text:
    FREDERIC WRIGHT, et al., Plaintiffs, v. STEPHEN CABOT, et al., Defendants.
    i. undisclosed principal.
    1. Rights op, against third persons.
    (a) Is entitled to recover from a broJcer who, upon the employment of his factor, has sold his goods, such proceeds of the sale as the broker, at the time of being notified of the principal’s' ownership still retains in his hands, subject to such equities a# existed between the factor and broker.
    Hall v. Lauderdale, commented on and distinguished.
    1. Equities between factor and broker.
    The broker is entitled to charge against the proceeds, the brokerage on, and expenses of the sale of the goods, the sale whereof produced the proceeds.
    But not entitled to brokerage and expenses on other property, where no credit in respect thereof was induced by the goods in question.
    II. Supplementary proceedings.
    1. THIRD PARTY ORDER.

      (a) Responsibility in paying under.

    Where the third party on his examination admits an indebtedness to the judgment debtor and fails to disclose that other persons claim the amount of such indebtedness, he at the time blowing of such claim, he will not be protected, by the fact of payment under an order made on such examination, from a recovery against him by such other persons.
    1. Attachment, levy under, but no action taken.

      As affording protection to payment under supplementary
    proceedings.

      (a) The fact that an attachment had been levied on the money as the property of the judgment debtor, and the third party gave a certificate pursuant thereto, does not, judgment having been recovered and execution issued thereon and returned unsatisfied, tend to protect the third party in a payment under a third party order made in supplementary proceedings based on the judgment and return of execution thereon unsatisfied.
    Before Sedgwick, Ch. J., and Tbit ax, J.

      Decided April 4, 1881.
    Exceptions ordered to be heard in first instance, at general term, after direction of verdict for plaintiff.
    The plaintiffs consigned property, viz.: 339 bales Esparto grass, to their factors, who were a firm called E. & C. Stokes, to sell. E. & G. Stokes employed, in their own name, the defendants as brokers, to sell the property. Before the sale, the defendants were informed that the property was consigned by correspondents of E. & C. Stokes, the latter informing the defendants that their correspondents “worked with them (E. & C. Stokes) on joint account.” The names of the plaintiffs as owners were not disclosed. Before February, 1878, the defendants had sold the property, and had received the proceeds in the sum of $1,472.40. The plaintiffs’ factors, E. & C. Stokes, having failed in business, an action was begun against them in the city of ¡New York, and they being residents of Philadelphia, an attachment against their property was issued and was served about February 11, 1878, on the present defendants. They signed a certificate that they were indebted to E. & C. Stokes in the sum of $628.36. On April 18, 1878, the defendants received a letter, signed by Mr. Scattergood, as attorney for the plaintiffs, which was as follows : “I have been requested to act for F. Wright, Newson & Co., of Liverpool, as their attorney, in the matter of certain merchandise, consigned by them to E. & C. Stokes of this city. I am informed that you are cognizant of the matter of 319 bales of Esparto, received in N. Y., Ex. S. S. City of Chester. Will you kindly advise me of the circumstances of this transaction, with full particulars of its present status ?”
    To this defendants answered: “We have never known F. Wright, Newson & Co. as being in any way connected with or interested in any merchandise sold by us for E. & C. Stokes. In fact, we had no knowledge of such a firm in any way. The name is entirely new to us. We remain, &c.”
    The plaintiff in the action against E. & C. Stokes obtained judgment, but no proceedings were taken to satisfy it, under the attachment..
    On the trial, it was admitted, that in the summer of 1878, and before the money in question was paid over, as hereafter stated, the defendants had received notice that the plaintiffs claimed the proceeds of these goods.
    Execution having been issued on the judgment, in proceedings supplementary to it, one of the defendants was examined and testified, “My firm holds to the credit and for the account of the defendants in this action, under the firm name of E. & C. Stokes, the sum of $628.36 over and above all our charges against them.”
    Thereupon an order was made, that the defendants pay over to the plaintiffs in the judgment,' the sum of $628.36, to be applied towards the satisfaction of the judgment.
    On the trial was produced, on plaintiffs’ case, an account rendered by defendants, in which it appeared that the goods had been sold for $1,472.40. Against this was charged for brokerage on this sale, and for expenses connected with the goods, viz.: carting, mending, weighing and storing, $274.84. There was also .charged for brokerage on sale of other goods and expenses connected with such other goods, $569.20. The account was shown to be correct ; but no evidence was given as to the circumstances under which the obligation in respect of the other goods arose.
    On the whole case, the judge directed a verdict for the proceeds of the sale, and entered and directed the exceptions to be heard, before judgment 'in the first instance at general term.

      George H. Fletcher, attorney, and of counsel, for plaintiffs, urged:
    I. The order under color of which the payment was made affords no protection to defendants. (a) It was obtained by irregular means. No examination was had by, or sworn to before, the justice as a matter- of facvt. It was sworn to before a notary public at the office of defendants. The form of the affidavit was such, as to mislead the court. It reads : “ His examination being taken and sworn to, by stipulation, before the undersigned notary public, and being examined by Coudert Brothers, attorneys for the plaintiffs, testified as follows.” By stipulation of whom? “His examination being taken,” imports regularity. The very opening of the pretended examination is an implied falsehood. “Stephen Cabot appearing pursuant to the order of. his examination as a third party,” are words which must have misled the judge signing the order of payment. Where did he appear pursuant to the order for examination ? Was the order made returnable at defendants’ office ? This was where the affidavit was made. Before justifying under the order, the proceedings culminating in it must have been established by defendants to have been regular; they fail to do this; they simply prove an order of payment; they fail to sustain this burden and the court, at the trial, was therefore correct in disregarding the order for payment and directing a verdict for plaintiffs. (5) The order was fraudulent in its intent. Its purpose was to deprive plaintiffs of the money which was justly theirs. The ex parte affidavit of Stephen Cabot was drawn and sworn to for the plain purpose of misleading the court. When he said “ my firm holds to the credit and for the account of the defendants in this action, under the firm name of E. & C. Stokes, the sum of $628.36, over and above all our charges and claims against them,” he knew he was telling but half the story, and that he was fraudulently conceal ing facts which the court should know. He was bound, to know, if he did not actually comprehend that the law was such that if he stated that Messrs. F. Wright,, ETewson & Co. of Liverpool^ England, claimed to be entitled to these same moneys, that llalli Brothers would not succeed in their summary attempt to get possession of them. The order was made the same as if bo such concern as the plaintiffs existed, or claimed, the money. Defendant, Cabot, knew that they did. exist and did claim the money, for in the next "breath he swears he had already received the notice that F. Wright, Newson & Co. claimed the money. This was a fraudulent concealment from the court of facts, which, if they had been divulged, would have rendered the present defense of payment to Ralli Brothers under this order impossible. The court never would have thus summarily disposed of F. Wright, Newson & Co.’s rights (Rodman v. Henry, 17 N. Y. 482; Sherwood v. Railroad Co., 12 How. 136; Grassmuck v. Richards, 2 Abb. N. C. 359 ; Manice v. Smith, 5 N. Y. Weekly Dig, 255). These cases plainly establish the rule that whenever any third person claims an interest in property sought to be summarily transferred in supplementary proceedings, no order for the delivery can be made therein. Conflicting claims cannot be tried in these proceedings. Either a suit must be brought to settle the claims, or a receiver must be appointed to superintend the carrying into effect of such an order to see that the property is indisputably that of the judgment debtor (Edmonston v. McLoud, 16 N. Y. 544). Neither proceeding was taken in this instance. If either had been taken, plaintiffs would not have been driven to this suit. Ho where is it declared that the court has the power or will take property of outside and unrepresented parties to pay the debts of judgment debtors. This power and discretion is limited to tak-' ing property of judgment debtors. Whosoever, therefore, misleads the court into believing that the property sought to be applied is the property of the judgment debtor, when it is not actually so, commits a fraud, either actual or constructive. Whether this is done by overt perjury or by concealment of material facts, makes no difference. In either case he should suffer the penalty of making the damage good. A third party, notified that his rights oí property are being attacked, is so far a necessary and proper party to the absolute and final conclusion of rights to the property that he is held to be entitled to appear and litigate the questions involved, by counsel employed by himself (Corning v. Tooker, 5 How. 19). He therefore, standing in the position of a party to the proceedings, cannot be bound by any order or determination therein, made without notice to him. As if to clinch the question of fraud, defendants were constrained to admit on the trial that full notice had been given to them long before the money was paid over to E-alli Brothers. This admission brands their acts as fraudulent. Ho benefit should spring to them from such conduct, (c) The fact that no notice was given to plaintiffs of the application for the order to pay over the sum of $628.36, renders the order no defense to the action of the plaintiffs to recover this sum, because otherwise' it, in effect, would deprive the plaintiffs of their property without due process of law. This is entirely outside the questions of fraud heretofore discussed. The plaintiffs were ’ entitled to their day in court before being deprived of their property. This the Constitution guarantees—an infraction of it is a breach of the highest law of the land. Courts have no right, by any rule of practice, to infringe it. They never permit any such rule to exist.
    II. Hothing was done under the attachment in consequence of these proceedings and the notices to defendants. Judgment was subsequently recorded, execution was issued, yet the money was not collected under the execution, as having been previously levied upon under the attachment. But on September 21, 1878, eight months afterward, in the surreptitious fraudulent proceedings already described, the money was paid over to Messrs. llalli Brothers, and this payment is now invoked as a defense to the claim of plaintiffs for the money. Could anything be more transparent % With full knowledge of all the facts and the claims of all the parties, defendants did an act which they must have known would only mulct them in damages. They took it upon themselves to decide at the time, and reiterate on the trial, that this money was the property of E. & C. Stokes.
    III. Although an attachment be regularly levied, if prior thereto the defendant has assigned and transferred his interest to another, the attachment cannot reach it. Although the person having possession of the property about the time of the levy be ignorant of. the assignment, and if prior to any payment by him tc> the sheriff he has notice of the assignment, the attachment proceedings are no defense to him in an action brought by the assignee against him (Greentree v. Rosenstock, 61 N. Y. 593). Again, it is held that a payment of money under an order in aid of execution will be protected as against an assignment of property to a third person, unless he has received notice of the assignment (Gibson v. Haggerty, 37 N. Y 557). This rule of notice changes the whole matter, for it is broadly held that in the absence of notice of assignment of claim against him, a party is entitled to deal with the assignor as though no assignment had been made (Senear v. Woods, 7 N. Y. Weekly Dig. 341).

