author: Tan Brunt, P. J.: Barrett, J.

text:
    ARTHUR E. BROWNE, as Trustee under a Deed of Trust Made by FRANCES M. BROWNE, Respondent, v. MARIA R. PERRIS, Individually and as Administratrix, etc., of WILLIAM G. PERRIS, Deceased, and JANE E. PERRIS, Appellants.

      Mortgage purchased by the owner of the mortgaged premises, to hold “ as a munimen t of title,” passes with the real estate to the heir-at-law of the purchaser.

    Certain land was purchased, subject to the lien oí a mortgage thereon which the purchaser subsequently paid to the mortgagee and took an assignment thereof in the following terms: “To have and to hold the same unto the said party of the second part, his executors, administrators and assigns, forever, as a muniment of title, and not to merge in the fee of the land covered thereby which is now owned by the said party of the second part; ” the printed word “heirs” in the assignment, before the word executors, was stricken out. The purchaser subsequently died intestate.

      Held, that, under the circumstances, Hie interest represented by the mortgage passed with the real estate to the heirs-at-law, and that the mortgage would not be considered as a charge upon the land, except so far as it might be necessary to enforce the same in order to protect the title thereto. (Barrett, J., dissenting.)
    Appeal by tlie defendants from a judgment, order or decree, entered in tlie office of the clerk of the county of New York on July 5tb, 1889, after a trial of the issues in this action at a Special Term held in the county of New York.
    The action was brought to determine the ownership, as between the heir represented by the plaintiff, and the personal representative, the defendant Maria E. Perris, administratrix, of a bond and mortgage which had been assigned by the New York Life Insurance Company to William Gr. Perris, the testator.

      W. W. Niles and Asahel 8. Levy, for the appellants.

      John Aitkm, for the respondent.
   Tan Brunt, P. J.:

In the year 1878 one William Gr. Perris acquired by purchase a certain lot of land situate on Second avenue, near One Hundred and Twenty-fourth street,in the city of New York. At the time of his acquiring the title to said land the same was subject to the lien of a certain mortgage made by one Hanson and wife to the Manhattan Savings Institution to secure the payment of the sum of $4,000 and interest, mentioned in a certain bond of said Hanson, bearing date August 31, 1870.

In March, 1879, the Manhattan Savings Institution duly assigned the said bond and mortgage to the New York Life Insurance Company. In November, 1886, Perris, being still the owner of said premises, paid to the New York Life Insurance Company the sum of $4,116, and received from said company an assignment of said bond and mortgage, the habendum clause in which assignment is as follows: “ To have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever as a muniment of title, and not to merge in the fee of the land covered thereby, which is now owned by the said parrty of the second part, subject only to the proviso in the said indenture of mortgage mentioned.”

The said instrument of assignment was a printed blank, and the words underlined were written into said instrument. Prior to the word “ executors ” was also printed the word “ heirs,” and this word was erased.

Mr. Perris died intestate subsequent to the delivery to him of said assignment, and without having parted with said mortgage or the said real property.

The premises thereupon descended to his heirs, being his mother, the defendant, Jane E. Perris, for life, and his sister, Frances M. Browne in fee, subject to the dower rights of his widow, who thereafter qualified as administratrix of the personalty of the deceased. Frances M. Browne conveyed and assigned to the plaintiff all her right, title and interest in and to said estate, real and personal. The administratrix claiming the said bond and mortgage as part of the personal estate of said intestate, this action was brought whereby the plaintiff prayed judgment that the bond and mortgage be declared to be a muniment of title of William G. Perris and his heirs and their assigns, and that said mortgage ceased to be a lien upon said premises, except against such persons as might claim or assert title thereto adverse to the title of said Perris and his heirs or assigns, and that said plaintiff be adjudged to be entitled to the possession of said bond and mortgage and of the assignment thereof. The defendants, by their answer, admitted the facts above stated, and prayed the judgment of the court that said bond and mortgage be declared to be a valid and existing lien upon the premises mentioned in the complaint.

TJpon the trial the court adjudged that said bond and mortgage were assigned to and vested in said Perns as a muniment of his title and for the purpose of protecting and defending the same, that upon his decease the said jtroperty descended to his heirs-at-law subject to the right of dower of the widow, and that said heirs-at-law to whom said fee descended thereupon became entitled to the •custody of said bond and mortgage, together with the said assignment thereof, and that the said administratrix had no right, title or interest in the same, and that the plaintiff was entitled to the possession and control of said bond and mortgage for the purpose of use as a muniment of title, and from the judgment thereupon entered this appeal is taken.

