply provides that all the statutes relating to sewers which were applicable to the village of Mount Yernon shall apply to all the sewers thereafter to be constructed in the city of Mount Yernon.
    , Ceeticíeaei issued out of the Supreme Court, and attested on the 5th day of May, 1894, directed to Charles F. Bruning and others, aldermen of and composing the common council of the city of Mount Yernon, New York, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings, decisions and actions in regard to the construction of a lateral sewer in Summit avenue, from the White 'Plains road to Primrose avenue in the city of Mount Yernon, and all resolutions adopted by them and of each and every of their proceedings therein in relation thereto, with the rulings and decisions of said board, to the end that said decisions or actions might be reviewed and corrected.

      Milo J. White and William P. Fiero, for the relator.

      David Swits, for the respondents.
   Dykman, J.:

This is a certiorari to review an assessment laid agaibst the property of the relator for the construction of a sewer in the city of Mount Yernon in Westchester county.

That city was incorporated in March, 1892, by an act of the Legislature (Chap. 182 of 1892), and the sewer in question was constructed under the provisions of that act, and section 181 of the act provides for a plan and system of sewers for the portion of the city not already sewered, and the construction of sewers in accordance with such plan and system.

The city was the successor of the village of Mount Yernon, and some sewers had been constructed in the village before it was merged into a city.

After providing for the preparation of a plan as already stated, section 181 contains this language: “ All general laws or special acts in relation to sewers applicable at the time of the passage of this act to the village of Mount Yernon, shall apply with equal force to the city of Mount Yernon, to all sewers hereafter to be constructed therein, and any sewerage loan bonds which may be issued by said city under chapter 608 of the Laws of 1886, and the several amendments thereto ^hall be designated ‘ sewerage loan bonds of the city of Mount Yernon.’ ”

This last part of the section is now challenged as being violative of section 17 of article 3 of the Constitution of the State of New York, which is this: “No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.”

That provision of the Constitution is designed to prevent hasty and inconsiderate legislation of which legislators might be ignoránt.

It was not designed to interdict the subordination of special acts to some provisions of general statutes or local statutes regulating the procedure under the act.

The rule upon the subject is this: “ Where a statute by its own language grants some power, confers some right, imposes some duty or creates some obligation, the fact that it refers to some other existing statute, general or local, in order to point out the procedure, or some administrative detail necessary for the accomplishment of the purposes of the act, does not bring it in conflict with the provision of the State Constitution” under consideration. (People ex rel. Everson v. Lorillard, 135 N. Y. 285.)

The statute under review in that case was much nearer the danger line than this, and it was there held that an act providing for the acquisition and improvement of certain lands in connection with "Washington bridge was not rendered obnoxious to the constitutional provision now invoked, because of the fact that it referred to another local act as to method of procedure to be had to acquire title to the lands required.

The portion of the statute under consideration does not re-enact the statutes to which it refers. It simply provides that all the statutes relating to sewers, which were applicable to the village of Mount Yernon, shall apply to all the sewers thereafter to be constructed in the city of Mount Yernon.

It is to be observed further that section 181 of the city charter contained ample provisions for the construction of sewers independent of the clause which referred to other statutes.

As all the proceedings for the levying of the assessment were regular and legal they must all be confirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Determination confirmed, with costs.


text:
    Stephen D. Arents, Respondent, v. The Long Island Railroad Company, Appellant.

      Ejectment — when the possession of intermediate grantees will he presumed, — when only the right to possession need he established.

    In an action of ejectment, brought to recover the possession of certain real estate, the plaintiff adduced a chain of title to himself from a source acknowledged to he valid.

      Held, that in such a case it was not necessary to show possession in each of the intermediate grantees, such possession being- presumed, and that the burden of establishing an adverse possession was cast upon the defendant. Under such circumstances, proof that the premises in question had been held in the actual possession of two of the intermediate grantors of the plaintiff was all that could possibly be required.