      Ooudert Brothers, attorneys, and F. R. Ooudert, of counsel, for defendants,
    after making, among others, the point that certain evidence tending to establish that the Messrs. Stokes had no proprietary interest in the goods was erroneously admitted, and that it was under the evidence, for the jury to say whose the goods were, or who were the consignors, and the point that the rights and responsibilities of the parties had, on the' 4th of February, before the defendants had any notice or knowledge that any one other than the Messrs. Stokes were the owners of the goods or claimed any interest therein, become fixed by the levy of an attachment issued against the Stokes, and the giving by defendant to the sheriff of a certificate in pursuance thereof, and that they notified their principals, the Stokes, of the attachment, which was all they were bound to, citing Blevin v. H. R. R. R. Co., 36 N. Y. 403, urged:—I. Admitting, for the sake of the argument, that the Messrs. Stokes had no proprietary interest in the goods, under the circumstances of the case, the defendants, as sub-agents, “ are clothed with precisely the same rights and incur precisely the same obligations, and are bound to the same duties, in regard to their immediate employers (the Messrs. Stokes), as if they were the sole and real principals” (Story on Agency, § 386). And they had the right to retain, out of the proceeds of the goods, the amount of the balance of account due them from Stokes (Story on Agency, § 390; Mitchell v. Bristol, 10 Wend. 493, 495). Even conceding that the plaintiffs were the absolute owners of the goods, and the Messrs. Stokes simply their agent, the former, having been unknown to the defendants, and they having dealt with the Messrs. Stokes supposing them to be the principals, the plaintiffs will not be allowed to intercept the rights of the defendants in regard to the Messrs. Stokes, but are chargeable with all the equities in the same way as if the Messrs. Stokes were the sole principals; and the defendants are entitled to the same rights of set-off, &c., as if they were the sole principals (Story on Agency. § 420 ; and see Taintor v. Prendergast, 3 Hill, 72). That the defendants had so appropriated the money, to the extent of E. & C. Stokes’ indebtedness, as early as the 4th of February, is evidenced by the fact that on that day they gave the sheriff, who served the attachment, a certificate that they held.$628.36 belonging to the Messrs. Stokes. And this was before the letter stating that they were consigned goods. The Messrs. Stokes were then in embarrassed circumstances—within eighteen days of open bankruptcy— and this claim, that the goods were consigned, instead of on joint account, as they had previously stated, was doubtless suggested by their financial situation.
    II. Even were the goods “consigned goods,” the case would come within the rule, that an agent receiving money for his principal, in pursuance of a valid authority, without fraud, duress or mistake, is not liable to an action by a third person, who is ultimately entitled to the money, for neglecting to pay the same upon request, although the agent has not paid it over to his principal (Colvin v. Holbrook, 2 N. Y. 126; Hall v. Lauderdale, 46 Id. 70, 76).
    III. E. & C. Stokes never informed the defendants that the plaintiffs had any interest in the goods, and, so far as appears, never mentioned their names to them ; and this is a remarkable circumstance. Defendants’ only information of the plaintiffs’ claim was received from Scattergood, long after the proceeds had been applied as the funds of the Messrs. Stokes ; and they were not bound to recognize Scattergood, or the plaintiffs, without notice of their interest from Stokes. In the absence of notice from the Messrs. Stokes—the only parties who, under the circumstances,' could charge them with notice—the defendants were not bound to call the attention of the court to the claims of the plaintiffs. But, had they done so, it is scarcely conceivable that the court, when informed that the Messrs. Stokes had never mentioned the plaintiffs’ names to the defendants, and that, although duly notified of the attachment eight months before, neither the plaintiffs nor the Messrs. Stokes had taken any proceedings to prevent payment under it, would have refused the order in aid of execution, or even delayed issuing in. And the payment to Ralli Brothers, under that order, is, quoad hoc, a complete bar to this action (Holmes v. Remsen, 4 Johns. Ch. 460; Holmes v. Remsen, 20 Johns. 229; Bliven v. H. R. R. R. Co., 35 Barb. 188 ; affirmed by court of appeals, 36 N. Y. 403 ; Donovan v. Hunt, 7 Abb. Pr. 29 ; Cook v. Holt, 48 N. Y. 275 ; and see Gibson v. Haggerty, 37 Id. 555).
    IV. It was urged below that the defendants should have brought interpleader against Ralli Brothers and the plaintiffs or the Messrs. Stokes ; but they had no standing in court to do so (U. S. Trust Co. v. Wiley, 41 Barb. 479).
    V. Assuming, for the moment, that the plaintiffs were the real and sole owners of the goods, the case is plainly within the rule that, “where the true owner of property holds out another, or allows him to appear as the owner of, or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their, rights in such cases do not depend upon the actual title or authority of the party with whom they have directly dealt, but they are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which he caused or allowed to appear to be vested in the party” with whom such third party has dealt (Bigelow on Estoppel, 468; McNeil v. Tenth National Bank, 46 N. Y. 325, 329), and, therefore, the plaintiffs never had any right to these proceeds, as against the defendants.
    VI. But, even should we concede that they once had, they are estopped, by their own laches, from asserting such right.
    VII. The case of Greentree v. Rosenstock (2 J. & S. 505; affirmed by the commission of appeals, 61 N. Y. 583), cited and relied upon by the plaintiffs below, does not apply.
    • VIII. But in no possible event could the plaintiffs recover the full amount of the proceeds of the goods. The defendants were certainly entitled to deduct the amount of their commission's and the expenses paid by them ; and it is difficult to understand upon what possible theory of the case this was denied below. This, together with the errors commented on under our first two points, calls for a new trial, in case the court should not feel justified in reversing the decision of the learned trial justice in foto.

   By the Court.—Sedgwick, Ch. J.

The plaintiffs, as principals of their agents and factors, E. & C. Stokes, had a right to recover the proceeds of the sale of their goods in the hands of the defendants, who made the sale as brokers of E. & C. Stokes, subject to such equities as existed between the factors and the brokers. ■ The learned counsel for the defendants made on .the argument a suggestion to the contrary, based upon the case of Hall v. Lauderdale (46 N. Y. 70). The suggestion, however, omitted to notice that in the ■case cited the defendant was not liable to any one who occupied the position of plaintiffs’ agent.

This right to recover did not exist, if the defendants, before notice that plaintiffs owned the goods, had disposed of the proceeds, in a manner that was justified by the relations between the defendants and plaintiffs’ factor.

Before the defendants had paid over the proceeds, they received notice that the plaintiffs owned the goods, and that they were the principals of their agent, the factor. From that time, the plaintiffs proceeded to deal with the proceeds at their own risk.

In this case the notice was sufficient. Upon receiving it the defendants did not dispute its correctness or ask any proof of its declarations. They were contented to say that they had not before heard the names of the plaintiffs in connection with the transaction. In the nature of the case and from the letters of the fac_ tors to them, they must have known that the factors had principals, although at first undisclosed. There was, too, a general admission in the case, that before ■defendants had paid over the proceeds, they had received notice of plaintiffs’ claim.

The service of the order of attachment does not avail the defendants. If the money had been paid over, under the attachment, it would have been necessary to examine if the payment were justified ; but in fact, the defendants did not act under the stress of the attachment proceedings, the money being paid under the order in the proceedings supplementary to execution. That order was based upon the position that the defendants voluntarily assumed that the debt they owed was to E. & S. Stokes, the defendant in the action. After the notice, they were bound to know that the debt was due to the present plaintiffs. They chose to act as if their obligation was only to the party who had given them the order to sell, and not at all to that party’s principal. They should not have admitted their indebtedness to E. & 0. Stokes, but ' should have testified according to the fact that they had received notice of the principal’s rights. That would have taken the case out of section 297 of the Code of Procedure. By that section, it must appear that the property to be applied to the satisfaction of the judgment, is the property of the judgment debtor. It would have appeared that there was doubt as to the ownership of the property, at least, and the order would not have been made. There being no notice to plaintiffs, the court would not have adjudicated as to their rights in their absence (Barnard v. Kobbe, 54 N. Y. 516; citing Stewart v. Foster, 1 Hilt. 505; Rodman v. Henry, 17 N. Y. 482).

I am, therefore, of opinion, that the plaintiff is entitled to recover from the defendants the amount of the proceeds of the three hundred and twenty-nine bales, less such amount as the defendants showed was chargeable to those proceeds. The proof on the trial sufficiently showed that the brokerage and expenses of sale, of this particular lot, in the amount of $274.84, were proper charges, and that amount, with interest, should be deducted from the verdict. There was no evidence that the charges in the account, in respect of other property, should be borne by the proceeds in question. It did not appear that the goods in question had induced any credit in respect of the other charges.

The exceptions should be overruled, and judgment on the verdict, reduced in amount, as has been indicated, should be entered, without costs of this motion to either side.

Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    DAVID HENRY JONES, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF NEW YORK, Appellant.
    I. Statutes.
    1. Construction of. Act of 1877, chap. 478, relative to claims for labor, &c., on armories and drill rooms.

