author: Per Curiam : Brown, J.:

text:
    C. Crozier Gray and Another, Respondents, v. The Germania Fire Insurance Company of the City of New York, Appellant.

      Mre insurance policy —- the conditions thereof cannot be waived by the oral consent of the insurer's agent, but knowledge by the agent creates an estoppel.

    Although the oral consent of an agent of a fire insurance company, given after the delivery of the policy, is ineffectual to waive its conditions, yet a fire insurance company is estopped from asserting a forfeiture if its agent acquired, prior to the issuing of the policy, knowledge of the facts upon which the claim of forfeiture is based.
    Appear by the defendant, The Germania Fire Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the 25th day of October, 1894, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on the 15th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Ernest Hall, for the appellant.

      Sidney II. Stuart, for the respondents.
   Per Curiam :

This case is upon a fire insurance policy. It should be affirmed upon the opinion of the Circuit judge rendered upon the motion for a new trial.

The judgment should be affirmed, with costs.

■ Present — Dyicman and Pratt, JJ.

Judgment affirmed, with costs, on opinion of Circuit judge.

The opinion of the judge at Circuit was as follows:

Brown, J.:

None of the authorities cited by the learned counsel for the defendant in support of his motion for a new trial are applicable to the facts disclosed by the evidence; almost all of them relate to cases where the event which violated the condition happened, and the consent of the agent upon which a waiver was predicated was given, after the policy was issued.

The case of Allen v. The German-American Ins. Co. (123 N. Y. 6) is distinguished from the case at bar by the fact that Noble, who procured the insurance for the plaintiff, was an insurance broker and was not the agent of the defendant. This case falls easily within the rule applied in Van Schoick v. Niagara Fire Ins. Co. (68 N. Y. 434); Berry v. A. C. Ins. Co. (132 id. 49), and numerous other kindred cases cited upon the plaintiffs’ brief. Upon the facts as determined by the jury it is very plain that neither plaintiffs nor the agent intended to make a contract that would become void if insurance in other companies was effected. The agent was told that plaintiffs intended to insure for $3,000, and that two-thirds of it was to be placed in other companies. He agreed to issue the policy in suit upon that state of facts, and his statement when he delivered the policy, that “ it was all right,” had reference to the former conversation, and was in effect a consent that the plaintiffs could procure other insurance. The agent represented the defendant, and had power to waive the. condition against other insurance, and must be deemed to have done so when he delivered the policy. The line drawn by the decisions is very clear between cases in which oral consent of an agent, given after the delivery of a policy, has been held ineffectual to waive its condition, and cases where the insurance company has been held to be estopped from asserting a forfeiture by reason of the knowledge of its agent, acquired prior to the issuing of the policy, of the facts upon which the claim of forfeiture was based. The facts of this case, as determined by the jury, bring it within the latter class. The motion for a new trial must, therefore, be denied, and the plaintiffs may have an allowance of five per cent upon the amount of the recovery.


source: Caselaw Access Project

author: Dvkman, J.: Brown, J.:

license: Public Domain

text:
    Lawrence R. Suydam and Another, Respondents, v. Frederick W. Dunton, Appellant.

      Damages for a breach of a contract for the sale of real estate — bar to an action — a right of way abandoned — dependent covenants.

    In. an action brought by the assignee of the vendee named in a contract for the sale of real estate, to recover damages for an alleged breach thereof, the defendants sought to charge the plaintiff with a specific performance of the contract. The assignee did not in the assignment assume the obligations of the contract, and the contract could not have been enforced against him.
    In an action thereafter brought by the assignees of the defendants in the prior action against the assignor of the vendee named in said contract to recover damages for an alleged breach thereof,

      Held, that the fact that the defendants in the former action had sought to charge a person not liable to them did not preclude them from, maintaining an action against the right person.
    Where a person for over thirty years continued in the open adverse occupation of land covered by a right of way under a claim of ownership, under such circumstances as warranted the conclusion that the right of way had been abandoned, it cannot be said that the right of way is an incumbrance upon the real estate.
    A cessor to use, accompanied by an act clearly indicating an intention to abandon the right, has the same effect as a release without reference to time.
    The rule as to dependent covenants requires only that a tender of the deed precede an action for the purchase money.
    Appeal by tlie defendant, Frederick W. Dunton, from a judgment of tlie Supreme Court in favor of tlie plaintiffs, entered in tlie office of the clerk of the county of Queens on the 16th day of July, 1894, U23011 tlie decision of the court rendered after a trial'at the Queens County Special Term.
    This action was brought to recover damages for the breach of a contract to purchase real estate, the defense interposed being that the title offered to the purchaser was defective.
    On or about the 12th day of October, 1891, Lewis L. Fosdiek, as executor, and Phoebe Suydam, as executrix, of the last will and testament of Isaac D. B. Suydam, deceased, entered into a contract in writing, whereby they agreed to sell to Frederick W. Dunton, who agreed to purchase, certain real estate and appurtenances situated in the county of Queens in the State of New York. On the 6th day of March, 1892, the said Frederick W. Dunton assigned to Elihu J. Granger the said contract by means of an instrument which was in the following words: “ In consideration of the sum of §10,000 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby sell, assign, transfer and set over to Elihu J. Granger all my right, title and interest in the annexed contract, dated October 12, 1891, and made by Lewis L. Fosdick, executor, and another to me. In witness whereof I have hereunto set' my hand and seal March 6, 1892.”
    On the 11th day of April, 1892, the time for the completion of the contract of sale was extended until the 15th day of April, 1892. On April 15, 1892, a tender of the amount of money due upon the contract was made and a deed of the property demanded, which deed was tendered and contained the following provision, “subject, however, to the use of the public as a public highway known as Hillside avenue, running across said piece of land.”. Said conveyance was not accepted, and on the 15th day of April, 1892, Elihu J. Granger commenced an action in the Supreme Court for damages * for the failure on the part of the executors of Isaac D. B. Suydam to convey or offer to convey to him a good title to the premises in question.
    The objection raised to the title was the existence of a lane as an easement created by grant and the use of the highway known as Hillside avenue.
    On or about the 21st day of April, 1892, the executors of Isaac D. B. Suydam obtained an instrument in writing, purporting to be a release to them of the incumbrance by way of easement or right of way, which formed the basis of objection made to the acceptance of the conveyance tendered by them, which release they tendered to the assignee of the original contract, together with a deed conveying the premises in question.
    The complaint in the action brought by Elihu J. Granger was dismissed.

      F II Van Vechten and Daniel F. Delaman, for the appellant.

      F. B. Minrath, for the respondents.
   Dvkman, J.:

This is an appeal by the defendant from a judgment entered upon the decision of a judge of this court in favor of the plaintiffs against the defendant.

The findings of facts and conclusions of law are full and satisfactory, and, with the opinion of the trial judge, render any enlargement here unnecessary. .

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

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

Judgment affirmed on the opinion of the trial court.

The opinion of the Special Term was as follows;

Brown, J.:

The parties having agreed upon the facts of this case it is necessary only that I state my conclusions therefrom.

The defendant has never performed his agreement, and the executors having tendered a proper and sufficient deed for the property plaintiffs are entitled to recover the damages sustained unless that right has been lost by reason of some of the facts alleged as a defense.,

Upon notice to the defendant the property was sold at public auction for $48,830.25, and that sum is agreed upon as the fair market value ” of the farm at the time of the sale.

The difference between that sum and the purchase price named in the contract of sale, together with the expenses incurred by the executors, make up the damages sustained.

The main defense relied upon is that based upon the judgment in the case of Granger v. Suydam’s Executors, etc. That judgment is not a bar to this action.

Granger did not in the assignment to him by defendant assume the obligations of the contract, and the executors could not have enforced it against him. He was not liable for the purchase money, because that was defendant’s debt, and Granger could have been liable for it only in case he promised to pay it in writing. For the same reason he was not liable for specific performance. The fact, therefore, that the executors asked to amend their answer in that action and prayed for specific performance, which motion the court granted, although the relief asked for was not granted, is not a defense to an action on the contract by the plaintiffs as the assignees of the executors against the defendant. ' The utmost that can be said upon this proposition is that the executors .sought to charge a person not liable to them. But this did not preclude them or their assignees from maintaining an action against the right party. The assignment neither bound Granger to, nor released the defendant from, the obligation of the contract. Its sole effect was to entitle Granger to demand and receive the performance of the contract of the executors. lie stood in the defendant’s place, and his tender of the installment of the purchase money in April, 1892, may be considered in this action as made on defendant’s behalf.

If the executors were not at that time able to perform the contract on their part and convey a good title, then they were in default and the agreement was broken.

This question depends upon the existence or non-existence of the right of way over the farm. The facts in relation to that right of way are set forth in the statement, 16th to 24th subdivisions inclusive, from which it appears that Isaac D. B. Suydam, and after his death his heirs and executors, had been since 1861 in the continued open adverse occupation of the land covered by said right of way under claim of ownership, and under such circumstances as warrant the conclusion that it had been abandoned and surrendered by the owner of the adjacent farm. Under these facts there was no incumbrance.

A cessor to use, accompanied by an act clearly indicating an intention to abandon the right, has the same effect as a release without reference to time. (Washb. Easem. [4th ed.] 707; Snell v. Levitt, 110 N. Y. 595 ; Welsh v. Taylor, 134 id. 450, and cases cited.)