      In such, an action, -where the answer admits the possession of the premises by the defendant, it is only necessary for the plaintiff to establish his right to the possession.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of July, 1894, upon the report of a referee.

      James W. Treadwell and William J. Kelly, for the appellant.

      Asa W. Parker, for the respondent.
   Dykman, J.:

This is an appeal by the defendant from a judgment entered upon the report of a referee.

The action was ejectment and both parties claimed title to the premises.

The defendant also claimed adverse possession for twenty years before the commencement of this action. The defendant further claimed that the premises were in the actual-possession of the South Side Railroad Company, under a claim of title adverse to that of the plaintiff when he took his deed.

The referee found in favor of the plaintiff on all of the issues.

The premises in suit consist of a narrow strip of land about sixty-six feet wide which is now used as a portion of the roadbed of the defendant’s railroad. Both parties recognize the title of John Jackson, and he conveyed the same to his son John Jackson, Jr., by warranty deed dated May 12, 1872.

The referee found that the premises so conveyed to John Jackson, Jr., were conveyed to the plaintiff through several mesne conveyances which the referee finds and describes in detail'.

It was also found by the referee that Charity Treadwell, one of the grantees to whom the premises were conveyed in January, 1808, was in possession of the premises and cultivated them for more than forty years after the date of her deed.

It was further found by the referee that Jeremiah Carman, to whom the premises were conveyed in 1849, was in possession of the premises and cultivated the same for three years from' the date of his deed. The evidence is sufficient to srrpport the findings of the referee and to iustify his report in favor of the plaintiff,

The premises were held in the actual possession of two of the intermediate grantors of the plaintiff, and that is all that can possibly be required under the circumstances.

It is to be borne steadily in mind that the plaintiff adduced a chain of title to himself from a source acknowledged to be genuine and valid, and in such a case it is not necessary to show possession in each of the intermediate grantees. Such possession is presumed and the burden is cast upon the defendant to establish an adverse possession. (Stevens v. Hauser, 39 N. Y. 302.)

As the answer admits the possession of the premises by the defendant, it was only necessary for the plaintiff to establish his right to the possession.

It should be noted that the premises in question constitute but a small part of the land conveyed by the deeds to the intermediate grantors of the plaintiff.

The defendant claims title from the South Side Railroad Company, and such right as the latter company had was obtained by a grant from Jacob S. J. Jones. There was no proof of title in him, and the referee refused to find that he ever had any title. There was an offer to prove by him that he was in possession, claiming title to the premises, in 1866, when he made the written agreement consenting to the construction of the South Side railroad over the land, but that proof was offered to show that the land was held adversely by the South Side Railroad Company when the plaintiff took his deed for the premises.

That offer was properly rejected. It appeared in several ways, which need not be recited here, that he never had any interest in the premises conveyed to the plaintiff. They were in Little Neck and the land of the witness Jones was in Great Neck.

The first deed of conveyance in the chain of title under which the defendant claims was from John Jackson to Obadiah Jackson, dated March 15, 1761, and conveyed land in Great Neck.

The effort of the defendant to show title and adverse possession proved abortive.

We, therefore, find no error in the record, and the judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not voting.

Judgment affirmed, with costs.


text:
    Genevieve Phillips Powers, Appellant, v. Hugh O’Neill and Another, Respondents.

      Storekeeper — when not liable for property of a customer lost while she is shopping — negligence of customer.

    In an action brought to recover damages sustained by the loss of a pocket book containing money, it appeared that the plaintiff visited the store of the defendants for the purpose of purchasing a hat for herself; that while she was trying on hats for the purpose of selecting one she took off her own hat and laid it upon the counter of the store and placed her pocket book, which contained a sum of money, under the crown of her own hat. She remained herself near her hat. There was no one in the department except the clerks. She missed her pocket book within a few minutes after she had laid it under her hat and immediately notified the saleswoman, who called the floor walker and notified him of the loss. The floor walker made some examination of the drawers and a cursory search upon the counter, and requested the plaintiff to call at the store the next morning, which she did, and the superintendent took her name and address.