      {a) Assignment of claim, presentation of, clause calling for. A clause in the act requiring any person holding an assignment of a claim, to present the same before a commission created by the act,

      applies only

    to a case where the whole claim has been assigned.
    II. Assignment of pact of a claim.

    1. Carries wha-t.

      (a) Equitably, carries a pro tanto portion of such sum as the party against whom the claim is made, is legally bound to pay in respect of the claim.

      2. Parties to an action to recover the assigned part.
    («) Where the party against whom the claim exists pays to the assignor, after notice of the assignment, the whole amount of the claim, the assignor is not a necessary party to an action brought by the assignee to recover the assigned portion.
    3. Acknowledgment.

      (a) Not necessary to protect the assignee against a payment to the assignor, or to enable the assignee to recover.
    Before Sedgwick, Ch. J., and Trdax, J.

      Decided April 4, 1881.
    Appeal from judgment in favor of plaintiff, entered upon a decision at special term.
    One Stephen Knapp furnished material and did certain work to an armory in this city to the value of more than $9,000. He claimed that this was a valid indebtedness on the part of the defendant to him, and brought an action therefor. During the pendency of the action, Knapp made an assignment to the plaintiff" in the following form: “Whereas, I have certain claims against the county of New York for fitting up armories and drill rooms, amounting to about fourteen, thousand dollars. I do hereby sell, assign, transfer and set over to David Henry Jones the sum of four-hundred dollars, for wages due him as carpenter ; the-above claims having been audited by the board of supervisors, and are now in the office of the comptroller.”
    “Signed February 21, 1874.
    Stephen H. Knapp.”
    The plaintiff filed this assignment in the office of the comptroller of the defendant. Knapp was defeated in his action, on the ground that the regiment for which the armory was fitted up, had failed to comply with certain requirements of the Military Code. Knapp died in 1874. In 1877 the legislature passed an act (L. 1877, c. 473), which enacted among other things that “ whenever any goods, &c., have been furnished or labor performed in fitting up, &c., any armory, &c., it shall be lawful for the comptroller of the city of New York to, and he shall, and the mayor, &c., are hereby made liable to pay for such goods, &c., such compensation as shall be awarded by a commission consisting of, &c. The executrix of Knapp presented the claim of Knapp to the commission, and it awarded her the sum of $9,281. This was compensation for all the work done by the deceased. The plaintiff did not present his claim as assignee to the commission. After the award was made, and before it was paid, the city received further notice that the plaintiff claimed to be paid out of the award the amount of his assignment. At one time the city reserved an amount to meet the assignment, but after-wards paid it out to third parties. The court below found and ordered judgment, that defendant was liable to plaintiff in the amount of the amount of the assignment.

      William G.' Whitney, counsel to the corporation, for appellant:
    I. Upon the facts presented upon the trial of this action, the respondent was not entitled to any judgment whatsoever in his favor. 1. The proof shows that the assignment in question was never acknowledged, nor was any proceeding ever taken by the respondent to enforce the same until after the appellants had parted with the money in their hands. 2. By •chapter 473 of the Laws of 1877, any person holding an assignment of any claim of this character, either for ■the whole or any portion thereof, was required to present bis assignment before the said commission. This was not done. The award was made directly to the ■executrix, and she, as representing the estate, was, pursuant to the act of the legislature, entitled to receive all this money without reference to any claims, whether in judgment or not, and could be only answerable to these claims when presented in the proper court. 3. The instrument of assignment was not drawn •on any fund, because Knapp, the assignor, had then no claim ; and no funds were then in existence, nor did any afterwards come into existence on which it could attach or become operative. The instrument could have created no lien, as an existing fund was-necessary to have done so (Attorney-General v. Continental, 71 N. Y. 325). The city did not ever have the money in its possession,- nor could it pay it out except as directed by the act and the terms of award and Mrs. Knapp, as executrix, as by law required, procured the moneys in an installment in July, and by final payment again in November, 1878. The-plaintiff, therefore, was not to be protected for his own tardiness. The money in the hands of the executrix was practically in possession of the court, which could have secured the plaintiff’s claim in a proper proceeding, had he pursued her therefor. The city had parted with the fund before suit; and the executrix was not made a party defendant.
    II. The executrix was not made a party to this action, no opportunity was given to her to contest this claim, and if the judgment in the present action should be allowed to stand, the effect would be that possibly the respondent would be paid a claim which has no foundation in face.

      FranJcenheim & Rosenblatt, attorneys, and of counsel, for respondent.
    I. The instrument executed by Stephen H. Knapp, and filed with the comptroller, operated as an' equitable assignment to the extent of $400, of whatever sums might eventually be paid to Knapp or his representatives on account of his claim for fitting up armories and drill rooms. (1) No particular form is necessary to constitute an equitable assignment. Any order, writing or act which makes an appropriation of a fund, amounts to an equitable assignment of that fund (2 Story Equity, § 1047; Munger v. Shannon, 61 N. Y. 251). (2) Far less specific orders have been upheld as equitable assignments by the court of appeals (Field v. Mayor, &c., 6 N. Y. 179; Parker v. City of Syracuse, 31 Id. 376; Hall v. City of Buffalo, 1 Keyes, 93; Morton v. Naylor, 1 Hill, 583).
    II. It is no defense that payment of these “claims ” could not be enforced at the time of the assignment. The legislature, by chapter 473 of the Laws of 1877, having thereafter provided a mode of ascertaining these “claims,” and of paying the amount to be awarded thereon, the lien of Jones under the assignment attached to the award the moment it was made. Courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present actual existencó,' but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them (followed in Hall v. City of Buffalo, 1 Keyes, 193 ; Stover v. Eyclesheimer, 3 Keyes, 620 ; Field v. Mayor, 12 N. Y. 179 ; Mitchell v. Winslow, 2 Story, 630). The same principles have been applied to mortgages of future acquired property (McCaffrey v. Woodin, 65 N. Y. 459; Holroyd v. Marshall, 10 H. L. Cas. 191; Williams v. Winsor, 17 Alb. L. J. 359 ; Wyatt v. Watkins, 16 Id. 205 ; Williams v. Briggs, Id. 387 ; Laning v. Tompkins, 45 Barb. 308).
    III. The award to Jane Knapp, executrix, under the statute (L. 1877, c. 473, p. 552), cannot be construed as a gift or gratuity to her. The object of the statute was to provide equitable compensation for services performed and materials furnished for which no recovery could be had at law. The executrix of Knapp could not claim to hold the award free from the equitable liens of his assignees (Munsell v. Lewis, 2 Den. 224 ; Bank of Auburn v. Roberts, 44 N. Y. 192; Spears v. Mayor, 10 Hun, 160).
    IV. Plaintiff’s equities against the moneys awarded to the Knapp estate could not be cut off by any proceedings under the act to which he was not a party. As between Knapp and the plaintiff the award, being based on the identical “claims” specified in plaintiff’s assignment, became subject to the equitable lien thereof, and if the act operated to divest plaintiff of this lien, it was to this extent unconstitutional. (1) Section 4. of the act (L. 1877, c. 473, p. 552), provides that the commission shall examine and inquire as to any assignment of the claim, and that payment of the amount awarded shall be made directly to the claimant or his jjersonal representatives, only where the claim has not been sold and assigned. It was evidently the intention of the legislature to preserve the rights of assignees. To put any other construction on the statute would be to impute a most unjust motive to the draughtsman and almost criminal ignorance to the legislature. (2) Besides, the act, so far as it provides for the interests of assignees of a claim under the statute, clearly refers to assignees of the whole claim. It nowhere provides for notice to the assignees of only portions of any claim. No notice was given to the plaintiff of the proceedings before the commission, and he had no knowledge of the same. (3) As between Knapp and his representatives and the plaintiff, the award, not being a gratuity, was subject to the equitable lien of the assignment, and to the amount therein specified, the money payable under the award was appropriated to the use of the plaintiff. No act of the legislature could divest the plaintiff of this right. It could not take the property of the plaintiff and give it to another (N. Y. Oswego R. R. Co. v. Van Horn, 57 N. Y. 473 ; Embury v. Connor, 3 Id. 511; Taylor v. Porter, 4 Hill, 180; Matter of Albany Street, 11 Wend. 148).
    Y. The defendants are in no better position than Knapp would have been. The filing of the assignment with the comptroller was notice to the defendants of plaintiff’s lien, and bound the funds payable under the award without any formal acceptance (Field v. Mayor, 6 N. Y. 179; Hall v. City of Buffalo, 1 Keyes, 193 ; Parker v. City of Syracuse, 31 N. Y. 376 ; Morton v. Naylor, 1 Hill, 583; People ex rel. Dannat v. Comptroller, 77 N. Y. 45).
    YI. It is no defense that the award directed the payment of the whole amount to Knapp’s legal representative. The award, upon its face, showed that it was based on the claims for fitting up armories and drill-rooms, recited in the assignment; the comptroller, with whom the assignment had been filed, was a member of the commission, and must have known that the claims included in the award were the same as those mentioned in the assignment; and finally, as conclusive-proof of defendant’s knowledge and recognition of plaintiff’s lien, it appears by plaintiff’s Exhibit C,- that the comptroller expressly reserved from the amount of the award a sufficient sum to cover plaintiff’s claim. Under these circumstances the defendants became, in equity, trustees for the plaintiff of the amount specified in the assignment, and were bound to hold it for his benefit (Dannat v. Comptroller, 77 N. Y. 45 ; Hall v. City of Buffalo, 1 Keyes, 193).
    YII. The defendants are estopped from setting up the payment of the whole award to the Knapp estate (Continental National Bank v. Bank of Commonwealth, 50 N. Y. 575 ; cited and approved in Phelps v. People, 72 Id. 372 ; Knight v. Wiffen, L. R. 5 Q. B. 660 ; Moore v. Mayor, 73 N. Y. 238 ; Curnen v. Mayor, 79 Id. 511; Weismer v. Village of Douglas, 64 Id. 91).
   By the Court.—Sedgwick, Ch. J.