It is not a defense that there was in April, 1892, an apparent incumbrance of this character upon the farm. It must be shown to exist as a fact, otherwise it does not justify a refusal to perform the contract.

I find as a fact, therefore, that there was no incumbrance upon the land in April, 1892, when the second installment was due, and that the executors were at that time ready and willing to perform. They were not bound at that date to tender performance. It is sufficient that that be done at the maturity of the final payment.

The rule as to dependent covenants requires only that tender of the deed precede an action for the purchase money.

There is no defense to the action, and the plaintiffs are entitled to judgment for the sum of $25,425.58, with interest from December 2, 1893.


author: Dykman, J.:

text:
    Auguste Dorn, as Administratrix, etc., of Laura Schemanska, Deceased, Appellant, v. The Town of Oyster Bay, Respondent.

      Town — damages for alleged defect in its highways — what justifies a recovery — duty of highway commissioners — relative obligations of towns and other municipal corporations as to highways.

    •The towns of tlie State of New York are its primary political divisions. They are erected and organized by statute; all their duties and obligations are prescribed by statute, and they derive their capacity and powers from the same source. Modern legislation has endued them with powers and imposed upon them obligations similar to those possessed by municipal corporations.
    Before a recovery can be had against a town, in ap action brought to recover damages resulting from the death of the plaintiffs intestate caused by an alleged defect in a highway within its borders, it must be made to appear that the obstruction in the highway which caused the injury existed by reason of the neglect of the commissioners of highways of the town.
    The duty of commissioners of highways in relation to the removal of obstructions or the reparation of defects in highways is a qualified one. They are required to exercise reasonable care under all the circumstances, and their negligence is the omission of such care.
    The towns of the State of New York are not required to maintain the highways within tlieir borders in a condition of absolute safety, and their commissioners of highways are not bound to constant vigilance and inspection of the roads. Ordinary care is the limit of responsibility, and that denotes such care and conduct on their part as a reasonable and prudent person would ordinarily exercise under similar circumstances.
    There is an obvious difference between the obligations of rural towns and municipal corporations, like cities and villages, in respect to the care of highways, and the rule is more stringent in respect to the latter than the former. The fact that towns have been made by legislative enactment municipal corporations does not change this rule, because the reason for it still exists.
    Appeal by the plaintiff, Auguste Dorn, as administratrix, etc., of Laura Scliemanska, deceased, from a judgment of tlie Supreme Court in favor of tlie defendant, entered in tlie office of the clerk of tbe county of Queens on tlie 27tli day of June, 1894, upon tlie dismissal of the complaint directed by tbe court after a trial before tlie court and a jury at tlie Queens County Circuit, and also from an order entered in said clerk’s office on tlie 16th day of June, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Paul E. De Fere, for the appellant.

      F. F. Van Veehten, for the respondent.
   Dykman, J.:

The towns of this State are the primary political divisions. As they exist here they were unknown to the common law, and are all of statutory creation. They were erected and organized by statute, and all their duties and obligations are prescribed by statute, and they derive their capacity and powers from the same source. In the earlier history of the State their capacity was limited, and their duties and liabilities were but few. By the Revised Statutes, each town as a body corporate had capacity to purchase or hold property for certain purposes, to sue and be sued, and to make certain contracts in relation to corporate property and 'affairs. Modern legislation has, however, enlarged their capacity and endued them with • powers and imposed upon them obligations similar to those possessed by municipal corporations.

During the war of the Rebellion the Legislature passed laws directing the different towns to borrow money to pay bounties to soldiers, and issue bonds of the town as security for their payment.

About the year 1865 several special statutes were enacted by the Legislature providing for the opening and grading of wide avenues in Westchester county, and directing the county treasurer to issue bonds of the several towns through which the avenues were to be constructed to pay for the improvements. It was decided that the Legislature possessed the power to direct the improvements and impose the burden of paying therefor upon the different towns. (People ex rel. McLean v. Flagg, 46 N. Y. 401.).

So the towns were made legal entities, and clothed with power to incur obligations, and become liable for their payment. Finally the Legislature lias declared that a town is a municipal corporation, comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been or may be conferred or imposed upon it by law.” (Laws of 1890, p. 1211, chap. 569, § 2.) So the liability of towns for injuries caused by defects or obstructions in highways is also the result of modern legislation.

Planting themselves upon the fact that the towns-had no ownership or interest in the highways within their borders, that even their use did not pertain exclusively to the inhabitants of the towns, but only in common' with the whole people, that the officers having the care of the highways were not the agents of the towns, and received no instructions from them, the courts in the earlier cases refused to entertain suits against the towns for the recovery of damages for accidents on the highways therein. As late as the year 1864 the right to maintain such actions was substantially denied in the Court of Appeals in the case of Garlinghouse v. Jacobs (29 N. Y. 300), and it was said in that case that from the organization of the State government down to'1820 there was no known instance in this State of an attempt to enforce a civil remedy in respect to highways. Finally, in 1870, the Court of Appeals decided in favor of the right to maintain such actions against commissioners of highways. (Hover v. Barkhoof, 44 N. Y. 113.)

After that time actions of that character were frequently sustained down to 1881, when the towns were made liable by a special statute (Laws of 1881, chap. 700) for damages to persons and property sustained by reason of defects in highways and bridges, in cases where the commissioners of highways were then liable therefor. In 1890 the towns were made absolutely liable for all damages to persons and property sustained by reason of defects in highways or bridges existing by reason of neglect of commissioners of highways of such town. (Laws of 1890, p. 1181, chap. 568.)

This examination manifests the gradual development of the powers and liabilities of the towns in this State, and shows that the underlying reason for the liability of the town for injuries sustained upon the public roads is the negligence of the commissioners of highways.' The case before us is an appeal by the plaintiff from a judgment entered upon a nonsuit at the Circuit, and from an order denying a motion for a new trial on the minutes of the court.

The suit is for the recovery of damages resulting from the death of the plaintiff’s intestate, which is alleged to have been caused by the defective condition of a highway in the town of Oyster Bay, existing by reason of the negligence of the commissioners of highways of that town. The material facts are these: The plaintiff was driving two horses attached to a covered baker’s wagon on Tuesday, the 21st day of February, 1893, between six and seven 'o’clock in the evening, along a public highway between Bethpage and Farmingdale in the town of Oyster Bay. The wagon was upset in a bank of snow, the rear part fell upon the daughter and she was killed. A snow storm accompanied with wind commenced in that locality five or six days previous to the accident, and continued with more or less regularity and severity until three o’clock on Monday, the day before the accident. The snow was blown and drifted into the road for about one-eightli of a mile in the vicinity of the accident. The snow bank was about three feet deep at that point. Before a recovery can be had against a town in an action of this character, it must be made to appear that the obstruction in the highway which caused the injury existed by reason of the neglect of the commissioners of highways of the town, and we find the record in this case destitute of proof to establish that essential fact. The time which elapsed between the cessation of the storm of snow and wind at three o’clock on the afternoon of Monday and six o’clock in the evening of Tuesday, when the accident happened, was insufficient to afford time to the commissioners of highways to ascertain the existence of the obstruction in the highway and an opportunity to remove the same. The duty of commissioners of highways in relation to the removal of obstructions or the reparation of defects is a qualified one. They are required to exercise reasonable care under all circumstances, and their negligence is the omission of such care. The towns in this State are not required to maintain the, highways within their borders in a condition of absolute safety, and their commissioners of highways are not bound to constant vigilance and inspection of the roads. Ordinary care is the limit of responsibility and that denotes such care and conduct on their part as a reasonable and prudent person would ordinarily exercise under similar circumstances. (Lane v. Town of Hancock, 142 N. Y. 510.)

Tested by these rules the evidence was entirely insufficient to support a verdict in favor of the plaintiff. The duty resting upon municipalities in relation to the removal of accumulations of ice and snow from streets and sidewalks within their limits has been so much and so recently discussed as to render the pursuit of the. subject by us unprofitable. (Lane v. Hancock, supra; Hubbell v. Yonkers, 104 N. Y. 435.)

It is to be observed, however, that there is an obvious difference between the obligations of rural towns and municipal corporations, like cities and villages, in respect to the care of highways, and the rule is more stringent in respect to the latter than the former. (Hyatt v. Trustees of Rondout, 44 Barb. 386.)

The fact that the towns are now made municipal corporations will not change this rule, because the reason for it still exists. The facts and circumstances disclosed were insufficient to justify a jury in finding a verdict for the plaintiff, and a nonsuit was, therefore, properly granted. (Lane v. Hancock, supra.)

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

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

Judgment affirmed, with costs.


author: Cullen, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Adrian M. Suydam, Deceased. John D. Snedeker and Another, Individually and as Executors and Trustees, etc., of Adrian M. Suydam, Deceased, Respondents; Leah V. C. Naul and Others, Appellants.

      Transactions between a client a/nd Ms attorney — the rule inter vivos not applicable to a bequest by will — a testaioi''s anger will not defeat Ms will.