      Held, that there was no implied invitation to the plaintiff to lay down her pocket book for the purpose of trying on the hat which she intended to purchase; that the defendants were neither voluntary custodians nor custodians of any kind of the pocket book, and were under no obligation to use any care for the protection of the same; that the plaintiff was guilty of negligence which was the actual cause of the loss and which was sufficient to defeat her action.
    Appeal by the plaintiff, Genevieve Phillips Powers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 16th day of' February, 1895, upon the dismissal of the complaint directed by the court after a trial at the Orange County Circuit, before the court- and a jury.

      William S. Bennett, for the appellant.

      Isaac Fromme, for the respondents.
   Dykman, J.:

This action is brought to recover a sum of money and a pocketbook, which was lost in the store of the defendants in New York city, the claim of the plaintiff being that the loss was sustained by reason of the negligence of the defendants and their employees.

It appears from tbe testimony that the plaintiff visited the store of the defendants in New York city a few minutes before the time of closing the same, for the purpose of making a purchase of a hat for herself. "While she was trying on the hats for the purpose of selecting one for herself, she took off her own hat and laid it upon the counter of the store, and placed her pocket book with the money which it contained under the crown of her own hat. She remained herself near by the hat. There was no one in the department except the clerks of the defendants. She missed her pocket book within a very few minutes after she had laid it under her hat. She immediately notified the saleswoman, who called the floor walker and notified him of the loss. He made some examination of the drawers and a cursory search upon the counter, and then said he could do nothing that night, but requested the plaintiff to call again in the morning. She called in the morning and the superintendent took her name and address. The case is destitute of evidence to show that any of the employees of the defendants saw her pocket book or had any knowledge that she had one.

The cause came on for trial at the Circuit before a jury, at the city of Newburgh, in Orange county, and at the close of the testimony on the part of the plaintiff, the counsel for the defendants moved to dismiss the complaint on the ground that no facts had been proven sufficient to sustain the action, and the motion was granted, to which the plaintiff excepted.

Counsel for the plaintiff requested permission to go to the jury on all the evidence, and on the question of the negligence of the defendants, and also on the question as to whether the employees of the defendants used reasonable care after the loss; also on the question whether the defendants were not negligent in employing incompetent servants, all of which requests were denied, and there was an exception to each denial. The counsel for the plaintiff seems to have relied upon the decision of the Court of Appeals in the case of Bunnell v. Stern (122 N. Y. 539). In that case the defendants were proprietors of a retail store in which there was a department for the sale of ready made cloaks.

The plaintiff was there to make a purchase of a cloak for herself, and for the purpose of trying on the cloak which she intended to purchase she took off her own cloak, and, there being no other place to put it, laid it on a counter directly in front of a clerk, near a mirror in front of which the clerk who was waiting upon her stood with one of the defendants’ cloaks to have her try it on, which she did. She did not ask, and was not told where to put her cloak. The clerk who was waiting upon her and the one at the counter observed her as she laid it down, but neither said anything. After trying on the cloak plaintiff went for her own, but it could not be found, although careful search was made for it.

It appeared that no instructions had been given by the defendants to their clerks as-to the disposition of garments' removed by customers in order to try oil those offered for sale.

It was held by the court in that case that the defendants as voluntary custodians for profit to themselves were bound to use some care for plaintiff’s property, which she had laid aside by their implied invitation; that the evidence showed an omission to exercise this care, and so they we2’e properly held liable.

In that case the court laid great stress upon the fact that the property of the plaintiff was properly brought to the store of the defendants, and necessarily laid aside by their implied invitation in order to attend to the business in hand. They were, therefore, bound-to use some care for the plaintiff’s property. The court also concluded that the defendants as voluntary custodians for profit to themselves were bound to exercise some care over the plaintiff’s cloak, and that on account of their absolute failure in this regard they were properly held liable by the court for the damages which she sustained.