The first position taken by appellant’s counsel, is that the assignment was never acknowledged, nor was any proceeding ever taken by the respondent to enforce the same, until after the appellant had parted with the money.

The validity of the assignment did not, in any part, depend upon its being acknowledged. Thé making of it, and notice to defendants, operated, through equitable principles to make the defendant a debtor to the plaintiff. The plaintiff lost no right, by not enforcing his cause of action before this suit.

The next position is, that by chapter 473 of the Laws of 1877, any person holding an assignment of a claim of this character, was required to present his assignment before the commission. I do not find any such requirement. The act provided that, in case any person who had furnished goods for armories had sold or assigned his claim, no award should be made to the assignee of a sum greater than was paid by him for such claim; and on the hearing of each . case arising under this act, the commission was to examine and inquire as to any such assignment, and the amount paid (section 4).

This section does not, in fact, apply to this case or to any. other than where the whole of the previous claim has been assigned.

The parties before the commission were the executrix and the present defendant. Both knew of the existence of the assignment to the plaintiff. Both took part in a transaction by which an award was made to the executrix for that portion of the claim that belonged to the defendant. It seems to me but equitable that, as between these parties, it should be considered that the executrix was, in such transaction, acting for and on behalf of the plaintiff, and that the result should ■enure to his benefit.

There is no doubt that the executrix’s claim included the subject assigned to the plaintiff. The city does not take the position that she had no right to what had been assigned to the plaintiff. Gn the contrary, they pay over the whole of the award to the executrix, or to others who claim under Knapp. It must be kept in mind that the plaintiff gave full consideration for the amount he now demands.

The next objection is, that the instrument of assignment was not drawn upon any fund. It was not in form, but it was an assignment of a claim, the same in nature as a chose in action, and the proceeds of that, jpro tanto, belong equitably to the plaintiff.

The executrix was not a party to the action. The plaintiff’s position is that he is owner of the fund, pro tanto. It was not necessary that he should make the representative of his assignor a party defendant.

Judgment affirmed, with costs.

Truax, J., concurred.


author: By the Court.—Freedman, J.

text:
    JOHN J. HOGAN, Adm’r, &c., Appellant, v. MARY CURTIN, Adm’x, &c., Respondent.

      Wills—condition in restraint of marriage without consent—construction of—when condition precedent.—Marriage with consent, and marriage against consent.

    The will of testator contained the following clauses: “I give, devise and bequeath to my daughter, Mary Ann Curtin, the sum of $16,000, to be paid to her by my said executors upon her attaining the age of twenty-oue years, or upon her marriage, before she attains the age of twenty-one years, with the consent of her mother and my said executors, and in case my said daughter should die unmarried, before attaining the age of twenty-one years, then the share hereinbefore bequeathed to her shall go,” &c.,..... “and in the event of my said daughter, Mary Ann, marrying against the consent of my said executors and her said mother, then my will and desire is, that instead of the said sum of $16,000, hereinbefore bequeathed to her, she shall only receive from my said executors the sum of $5,000, in full of her share of the estate.”
    It also contained directions for the sale of real estate, investment of proceeds, and maintenance therefrom of said children, by the executors, “ until they respectively attain the age of twenty-one years, as aforesaid, and until my said daughter shall get married, with their consent and that of her mother, as hereinbefore stated also provisions giving the tuition, custody and control of his children, during their minority, to his widow, so long as she should remain unmarried, and directing that upon her marriage the executors should “ immediately take charge ” of them, and requesting that his exee- ' utors should be appointed, in such event; guardians of his said children. The evidence shows that testator’s said daughter married before she became twenty-one years of age, without her mother’s consent., but with the consent of the sole executor, and died before reaching such age, and that prior to her said marriage her mother (testator’s widow) had remarried.

      Held, in an action brought by the administrator of said daughter, that, in such case as above, the provision made for her consisted of a legacy of $5,000; that in case of her marriage before the age of twenty-one years, the joint consent of her mother and the executor to the marriage was a condition precedent; this, though the mother had previously remarried, and, under the will, the executor was thereupon given the custody and control of the children.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided April 4, 1881.
    Appeal from judgment.

      The facts appear in the opinion of the court at special term, as follows:
    “Horace Russell, J.—This action is brought to recover the sum of $16,000, bequeathed to Mary Ann Hogan, by her father, Daniel Curtin, and to compel the administratrix to .sell or mortgage real estate to pay the bequest.
    “The conceded facts of the case 'are: that Daniel Curtin, a resident of the city of New York-, clied January 7, 1870, leaving a will, which was probated March 4. By his will he devised to his executors all his real estate (at Nos. 334 and 336 Bast Forty-Eighth street, and No. 210 Bast Fifty-Fourth street, in the city of New York), and bequeathed to them his personal property in trust, for the purposes mentioned in the will; one of those purposes was to pay the bequest, which is the subject of this action. The bequest to Mary Ann Curtin, of the sum of $16,000, was to be paid ‘ by my said executors upon her attaining the age of twenty-one, or upon her marriage, before she attains the age of twenty-one years, with the consent of her mother and my said executors. And in case my said daughter should die unmarried before attaining the age of twenty-one years, then the share hereinbefore bequeathed to her, shall go to and belong to my said sons, James and Francis, share and share alike. And. in the event of my said daughter Mary Ann marrying against the consent of my said executors and her said mother, then my will and desire is, that instead of the said sum of $16,000, hereinbefore bequeathed to her, she shall only receive from my said executors the sum of $5,000, in full, for her share of the estate.’
    “ Other bequests follow—to the testator’s wife, ■mother, and to various other persons, which it is not material here to state, because they have all been discharged.

      “ The eighth subdivision of the will is as follows : ‘ I also hereby authorize and empower my said executors to sell, convey, mortgage, or lease my said real estate, as in their judgment may be most beneficial for my said children, and to invest the proceeds thereof either in some safe and solvent bank at interest, or invest the same in improved real estate in the city of New York or Brooklyn, and out of the proceeds of said real estate to educate, support, and maintain my said children, and each of them, in a manner suitable to their condition in life, until they respectively attain the age of twenty-one years, as aforesaid, and until my said daughter shall get married with their consent, and that of her mother, as hereinbefore stated.’
    “The tenth subdivision of the will is: ‘It is also my will and desire that my said wife, Mary Curtin, shall reside in the house No. 334 East Forty-Eighth street, aforesaid, with my children, as long as she remains my widow and unmarried, and that she shall have the tuition, custody and control of my said children during their minority, as long as she remains unmarried and takes proper care of them. But if she shall die, or marry during the single life or non-age of any one of my said children, or if she shall treat my said children or any one of them, cruelly or unfairly, then it is my will and desire that my said executors shall immediately take charge of my said children and place them under the care of some suitable person to be approved by both of my said executors.’
    “ ‘ 11th. It is also my will and desire that my said executors shall, in the event of the death or marriage of my said wife, be appointed the guardian of my said children, until they respectively attain the age of twenty-one years.’
    “The third subdivision of the will is : ‘I give, devise and bequeath to my sons, James Curtin, now aged about ten years, and to Francis Curtin, now aged about nine months, and to their heirs and assigns, my said real estate of every nature and kind, which I now have, or which I may have at the time of my decease, equally, share and share alike.’
    “Patrick Hogan and Daniel Daly were named as the executors of the will. Letters testamentary were issued to them on March 4, 1870. On January 3,1871, Daly was released and discharged as executor under the will, and has never since acted as such. Hogan continued to act as executor until September 19, 1879, when he was superseded by order of the surrogate, and letters of administration with the will annexed, were issued to the widow, Mary Curtin, the defendant herein. Daniel Curtin left him surviving, his widow, Mary Curtin, two sons, and Mary Ann Curtin, an only daughter. Curtin left personal property of the value of about $500, and real estate of the value of about $40,000. That real estate remains unsold and unincumbered. In the year 1871, Mary Curtin, the widow of Daniel Curtin, married one David Curtin, with whom she has since lived.' On February 14, 1878, Mary Ann Curtin, the daughter of Daniel Curtin, married the plaintiff herein at Jersey City. She died May 29, 1879. Before her death she had been paid the sum of $500 on account of the-bequest to her under the will of her father. There is no property of the deceased Daniel Curtin in existence, except the real' estate, which is now of the value of $40,000. On July 7, 1879, the plaintiff, John J. Hogan, was duly appointed the administrator of Mary Ann Hogan, formerly Curtin, and duly qualified as such.
    “The question of fact in controversy in this case is whether Mary Ann Curtin married the plaintiff with the consent of her mother and the executors of her father’s will. If not with the consent of both executors and mother,; did she have the consent of the executor, and did the marriage of her mother render it unnecessary for the purposes of this bequest that Mary Ann Curtin should obtain the consent of her mother % The question of law is, whether, in case the plaintiff, as the administrator of Mary Ann Curtin, is entitled to judgment for the sum of $16,000, or the sum of $5,000, this court should order the administratrix to sell or mortgage the real estate for the payment thereof ? fío controversy is made against the plaintiff’s right to recover from the administratrix the sum of $5,000, less the $500 already paid, because Mary Ann Curtin was entitled to that sum upon her marriage, even without the consent of the executors or of her mother.
    “ After a careful examination of the evidence, I am of the opinion that Mary Ann Curtin did not obtain her mother’s consent to her marriage, but did obtain the consent of Patrick Hogan, at that time the only executor of her father’s will. While the will indicates the wish of the testator to transfer the custody and control of his children to his executors in case of his widow’s marriage, it nowhere says in terms, or says anything from which we could infer the intent of the testator, that the mother’s consent should not be necessary to the daughter’s marriage, if she married before arriving at twenty-one years of age, in order to entitle her to the full sum of $16,000 upon such marriage. The obtaining of the executor’s consent alone was, therefore, not enough. The condition upon which the bequest was based was, that she should obtain not only the executor’s, but her mother’s consent, before she could obtain the $16,000. The testator, it is true, wished the custody of the children transferred to the executors in case of his widow’s marriage, but did not indicate, even in such case, his wish that the condition of the bequest to his daughter should be relaxed. In point of fact, the executor did not assume the custody of the children on the widow’s marriage. As the condition of the bequest was not complied with, the bequest falls, and returns to the residuary devisees under the will. To the sum of $5,000 Mary Ann Curtin did become entitled upon her marriage, and it passed, of course, as a personal asset to her administrator. In that sum, less the $500 paid • to Mary Curtin in her life-time, he is entitled to judgment.
    “The only remaining question then is whether this court has the power to order the administratrix, with the will annexed as such, to sell or mortgage the real estate for the payment of this bequest. I am disposed to think it has. The real estate was devised by the testator to his executors for the payment of the several bequests contained in the will. It is too old and well settled a proposition of law to need even the citation of authorities in its support, that when a devisor has directed or authorized the conversion of his real estate, even for a particular special purposé, such as distribution, courts .are bound so long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted; and to the extent and for the purpose declared, it is to be treated as money and nót land. Here the devisor left but little personal property. There is no room for doubt of the testator’s intention. In the 13th subdivision of the will he empowered his executors to sell or mortgage his real estate to pay his debts and legacies.
    “The question whether or not-the other children of Daniel Curtin, who by the third subdivision of the will are made residuary devisees, ought to have been made parties to the record in order to have all persons interested in the construction of the will before the court, and so bound by its decision, was not argued before me orally, nor is it discussed in the written briefs submitted to me by counsel. So far as the present defendant is concerned, a defect of parties is waived—not having been taken by demurrer or answer (Code, § 499). But a purchaser or mortgagee under the judgment might wish to have the residuary devisees absolutely cut off.' That, of course, could not be done unless they are parties to the action. If this view should be accepted by counsel, the heirs can be made parties defendant by amendment, and permission to that effect is granted.
    “The plaintiff is entitled to judgment for the sum of $5,000, less the $500 received by Mary Ann Curtin in her life-time, with interest from the date of the marriage, Feb. 14, 1878, and the costs of this action.”