    The rule that prevails as to transactions inter vivos between clients and attorneys does not apply to a will made by the client in favor of his attorney.
    The anger and ill-will of a testator, however unjustifiable, cannot of themselves defeat his last will and testament..
    Appeal by Leah Y. 0. Naul and others, next of kin and heirs at law of Adrian M. Suydam, deceased, from a decree of the Surrogate’s Oourt of the county of Kings, entered in the Kings County Surrogate’s Oourt on the 16th day of April, 1S94, admitting to pr'o-bate two certain instruments as and for the last will and testament and codicil of Adrian M. Suydam, deceased.

      George F. Elliott, for the contestants, appellants.

      John P. Polfe and Wm. ¡8. Cogswell, for the proponents, respondents.

      Horace Graves, for the Buslrwick Avenue Church, respondent.

      George H Fisher, for the Industrial Home, respondent.
   Cullen, J.:

This is an appeal from a decree of the surrogate of the county of Kings, admitting to probate the last will' and a codicil thereto of Adrian M. Suydam.

This appeal presents solely a question of fact. The evidence is brief and requires but little discussion. The appellants are nieces of the testator, and were disinherited by his will. There is no question here of dementia or loss of intellect; therefore, the only attack that can be made on the will is either the allegation of undue influence or of mental delusion as to the appellants. There is no evidence whatever to support the first charge except that the lawyer and draftsman of the will is given thereby a legacy of $5,000. The rule that prevails as to transactions inter vivos between client and attorney does not apply to a will made by the client in favor of his attorney. (Matter of Smith, 95 N. Y. 516.)

In this case the legacy to the attorney is but a small part of the estate, and it is conceded that for years prior to his decease there had been no disposition on the part of the testator to favor the appellants.

It appears that a number of years ago the testator took offense at some conduct of his brother, the father of the appellants. This led to unfriendly feelings, not only against the brother, but also against the brother’s family, including the appellants. About ten years ago another brother, Jacob, died. Jacob left the greater portion of, his property to his nieces, the appellants, and to the testator Adrian simply a burial plot. These testamentary dispositions by his brother seem to have further imbittered the feelings of the testator toward his nieces, and he appeal’s to have contrasted with some degree of anger the gift of substantial property to his nieces and the burial plot to himself. This animosity on the part of the deceased coiitinued till his death, and undoubtedly the will is largely the result of that feeling. But anger and ill-will, however unjustifiable, cannot defeat the testator’s will. “ On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. Thesé qualities of mind may exist even in a higli degree, and yet, so far as regards the view wliicb the law takes of the case, the subject may be sane and competent to perform a legal act.” (Seamen's Friend Society v. Hopper, 33 N. Y. 619.)

There is no evidence to show that the testator even erred in his belief as to the facts out of which his animosity sprung, much less that lie labored under any insane delusion as to to those facts. His feelings may have been unkind, uncharitable and even wicked, but unfortunately they are not wholly unknown in the history of human nature. Certain it is that no subject breeds more bitter family dissensions or quarrels than what are regarded as unfair dispositions of the family heritage. These feelings often far outweigh any grief at the loss of the deceased.

The decree appealed from should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Decree affirmed, with costs.


author: ' JJykman, J.: Cullen, J. :

text:
    The Prospect Park and Coney Island Railroad Company, Respondent, v. The Brooklyn, Bath and West End Railroad Company and Another, Appellants.
    Action No. 1.

      Pease of a railroad — when valid — policy of the State of New York in respect thereto ■— chapter 218 of 1839.
    Although it is true, as a general proposition, that a quasi public corporation cannot by contract relieve itself from its duties to the public or its obligation to operate its franchise and exercise its powers for the public benefit, yet such proposition is subject to qualification, and, under the provisions of chapter 218 of the Laws of 1839, a railroad company is authorized to contract with another for the use of its road.
    It is the policy of the State of New York to promote, .and to some extent even to compel, agreements for some joint operation of their railroads between companies whoso roads have connected or united; such agreements must necessarily impose to some extent restrictions on the broad powers and discretion, as to the construction and operation of a road, conferred by st'atute upon a railroad company.
    Such agreements are valid unless the effect of the restrictions prescribed is injurious to the public. Even if the effect of such contract between two railroad companies is to cause the abandonment of a portion of the road of one company, that does not render the agreement illegal or against public policy if no detriment to the public results therefrom.

      Appeal by tbe defendants, The Brooklyn, Bath and West End Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff^ entered in the office of the clerk of the county of Kings on the 22d day of May, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining and restraining the defendants from making certain changes in the operation and construction of their railroad lines.

      Morris c6 Whitehoiise, for the appellants.

      George W. Wingate, for the respondent.
   ' JJykman, J.:

We are entirely satisfied with the disposition made of this case at the Special Term, and with the reasons therefor contained in the opinion delivered at the Special Term.

The case depends upon a peculiar state of facts, and there seems to be no necessity for making any addition to the opinion of the trial judge, and the judgment should be affirmed upon that opinion, with costs.

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

Judgment affirmed, with costs on opinion of the Special Term.

The opinion of the Special Term was as follows :

Cullen, J. :

This action is brought to restrain the operation of the railroad of the first-named defendant in alleged violation of a contract between the plaintiff and that company establishing a union terminal depot at Thirty-ninth street and Fifth avenue, Brooklyn.

The first question presented is the authority of the defendant, the Brooklyn, Bath and West End Railroad Company, to limit its franchise or statutory powers by contract. It is, doubtless, true, as a general proposition, that a quasi public corporation cannot, by contract, relieve itself from its duties to the public or its obligation to operate its franchise aiid to use its power for the public benefit. B\it this general proposition is subject to qualification. Under the act of 1839 (Chap. 218) a railroad company is authorized to contract with another for the use of its road. This has been held even to authorize a lease. (Beveridge v. N. Y. E. R. Co., 112 N. Y. 1; Woodruff v. Erie R. R. Co., 93 id. 616.)

The General Railroad Act also provides for compulsory inter- • change of facilities of connection between crossing or uniting railways. Thus, it has always been the policy of this State to promote, and to some extent even to compel, agreements for some joint operation of their roads between companies whose roads have connected ■ or united; such agreements must necessarily infer, to some extent, restrictions on the broad powers and discretion as to the construction and operation of its road conferred by statute upon a railroad company. But such agreements are valid unless the effect of the restrictions jjrescribed is injurious to the public. Even if the effect of the contract between the plaintiff and the defendant was to cause the abandonment of the part of the latter’s road on Fifth avenue, between Twenty-sixth and Thirty-sixth streets, that does not render the agreement illegal or against public policy if there be no detriment to the public. (People v. Rome & Watertown R. R. Co., 103 N. Y. 95.)

Here the plan of a terminal depot greatly subserved public convenience. The elevated railroad on Fifth avenue was to be continued along that avenue to the new depot into which trains of both surface railroad companies were to be brought. The Brooklyn, Bath and "West End Company also leased the Fifth avenue piece of its road to the Atlantic Avenue Railroad Company, making a continuous street railroad to the new depot.

Thus, far greater facilities were given the public than it could have obtained from the few blocks of the steam railroad abandoned. The contract between the parties is, therefore, valid, and the plaintiff, having made a very large outlay in pursuance of it, is entitled to have it enforced.

It is, therefore, only to be determined what limitations that contract placed on the defendant, the Brooklyn, Bath and West End Railroad Company, and the other defendant, which has now leased the road of the first-named company.

Justice Bartlett decided on the application for a temporary injunction that the contract did not prohibit the operation of the first-named defendant’s ' road by electricity instead of steam, it being shown that it could be so operated without interfering with the running of plaintiff’s trains into the station. Second, that the said defendant had no right to use the ground reserved for the use of the Union Depot for the passage of trains intended to run through to other parts of the city. In this decision I entirely concur. By the agreement the two companies were “ to erect, establish and maintain at said terminus of said elevated road at Fifth avenue and Thirty-sixth street, a joint railway depot and terminus ” at the equal expense of both companies. The parties were to divide equally the receipts at this depot and to share equally the expense of its maintenance. While the agreement does not, in express terms, prohibit either company continuing its road at this point beyond the depot, I think it does so by necessary implication. If either road were to be continued beyond this point then the station or depot would plainly cease to be the terminus of the road. It would also entirely destroy the scheme for the division of the receipts and expenses of the depots provided by the agreement. A company extending its road further into the city would receive a great mass of its passengers and the great bulk of its receipts at the new terminus, and cast consequently the whole burden of the old station upon the other company. A personal examination of the ground and the structure erected shows that it was never contemplated (except on one contingency) to extend the two roads beyond this station. The provision in the contract inhibiting the plaintiff from extending its road or branches to the west, or the defendants extending its road or branches to the east, did not contemplate any extensions at this end of the route, but extensions through territory lying between the depot and Coney Island.

The 13th clause of the agreement provides for running trains through the cuts to the ferry, in the event of the parties effecting a satisfactory connection or arrangement with the South Brooklyn Bailroad and Terminal Company, in which case the through business of both companies to and from Coney Island was to be divided as was provided in the contract for the other business. If such connection was made, it was plainly to be shared in by both parties. There has been no proof upon the trial as to the circumstances under which this connection was made. While the agreement calls for a satisfactory arrangement, I think it does not follow that either company could refuse to agree to a reasonable arrangement and then prohibit, the other from making the connection. So, also, neither party could make, unless upon tho refusal of the other to enter into it, an agreement for connection for its exclusive benefit. But there is no evidence before me to show whether the Brooklyn, Bath and West End Company conferred with plaintiff about the connection, whether the arrangement is reasonable, whether the plaintiff declined to enter into, or whether the Brooklyn, Bath and West End Company refused to allow plaintiff to participate in it. I should not decide this question except on evidence of the actual transaction between the parties. This subject must, therefore, be withdrawn and left for another action, or the case must be reopened for evidence on this point.