It is urged upon this appeal, that it appears distinctly that the deceased procured the assignment of this mortgage for the purpose of keeping it alive as a muniment of title, which it could not be if it was paid and canceled; but that there was nowhere shown any intention to deprive his jiersonal representatives of its administration or to prevent the parties entitled to receive his estate according to the statutes of distribution; but that the contrary intent is plainly proved, because he struck out from the assignment the word “ heirs ” and made it read by affirmative act “ executors, administrators and assigns.”

It must undoubtedly be conceded that had this mortgage been assigned simply to the owner of the fee at the time it was paid by him, it would have merged and thereby become extinct, and could not have been made available for any purpose in connection with the title of the premises named therein. The owner of the fee, evidently conscious of this fact at the time he paid the mortgage, took an assignment, by the very terms of which the ordinary legal result would not follow. It was expressly provided that by the assignment of this bond and mortgage to the owner of the fee, it should not merge in the fee of the land covered thereby, but that it should be held by him as a muniment of title. The fact that the words “ executors, administrators and assigns ” were left in the instrument, being a part of the printed portion of the instrument, does not overcome the express provision contained in the instrument that this bond and mortgage was to serve as a muniment of title. The fact that the word “ heirs” was stricken out does not seem to us to be so pregnant in import as is claimed by the appellant.

It is evident that the draughtsman struck out the word “heirs,” because, under ordinary circumstances, a bond and mortgage which is assigned goes to the executors, administrators and assigns of the assignee, and not to his heirs in case of his decease while holding the same. But, in as forcible language as could lie employed, the assignee of the bond and mortgage, being the owner of the fee of the land covered thereby, by the very instrument through which he is clothed with the title, states that it is not to merge in the fee because he desires to use it as a muniment of title. It is not that he desires to keep it outstanding for any other purpose, or that it should descend to his personal representatives, but that it should be a muniment of title ; in other words, that it should go with the title to fortify it into whosoever hands the title might fall through him. He thereby attached the bond and mortgage to the title of these premises. He prevented its merging, because he expressed his intention that it should not merge. He did not keep it alive generally in order that he might assign it to whom he might please; but he kept it alive for a specific purpose, and for none other, viz., for the purpose of fortifying his title.

Under these circumstances, it is difficult to see how his object and intention could be perverted by allowing the bond and mortgage to -be separated from the title to the land, as a muniment of title to which it was expressly provided that it should be held. We think there was a clearly expressed intention, in the form of the instrument itself, that that bond and mortgage and the title to these premises should descend together, and that it should not be in any manner considered, as a charge upon the land, except so far as it might be necessary to enforce the same to protect the fee of the land which might be acquired through him.

The question as to whether it would be equitable or inequitable to take away all the property of the wife and mother for the benefit of the sister cannot enter into the consideration of this case. It is simply a question of intention, and that intention seems to us to be so absolutely, clearly expressed upon the face of this assignment that no doubt can be entertained in respect thereto.

The judgment should be affirmed, with costs.

Bartlett, J., concurred.

Barrett, J.

(dissenting):

I confess that my impression upon the argument was that the mortgage in question passed to the heirs of William Gr. Perris as a so-called muniment of title. The idea that these heirs should take the fee with precisely the same concomitants as their ancestor was attractive, and it seemed to satisfy the natural equities of the case. Upon reflection, however, I am convinced that this position is unsound. Mr. Perris could, undoubtedly, purchase an existing mortgage upon his property without necessarily causing a merger. And in the present instance he has clearly expressed his intention against any such merger. All this Mr. Perris could do. But what he could not do was to change the legal characteristics of the purchased security. The mortgage was essentially a chose in action, and, although by its assignment to himself, Mr. Perris became a mortgagee in possession, yet he thereby acquired no estate in the land. (Trim v. Marsh, 54 N. Y., 607.) In this case Earl, J., said : “ I am of opinion that the mortgagee (in possession) has no estate in the land which can be sold on execution. His interest is a mere chose in action, a debt secured by a pledge of real estate. His debt is not merged in the real estate by the possession ; ” and again: If the mortgagee should die in possession, the debt would still go to his personal representatives to be administered as personal estate, and the mortgagor’s title would go to his heirs.”

It follows from this that Mr. Perris held the mortgage as an unmerged and separately-existing chose in action. Now, it could not well be alive for one purpose and dead for another. Mr. Perris took it, in the language of the assignment, “ to have and to hold forever as a muniment of title." But he took and held it none the less absolutely and without limitation. It was, in fact, its absolute ownership, treated as a valid existing security, which alone gave it force as a muniment of title. Indeed, this mortgage was in no just sense a muniment of title at all, much less, as the respondent puts it, an heir-loom. It was simply a means of foreclosing, and thus acquiring a title ante-dating that of Mr. Perris .