      James M. Smith and William Allen, for appellant, urged:
    I. The only question presented to the court for determination is a question of law. “Where the intent of a testator is to be ascertained from, the language of the will alone, or from the language and surrounding circumstances about which there- is no dispute, a question of law for the determination of the court alone is presented. It is the duty of the court to interpret the language of the will as read in the light of those facts (Underhill v. Vandervoot, 56 N. Y. 242).
    II. 1. The bequest is of $16,000, to the testator’s daughter Mary Ann, with a provision as to the time of payment. Under certain circumstances, the bequest is' reduced to $5,000, the difference going with the residuary estate. There is no express devise or bequest over. 2. The provisions as to the time of payment covered the three possible contingencies, viz.:—a. The daughter might reach the age of twenty-one years unmarried. 5. She might marry under that age with the specified consent, c. She might marry under that age, without the specified consent. The provision for payment, on her attaining twenty-one years, covered the first and last of such contingencies. The provision for payment on her earlier marriage with consent covered the second contingency. The possibility of her premature death unmarried, was covered by the devise or bequest over to the testator’s sons, taking effect, however, on their attaining the age of twenty-one years. There is no devise or bequest over, however, in the event of the marriage of the testator’s daughter. 3. The case in which the substituted bequest was to take effect was her marriage, “against the consent of my said executors and her mother;” on this the first question arises. The question is, whether she took the $16,000 bequest, or the substituted bequest of $5,000. This was a bequest of $16,000, liable to be defeated by a condition subsequent. The condition subsequent was the marriage of the legatee against the consent of the executors and the mother (Graydon v. Hicks, 2 Atk. 15). Did she violate this condition % This case has five possible modes in which the question may be raised. 1. She might marry without the affirmative consent of both. 2. She might m&rry in opposition to the express dissent of both. 3. She might marry with the affirmative consent of one alone—the other being silent and not affirmatively assenting. 4. She might marry in opposition to the express dissent of one—the other being silent, and not expressly dissenting. 5. She might marry with the affirmative consent of one, and the express dissent of the other. The case at bar comes under the third mode only. Is it a violation of the condition ? In order to defeat a devise or bequest by non-performance of a condition, it must be strictly construed, and in favor of the devise or bequest. The condition was her marriage against the consent of both. The consent of either justified the marriage. The third mode is not a violation, because, 1. There is a distinction between marrying without the consent of two persons, and marrying against the consent of two persons. In the first, she would have to obtain their consent affirmatively. In the second, the marriage with the consent of one, would not be a marriage against the consent of two. There is a difference between marrying without consent and marrying against consent (Fleming v. Walgrave, 1 Chan. Cas. 58; Creagh v. Wilson, 2 Vernon, 573; Reynish v. Martin, 3 Atk. 330). 2d. Irrespective of the propositions of law hereinafter advanced and qualifications made by the testator in subsequent portions of his will, to sustain the decision of the special term, “and” must be read “ or,” that is—that the condition is broken if the marriage is without the consent of each of them; or is against the consent of either the executor or the mother. “And” may in certain cases be read as “ or,” but not to defeat a devise or bequest made to child of the testator, nor to restrain marriage. It must be to support and carry out the intention of the testator (Roome v. Phillips, 24 N. Y. 468). Conditions in restraint of marriage, without consent, are so far discouraged by the law, that they are construed, strictly, in favor of the persons on whom such restraints are-laid (Greenleaf's Cruise on Real Property—Title XII. Est. on Con. c. 1, § 61, p. 19; Long v. Dennis, 4 Burr. 2052 ; Daly v. Clanrickarde, 2 Atk. 261; Bolton v. Humphries; 1 Story's Eq. Jur., Redfield’s ed„ [ninth] § 286, p. 267 et seq). There being no express or immediate devise or bequest over of the legacy in question, the condition is ineffectual. See section 287 of Story’s Equity Jurisprudence as to distinctions which, have been made in cases where there was a bequest, over, and cases where there is not a bequest over.. “ Where there is no bequest over, the condition is-treated as ineffectual upon the ground that the testator is to be deemed to use the condition in terrorem only, and not to impose a forfeiture, since he has failed to make any other disposition of the bequest upon default in the condition” (Garret v. Pritty, 2 Vernon, 293; Wheeler v. Bingham, 1 Wils. 135 ; Parsons v. Winslow, 6 Mass. 169 ; 1 Jarman Wills, 4 Am. ed. 710 et. seq.; 1 Roper Legacies, 746; Ludlow v. New York &
      Harlem R. R Co., 12 Bard. 440). “ There is another well-established principle, by which the bequest over is prevented from giving efficacy to the limitation under consideration. The principle is, that the bequest over, to give it the effect now under consideration, must be immediate, so as to take effect at the time of marriage” (Doe v. Freeman, 1 D. & E. 389 ; Parsons v. Winslow, supra). By the seventh subdivision of the will it will be perceived that the shares of the testator’s estate, real and personal, devised and bequeathed to the testator’s sons James and Francis, did not take effect until they attained twenty-one years of age, and in the event of the death of either without lawful issue, the share of the son so dying shall go to and belong to the survivor. See also eighth subdivision of the will, which provides for the executors selling the real estate, investing the proceeds, and out of the proceeds supporting and maintaining the children until the age of twen ty-one years. Thus, at the time of Mary Ann’s marriage, James was about eigh teen years of age, and Francis about eleven years of age, and hence, even if there had been an express bequest of the particular legacy to Mary Ann, to either of his two sons, as it was not to take effect at the time of the marriage, the limitation would be nugatory. The only devise and bequest over made in the case at bar was by the fourteenth subdivision of the will, “I give, devise, and bequeath all the rest, residue and remainder of my said real and personal estate of every name and nature to my said son James Curtin.” The bequest was of $16,000, liable to be partially defeated by a condition subsequent. ■ “Conditions are precedent or subsequent:—“Thus where a condition must be performed before the estate can commence, it is called a condition precedent. But where the effect of a condition is either to enlarge or defeat an estate already created, it is then called a condition subsequent (1 Greenl. Cruise Real
      Property, Tit. XIII. Est. on Con. § 6 ; Finlay v. King’s Lessee, 3 Peters, 374). In Graydon v. Hicks (2 Atk. 15), Lord Chancellor Hardwicks says: “ Where the condition is become impossible, by the person dying, whose consent was necessary before the marriage, it is an excuse. I am likewise of the'opinion that this is only a condition subsequent, to divest the legacy, in case of a marriage before twenty-one.” The executors in that case were dead, at the time of the daughter’s marriage. In the case at bar, by the action of the mother the daughter was, by the terms of her father’s will, released entirely from her mother’s control, just as much as if she had died in place of married again, as will be perceived by the next point. The case of Peyton v. Bury (2 P. Will. 625), also holds that such a condition is a condition subsequent, and not a condition precedent. It may be claimed under some of the English cases, that where the legacy is charged on the lands, the condition imposed must be strictly complied with, to make the legacy a charge on the lands. That is the rule where the condition annexed to the devise or bequest is a condition precedent, and not a condition subsequent (Reynish v. Martin, 3 Atk. 334 ; Harvey v. Afton, 1 Atk. 443). Under the decisions of the court of appeals of this State, cited under the last point, a bequest, even where it is directly charged on the land, “is to the extent and for the purpose declared to be treated as money and not land.” It is well settled that there is an equitable conversion into personalty at the date of the death of the testator.
    III. On the marriage of the testator’s widow, the operation of the will is equivalent to a revocation of the trust reposed in her by the fourth clause, dispensed with her consent to her daughter’s marriage, and is conclusive on the question, that “and” is not to be read “ or ” to defeat the bequest to his daughter. Such an intent cannot be imputed to him. The motive for the bequest was his affection for his child, not the performance of the condition. “The ties which Connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them” (Smith v. Bell, 6 Peters, 68; Hoppock v. Tucker, 59 N. Y. 202 ; Mann v. Mann, 14. Johns. 1; Hilliard v. Kearney, 1 Bush. [N. C.] Eq. 221; Lines v. Darden, 5 Fla. 51). The testator classes his widow’s marriage with her death. Can it be seriously contended that notwithstanding the directions of the will, the testator still intended that the mother of Mary Ann, his daughter, should control her in her marriage ? Suppose that Mary Ann had gone to her mother and asked her consent to her marriage, and the mother had said no ! Surely that would have been control, and control in a matter the most vital and important to every young woman. “Control” (substantive) means— check, restraint, power, authority, superintendence, government, command. “Control” (verb) means—to place or keep under restraint, to have under command and direction, to restrain, rule, govern or direct. . -

      Samuel G. Courtney, for respondent.