•The defendants should, therefore, be enjoined from operating their cars or trains beyond the Union Depot, “ save through the cut,” and while they may operate their road by electricity, and either by trains or by single cars, they may not so operate it as to interfere with the safe and ordinary running of plaintiff’s trains by locomotives; the plaintiff to recover costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Myra Clark Gaines, Deceased. Julietta Perkins and Another, Appellants; William H. Wilder and Others, Respondents.

      Legatees and devisees — when they cannot object to the probate of a prior will — Code of Civil Procedure, § 2611 — when a foreign will can only be probated as a will of personal pi'operty • — •administration in different countries — jurisdiction of the courts of a State not the domicile of a decedent — effect of a foreign judgment — incompetent evidence — appeal from a Surrogate’s Court.

    If the sole rights of persons in the estate of a testator are those of legatees and devisees under an alleged will, tho probate of which was properly rejected, such persons have no standing to complain of the probate of a prior instrument as the last will and testament of the decedent.
    An instrument executed in the State of Louisiana purporting to be the last will and testament of a decedent, if not executed according to the laws of the State of New York, can, under the provisions of section 2611 of the Code of Civil Procedure, be proven in the State of New York only as a will of personal property.

      Apart from any statute, the administrations of estates in different countries are independent so far as the strict right of jurisdiction is concerned, and it is only as a matter of comity that the administration in one jurisdiction respects that in another ; it is doubtful whether the courts of a State not the domicile of a decedent have any further jurisdiction than to make a decree binding the assets within that State.
    Because a foreign judgment cannot be impeached, it does not follow that it establishes conclusively between the parties to it the facts and grounds on which it proceeds, as would be the case ordinarily with domestic judgments.
    A decree of a Surrogate’s Court admitting or refusing to admit an instrument to probate as the last will and testament of a decedent, will not be reversed on appeal for an error in admitting or rejecting evidence, unless it appears that the exceptant was necessarily prejudiced thereby; such appeal is substantially a rehearing in equity, and the appellate court may examine and determine the case anew.
    Appeal by Julietta Perkins and another, legatees and devisees under an alleged will of Myra Clark Gaines, deceased, bearing date the 8th day of January, 1885, from a decree of tbe Surrogate’s Court of tbe county of Kings, entered in tbe Kings County Surrogate’s Court on tbe 24th day of June, 1891, refusing to admit to probate such instrument bearing date tlie 8th day. of January, 1895, as and for the last will and testament of Myra Clark Gaines, deceased, and admitting to probate another certain instrument bearing date tlie 5th day of January, 1885, as and for tbe last will and testament of Myra Clark Gaines, deceased.

      John A. Grow, IP IF. Goodrich, BeVoa A. Lockwood and Isaac Sharp, for tbe appellants.
    IF. T. Houston, for William "W: Christmas and others, respondents.
    IF. T. Gilbert, for "William II. Wilder and others, respondents.
   Cullen, J.:

This is an appeal from a decree of the surrogate of Kings county, rejecting an alleged will of the deceased, bearing date January 8, 1885, and admitting to probate a will of the deceased bearing date January 5, 1885.

The appeal is taken by Julietta Perkins and Marie P. Evans. The appellants are not next of kin or heirs at law of the testatrix, but their sole rights accrue as legatees and devisees under the rejected will; therefore, if the will of January 8,1885, was properly rejected, the appellants have no standing to complain of the probate of the prior will of January 5, 1885, and the only question presented is the validity of the alleged later will.

The will sought to be probated by the appellants is holographic, and is as follows:

“New Oiíleans, January 8¡5/¿, 1885.
“I, Myra Clark Gaines, being of sound mind, bequeath to my excellent friend, Mrs. Julietta Perkins, as a token of my esteem and love, that part of my estate known as the Fuentes piropierty, and to my friend, Mrs. Marie P. Evans, one-third of the remainder of my entire estate, the balance to be equally divided between my grandchildren. I appioint Mrs. Marie P. Evans my testamentary executrix and detainer of my whole estate without bond.
“MYRA CLARK GAINESP

This will was offered for probate in the District Court of the State of Louisiana in 1885 by Marie P. Evans, The will of January fifth was also offered for pwobate-before the same tribunal about the same time. As far as we can judge from the record, the parties to the litigation that ensued there were Mrs. Evans, Christmas and Wilder, the executors of the will of January fifth, and Christmas, who intervened as the natural tutor of his children, who are the grandchildren of the testatrix, Mrs. Gaines. Another set of grandchildren, the Whitneys, who with the Christmas children were the sole heirs at law and next of kin of the testatrix, seem in no way to have been made parties to or to have intervened in these proceedings.

The cases being tried together, the District Court adjudged the will of January fifth defective in form and rejected it'■without prejudice to an application for its pirobate in the courts of the domicile of the testatrix, and further adjudged that the holographic will of January eighth be rejected as false, fraudulent and forged.

The appellant Evans appealed from the decree, so far as it rejected the will offered by her, to the Supreme Court of the State of Louisiana, where the judgment below w;as affirmed.

It is conceded by all parties that the domicile and residence of Mrs. Gaines was in the county of Kings, in this State. The respondents’ first claim is tliat the judgment of the court of Louisiana is conclusive in these proceedings against the appellants.

As to Mrs. Perkins, she was not a party to the probate proceedings in Louisiana, and, therefore, urges that the decree in this proceeding cannot bind her. We think this is immaterial; the only interest of Mrs. Perkins, under the rejected will, is as devisee of lands in Louisiana. The rejected will not having been executed according to the laws of this State could, under the provisions of section 2611, Code of Civil Procedure, be proved here only as a will of personal property, and the rejection of the will can in nowise affect her rights. She has, in fact, no standing oil this appeal; but the question remains whether the decree of the Louisiana court is conclusive against Mrs. Evans.

That decree, undoubtedly, established the fact that the rejected | instrument was not the will of the testatrix, so far as administration » in Louisiana is concerned. But we doubt whether it had any greater efficacy than this. Apart from any statute, all administrations of estates in different countries are independent, so far as the matter of strict right of jurisdiction is concerned; it is only as a matter of comity that administration in one jurisdiction respects those in other jurisdictions. (Williams on Executors, 263; Story on Conflict of Laws, §§ 513-518.)

We think it, therefore, doubtful at least whether, Louisiana not being the domicile of the deceased, the court of Louisiana had any further jurisdiction than to make a decree binding assets within that State.

We are not required by the Federal Constitution to give effect to anything but the judgment. While the judgment itself cannot be impeached, it does not follow that it establishes conclusively between the parties the facts and grounds oil which it proceeds, as would be the case ordinarily with domestic judgments. The weight of authority in this State is against such a claim, though in the Federal courts and those of many other States the rule is different. (Durant v. Abendroth, 97 N. Y. 132, 141; Vandenheuvel v. United Insurance Co., 2 Johns. Cas. 451.)

It is conceded that, substantially, the whole assets of the estate are in Louisiana, and it may be well doubted whether the courts of that State would suffer the administration or disposition of assets within their jurisdiction in accordance with the provisions of a will which they have decreed to be a forgery ; but that fact would not preclude the appellants proving the will here.

Without deciding the question of estoppel of the former judgment we prefer to rest our decision on the merits.

Upon examining the record before us, we find a number of rulings of the surrogate in the admission and exclusion of evidence that we deem erroneous, but this does not require us to reverse his decree.

By section 2545 of the Code it is provided that such a decree shall not be reversed for an error in admitting or rejecting evidence, unless it appears to Hie appellate court that the exceptant was necessarily prejudiced thereby.

By section 2586, where an appeal is taken upon the facts, the appellate court has the same power to decide questions of fact which the surrogate has, and it may, in its discretion, receive further testimony or documentary evidence. In pursuance of this power the appellants have taken further testimony, which lias been admitted in this court on the appeal.

It is settled by authority that an appeal to this court on the facts is substantially a rehearing in equity, and that we may examine and determine the case anew. - (Burger v. Burger, 111 N. Y. 523; Gardiner v. Gardiner, 34 id. 164.)

If this be the nature of the hearing we do not see why we should be concluded by the rulings of the surrogate, and why we may not rule on the evidence presented to us.

Under this view of our power we have rejected the testimony of Mrs. Whitney and Mrs. Davis as to personal transactions with the deceased, holding it to be incompetent under the rule laid down in The Matter of Smith (95 N. Y. 526).

The indictment of Mrs. Evans and the report of the conventional committee as to her claim were incompetent evidence against her. This also should be stricken out. There is also some slight testimony by some of the witnesses attending the sick-bed of the deceased, that she could not possibly have written the will. This also was incompetent. We have also accepted and considered the evidence produced by the appellants on the appeal to this court,, and our decision is based on the record as modified by those rulings.

An examination of the evidence in the cause convinces us that the decree of the surrogate was right, and that the holographic will offered was spurious, and not written by the deceased. We do not rest this conclusion on our own comparison of handwriting, or the testimony of the experts on that subject, but on facts which are clearly established, and our belief as to probabilities of human conduct and actions.