To accomplish this, however, the mortgage had to be alive ; and, if alive for that purpose, it was equally alive for the purposes of sale, transfer aud transmission. It comes to this, that the words “as a muniment of title” are simply expressive of the assignee’s object in making the purchase in that form. lie, in effect, says: “ I shall not satisfy this mortgage, nor shall I permit its extinguishment by merger. I shall purchase it and keep it separate, so that if hereafter I need to use it to sustain my title I may do so; and that is the sole use to which hereafter I mean to put it.” But there was in this no legal limitation upon another use, nor could there be. lie could have changed his mind and reissued it. And he could have bequeathed it. It seems clear to me that, under such circumstances as .those disclosed by this record, the assigned mortgage was simply personalty in Mr. Perris’ hands; and that upon his death, intestate, it went to his personal representatives. It could not descend to his heirs, because it was not real estate. It was not attached to the realty as an appurtenance, nor could it be so attached. Any attempt to blend it with the realty would effect a merger. Indeed, the only way the heir could be placed in Mr. Perris’ position was by a bequest to him of the mortgage. In that case, however, the heir wotíld have taken it as personalty, and he could use it to fortify his title, or otherwise as he saw fit. In the absence of such a bequest there is no other place for it in the law except that occupied by all other dioses in action of the deceased assignee.

In my opinion, the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barkett, J.:

license: Public Domain

text:
    WILLIAM H. PETERS, Receiver, etc., Respondent, v. SARAH GIBSON FOSTER, Appellant.
    .1 receiver of a ■national bank of another State, appointed by the Compt/i'dller of the (Jarreney, may sue in a New York State court to recoven' an assessment made upon a sha/reholder.

    A receiver of a national bank of another State, appointed by the United States Comptroller of the Currency, will not be treated by the courts of the State of New York as a foreign receiver, and can sue therein to recover an assessment levied upon the shareholders of the bank.
    The State courts have jurisdiction to entertain such an action, and the act of the Comptroller of the Currency in levying- the assessment is conclusive upon debtors and stockholders.
    The receiver so appointed is the proper party to bring- such an action.
    Appeal by the defendant from an interlocutory judgment, entered in the office of the clerk of the county of New York on the 10th day of January, 1890, after a trial of the issue of law'formed by the plaintiffs complaint and the defendant’s demurrer thereto, at a Special Term held in said county, at which it was adjudged that the demurrer be overruled, with costs, and that in case the deféndant did not, within twenty days after the service of the interlocutory judgment with notice of its entry, answer the complaint and pay the costs, that the plaintiff might enter final judgment in the action.

      Bengamvn B. Foster, for the appellant.

      Oharles F. MmLecm, for the respondent.
   Barkett, J.:

The Exchange National Bank, of Norfolk, Virginia, was organized under the laws of the United States, and was located in the State of Virginia. It was, therefore, a foreign corporation, as defined by the Code of Civil Procedure (§ 3343, subd. 18). The question is, whether the plaintiff, as receiver of this foreign corporation, appointed by the Comptroller of the Currency, can maintain an action in the courts of this State to recover an assessment duly levied upon the shareholders of the bank. Two points are presented by the appellant: First, that the plaintiff is to he treated as a foreign receiver, and, as such, denied a standing in our courts; second, that he is not the real party in interest. As a subdivision of the first point the appellant contends that exclusive jurisdiction in this class of actions is vested in the Federal courts. The rule, however, is the other way. It was so held with regard to assignees in bankruptcy by the Supreme Court of the United States after full consideration. (Glaflin v. Houseman, 93 U. S., 130.) The conclusion of the court in that case was, that the assignee might sue in the State courts to recover the assets of the bankrupt so long as congress had conferred no exclusive jurisdiction upon the Federal courts. The head-note gives the reason in compendious form as follows :

“The statutes of the United States are as much the law of the land in any State as are those of the State; and although exclusive jurisdiction for their enforcement may be given to the Federal courts, yet where it is not given, either expressly or by necessary implication, the State courts having competent jurisdiction in other respects may be resorted to.”

The precise point with regard to receivers of national banks was decided in favor of the jurisdiction of the State courts in Platt v. Grawford (8-Abb. [N. S.], 308), and the right of such receivers to sue in the State courts was not even questioned in Platt v. Beebe (51 N. Y., 339); see, also, Bank of Bethel v. Pahquioque Bank (léWall., 383) and Brinckerhoff v. Bosttoick (88 N. Y., 61).