It will be seen, however, that there is a material difference between the case of Bunnell and the case of this plaintiff. In this case there was no implied invitation on the part of the defendants to the plaintiff to lay down her pocket book containing her money. It was not necessarily laid aside by her for the purpose of trying on the bonnet which she intended to purchase, and, therefore, there was no implied invitation for her to do so. The defendants were neither voluntary custodians nor custodians of any kind, and, therefore, they were under no obligation to use any care for the protection of her property. The testimony offered by the plaintiff to prove the duty of a floor walker was properly excluded by the court, and the exception to such an exclusion presents no error.

Moreover, it is plain from the evidence that the plaintiff was guilty of negligence which not only contributed to but was the 'actual cause of her loss. It was a careless act to lay down a pocket book containing money upon the counter of a public store and then lose sight of it. If money is to be carried upon the person in a public place, ordinary care requires it to be carried in some secure place, and its exposure is a manifestation of great want of care.

The negligence of the plaintiff was, therefore, sufficient to defeat her action.

We fail, however, to find any negligence on the part of the defendants or their employees.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


text:
    Dewitt C. Bouker, Jr., Appellant, v. The Long Island Railroad Company, Respondent.
    No. 1.

      Ik'ansportation of freight on a railroad — facts which do not constitute a contract — voluntary \payment of freight cha/i'ges.

    In October, 1898, one Bouker requested the traffic manager of the Long Island railroad to give him rates for the transportation of broken stone along the line of the railroad. The traffic manager submitted to him, for his consideration, certain rates. There was no acceptance of this offer, and without further communication, the traffic manager on February 3, 1894, wrote to Bouker, stating that he had canceled the rates theretofore furnished to him, which communication was received by Bouker about February 7, 1894. In May, 1894, Bouker brought stone to the railroad company for transportation and insisted that the same be transported at the rates furnished to him in October, 1893. The traffic manager refused to carry the stone except at a greater rate. Bouker shipped the stone and paid the freight demanded.
    In an action brought by Bouker to recover from the railroad company the difference between the price furnished him in October, 1893, and the sum paid by him.

      Held, that the plaintiff could not recover; that there was no contract in existence between the parties, and that it was the right of the railroad to charge the plaintiff the usual rates for the transportation of his stone;
    That, as the freight was paid, the plaintiff was deprived of any cause for complaint, the payment of the freight charges being voluntary and made by the plaintiff with full knowledge of all the facts.

      Appeal by the plaintiff, Dewitt 0. Bouker, Jr., from a judgment of the Oounty Court .of the county of Queens, entered in the office of the clerk of the county of Queens on the 20th day of February, 1895, reversing the judgment of a justice of the peace of the town of Hempstead, Queens county, New York.

      George Wallace, for the appellant.

      Alfred A. Gardner and William J. Kelly, for the respondent.
   Dykman, J.:

This is an appeal from a judgment of the Oounty Court of Queens county, reversing a judgment in favor of the plaintiff after a trial before a justice of the peace, for eighty-two dollars and ninety-four cents.

The action was brought for a breach of contract. The facts are substantially undisputed. In October, 1893, the plaintiff requested the traffic manager of the defendant to give him rates for the transportation of broken stone from Long Island City to Talley Stream and intermediate points, Hempstead, Far Rockaway, and stations between Pearsalls and Freeport, and the traffic manager submitted to him for his consideration rates between those places at eighty cents per gross ton, and to stations east of Freeport to and including Wantagh, eighty-ñve cents per gross ton.

There was no acceptance of this offer, and without further communication between the parties the traffic manager on the 3d day of February, 1891, wrote the defendant a letter in which he withdrew his offer in the following language : “ I have to advise yon that in future we shall require the prepayment of all charges on freight shipped for your account over our lines. I would also state that the rates quoted you October 21, to Talley Stream and intermediate points, to Hempstead and Far Rockaway and to stations between Pearsalls and “Wantagh, have this day been canceled. I have as well made void the rate of 50c. per ton on your stone to Rockaway Beach.”