       It does not appear, from the findings of the court below, that such marriage was against her mother’s consent.

   By the Court.—Freedman, J.

Granting that the construction of wills the rule is that where the ■effect of a condition is either to enlarge or to defeat an estate already created, it is deemed a condition subsequent ; that in the case of a condition subsequent, where the estate is not given over, it will be considered as only in terrorem; that a condition in restraint of marriage, without consent, must be construed strictly in favor oí the person on whom the restraint is laid ; that the general intent of the testator is to prevail, and that that intent is to be gathered not from a part, but from the whole of the will, so that an intent inferable from the language of a particular clause may be qualified or changed by other portions of the will, evincing' a different intent,-—granting that all these propositions are sound in law in the abstract, and should be made to govern, if applicable—I am nevertheless of the opinion that upon the facts as found, and as to which there is no dispute, the learned judge below arrived at the proper conclusions.

The bequest of $16,000 to Mary Ann, was made to depend on the happening of either of two contingencies, viz. : on her arriving at the full age of twenty-one, or on her marrying before that time with the joint consent of her mother and the executors named in the will. Neither of these contingencies occurred, for she died when she was about eighteen, and she had then been married to the plaintiff for more than one year without the consent of her mother. In the case of her marriage before twenty-one, the joint consent of her mother and the executors to the marriage was a condition precedent. This follows not only from the interpretation of the particular clause creating the bequest, but from the construction of the will as a whole.

- Having married without such joint consent, and died before she arrived at the prescribed age, the provision made for her consisted of a legacy of $5,000, for which, sum judgment has been awarded.

The judgment should be affirmed, with costs, upon the opinion of the learned judge below.

Sedgwick, Oh. J., and Truax, J., concurred.

       The question whether the testator’s daughter, had she lived to the age of twenty-one years, would, under the facts, be entitled to $16,000, was not before the court.


text:
    FREDERICK BURMEISTER, Respondent, v. THE N. Y. ELEVATED R. R. CO., Appellant.

      Liability of principal for negligence of servant of contractor, where contact provides for supervision, c6c., by principal.— Corporations—obligations of.

    The agreement between the principal and contractor contained the following clause: “It is further agreed that if, at any time, the contractors are not employing men, tools, implements and machinery, in kind and quantity, to the entire satisfaction of the chief engineer of the company, and necessary, in his opinion, to prosecute the work with due diligence and expedition . . . and if, upon receiving written notice to that effect,” &c., . . . “the company shall have the right to declare the contract annulled,” &c.,— Meld,, that the principal did not possess such a right of selection of the contractor’s servants as to make him responsible for their negligent acts.
    The authorities concerning principal’s liability for acts of contractor’s servants, reviewed and considered by the court.
    The principle that where a duty is imposed upon a corporation, it cannot by any contract relieve itself from that duty and its liability thereunder, or shift its responsibility upon another, held not applicable to the case at bar; the duty contended for being the building of a railroad.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided April 4, 1881.

      . Appeal from judgment entered upon the verdict of a jury and from order denying defendant’s motion upon the minutes for a new trial.
    The facts appear in the opinion of the court.

      Dorsheimer, Bacon & Deyo, for appellant.

      Thomas M. Wheeler, for respondent.
   By the Court.—Freedman, J.

The action was. brought to recover damages for injuries sustained by the plaintiff in consequence of having been struck by an iron chain which fell from the structure of the New York Elevated Railroad Company while in the course of erection.

The defense was that the work was done by independent contractors who were responsible for its proper execution.

The motion for a nonsuit at the close of plaintiff’s-case was properly denied, because at that stage of the-proceedings the plaintiff had made out a prima facie case, and no evidence had yet been given sufficient to establish the affirmative defense relied upon by the defendant.

•But at the close of the whole testimony, when plaintiff’s right to recover was again questioned, it appeared distinctly that at the time and place of the injury Quinn & Flynn were in charge of the work, and actually at work, ás contractors under a written contract with the defendant. The contract had been read in evidence, and it had been clearly shown that the-chain in question belonged to them, that it fell from the hands of Bowers, one of their workmen, and that no other person or persons were present except their workmen.

Upon this uncontradicted state of facts a verdict should have been directed for the defendant, unless the contract was of such a nature as to render the defendant liable for the negligent acts of the workmen of the contractors.

The contract was for laying the track of the New York Elevated Railroad, in accordance with certain specifications thereto annexed. It contained the necessary provisions for that purpose, and among others, the following, viz.:

“Itis further agreed, that if at any time the con tractors are not employing men, tools, implements and machinery, in kind and quantity, to the entire satisfaction of the chief engineer of the company, and necessary in his opinion to prosecute the work with due diligence and expedition, or if at any time he shall have reason to believe that the work being done by the contractors is not in accordance with the specifications herein, and if upon receiving written notice to that effect from the chief engineer, they do not within three days thereafter comply with all his requirements, then the company shall have the right to declare this contract annulled, and to retain the fifteen per cent, as liquidated damages.”

This clause, it is claimed, gave to the defendant such a control over the contractors in the choice of their workmen, and such a control over the contractors and their workmen as to the manner of performing the work, as to make the defendant directly responsible to persons sustaining an injury in the course of the progress of the work.

It is true that the law of this state concerning principal and contractor, in regard to the liability of the principal for damage done by the contractor or his servants, is, that where the principal retains the right to control the workmen or the manner in which the work is tobe done, he is liable for any damage done to a third person by the contractor or his workmen within the scope of their employment; in other words, the contractor and his workmen are then the servants of .the principal. But it has also been repeatedly held that the employment of a superintendent or engineer or architect by the party who contracts for the work to be done, to see that it is properly done and in accordance with the contract, does not give him such a control of the wmrkmen as to make him liable for their negligent acts. The control necessary to create liability implies the right not only to direct, but to select, the workmen. It is this right of selection which lies at the foundation of the responsibility of a master or principal for the acts of his servant or agent (Clare v. National City Bank, 40 Super. Ct. 104; Kelly v. Mayor, &c., 11 N. Y. 432 ; Slater v. Mersereau, 64 Id. 138).

And the principle underlying the liability of a party who has retained the right to control the manner of the performance of a certain work, is this : where the act which the defendant employs the independent contractor to do, is per se wrongful as well as injurious to the plaintiff, and does not depend for its actionability upon negligence in doing it, the defendant caunot protect himself by making such a contract, for the reason that the very act itself is wrongful as against the plaintiff, and because the defendant cannot be permitted to shield himself against the consequences of doing a wrongful act by making a contract with another to do that wrong for him. In such cases, indeed, there is no question of negligence at all (Storrs v. City of Utica, 17 N. Y. 104; Congreve v. Smith, 18 Id. 79; Eno v. Del Vecchio, 6 Duer, 17). But where the act which the defendant employs the independent contractor to do, is lawful as against the plaintiff, and the occurrence causing injury is not the necessary consequence of the contract, but results from want of care in doing the work, the defendant is not liable, because the implication of the contract is that the contractor and his workmen shall proceed in a careful and tradesmanlike way (Earl v. Beadles ton, 42 Super. Ct. 294; King v. New York Central & H. R. R. R. Co., 66 N. Y. 181).

In the cáse at bar the injury was caused solely by the negligence of one of the workmen employed and paid by the contractors, and was not the natural or necessary result of the execution of the work contracted for. The contract and specifications imposed upon the contractors, not only the duty of proceeding in a careful and tradesmanlike way, but also the duty of exercising great care in the execution of certain specified parts of the work, and of employing skilled workmen. Thus, for instance, in reference to the spikers, it was expressly provided that none but the most experienced and expert spikers should be employed on the work. Now for the purpose of directing the results of the work generally, the chief engineer of the defendant possessed certain supervisory powers ; but he had no control or authority over the particular mode or manner of its performance. He could neither discharge a workman nor employ another. He had only the right to insist generally that the work should be done according to the terms of the contract and the specifications. In case it was not so done, all he could do was to serve a certain notice, and if, thereupon, the contractors failed to comply with the requirements of the notice, the defendant had the right to declare the contract annulled, and to retain 15 per cent, of the value of the work actually done as liquidated damages. Quinn & Flynn were, therefore, independent contractors, and the work in itself being lawful as against the plaintiff, the defendant is not responsible for the negligence of the workmen employed by them. The case falls within the rule laid down in Blake v. Ferris (5 N. Y. 48); Pack v. Mayor, &c. (8 N. Y. 222); Kelly v. Mayor, &c. (11 N. Y. 432); Gardner v. Bennett (88 Super. Ct. 197); Clare v. National City Bank (40 Super. Ct. 104).