Upon the main question we are of opinion, first, that, even if the plaintiff be treated as a foreign receiver, he should be permitted to proceed in our courts, there being no question here of local rights or interests; but, second, he is not to be treated as a foreign receiver in the ordinary acceptation of that term. The discussions on this head, with which the books abound, are predicated mainly of the demands of local creditors to subject to their claims assets of the debtor within the jurisdiction, to the exclusion of foreign assignees in bankruptcy. The contention in favor' of such local creditors (and also in favor of bona ficle purchasers) was that the foreign statutes had no extra territorial force, and could only bind or pass the title to property within the territorial limits of such foreign country; and, also, as underlying and in aid of the question of right, that the foreign assignee had no standing in our courts except by comity, which would not be extended to them to the prejudice of local creditors. It does not seem, however, to have been generally doubted that such comity would be extended whenever it did not conflict with or prejudice the rights of our own citizens. Such, at all events, is now the settled law of this State. {In the Matter of Waite, 99 N. Y., 433, see specially pp. 446-448; Barclay v. Quicksilver Mining Co., 6 Lans., 25.) But, further, the plaintiff is not to be treated, as already observed, as a foreign receiver in its strict sense. Technically, it is true, he is the receiver of a foreign corporation. It will be observed, however, that he is not a receiver appointed hy the courts of a foreign country, or even of a sister State, but by an officer of the United States, under authority derived from national legislation. Such cases, therefore, as Booth v. G la/rk (17 How. U. S., 322), are inapplicable. A receiver appointed under the laws of the United States has surely no need to appeal, anywhere within the nation, to the doctrine of comity. As was said by Mr. Justice Bradley, in Glafkin v. Houseman {supra),the United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty, -x- * -x- pj1G £wo together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanating from' a foreign jurisdiction is founded on erroneous views of the nature and relations of the State and Federal governments.”

It is also well settled that the determination of the Comptroller of the Currency to appoint a receiver, and his action in levying the assessment, are conclusive upon debtors and shareholders. {Platt v. Grawfonl, supra; Gadle v. Baker, 20 Wall., 650; Gasey v. Galli, 94 U. S., 673 ; Ilenned/y v. Gibson, 8 Wall., 498.)

The remaining question is whether the plaintiff is the proper person to sue. This question has also been settled adversely to the appellant. {Stanton v. Wilkenson, 8 Benedict, 359 ; Bank v. Kennedy, 17 Wall., 21; Kennedy v. Gibson, supra; Bank of Bethel v. The Pahguiogue Bank, 14 Wall., 383; Platt v. Gra/wford, sipra.)

Under section 449 of the Code a person expressly authorized by ' statute to sue is excepted from the provision that the action must be prosecuted in the name of the real party in interest. Here the receiver is so expressly authorized. (See cases above; see, too, Revised Statutes of U. S., §§ 5234, 5151; also Act of Congress, Feb. 14,1880, chap. 25, § 1.) And this is entirely reasonable. For the bank is not the real party in interest, but its creditors; and whatever the receiver collects he must pay over to the treasurer of the United States for the benefit of these creditors.

The interlocutory judgment appealed from should, therefore, be affirmed, with costs.

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

Interlocutory judgment affirmed, with costs.


author: Barrett, J.:

text:
    STEPHEN LEE and WILLIAM WHITING, as Surviving Partners of the Firm of LEE & STURGIS, Appellants, v. HUGH F. KENDALL, CHARLES B. KENDALL and JOHN L. TAYLOR, Respondents.

      Purchase of goods at different times — induced bp means of a fraudulent conspiracy— each purchase gives a distinct and sepwate cause of action — presumption as to the scope of a settlement.

    An action was brought to recover for goods and merchandise sold by the plaintiffs to the defendants at various times, the complaint in which alleged that the defendants had fraudulently conspired together to enable the defendants Kendall to obtain the goods by concealing their actual financial condition. To this complaint an answer was interposed by the defendant Taylor, alleging that a prior action had been brought against him to recover for certain of the goods and merchandise which had been thus purchased of the plaintiffs by said defendants Kendall, and that a judgment had been rendered therein in favor of the plaintiffs, which had been paid, and that said judgment was a settlement and discharge of the claims set forth in the complaint in the present action. •
    A demurrer was interposed to this answer on the ground that it did not state facts constituting a defense.

      Held, that, in an action on the case in the nature of a conspiracy, the damage to the plaintiff, and not the conspiracy, is the gist of the action, and proof of the conspiracy is only essential when a verdict is demanded against two or more defendants, and the declarations of one conspirator is offered in evidence against the others.