We think it clearly appears by the.letters of the deceased that at the end of the year 1882 Mrs. Gaines, who before that time had been extremely friendly with Mrs. Evans, entertained towards her entirely different feelings. She had not only lost her affection for her, but had formed a derogatory opinion of her character. That, entertaining these views, she should have left to the appellant, who was in no wise of kin to her, nor had any claims on her bounty, one-third of her estate, thus depriving her grandchildren, her daughter-in-law and son-in-law of so much, is most unnatural. The story of how the appellant obtained the will in New Orleans is also improbable to the last degree. Even if Mrs. Evans’ story were not contradicted by Mrs. Bradley, still to believe it would tax the credulity of the court to the greatest limit.

Mrs. Bradley directly contradicts Mrs. Evans as to the delivery of the will. We agree with the surrogate that the manner in which the so-called Bradley restitution was obtained tends to show that the witness Bradley was not aware of the paper she was signing; but the greatest force which could be given it under any circumstances would be to treat it as discrediting the witness Bradley, and not to operate as affirmative proof of the facts stated in the paper.

' The theory of the execution of the will is unnatural and improbable. That theory as now advanced is: That in August, 1881, the deceased wrote the will with the exception of the date, -which was afterwards filled in on the eighth of January at New Orleans. It was necessary, so far as probate in this State is concerned, to show that the instrument was not wholly completed in Washington, as in such a ease the will would not come within the terms of the statute and be subject to probate here. Whether a holographic will, executed by a non-resident without the State, could be proved in Louisiana, we do not know. If such a will would be valid, there is no reason why its execution should not have been entire at the time.

If this will was written, except the date, in Washington, the testatrix must liave left tlie date blank, from lier knowledge or belief that, to make such an instrument valid, tlie completion of its execution must take place in Louisiana. That this testatrix had an accurate knowledge on the subject of the law of such wills may be conceded, for she had been in litigation over property coming through such a will for more than half a century. But if that were her intent, it would seem natural that she should have completed the execution shortly after arriving at New Orleans, instead of which, though knowing her dangerous condition, she refrained from writing the date of the will till the very day before her death, when it would supersede any prior testament. She would seem to have calculated the period of her demise with the utmost nicety.

The evidence shows to our minds that the deceased was not physically able to write the date of the will at the time alleged. Three days before she had signed a will by lier mark on account of such inability. She had made also a previous,will on the fourth. The authenticity of her signature to the will of the fourth seems conceded. Neither of these prior instruments make any provision for the appellant. It is argued that these prior wills were obtained by the influence of those surrounding her. "We are asked to believe that this deceased was acting a double part, willing to apparently concede to the influence of those surrounding her, and conscious of her own power to defeat their object by completing the execution of the holographic will which she had concealed with her.

To believe that a woman, seventy-eight years old, in the most enfeebled condition, on her deathbed, played such a role, we cannot.

And, finally, that all these improbabilities should occur in a single case, yet that case be true, borders almost on the impossible.

Decree appealed from to be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Decree of the surrogate affirmed, with costs.


author: Foui.ett, J.: Van Brunt, P. J.':

text:
    James Roarty, Respondent, v. Edward C. McDermott and Others, Defendants. Frank J. Walgering, Appellant.

      Power of sale in a will — a sale made by an executrix for her individual benefit is invalid —•unmaoicetable title.

    The will of a testator provided as follows: “I hereby authorize and empower my executrix, hereinafter named, to mortgage or sell any portion of my said estate at public or private sale for the purpose of carrying out the provisions of this my will, or whenever, in her judgment, it may be for the best interest of my estate, applying the proceeds thereof to the benefit of my said estate.”
    The executrix, under the power contained in the will, conveyed a piece of real estate which had been owned by her testator to a person who subsequently reconveyed said property to the executrix as an individual and received, as part payment of the purchase money, a mortgage upon the premises so sold and also a mortgage executed by the executrix upon other property which had belonged to her testator.
    The mortgagee subsequently brought an action to foreclose the two mortgages executed by the executrix, making as parties defendant the executrix, both as an individual and in her representative capacity, and all the four children of the testator, devisees under his will, three of whom were infants under the age of fourteen years. The infants appeared by their guardian ad litem and interposed the usual general answer. The guardian ad litem was the attorney of record for the executrix.
    The complaint in the action to foreclose the mortgages alleged that the children of • the testator had, or claimed to have, some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of the said mortgage and was subordinate thereto.
    A judgment foreclosing said mortgages was recovered, and pursuant to such judgment, a portion of the mortgaged premises was sold to the mortgagee.

      In an action thereafter brought for the partition of a portion of the premises by grantees from the purchaser at the foreclosure sale, the property was bid off by one Walgering, who refused to complete his purchase on the ground of defect of title.
    Upon an appeal from the order directing the appellant to complete his purchase, it was,

      Sold, that the power of the executrix to mortgage or sell the testator’s real estate, under the provisions of his will, was given solely for the purpose of carrying out the provisions thereof, and that she had no power to sell or mortgage for any other purpose;
    That the mortgages given by her upon the property of the estate, for her individual benefit, were invalid as to the interest in the property not devised to her; That under the complaint in the foreclosure action the interest of the infant heirs at law of the testator was not cut off by the judgment;
    That the title was so doubtful and uncertain that the purchaser should not be compelled to perform his contract.
    Appeal by Frank J. Walgering, from an order of tlie Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1894, directing him to complete his purchase of certain real property.
    August 24, 1871, Thomas McConnell died seized in fee of No. 441 West Forty-fifth street (the premises in question), of 235 West Twenty-ninth street and of a farm at Smithtown, Suffolk county, N. Y. lie left him surviving Ann McConnell, his widow, and four children, Thomas McConnell, Hugh McConnell, Ann McConnell and John McConnell, his only heirs and next of kin. He left a last will and testament of which the following is a copy :
    “ In the Name oe God, Amen :
    “I, Thomas McConnell, of the city and county of New York, being of sound mind and memory, and considering the uncertainty of this life, do therefore, make, ordain, publish and declare this to be my last will and testament, that is to say :
    “ First. After all my lawful debts are paid and discharged, I give and bequeath to my beloved wife Ann all the real and personal estate of which I may die seized or possessed, to be used and enjoyed by her during her natural life, subject, however, to the conditions following.
    “ Second. I give and bequeath to my son Thomas an equal undivided one-fourth part of all my real and personal estate, after ■ deducting the one-third amount thereof to which my said wife would, be entitled by way of dower, such fourth to be paid to him in cash on his arrival at the age of 21 years, such amount to he based upon the valuation of the appraisers hereinafter named.
    ■ “ Third: I give and bequeath to my three children, Hugh, Ann and John, after the death of my Avife, all the real and personal estate that may then be remaining, to be divided between them in such proportions as she may by Avill direct, it being my intention that all my real and personal estate shall be given to and- become the property of my last-named three children or the survivors of them.
    “ Fourth. I hereby authorize and empoAver my executrix, hereinafter named, to mortgage or sell any portion of my said estate, at public; or private sale, for the purpose of carrying out the provisions of this my will, or whenever in her judgment it may be for the best interest of my estate, applying the proceeds thereof to the benefit of my said estate.

      “ Fifth. I hereby nominate and appoint my friends, Bernard Clark, Michael Roche and Thomas A. Led with, to appraise my estate Avhen my son Thomas shall aim at the age of tAventy-one years, the valuation so made by them to he the basis upon which the amount so as aforesaid to be paid to him is to be paid.

      “ Likewise, I make, constitute and appoint my beloved Avife, Ann McConnell, to be executrix of this my last will and testament, hereby revoking all former wills by me made.”
    The Avill Avas duly admitted to probate September 13, 1871, and on the following day letters of administration Avere issued to Ann McConnell, avIio qualified and entered upon the discharge of her duties as executrix. June 13, 1872, said executrix Corn-eyed, by a deed dated on that day and recorded June 17, 1872, No. 235 West Twenty-ninth street to Charles Devlin for $9,000, who paid all of the purchase price except $3,000, Avliich he secured to he paid by his bond, secured by a mortgage on said premises, executed to Ann McCdnnell, as executrix. Part of the purchase price (more- than $4-,500) Avas applied by the executrix in payment of a mortgage on the farm, AA’hieh Avas executed by Thomas McConnell in his lifetime in payment of taxes in arrear thereon, and some portion of the purchase price was applied by the executrix in payment of taxes in arrear on No. 235 West Twenty-ninth street. June 21, 1873, said Charles Devlin, by a deed dated on that day, conveyed No. 235 West Twenty-ninth street to Ann McConnell, individually, in consideration of $9,000, which she paid by canceling said mortgage for $3,000 held by her as executrix, and by her bond to him, dated J uno 21, 1873, for $6,000, secured by a mortgage executed by Ann McConnell, individually, on No. 235 West Twenty-ninth street, dated .June 21,1873, and recorded November 29,1873. Further to secure the payment of her said bond for $6,000 she, as executrix, executed a mortgage to Charles Devlin, dated June 21, 1873, and recorded September 10, 1873, for $6,000 on No. Ml West Forty-fifth street. In January, 1877, Charles Devlin brought an action against Ann McConnell, individually and as executrix, to foreclose said two mortgages, the four children of Thomas McConnell being-parties defendant therein. Three of the children, Hugh, Ann and John, were infants under fourteen years of age and appeared by their guardian ad litem and interposed the usual general answer in behalf of infants. The guardian ad, litem was the attorney of record for the defendant Ann McConnell. May 21, 1877, a judgment foreclosing said mortgages was recovered. Pursuant to the judgment the mortgaged premises, No. Ml West Forty-fifth street and No. 235 West Twenty-ninth street, were sold June 18, 1877, to Charles Devlin, the mortgagee, he being the highest bidder. October 16, 1877, he assigned his bid to Mary Devlin, his wife, to whom the referee executed a deed of said two lots, dated October 13, 1877.
    Afterwards this action to partition No. Ml West Forty-fifth street was begun, and May 29, 1894, an interlocutory judgment was entered directing a sale of the lot, pursuant to which, on June 21, 1894, the referee sold it at public auction to Frank J. Walgering for $15,800, and he thereupon executed the usual memorandum of purchase and sale. Subsequently he refused to complete the purchase on the ground that the title was doubtful. Afterwards a motion was made, in behalf of the parties to the action, to compel him to perform his contract, which was granted, and from the order entered he appealed.