The respondent contends that the judgment should be affirmed on the ground that where a duty is imposed upon a corporation, it cannot by any contract relieve itself from that duty and its liability thereunder, or shift its responsibility upon another. This rule has sometimes been enforced against a railroad company to the extent of holding it to certain liabilities arising from the control and management of the road and the exercise of its franchise. It has also been applied to corporations generally, and especially municipal corporations, and also to boards of public officers, to enforce a liability arising out of the neglect of a duty specifically imposed. But it has no application to the building of a railroad. The duty did not rest upon the defendant to build the New York Elevated Railroad in person.

For the reasons stated it was error to allow the case to go to the jury. A verdict should have been directed for the defendant.

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

Sedgwick, Ch. J., and Trtjax, J., concurred.


author: By the Court.—Freedmah, j. Trtjax, J., concurring.

text:
    SOLOMON HEILNER, Respondent, v. RICHARD C. WALSH, Appellant.

      Conveyance to hinder, &c., creditors—sale under judgment, when deemed ■ to he—change of possession.—Execution—when valid without subscription.—Code of Civil Procedure, §§ 24, 1351.— Code of Procedure, §§ 173, 176, 289.
    Where the plaintiff, claiming title to certain personal property as purchaser upon a sale under a judgment recovered by him against H., seeks to recover damages for an alleged conversion thereof by an' officer acting under execution issued upon a subsequent judgment against H., it appearing that plaintiff’s judgment was by default; that H.’s husband, who had previously conducted the business for her, remained in charge after the purchase by plaintiff; that the sale was held upon the premises without apparent disturbance to the business, and the goods seemed to have remained as before; and that the signs upon the premises remained unchanged, except by the addition of a small sign by plaintiff,—it becomes aquestion for the jury, whether the sale to plaintiff was in good faith, and without intent to hinder, &c., creditors of H.; and a refusal to submit to the jury the question whether there was an actual and continued change of possession is error. If there were no such change, phtintifi’s purchase is presumptively fraudulent and void as against the creditors represented by defendant.
    Where, in such case, the plaintiff is a son-in-law of the judgment debtor (H.), it is error to refuse to charge the jury that they may consider the relationship as bearing upon the question of fraud.
    Under section 24 of the Code of Civil Procedure, an indorsement upon an execution directing the sherifE to levy and collect, &c., signed by the plaintiff’s attorney, is equivalent to a subscription of the execution; and under the Code of Procedure an execution so indorsed and not subscribed was valid as against every one but the judgment debtor.
    Authorities in regard to irregularity in process and notices, considered by the court. '
    Before Sedgwick, Ch. J., Freedmaet and Truax, JJ.

      Decided April 4, 1881.
    Appeal from a judgment for $687.96, entered upon the verdict of a jury.
    The facts are fully stated in the opinion.

      Morris S. Wise, for appellant.

      Townley & Wolf., attorneys, and W. H. Townley, of counsel, for respondent.
   By the Court.—Freedmah, j.

This action was brought to recover from the defendant the sum of $950, the value of goods alleged to have been wrongfully taken from the plaintiff, and the further sum of $2,000, as damages sustained by plaintiff in his business by reason of the alleged wrongful taking of the goods. The plaintiff claims title to the goods under and by virtue of a purchase upon an execution sale, and at the trial the defendant moved for a dismissal of the complaint on the ground that the execution under which said sale took place was subscribed neither by the party issuing it, nor by his attorney, and therefore was void. It contained, however, an indorsement directing the sheriff of the city and county of Mew York to levy and collect $1,565.90, with interest from June 23, 1877, besides his fees, &c., and this indorsement was signed by the attorney for the plaintiff. Under section 24 of the Code of Civil Procedure, such an indorsement is equivalent to a subscription of the execution. But the defendant claims that that section was not in force at the time the execution was issued, and that the question should be determined upon the law as it then stood. If that contention be correct, the sufficiency of the execution depends upon section 289 of the prior Code, which, in prescribing the form and. substantial requirements of an execution, provided, among other things, that the execution should be subscribed by the party issuing it or his attorney. In the construction of that section it was repeatedly held that mere defects in the form of the execution might be disregarded under section 176, or allowed to be cured by amendment under section 173 (Park v. Church, 5 How. Pr. 381; Pierce v. Craine, 4 Id. 257), and that all irregularities which would be amendable on motion, could be taken advantage of only by the judgment debtor (Berry v. Riley, 2 Barb. 307 ; Abels v. Westervelt, 15 Abb. Pr. 230).

In the analogous case of a warrant of attachment which had not been subscribed, the warrant was allowed to be amended by the addition of the signature of the attorney (Kissam v. Marshall, 10 Abb. Pr. 424).

In the case of a notice of appeal, where the signature or subscription appeared only in the form of an indorsement upon the back of the notice, the notice was held sufficient (Burrows v. Norton, 2 Hun, 550).

• Upon the principles decided by these and similar cases, the indorsement of the execution in question, which was signed by the attorney, must beheld to have been a sufficient subscription as against the defendant.

Kelly v. Sheehan (76 N. Y. 325) and Kilmer v. Hathorn (78 N. Y. 228), are clearly distinguishable. The question in each of them arose under the provisions of the Code of Civil Procedure limiting the time to appeal, and rule 2 of the general rules of practice ; and it was held that, inasmuch as there was no power in the court to relieve a party who fails to take an appeal in due time, however meritorious the excuse, the party undertaking to limit the time should be held to strict practice; and that consequently, a failure to observe and follow the second rule was an omission fatal to the sufficiency of a notice of judgment given to set in motion the short bar of section 1351.

The claim for damages for injury to his business the plaintiff failed to substantiate, and the jury were instructed to disregard it. This leaves for consideration plaintiff’s claim for the value of the goods taken.

The goods in question consisted of clothing, &c., ■contained in the store No. 833 Broadway, in the city of New York. They were taken by the defendant as a marshal, under an execution directed against Mrs. Henrietta Herz, and issued by Korn, Holzman & Co., July 10, 1877, upon a judgment duly recovered against her. The plaintiff claimed title to the goods under .and by virtue of a purchase made by him upon a sale under a prior execution issued against Mrs. Herz, who is his mother-in-law. He proved the recovery of a judgment by default-by himself against her, on June 23, 1877, for $1,547.25, the issuing of an execution thereon the same day, and a sale to himself thereunder of her whole stock in trade for the sum of $443. It also appeared that prior to that time the business at 833 Broadway had been conducted by one Isidore Herz, the husband of Henrietta Herz, and that he continued in charge of the same thereafter. Plaintiff claimed that Isidore Herz so continued as his, the plaintiff s, agent. The defendant, on the other hand, claimed that this was a badge of fraud. It further appeared that the signs on the outside of the premises were not changed, although the plaintiff hung up a small sign with his name upon it in the rear of the store. Upon these and other circumstances not necessary to be set forth in detail, it became a question for the jury whether the plaintiff’s purchase was made in good faith and without any intent to hinder, delay or defraud the creditors of Mrs. Herz, or whether it constituted part of a scheme devised between her and the plaintiff to keep her creditors at bay. In the determination of that question it became, among other things, material to consider, insamuch as plaintiff’s purchase had taken place upon the premises of the judgment debtor, and without apparent-disturbance of her business, and inasmuch as the goods seemed to have remained as they had been before, whether there was an actual and continued change of possession. The learned j udge who presided at the trial was requested to submit this question to the jury, but he declined. In this he was mistaken. The question of change of possession bore directly upon the question relating to the burden of proof. If there was no actual and continued change of possession, plaintiff’s purchase was presumptively fraudulent and void as against the execution creditors represented by the defendant, and the burden rested upon the plaintiff to satisfy the jury that his purchase was made in good faith and without fraudulent intent. If the plaintiff failed to repel the presumption, the defendant was entitled to a verdict (Farrington v. Caswell, 15 Johns. 430 ; Fonda v. Cross, 15 Wend. 628).

On the other hand, if there was an actual and notorious change of possession, the onus was cast upon the defendant to show the fraudulent character of plaintiff’s purchase.

It was error, therefore, to refuse to charge the jury as to the presumption arising from a want of change of possession, and to instruct them, as was done, to find for the plaintiff, unless the defendant had established fraud.

I am also of the opinion that the jury should have been charged, as requested by the defendant, that they might consider the relationship of the parties engaged in the business in question as bearing upon the question as to whether or not there was any fraud or secret agreement between the plaintiff and Mr. and Mrs. Herz; and that they might find fraud, if they found sufficient evidence to such effect in the circumstances surrounding the case. These requests were refused, and the charge as delivered does not cover them. Fraud against creditors is but seldom capable of direct proof, and hence it may be established by circumstantial evidence. The law presumes that persons always intend the results which flow naturally and legitimately from their actions. Consequently, if a particular transaction is entered into out of the usual course of business and under circumstances which, owing to the relations between the parties and their motives and necessities, point to fraud, the jury, in order to arrive at a proper conclusion, may consider not only the direct testimony, but also the probabilities deducible therefrom, and they may weigh and determine the circumstances surrounding the case in the light of ordinary human experience. If, after all this, their minds are led to a certain conclusion upon the main issue, they have a right to adopt that conclusion.

As the errors already pointed out necessitate a new trial, it is unnecessary to consider the other exceptions in the case.

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

Sedgwick, Oh. J., concurred.

Trtjax, J., concurring.

I do not think ■ that the statute requires an immediate delivery and an actual and continued change of possession of goods sold at public sale, under process by a public officer ; otherwise, concur.


author: By the Court.—Freedmah, J.

text:
    JEHIAL READ, et al., Respondents, v. MATTHEW F. McLANAHAN, et al., Appellants.