That withdrawal was received by the plaintiff on or before February J, 1891.

On the 20th day of March, 1891, two months^ after the withdrawal of the offered rates, the plaintiff entered into a contract for building macadamized roads that required the transportation of stone to Hempstead, which was one of the points to which the rate of eighty cents had been quoted October twenty-fourth, and withdrawn February third.

In May the plaintiff brought carloads of stone to Hempstead to the railroad, and insisted that they transport it at eighty cents. The traffic manager reiterated the withdrawal of the eighty-cent rate, and refused to carry for less than ninety cents. The plaintiff shipped the stone, and paid the freight at the rate of ninety cents, and this action is brought to recover ten cents per ton on the May shipments to Hempstead.

As we have already stated, the plaintiff recovered in the Court of the Justice of the Peace, and that judgment was reversed on appeal to the County Court.

It is to be observed in the first place that there was no contract on the part of the defendant to carry the stone at eighty cents per ton. There was an offer to do so, which was not accepted, and which was withdrawn before the shipment of any of the stone for which the plaintiff paid the freight which he claims to recover in this action.

As there was no contract in existence between the parties, it was the right of the defendant to charge the plaintiff the usual rates for the transportation of his stone, and as the freight was paid, that deprived the plaintiff of any cause for complaint.

It cannot be claimed that the payment of the ninety cents was under duress, or was induced by fraud or through mistake. There was no duress, for the plaintiff was under no obligation to ship the stone, or to place his property in the possession of the defendant. The payment was voluntary in every proper sense of the term, and was made by the plaintiff with the full knowledge of all the facts. He knew before he commenced the shipment of the stone the terms upon which it would be received and transported to Hempstead and other points. The railroad company claimed no lien on his property, and never refused to deliver the stone to him.

Neither can it be said that this is an action for unjust discrimination. Neither the pleadings nor the proof make such a case.

The judgment of the County Court should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    William H. Flannery and Thomas Flannery, Respondents, v. The Cornell Steamboat Company, Appellant.

      Navigation — rule when steamers are approaching head and head — signal to he given — absence of lookout, when not negligence.

    The rale of navigation, when steamers are approaching each other head and head, or nearly so, requires each steamer to pass to the right, and the pilot of either steamer may he first in determining to pursue this course, and thereupon shall give, as a signal of his intention, one short and distinct blast of his steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle, and thereupon such steamers shall pass to the right.
    It is the office of a lookout upon a vessel to discover dangers which cannot be so-quickly discovered by a pilot who is engaged in navigating the vessel, but, if the peril is seen by the navigator, or any other person, in time to take measures for its avoidance, no charge of negligence can be based upon the absence of a lookout.
    Appeal by the defendant, The Cornell Steamboat Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 8th day of February, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit, bearing date the 6th day of February, 1895, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial made upon the minutes.

      Benedict & Benedict, for the appellant.

      Stewart & Macklin, for the respondents.
   Dykman, J.:

This action was brought by the plaintiffs, as owners of the steam tug William M. Bentley, against The Cornell Steamboat Company, owners of the steam tug Goe E. Young, to recover the damages sustained by the Bentley while in collision with the Young on the 5th day of September, 1893. On the day of the accident the Bentley started from the 'Wallabout in Brooklyn, about half-past seven o’clock in the morning, bound down and across the East river, te Pier No. 6 on the New York side. She proceeded at half speed.

There was a large steamer coming up the East river, heading toward the New York side, and when the steamer crossed the bows of tbe Bentley it was between the Bentley and the Young, which, was coming up the river against the tide, with a canal boat loaded with coal on her port side. When the captain of the Bentley first sighted the Young the two tugs were about head and head, and he put his wheel a-port, and blew one whistle to indicate that he was going to the right of the Young, and that the pilot of the Young should port his wheel and go to the right of the Bentley, so that each vessel should pass the other port to port At that time the two tugs were about 250 or 300 feet apart. No answer was made from the Young to the signal whistle of the Bentley, and in a few seconds the captain of the Bentley gave a second signal of one whistle also. During all this time the Bentley had been going to the right in accordance with her signal, but when no answer was received to the second signal of one whistle, her captain blew two or three danger signals hs a warning to the Young to keep clear. Instead of stopping or putting his wheel to port and turning his vessel toward the Brooklyn side so as to escape the collision, the captain of the Young put his wheel a-starboard, and thereby turned his vessel to the left, and the canal boat collided with and struck her about midships on her port side.