      That the cause of action, for the goods fraudulently obtained on many different occasions, was not one single and entire cause of action, but each purchase was a distinct and several act of fraud for which the plaintiffs were entitled to maintain a separate action.
    That the plaintiffs' rights in this matter were not affected by the defendants’ general purpose, extending over all the purchases made by them, nor by the fact that such purpose was continuous.
    That the settlement made in the former action, brought to recover for only a portion of the purchases thus fraudulently made, upon the basis of about one-third of the sum claimed, would be presumed to be confined in its effect to the particular purchases sued for in that action, leaving the residue to stand unaffected thereby.
    Appeal by plaintiffs, Stephen Lee and "William Whiting, from a judgment, entered in the office of the clerk of the county of New York on the 20th day of April, 1889, directing that the defendant John L. Taylor have final judgment in this action, against the plaintiffs in this action, upon the demurrer of the plaintiffs to the second separate and distinct defense set up by the defendant John L. Taylor, with notice of an intention to bring up for review the order of the Special Term, entered in the office of the clerk of the county of New York on the 25th day of March, 1889, overruling the demurrer of the plaintiffs to the defense set up by the defendant John L. Taylor in his answer to the complaint inthis action.
    The complaint in the action alleged that the plaintiffs and one Jeremiah Sturgis were copartners in business, as dealers in paper stock and supplies, in the city of New York, under the firm name of Lee & Sturgis; that the said Jeremiah Sturgis had died, and that the plaintiffs, as surviving partners, thereupon assumed and continued the management of the business and affairs of the firm; that the defendants Hugh F. Kendall and Charles B. Kendall had formed a copartnership, under the name of Kendall Brothers, for the purpose of carrying on the business of merchants in paper stock and mill supplies; that the debts and liabilities of said firm of Kendall Brothers far exceeded their assets and property, and said firm was from July, 1880, to November 25, 1882, continuously insolvent; that the defendant John L. Taylor had maintained intimate relations with the said firm of Kendall Brothers, and had sold them large quantities of goods upon credit, and had, from time to time, loaned them money and his promissory notes in order to enable the said firm to maintain its credit. That, for the purpose of securing to the defendant Taylor the payment in full of the indebtedness due him from the said firm of Kendall Brothers, the defendants entered into a conspiracy, and it was agreed between the defendants that the defendants Kendall Brothers should buy goods upon credit from such persons as could be induced to sell them, all of said defendants then well knowing that the said firm could not and did not intend to pay for the same. That the said firm should sell for cash or promissory notes part of the goods thus fraudulently obtained; should procure the said promissory notes to be discounted, and with the proceeds thereof, and with the cash to be realized from such sales, and with the remaining portion of the merchandise to be purchased as aforesaid, should pay in full their indebtedness to the said defendant Taylor. That, in order to carry out such conspiracy and to enable the firm to'make such purchases on credit, the defendant Taylor should sustain the credit of the firm until the indebtedness to him had been fully j>aid, and that when this object had been accomplished the said firm of Kendall Brothers should fail or suspend business or make an assignment of all their remaining assets, which was, in fact, done.
    That immediately, or shortly after the making of the said conspiracy, the defendant Taylor, who had theretofore been accustomed to sell large amounts of goods to said firm of Kendall Brothers, ceased altogether to sell them goods ; that the defendants Kendall Brothers thereupon bought large quantities of merchandise upon credit with the intent and design not to pay for the same; that, in pursuance of the conspiracy, the said defendants Kendall Brothers, under their firm name, induced the plaintiffs to sell to their firm certain goods, which were set out in the complaint; that such sales were made upon a credit of from two to four months time, and for a part of such goods the said firm gave to the plaintiffs for the price thereof their promissory notes, which were also set forth in the complaint; that the plaintiffs were induced to make the sale upon the fictitious credit given to the said firm by the assistance of the said defendant Taylor, rendered in pursuance of said conspiracy, and in further reliance upon the false and fraudulent representation which the said firm gave to the plaintiffs as to their financial condition. That after such purchases an assignment for the benefit of creditors was made by the firm of Kendall Brothers, under which all the property and assets of the firm of Kendall Brothers were sold and distributed.
    That prior to the beginning of this action the plaintiffs, by means of replevin or other suits, either collected or compromised their claim to the value of certain specific goods sold as aforesaid, which goods were designated in the schedule of sales set forth in the complaint by letters A and B; that after deducting the amount realized in such suits there remained due to the plaintiffs, as against the defendant Taylor, the sum of $27,301.47.
    The answer for a separate and distinct defense alleged that an action had been brought by the plaintiffs against the defendant Taylor, in which an answer had been interposed, and a settlement and compromise of the alleged cause of action effected between the plaintiffs and said defendant, whereby the defendant paid to the plaintiffs the sum of $4,000, and the plaintiffs signed and delivered a release and discharge of said cause of action.
    The defendant Taylor further alleged that said settlement was a full and complete settlement and discharge of all claims of the plaintiffs against him growing out, or claimed to have grown out, of the matters set forth in this action; that the complaint in said action, the. settlement of which was set up in the answer in the present case, contained specifically the same allegations as the complaint in the present action, and covered in its claims the sales and transactions, which were designated by letters A and B in the complaint in the present action.
    To this separate defense set up in the answer in the present action a demurrer was interposed upon the ground that it did not state a cause of action, which demurrer was overruled at Special Term, where an opinion was written holding that such defense was a bar to the present action, but that it was competent for the plaintiffs to show on the trial facts and circumstances, if such existed, from which an agreement might be inferred.