      Partnership—liability of firm, property to levy under execution on judgment against individual partner—sale, how made, and what passes thereund&r.— Oode of Procedure, §§ 234, 235, 237, 291, 463..— Code Civil Procedure, §§ 1413-1417.
    The personal property oí a firm, subject to levy upon execution against a partner for his individual debts, consists of the tangible personal property of the firm only; and’an actual and not a merely constructive levy must be made thereon. At the time of the sale the property must be in the actual possession of the sheriff, and within view of those in attendance; and the sheriff must sell only the interest of the partner proceeded against, according to the principles of law-applicable to the sale on execution of personal property in general.
    A sale of the partner’s interest in the firm generally, pursuant to a merely constructive levy, is not sufficient to pass title to the purchaser.
    The law and authorities in regard to levy upon and sale of firm property for debt of individual partner, the procedure thereon, and the effect thereof upon the partnership, reviewed by the court.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 4, 1881.
    Appeal from order enjoining the defendants from interfering- with the property or assets of the late firm-. of Stotesbury, McLanahan & Co., and appointing a receiver thereof, &c., &c.
    The facts are fully stated in the opinion.

      McDaniel & Souther, attorneys, and O. E. Souther, of counsel, for appellants.

      Marsh, Wilson & Wallis, attorneys, and William G. Wilson, of counsel, for respondents, urged :
    I. The partner’s interest in his firm is a chose in possession. He is actually vested with it ; he has control over it; he may do what he will with it; he needs no action to give him power and possession ; he may sell his interest, and put his purchaser in as complete possession as he himself has, and his purchaser thereby acquires a complete right to an accounting. ■ The case upon which the defendants rely (Harris v. Murray, 28 N. Y. 574) differs from the present in just this regard, and the difference is a vital one ; there it was the question of the interests of a special partner, and it was considered that the special partner was in effect but a creditor of the firm, and not an owner in the firm assets. In Moody v. Payne (2 John. Ch. 548), it is said: “The late exchequer case of King v. Sanderson admitted that, upon an extent against one partner, the crown, like a separate private creditor, took the separate interest of the partner, subject to the partnership debts ; and that it was the practice for subjects to issue executions against the interest of one partner, and that the sheriff sold only the interest of such partner, and not the effects themselves.” In Atkins v. Saxton (77 N. Y. 195), there is a distinct recognition of the right to reach on execution the exact share or interest of one partner, not in certain specific tangible property which may "be seized by the sheriff, but in the whole business, and as the same shall prove to be on a full and final accounting between the partners, which necessarily involves a collection of all outstanding assets and payment of all debts. The sheriff in no case takes physical possession of these outstanding assets, and yet the purchaser takes the full beneficial interest in them. The property in the physicial possession of the sheriff may be in fact worthless, and yet under the levy and sale the same consequences must follow, and the purchaser acquires the full benefit of the judgment debtor’s interest in the firm. And the power to take and deliver possession is “ merely incidentalthe main and substantial power is that to levy upon the partner’s whole interest. The taking and delivering possession can never practically extend to the outstanding assets, in which, nevertheless, the purchaser acquires an undoubted right. Can this right of levy and sale be made dependent on the physical seizure of some article of personal, tangible property, however slight in value % Such a rule would be absurd. There are many instances of levy and sale on execution of intangible property. In Van Antwerp v. Newman (2 Cow. 543), it was held that the sheriff might sell a term, in goods and chattels on an execution against the lessee. In Evangelical Home v. Buffalo Association (64 N. Y. 561), it was held that the sheriff might levy upon and sell an easement. The Code does not assume to enumerate all the species of property upon which a levy may be made. Section 1405 of the Code does not say upon what property an execution may be levied, but upon what property an execution is a lien without levy. Yet even this section embraces not only goods, but chattels. Chattels are" defined by Burrill (Law Dic.) as “Movable goods and all other property or estate not amounting to a freehold and of chattels personal it is said that, “ Besides things movable, they include also certain incorporeal rights or interests, growing out of, or incident to them—such as patent rights and copyrights.” Sections 1410, 1411 and 1412 give express authority to levy upon certain choses in action. Section 1413 applies only to the case of seizure of tangible personal property.
    II. If, as we have maintained, the levy was valid and effectual, then the sale was equally so. As the property levied on was intangible, it could not be within the view of those attending the sale. But it was constructively present, because it was constructively in the possession of the sheriff, who was there present.
    HI. If the levy and sale were valid, then the plaintiffs stand in the same position as one who has bought a partner’s interest on a voluntary sale. Such sale dissolves the partnership. The purchaser is entitled to a liquidation of the affairs of the partnership, an accounting, and payment of the balance found due to his assignor.
   By the Court.—Freedmah, J.

Upon the motion below it appeared that the plaintiffs, on December 10, 1880, duly recovered a judgment against Henry H. Stotesbury, a member of the firm of Stotesbury, Mc-Lanahan & Co.; that oh December 23, 1880, an execution was duly issued thereon to the sheriff of the city and county of New York; that on the same day the said sheriff assumed to make a levy thereunder upon all the right, title and interest of the said Henry H. Stotesbury of, in, and to the property and business of the said firm ; that on January 13, 1881, the said sheriff sold at public auction, under and by virtue of said •execution and levy, all the right, title and interest which said Henry H. Stotesbury had, on December 10, 1880, or at any time thereafter, of, in and to the property and business of said firm, to the plaintiffs, who were the highest bidders at said sale ; and that' the plaintiffs received from said sheriff a certificate of said sale. Upon these facts the plaintiffs brought this action, in which they claim to be entitled to an accounting for the judgment debtor’s interest in the firm, and having shown, in addition, that the defendants refused them access to the books and accounts of the firm, they moved for an injunction and the appointment of a receiver of the firm’s property and assets during the pendency of the action, which motion was granted.

It also appeared, however, that no tangible property had been levied upon ; that the only levy made was a mere constructive levy on the judgment debtor’s general interest in the firm; that no inventory was made; that the sale of the judgment debtor’s interest took place at the City Hall; and that the place of business of the firm was at 60 Broad street, in' the city of New York. These matters went directly to plaintiff’s standing in court.

Prior to the Code of Civil Procedure it was well settled that on an execution, issued upon a judgment against one of several general partners for his' individual debt, the sheriff could levy on and sell the judgment- debtor’s interest in partnership property, and that to accomplish that purpose he had the right and power to take the partnership property levied on into his own possession, and upon a sale thereof, provided he sold only the interest of the judgment debtor therein, to deliver them to the purchaser, who, in such a case, took the property subject to an account between the partners and to the claims of the creditors of the firm (Phillips v. Cook, 24 Wend. 392 ; Waddell v. Cook, 2 Hitt, 47; Walsh v. Adams, 3 Den. 125; Berry v. Kelly, 4 Robt. 106; Smith v. Orser, 42 N. Y. 132; Atkins v. Saxton, 77 Id. 1 5).

It was only in the case of a special partner that a different rule prevailed by way of exception (Harris v. Hurray, 28 N. Y. 574).

The rule has not been changed by the Code of Civil Procedure. Provision was only made to mitigate its severity by enabling the other partners having an interest in the firm’s personal property seized on a levy upon the interest therein of the partner individually liable, to apply for its release upon giving security therefor (§§ 1413-1417). The power and duty of the sheriff remain as they were. The entire partnership property is still liable to be taken, if necessary. But what is included in the firm’s personal property thus subject to levy and qualified sale, and what kind of a levy is necessary to enable the sheriff to make a valid and effectual sale of the partner’s interest therein ? These are the important questions in the case at bar.

The doctrine of all the cases is, that partners are joint-tenants of the partnership property, they being seized per mi et per tout / that under an execution against one of several partners for his individual debt, the sheriff may, if necessary, seize and sell the interest of such partner in all choses in the possession of the firm, as"he may that of any joint-tenant or tenant in common; that the sheriff may deliver the corpus of the property, so qualifiedly sol'd, to the purchaser; that the latter thereupon becomes a tenant in common with the other partners in respect of the property so purchased and received by him ; and that in respect of such property, but such property only, the partnership between the partner whose interest was sold, and the other partners, is at an end.

This means that choses in the possession of the firm only can be thus seized as personal property. The firm’s choses in action are not included, because a mere chose in action is not liable to sale under execution at all, unless previously effectually seized by attachment in regular proceedings instituted for that purpose. The difference arose in consequence of the provision of the prior Code for the attachment of things in action and evidences of debt as well as money, goods and chattels (§§ 234, 235, 237, 463), while at the same time the provisions of law existing at the time of the enactment of the Code were retained, so far as they related to property liable to sale on execution, and so far as they were nob in conflict with that act (§ 291). The Code contained nothing in conflict with the old law on this subject, and under that, choses in action were not subject to levy and sale on execution.

But, although since the time mentioned, choses in action could be attached, it was nevertheless held that under an attachment against a partner, founded upon his. individual debt, the seizure cannot be extended to the firm’s choses in action, though the tangible property of the firm may be taken (Barry v. Fisher, 8 Abb. Pr. N. S. 369, and cases there cited).

If, then, the firm’s choses in action cannot be reached by attachment, they certainly cannot be reached on execution against a partner for his individual debt, unless the Code of Civil Procedure introduced a new rule to-that effect. On examination, I cannot find that this has been done.

The result of all this is, that the personal property of a firm subject to levy upon execution against a partner for his individual debt, consists of only the tangible personal property Of the firm; that an actual, and not a mere constructive, levy must be made thereon ; that at the time of the sale the said property must be in the actual possession of the sheriff and within view of those attending the sale (§ 1428), and that the sheriff must sell only the interest of the partner proceeded against therein, according to the provisions of law applicable to the sale on execution of personal property in general. A sale of the partner’s interest in the firm generally, pursuant to a mere constructive levy, is not sufficient to pass title to the purchaser. To reach such interest generally, the creditor must institute regular proceedings.

The order appealed from should be reversed with costs, and plaintiff’s motion denied, with $10 costs.

Sedgwick, Ch. J., concurred.