The rule of navigation for steam vessels applicable to this case is as follows: When steamers are approaching each other head and head, or nearly .so, it shall be the duty of each steamer to pass to the right, that is, on the port side of the other, and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give as a signal of his intention one short and distinct blast of his steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle; and thereupon such steamers shall pass to the right, that is, the port side of each other. But if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting head and head, or nearly so, the pilot so first deciding shall immediately give two short and distinct blasts of his steam whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam whistle, and they shall pass to the left or on the starboard side of each other.

Under the circumstances disclosed by the evidence and found by the jury, as we must assume, the conduct of the captain of the Bent ley was in accordance with that rule. It was the duty of each vessel to pass to the right, and either one might be first in determining to pursue that course; and when he had so determined it was his duty to signal his intention by giving one short and distinct blast of his whistle.

That was all done by the captain of the Bentley, and the pilot of the Young gave no signal, and there is no excuse for such inaction. If for any reason he could not go to the right, or if, in his opinion, the course of the steamer was such as not to be considered by pilots as meeting head and head, or nearly so, then he knew that he was the first pilot to so decide, and it was his duty immediately to give two short and distinct blasts of his steam whistle as a notice of his intention to pass to the left. If he could have done neither he could have reversed his engine and his headway soon would have been arrested by the current, which was against him. Without any effort in either of the directions indicated, his action had been to turn his vessel toward the Bentley and expedite the collision. At the close of the testimony on the part of the plaintiffs the counsel for the defendant moved to dismiss the complaint on the ground of the absence of the lookout on the Bentley, and the denial of that motion is assigned for error. A lookout is a competent person stationed for that purpose on the forward part of the vessel. His presence there is a wise precaution, and in many cases his absence would manifest a want of proper care. Bnt where the absence of a lookout contributes nothing to the accident, no liability will be incurred therefor. It is the office of a lookout to discover dangers which cannot be so quickly discovered by a pilot who is engaged in navigating the vessel; but if the peril is seen in time by the navigator, or any other person, in time to take measures for its avoidance, no charge of negligence can be based upon the absence of a lookout. As a lookout is by no means the only precaution adopted by a prudent navigator to guard against danger, so his presence is not indispensable as a shield against the imputation of negligence. (Case of The Farragut, 10 Wall. 334.)

The foregoing principles applied to this case exculpate the navigators of the Bentley from the charge of negligence.

The Young was discovered by the captain of the Bentley as soon as she was uncovered by the big steamer and came in sight behind her stern. A lookout could not have seen her sooner, and there was ample time for the avoidance of the collision if the pilot of the Yowng had observed the Bentley and obeyed the rules of navigation as the captain of the Bentley did. It may as well be stated here that under the charge of the trial judge we must assume that the jury believed the testimony on the part of the plaintiffs and disbelieved the testimony on the part of the defendant. We, therefore, take the facts as the jury have found them. The absence of a lookout, therefore, went to the jury like all the other facts and circumstances in the case upon the question of negligence, and the motion for a dismissal was properly denied. The same question was raised by a request to charge, which was also properly denied. The counsel for defendant requested the trial judge to charge that the man who blows the whistle has no right to go a-port, but must wait until the signals are understood, but the request was properly denied.

We have already stated the proper construction of the rule of navigation to be that the pilot of either steamer may be first in determining to pass to the right when steamers are approaching each other head and head. The record discloses no errors, and the judgment and order denying a motion for a new trial must be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed, with costs.