      Francis G. Barlow, for the appellants.

      John A. Mapes, for the respondents.
   Barrett, J.:

The question here is whether the plaintiffs’ right of action was single and entire, or whether they had a separate and distinct cause of action for each, bill of goods sold. The action is what would formerly have been called an action on the case in the nature of conspiracy; and it is well settled that the damage to the plaintiff, and not the conspiracy, is the gist of such an action. (Tappan v. Powers, 2 Hall, 277; Jones v. Baker, 7 Cow., 445; Hutchins v. Hutchins, 7 Hill, 104; Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 588; Verplanck v. Van Buren, 76 N. Y., 259.)

The allegation of conspiracy,” as was said in Buffalo Lubricating Oil Company v. Everest, “ between the defendants to commit the act complained of, is of no importance so far as it respects the cause and ground of action, * * * if there be a failure to prove the combination, then the plaintiff is entitled to a verdict against either defendant upon whom an unlawful act is jxroved to the damage of the plaintiff.” In Verplanck v. Van Buren (supra) Folger, J., said that “ in such action the evidence of a technical conspiracy is not essential. The damage is the cause of action, and the conspiracy mere matter of aggravation.” (Citing Skinner v. Gunton, 1 Wm. Saunders, 228c, note 4.) Proof of conspiracy is only essential when a verdict is demanded against two or more defendants. And the practical importance of such proof arises from the rule, which thereupon permits the plaintiff to give in evidence the declarations of co-conspirators as against each other, while engaged in furthering the cons|úracy.

It is apparent, therefore, that the cause of action set up in the complaint was not single and entire. The goods fraudulently obtained were purchased on many different days between August and November, 1882. Each purchase was a distinct and several act of fraud for which the plaintiff was entitled to maintain a separate action. This was not affected by the defendant’s general purpose, nor by the fact that such purpose was continuous. The rule laid down in Secor v. Sturgis (16 N. Y., 548) was misunderstood or misapplied at the Special Term. The court, in Secor v. Sturgis, said “ But it is entire claims only which cannot be divided within this rule, those which are single and indivisible in their nature. The cause of action in the different suits must be the same. The rule does not prevent, nor is there any principle which precludes the prosecution of several actions upon several causes of action; * * * a party upon whose person or property successive distinct trespasses have been committed may bring a separate. suit for every trespass.” And again: “The true distinction between demands, or rights of action which are single and entire and those which are several and distinct is, that the former immediately arise out of one and the same act or contract,and the latter out of different acts or contracts. Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements.” In the present case each sale was, as already observed, separate and independent. Such sales were made upon a credit of from two to four months. For a part of these sales the plaintiffs received twenty-seven separate and distinct promissory notes, dated on different days and maturing on different days. It is plain, as was said in Zimmerman v. Erhard (83 N. Y., 78), that these “ different sales did not constitute one entire and indivisible demand, and the plaintiffs could bring separate actions for each separate sale, or for all of them together, as they saw fit. The different demands were like several promissory notes, or several distinct trespasses, and in the nature of separate and distinct transactions, for each of which a separate action might be brought.” Of course, if the gist of the action here was the conspiracy, it might well be deemed “ single and entire.” It could, perhaps, then be argued that there was but one conspiracy, and that each purchase in furtherance thereof was but an element of the general damages. That theory.fails when the conspiracy is eliminated as the gist of the action. So, upon the theory of separate and distinct frauds, if any one purchase on any given day had embraced several items, the principle contended for by the defendants would, doubtless, apply to each of such items. (Farrington v. Payne, 15 Johns., 432; Smith v. Jones, id., 229; Miller v. Covert, 1 Wend., 487.) But where separate and distinct purchases were fraudulently made upon different days, we have no doubt that a separate cause of action accrued to the plaintiffs for the damages resulting from each purchase as an independent act of fraud.