      Olemens J. Kracht, for the appellant.

      William II. Hamilton, for the respondent.
   Foui.ett, J.:

How the parties to this partition action succeeded to the title of Mary Devlin does not appear, but it seems to be assumed that they succeeded to her title, and that the referee could convey the estate which Mary Devlin acquired by the deed executed to her October '.13, 1377, by the referee in the foreclosure action.

By the will of Thomas McConnell liis widow took the use of all the testator’s property until his eldest son, Thomas, became of age, when he became entitled to one-fourth of the estate, subject to the dower interest of his mother in that fourth, and after that event she was entitled to a life estate in the remaining three-fourtlis, and the remainder, on her death, passed under the will to the testator’s three youngest children, to be divided equally among them, or among the survivors of them. On the 7th of July, 1873, Thomas McConnell, having become twenty-one years of age, received his share of his father’s estate, and quit-claimed all of his interest in No. 235 West Twenty-ninth street and No. 441 Vest Forty-fifth street by a deed dated and recorded on that date. The life esta+e of the widow in this lot has been cut off by her conveyance, and the question is whether the estate of the three minor children was cut off by the judgment in foreclosure. When these infants became of age does not appear, but it is shown that all of them were under fourteen years of age March 14, 1877. Assuming that the eldest was then thirteen, the second twelve, and the youngest eleven years of age, the youngest 5vould become twenty-one years of age in 1887. Whether we are right in this assumption is not disclosed by the record, and the youngest may have reached majority at a much later date. By reference to the power of sale contained in the fourth clause of the will of Thomas McConnell, it will be seen that the power of the executrix to mortgage or sell is solely for the purpose of carrying out the provisions of the will, and she was given no power to sell or mortgage for any other purpose. By the record in the foreclosure action it appears that the mortgage which she executed to Charles Devlin June 21, 1873, on No. 441 West Forty-fifth street, was given as collateral security for the payment of her personal bond for $6,000, which she gave as part of the consideration of her personal purchase of No. 235 West Twenty-ninth street. The proposition that the will gave her no power to mortgage this property for her individual benefit is so plain that it does not need the support of precedent. She could neither divest nor incumber the remainder devised to her children for her personal use. But it is urged that these infants, having been made parties to the action for the foreclosure of the mortgage, and having appeared therein by a guardian ad litem, their remainders were cut off by the judgment. This proposition is not sustained.

The complaint and the amended complaint in the foreclosure action contain the following averment:

And the plaintiff further shows that he is informed and believes that Thomas .McConnell, Hugh McConnell, Ann McConnell and John McConnell, Luke Molloy, Rensselaer B. Winchill, John McCahill have, or claim to have, some interest in, or lien upon, the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage, and is subordinate thereto.”

It is not alleged in the complaint that the children of the testator acquired any interest in the property as devisees under the will of their father, but it is alleged that the mortgage on No.- 44 L West Forty-fifth street was given as collateral security for the personal bond of Ann McConnell. Under such a complaint the rights acquired by the three infants under the will of their father, which were paramount to this mortgage, were not cut off by the judgment. (Lewis v. Smith, 9 N. Y. 502; Frost v. Koon, 30 id. 428; Rathbone v. Hooney, 58 id. 463; Emigrant Industrial Savings Bank v. Goldman, 75 id. 127.) It is very clear that the judgment in foreclosure is not on its face a bar to the rights of the infant heirs. It is asserted in behalf of the respondents that the affidavits filed ou this motion show that the avails of these two mortgages were applied by the executrix for the benefit of the estate of the testator, and, consequently, for the benefit of the infants. We do not so construe them. No ¡Dart of the avails of the mortgage on No. 441 West Forty-fifth street was used by the executrix for- the benefit of the estate, but had it been distinctly averred in the affidavits that the avails of this mortgage were applied by her for the benefit of the estate, such averment would not be evidence against the heirs in an action which they may hereafter bring to recover their supposed interest in the estate. In case an action should be brought by the heirs, the owners of the lot might or might not be able to secure the attendance. of the affiants as witnesses, and, in case they should testify, the issue of fact might or might not be found in accordance with their testimony. "We do not declare the title derived from Mary Devlin good or bad, for there may be circumstances not disclosed in this record which may estop the heirs from successfully maintaining a claim to the property, but we do hold that the title is so doubtful and uncertain, resting, according to the respondents’ theory, upon oral evidence, that the purchaser ought not to be compelled to perform his contract.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs and disbursements.

Parker, J., concurred.

Van Brunt, P. J.':

I concur. The guardian ad litem seems to have appeared as attorney for the defendant Ann McConnell, having an interest adverse to the infants, and thus the infants had no protection whatever in 'the foreclosure action.

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


author: Poluett, J.:

text:
    William Z. Larned and Another, Appellants, v. Daniel E. Donovan and Others, Respondents.

      Recording Hr# — the. assignee of a mortgage is a, purchaser, t7ie assignment is a conveyance.

    A mortgager, or an assignee of a mortgage, is a “ purchaser " within the meaning of tlie Recording Act; and a mortgage, or an assignment of a mortgage, is a conveyance within the meaning of such act.
    The Recording Aft is for the protection of purchasers hy deed, mortgage or assignment of mortgage, in good faith and for value, from unknown conveyances and from rights and equities arising under them and connected with the title ; hut not for the protection of rights arising out of the consideration of the conveyances.

      Appeal by the j>laintiffs, William Z. Lamed and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 23d day of April,, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiffs’ complaint.
    This action was brought March 31, 1892, to cancel as a cloud on title a mortgage given to secure the payment of $1,130, executed January 11, 1886, by David B. Algie to Patrick Golding, and recorded February 10, 1886.
    On the 6th of August, 1885, the plaintiffs were the owners in fee of six vacant lots situate on the southeast corner of Ninth avenue and Sixty-eighth street in this city, which, in consideration of $75,000, they conveyed to David B. Algie by a deed dated that day, which was duly recorded August 10, 1885. To secure the payment of $74,000 of the purchase price, the grantee executed, August 6, 1885, to the grantors a mortgage on said premises, which was recorded August 10, 1885. Concurrently with the execution of the deed and mortgage a contract was executed between David B. Algie and the plaintiffs, in which it was recited that Algie was about to erect certain described buildings on said lots, to facilitate which said Algie desired a loan of $51,000 on a bond executed by himself and Peter Algie, secured by a mortgage on said premises, which sum was to be advanced by the mortgagees from time to time as the work on the buildings progressed.
    Algie made contracts with various persons for work and materials for the buildings and began to erect them, the mortgagees advancing various sums at different times to enable him to carry on the work. On the 11th of January, 1886, a contract was entered into between David B. Algie and Patrick Golding by which the latter agreed to furnish bluestone for the buildings at the agreed price of $1,130, to secure the payment of which Algie, on that date, gave a mortgage on one of said lots, which was recorded February 10, 1886. The mortgage by its terms was subject to the two prior mortgages held by the plaintiffs, and contained this recital: “ This grant is intended as a security for the payment of said consideration sum of one thousand one hundred and thirty dollars, with interest from March 10, 1886, which is an agreed indebtedness of the mortgagor to be payable four mouths from the date hereof, which payment, if duly made, will render this instrument or conveyance Amid.”
    May 4, 1886, Golding being indebted to Daniel E. Donovan in $2,400, assigned this mortgage to him in part payment of the debt by a Avritten assignment duly recorded May 7, 1886. In March, 1886, Algie failed and became unable to complete the buildings, at Avhieh time the plaintiffs had advanced $17,000 on the mortgage given to secure $51,000. On June 15, 1886, Algie reconveyed the lots to the plaintiffs by a deed recorded June 26, 1886, they entering into a written contract with Algie and the persons to AA'liom he was indebted for materials that they would complete the buildings, sell them, and after retaining the amount due on the purchase-money 'mortgage of $74,000 and the $17,000 due on the second or building mortgage and the cost of completing the buildings, they Avould pay the amount due said persons who had sold materials to Algie, or, in case there Avas insufficient to pay them in full, that they should be paid yi re rata,. The amounts due said persons were agreed on by the contracting parties.
    Patrick Golding, among others, executed this contract, and the amount due him Avas fixed at $574.41, and May 14, 1886, he executed a’satisfaction of the mortgage given to him for $1,130, which satisfaction has not been recorded. Prior to the commencement of this action a demand Avas made on Daniel E. Donovan, the assignee of the Golding mortgage, that he satisfy the same, Avhieh he refused to do, and this action Avas brought to compel such satisfaction.