We think, too, that it was the intention of the parties to limit the settlement set up in the answer to the particular claim embraced in the then pending action. It will be observed that that action was against but one of the present defendants, and was simply for the conversion of certain specified goods, valued at upwards of $12,000. There was no formal charge of conspiracy, but the defendant was sought to be held because of his alleged connivance with the purchasers. The suit was settled for $4,000 in the defendant’s notes, which were received (according to the tenor of the instrument then signed by the plaintiffs) “ in full settlement and discharge of all claims embraced in ” that action and “ of the cost thereof.”

It was held in O’Beirne v. Lloyd (43 N. Y., 251), that parties may make a valid agreement to sever an entire demand and compromise the part sued for, leaving the residue to stand, and that such a reservation may be inferred from the circumstances. We think such a reservation should be here inferred. The action was settled for about one-third of the sum claimed. It was an action against Taylor alone. It proceeded upon the legal theory that certain goods belonging to the plaintiffs, the title to which had not passed owing to the vendor’s fraud, were found in Taylor’s possession, and that he had received them, not as a bonco fide purchaser, but with notice of the fraud. The plaintiffs thereupon alleged a demand of the goods from Taylor, and a refusal to deliver them to their damage some $12,000. What was intended to be settled was that specific claim for the refusal to deliver to the plaintiffs upon demand the specific goods found in Taylor’s possession. That, and nothing else; certainly not a claim against Taylor and the purchasers of the goods for damages resulting from a series of frauds, one of which happened to cover the particular goods embraced within the action against Taylor alone for conversion.

We think, therefore, that the judgment appealed from should be reversed, with costs, and the plaintiffs’ demurrer to the twentieth clause of the defendant’s answer be sustained, with costs.

Yan Brunt, P. J., an,d Bartlett, J., concurred.

Judgment reversed, with costs, and the plaintiffs’ demurrer to the twentieth clause of the defendant’s answer sustained, with costs.


author: Barrett, J.: Yan Brunt, P. J.

text:
    MICHAEL F. CUSACK, Appellant, v. OLIVER B. TWEEDY, Individually and as Sole Surviving Executor of the Last Will and Testament of JOSEPH N. LORD, Deceased, Respondent.

      Power of sale — when it survives the duration of the trust estate eren,ted by the will.

    A testator, by the eighth clause of his will, devised all his residuary estate as follows:
    One-fourth part thereof to his executors, in trust, to rent and invest, and to collect and receive the rents, issues and profits thereof, and to apply the same to the use of his daughter, Maria Tweedy, for and during her natural life, and upon her death to convey and pay the said fourth part, with any unapplied rents and income thereof, unto and among such of the lawful issue of his daughter as might then be living, the issue of any deceased child of his said daughter to take the share to which the parent would have been entitled if living. The testator, in the same clause, devised the remaining three-fourths of the residuary estate in like manner in trust, one for the benefit of each of the three other daughters of the testator.
    By the ninth clause of his will the testator provided as follows:

      “Ninth. I hereby authorize and empower my said executors, and the survivors and survivor of them, and such, and whichever of them as shall act at their or his discretion from time to time, and at any time or times to sell and dispose of the whole or any part or parts, of my estate, both real and personal, at public auction or private sale, * * and in the meantime my said executors, and the survivors and survivor and such, and whichever as shall act, are and is hereby authorized to collect and receive the rents of the whole and every part of my real estate.”
    Maria Tweedy named in the will subsequently died leaving issue.

      Held, that the power of sale given to the executors survived the death of the said Maria Tweedy and operated upon the totality of the residue, and not merely upon each of the undivided portions of the estate; and was not extinguished, upon the falling in of one of the trusts, as to the quarter interest represented thereby.
    That the provision following the power of sale that, “ in the meantime, my said executors” are “ authorized to collect and receive the rents of the whole and every part of my real estate,” was not repugnant to the authority of the. executors to exercise the power of sale after the termination of the life estate of one of the daughters, as this provision might well apply to a period during which the executor and the issue of the deceased daughter held the title as tenants in common. (Van Brunt, P. X, dubitans.)

    Appeal by the plaintiff Michael E. Cusack from a judgment, entered in the office of the clerk of the county of New York on the 19th day of July, 1889, dismissing the plaintiff’s complaint.