      W. P. Knapp and Ira D. Warren, for the appellants.

      W. W. Westervelt, for the respondents.
   Poluett, J.:

The mortgage which the plaintiffs seek to set aside Avas executed January 11, 1886, was recorded February 10, 1886, at Avliich dates Algie, the mortgagor, owned the fee of the mortgaged premises. May 4, 1886, Golding, the mortgagee, assigned the mortgage to Donovan in part payment of a debt due from Golding to Donovan, and the assignment was recorded May 7, 1886. When the assignment Avas executed and recorded Algie Avas still the owner of the fee and Golding was tlie owner of the mortgage, and had the right to assign it. The court found, as a fact, that Donovan took the assignment in part payment of a debt and without notice of the transactions between Algie, his creditors and the plaintiffs, and that ■ Golding subsequently executed a satisfaction, without the knowledge or authority of Donovan. ¡Subsequent to Donovan’s acquiring title to the mortgage, and on the loth of June, 1886, the plaintiffs received a conveyance of the mortgaged premises. They had actual notice of the existence of the mortgage, and the assignment of it is a conveyance within the Recording Act, and the record was notice to the plaintiffs, who were subsequent purchasers of the mortgaged premises, that Donavan was the owner of the mortgage.

A mortgagee is a “ purchaser ” within the Recording Act, and so is an assignee of a mortgage (1 R. S. 762, § 37), and a mortgage is a “conveyance” within the act, and so is an assignment of a mortgage (1 R. 8. 762, § 38). The Recording Act is for the protection of “ purchasers ” by deed, mortgage or by assignment of a mortgage, in good faith and for value, from unknown conveyances, rights and equities arising under them and connected with the title, hut not for the protection of rights arising out of the consideration of the conveyances. The evidence given in behalf of the plaintiffs shows that, at the time Golding assigned this mortgage, it was a lien on the premises for $574.41, with interest from March 10, 1886, and his assignee, Donovan, acquired all the rights of the mortgagee. The plaintiffs, being subsequent purchasers of the premises from Algie, took them subject to the lights of Donovan, the assignee of the mortgage, who acquired a perfect title to it, and the plaintiffs failed to establish a right to have it' canceled of record as a cloud on their title. If Algie had paid the mortgage May 14, 1886, in good faith and without notice of its assignment to Donovan, and had taken a satisfaction, the case would have been within section 41 (IR. S. 763),which provides : “ The recording of an assignment of a mortgage shall not bo deemed in itself notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee.” The plaintiffs did not prove that they had paid Golding or any one any part of the $574.41 either before or subsequent, to the satisfaction; but had they proved payments made to the mortgagee subsequent to, the assignment, and tlie date when the plaintiffs acquired the fee, such payments would not have been good as against Donovan. (Brewster v. Carnes, 103 N. Y. 556.)

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Richard W. Maxwell, Respondent, v. William B. Gerard, Appellant.

      Innkeeper — liability to a (/nest for bnyc/ar/e— when terminated.

    An innkeeper’s liability for the baggage of his guest is not terminated the instant the guest pays his bill and leaves the hotel, but continues for such a reasonable time thereafter as may be. necessary to enable the guest to secure its removal; or if the innkeeper, in the ordinary course oí his business, undertakes the removal of such baggage, until he has effected it.
    Appeal by the defendant, William B. Gerard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the L'lth day of June, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      Tdmxnd Ji. Dodge, for the appellant.

      7-Ienrtj Thompson, for the respondent.
   Parker, J.:

The appellant insists that the motion to dismiss the complaint should have been granted, because the relation of guest and innkeeper ceased the moment the plaintiff left the hotel with the declared intention of not returning; that thereafter the defendant, as to plaintiff’s trunk, was merely a warehouseman.

We do not understand this to be a correct statement of the rule. An innkeeper’s liability for the baggage of his guest is not termi- " nated tlie instant the guest pays his bill and leaves the hotel, but continues for such a reasonable time thereafter.as may be necessary for him to secure its removal; or if the innkeeper, in the ordinary course of his business, undertakes its removal to a railroad, or to some other common carrier, until he lias made performance.

This is the rule as between jiassenger and common carrier, and there is no such substantial distinction in the relation which they bear to each other as to baggage, and that borne by guest and innkeeper, as to require or permit a different rule. When a passenger alights from a train at his journey’s end, so much of the contract of his carrier as relates to the transportation of the passenger’s person is performed, but its liability as common carrier of liis baggage continues for such a reasonable time thereafter as may be necessary to secure its removal by the ordinary and usual methods. (Roth v. Buff. & St. L. R. R. Co., 34 N. Y. 548 ; Fenner v. Buff. & St. L. R. R. Co., 44 id. 505 ; Burnell v. N. Y. C. R. R. Co., 45 id. 184 ; Mattison v. N. Y. C. R. R. Co., 57 id. 552; Burgevin v. N. Y. C. & H. R. R. R. Co., 69 Hun, 479; Mortland v. Phil. & R. R. R. Co., 81 id. 473.)

We see no reason for applying a different rule as between innkeeper and guest, and our attention has not been called to any case in this State commanding us to do so.

When the plaintiff left defendant’s hotel lie left in liis room a trunk containing wearing apparel, which the jury has found -was of the value of sixty dollars. What became of the trunk the record does not advise us, but it is conceded that the plaintiff never received it, and the defendant does not appear to know what, if anything, was done with it after plaintiff left the hotel.

Plaintiff left the hotel to go on board a yacht for a cruise, and it was his desire to have liis trunk sent home by express. His testimony is that he made an arrangement with the clerk in charge of the hotel office to deliver his trunk at once to an expressman for transportation to his residence. It is not pretended that this undertaking on the part of the defendant’s clerk was outside of the ordinary routine of the work undertaken by defendant to promote the pleasure, comfort and convenience of his guests, and to assure their further patronage. Nor is it pretended that innkeepers generally are not accustomed to perform work of like character for their guests, and for a like purpose. If the plaintiff’s version of what took place between himself and the clerk be true, it would follow, under the rule we have announced, that defendant’s liability as innkeeper continued until he should have delivered the baggage to the expressman, which he promised to do immediately on the departure of his guest. This he neither did nor attempted.

If plaintiff’s testimony had not been contradicted, it would have been the duty of the court to have directed a verdict in favor of the plaintiff. On the part of the defendant, however, it was denied that he, or any one in his behalf, agreed to deliver the trunk to the expressman, as testified to by the plaintiff, and this issue the trial court rightly decided to submit to the jury.

. The defendant has no substantial ground of complaint of the manner in which that question was submitted by the court, for the charge was far more favorable to the defendant than he was entitled to. The finding of the jury disposed of the only issue in favor of the plaintiff.

The judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Per Curiam:

text:
    Matter of the Judicial Settlement of the Accounts of Charles Mayer and Another, as Administrators, etc., of Margaret Mayer, Deceased. Charles Mayer and Louis Cohen, as Administrators, etc., Appellants; Charles Mayer, an Infant, by Special Guardian, Respondent.

      Appeal by administrators from a decree allowing their accounts — a personal claim of one of them not considered.

    An appeal by administrators, from a decree of the Surrogate's Court allowing their accounts as presented, does not bring before the appellate tribunal the question of the right of one of them, as an individual, to recover a claim made by him against the estate.
    Appeal by Charles Mayer and another, as administrators, etc., of Margaret Mayer, deceased, from a decree of the Surrogate’s Court of tlie county of New York, entered in the office of said Surrogate’s Court on the 10th day of July, 1894, passing and allowing the accounts of said administrators.

      Louis Cohen, the administrator and claimant, for the appellants.

      Imís Jumes ]*helps, for Charles Mayer, an infant, respondent.
   Per Curiam:

The account of the administrators was settled and allowed by the Surrogate’s Court as presented, and they were not aggrieved by .the decree. The administrators alone have appealed. This does not bring before this court the question of the right of one of them, as an individual, to recover his claims against the. estate.

The appeal should be dismissed, with ten dollars costs and disbursements against the appellants personally.

Present — Yan Brunt, B. J., O’Brien and Follktt, JJ.

Appeal dismissed, with ten dollars costs and disbursements against appellants personally.


text:
    William A. Harding, as Administrator, etc., of Medad W. Stone, Deceased, Appellant, v. Walter H. Field, Respondent.

      Undertaking upon appeal by an administrator — security far past, costs.

    Upon an appeal Ity an administrator from a judgment rendered against him, security for past costs should not he required, and an undertaking in the sum of $250 should he exacted to secure the costs upon the appeal.
    Arpea l by the plaintiff, William A. Harding, as administrator, etc., of Medad W. Stone, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of December, 1894, directing that the plaintiff file and serve an undertaking in the sum of $1,500 to secure costs.
    The order appealed from provided “ that the plaintiff herein file •and serve within ten days from notice of entry of this order an undertaking according to law and the practice of this court, with two sufficient sureties, in the usual form, that tbe plaintiff will pay tlie costs awarded against bim by the judgment herein, and ail other costs and damages which may be awarded against tbe plaintiff as appellant on bis appeal from tlie judgment herein, not exceeding fifteen hundred dollars ($1,500).”

      T. T). K<mnmm, for the appellant.

      Jlow«/‘d 11. Bayne, for tlie respondent.
   Per Curiam:

We are of opinion that the order in this case should have required an undertaking from the plaintiff ill the sum of $250 to meet the costs accruing upon the appeal taken by the plaintiff and that security for past costs should not have been required.

The order should be modified accordingly, and affirmed as modified, without costs to either party.

Present— Yan Brunt, P. J., Pollett and Parker, JJ.

Order modified, and as modified affirmed, without costs.


author: Pkr Curiam :

text:
    Mayer Kahn, Respondent, v. Chester W. Chapin, Appellant.

      Specific performance of a contract for the sale of real estate — purchase by a trustee of property belonging to the trust estate — voidable, not void — tohen beneficia/ries will not be permitted to disturb the title.

    Upon the trial of an action brought to compel the specific performance of a eon-tract. to convey real estate, or, in case the defendant was unable to convey a good title, that damages anight be awarded to the plaintiff, it appeared that one Abel Harker died September 6, 1851, seized in fee simple of certain premises subject to a mortgage thereon which, prior to his decease, had been executed by himself and his wife ; that the said Harker left him surviving a widow and four daughters, his only heirs at law and next of kin, and that lie left a last will and testament which was duly admitted to probate. By his will he created a trust covering tlie real property in question, for tlie benefit of his widow and children.
    Subsequently one Joseph Harker was appointed a trustee to execute the trust created in tlie will, and after liis appointment as trustee an action was commenced for the foreclosure of the mortgage above mentioned, and all of the necessary parties were personally served with process. A guardian ad litem was appointed Xor two of the children of Abel Harker, who were then infants, and the usual answer in such case was interposed by him.
    Upon the sale of the premises in question, under the judgment of foreclosure, the property was purchased by Joseph Harker individually, and a surplus arising from such sale was afterwards, by order of the court, paid to Harker, as trustee.
    The two infant children of the testator became of full age on or before February 28, 1873. Subsequently Joseph Harker conveyed the premises in question, and the same were owned by the defendant at the time of the commencement of the present action.
    On the date fixed, by the contract for the sale of the property, made by the defendant with the plaintiff, for the passing- of the title, the plaintiff refused to accept the conveyance tendered by the defendant, alleging that the title -ivas defective because defendant’s title was derived from the trustee, who personally purchased the property at the mortgage sale.
    The defendant in this action answered, denying that his title was defective, and demanded judgment that the contract he specifically performed.
    At the conclusion of the trial of the action the plaintiff waived his objections to the title and announced that he was ready to take the conveyance tendered and execute the contract; the defendant waived all claim to affirmative relief, and thereupon a judgment was entered directing the defendant to convey the premises to plaintiff by a warranty deed.
    Upon appeal by the defendant from the judgment so entered,

      Held, that it was too late for the defendant, as a matter of right, to refuse to perform his contract;
    That as, at the date of the trial, twenty-eight years had elapsed since the trustee had purchased the premises; twenty-two years had passed since the testator's youngest daughter had become o£ full age, and thirteen years had elapsed since the defendant’s ancestor had acquired his title, all of the daughters of Abel I-Iarlcer being alive, except one, who was not a minor at the date of the foreclosure; as the trustee was living and financially responsible and his action had never been questioned, the premises having been sold pursuant to a mortgage executed by the testator, the mere fact that the trustee, personally purchased the property at the foreclosure sale did not render Ms title void, hut voidable only at the election of the beneficiaries;
    That the title of the trustee and his grantee might he confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries; and the beneficiaries, having knowledge of the sale and having received the benefit of it and having acquiesced therein for so many years, would not he permitted io disturb the title of the purchaser, hut would be left to their remedy against the trustee, if they had any cause for complaint against him.
    Appeal by tlie defendant, Chester ~W. Cliapin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, directing the defendant to perform specifically a contract to convey real estate.
    September 6, 1851, Abel Ilarker died seized in fee of bio. 291 West Twelfth street, subject to a mortgage to secure the payment of $3,500, executed by him and his wife October 6, 1847, and recorded October 7, 1847. Abel Ilarker left him surviving Jane Ann Ilarker, widow, and four daughters, his only heirs and next of kin. lie left a last will and testament, which was duly probated September 25, 1851, by which two executors were nominated, both of whom refused to qualify, and, on the 2d of October, 1851, letters of administration, with the will annexed, were issued to the widow and James Wooley, who accepted the trust and administered the personalty. I>y the will a trust was established over the realty for the benefit of the widow and children. Wooley also assumed the execution of the trust created in the real estate. February 1, 1866, upon the petition of the widow and the four daughters, Joseph Ilarker, a nephew of the testator, was appointed as trustee to execute the trusts created by the will, and entered upon the discharge of his duties. February 27,1866, Cornelius Yanderbilt, the assignee of the aforesaid mortgage, began an action for its foreclosure, in which the widow, the four daughters, the persons named as executors in the will, and the trustee, were make pai-ties defendant, all of whom were served. All of the parties were of full age except Virginia C. Ilarker and Louise E. Ilarker, who were upwards of fourteen, February 28, 1866. A guardian ad litem was appointed for the infants, who appeared and served the usual answer submitting their rights to the court. A judgment of foreclosure was recovered April 30,1866, the premises were sold and conveyed May 22,1866, in pursuance thereof, to Joseph Harker for $9,000. After the payment of the judgment and the costs of sale there was a surplus of $5,038.57, which was paid by the referee to the chamberlain of the city of New York. Afterwards Ilarker applied as trustee for an order directing the payment of the surplus to him, the matter was referred, the infants appeared upon the hearing by their guardian, and the surplus was directed to be paid to Ilarker as trustee. The two infant daughters became of full age on or before February 28, 1873. March 15, 1881, Joseph Ilarker and his wife conveyed the premises to Chester W. Chapin for $14,000, by a deed recorded March 18, 1881. Subsequently the grantee died, leaving this defendant his sole heir, who acquired the title which his father acquired under the aforesaid deed, and has since remained in possession of the premises.
    October 19,1892, the litigants entered into an executory contract, •by which the defendant sold and agreed to convey to the plaintiff, by a warranty deed, said premises in consideration of $16,000. On the date fixed for passing the title the plaintiff refused to accept the conveyance tendered by the defendant, on the ground that his title was defective, because the trustee personally purchased the property at the mortgage sale, and defendant’s title was derived from him. Afterwards this action Avas brought, the plaintiff asking that the contract be specifically performed in case the defendant was able to convey a good title, but, if not, that damages be aAvarded. The defendant answered, denying that his title was defective, and demanding a judgment that the contract be specifically performed. At the conclusion of the trial the plaintiff Avaived his objections to the title, and announced that he was ready to take the conveyance tendered and execute the contract. The defendant Avaived all claim to affirmative relief, and thereupon a judgment Avas entered, directing him to convey the premises to the plaintiff by a warranty deed. No costs were aivarded to either party. The defendant appeals, and insists that the court erred in directing him to convey to the plaintiff and warrant a defective title.

      A. A. Gardner and William, J. Kelly, for the appellant.

      Aimer O. Thomas and Kmanuel Arnstein, for the respondent.
   Pkr Curiam :

■ At the date of the trial twenty-eight years had elapsed since the trustee purchased at the mortgage sale, twenty-two years had passed since the testator’s youngest daughter became of full age, and thirteen years had run since the defendant’s father acquired his title. All of the daughters are now living, except one, Avho Avas not a minor at the date of the foreclosure; the trustee is also living, is financially responsible, and is still engaged in administering the trust. During all this time the action of the trustee has never been questioned. The premises were not sold by liis act or procurement, but pursuant to a mortgage executed by the testator, and the mere fact that the trustee personally ¡rarchased the property at a foreclosure sale does not render his title void, but voidable only at the election of the beneficiaries, and the title of the trustee and of his grantee may be confirmed by accpiiescence and the lapse of time as well as by the express act of the beneficiaries. (Harrington v. Erie County Savings Bank, 101 N. Y. 257; Lewin’s Law of Trusts [8th ed.], 495.) It is not asserted that the property did not sell for its full value at the mortgage sale, and it expressly appears that the surplus money was recovered by the trustee in a proceeding to which the widow and all of the children were parties. The beneficiaries having knowledge of the sale, and having received the benefit of it and acquiesced for so many years, would not be permitted to disturb the title of a purchaser, but would be left to their remedy against the trustee, if they have any cause for complaint against him.

Neither litigant had declared the contract abandoned or had absolutely refused to perform it until the trial was concluded. When the evidence was all in and the state of the title developed, the plaintiff withdrew his objections and offered to take the title, and it was then too late for the ■ defendant, as a matter of right, to refuse to perform his contract. The alleged defect, which, under the circumstances, we think is not a substantial one, existed when the defendant executed the contract and covenanted to warrant the title to the plaintiff, and we think the court did not err in compelling the defendant to perforin his contract.

The judgment should be affirmed, with costs.

Present —Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.