      The complaint alleged that, on the 1st day of February, 1888, the plaintiff centered into an agreement, in writing, with the defendant, as sole surviving executor of the last will and testament of Joseph N. Lord, whereby the defendant agreed to sell to the plaintiff certain premises in the city of New York upon- certain terms in the complaint mentioned; that the defendant was unable to convey a good title to the premises; that, on the contrary, the premises were subject to various incumbrances, and in particular to an equal undivided one-third interest, or estate in fee simple, vested in the lieirsat-law of one Maria Burnham, deceased, and to the objection that the plaintiff had no right, power or authority, as executor, to convey the' one equal fourth part or interest in the said ¡premises, which, upon the death of Maria Tweedy, one of the cestuis que trust named in the will, vested in possession in her lawful issue then surviving, and the issue of any who were then dead.
    Judgment was asked for the return of $1,000 stated to have been paid by the plaintiff to defendant, in pursuance of said agreement, and for certain sums expended for legal services in the examination of the title and for necessary disbursements.

      Russell Benedict, for the appellant.

      George G. Be Witt, Jr., for the respondent.
   Barrett, J.:

I concur with the presiding justice in regard to the alleged deed of September 9, 1815. But I am unable to concur as to the power of sale. My views upon the latter head are these : Immediately upon the death of Maria Tweedy her children undoubtedly took the corpus of the trust estate, namely, the one equal fourth part of the original residue devised and bequeathed by Joseph N. Lord to his executors in trust for the benefit of this daughter, Maria.

They so took, however, subject to, and not freed from, the general power in trust specified in the ninth clause of Mr. Lord’s will. There is no expression anywhere in this will suggestive of an actual partition of the residue for the trust purposes, or of any division, save in the legal sense essential to the validity of the trust. Indeed, the testator’s plan seems to be directly opposed to any such preliminary partition, or to the separation and setting apart in specie of the corpus of each of the four trust estates. This is the opening language of the eighth clause: “All the rest, residue and remainder of my estate, both real and personal, * * * I dispose as follows, that is to say: ” Then follow the four trusts, each of one equal fourth part thereof. Not a word here about conversion and actual separation of the product into four parts; on the contrary, in the next clause (the ninth), we find a provision authorizing the executors to permit any part of the estate invested at the time of the testator’s death to remain and continue in the same state of investment for any of the purposes of the will so long as such executors approve ; a most unlikely provision if an early conversion for the purpose of a practical division or to facilitate partition were contemplated. This ninth clause in no wise limits the power of sale to the respective trust estates. It is broad, general and comprehensive, authorizing the executors, at their discretion, from t/ime to time or at any time or times, to sell and dispose of the whole or any part or parts of the ■testator’s estate, both real and personal. Thus the power plainly operates throughout upon the xmdivided residue for which the respective trust estates are to be practically worked out. In other words, the power is general and unlimited, operating upon the totality of the residue, and not merely upon each of the undivided trust estates. And thus it serves a purpose useful and beneficial to the testator’s estate, for it enables the parties in interest to avoid many of the difficulties of conveyance attendant upon tenancies in common, especially where some of the tenants are infants. If, therefore, the power is general, operating upon the entire residue as such, there is no good reason why it should cease, upon the falling in of one of the trusts, as to the still 'imseparated one equal quarter immediately vested in the children of Maria Tweedy. The falling-in of that trust at once necessitates a division of the estate, so that the children of Maria Tweedy may receive their one equal quarter freed from the remaining trusts; and it was doubtless largely to facilitate this very division and distribution, and to save the beneficiaries the expense of partition proceedings, that the testator gave his executors this continuous and unlimited general power. Mai-ia Tweedy had eight children living at the time of her death. They were then of age, it is true, but several of them must have been minors at the date of the execution of Mr. Lord’s will, for JVIrs. Tweedy was married in 1832 or 1833, while Mr. Lord died in 1857, leaving this will, dated March 27, 1856 ; and her husband, the present defendant, testified upon the trial that all the property has been sold by him (as sole surviving executor) since his wife’s death, “ the last of it at auction a short time ago to olose up the estate.”

Upon all these facts the case on this head comes within the principles enunciated in Crittenden v. Fairchild (41 N. Y., 289); Kinnier v. Rogers (42 id., 531) and Skinner v. Quin (43 id., 99); and it is not affected by the rule laid down in Bruner v. Meigs (64 id., 506), and other cases which have been cited of a similar character, for the reason that there the power, as said by Allen, J., was, “in terms, restricted and limited, in point of time, to the continuance of the respective trusts.” This was further emphasized as follows: “ It is a several power in respect to the property held under the respective trusts, and not a general power embracing the whole estate, and to be exercised so long as any one of the trusts continues, or until a final partition of the estate is made.”

One word more. I am unable to perceive the force of the suggestion that the present power ceased the moment this trust estate vested in the children of Maria Tweedy, because of the provision in the ninth clause that “ in the meantime,” that is, until the exercise of the general power immediately preceding, the executors are to collect and receive the entire rents of the estate. The argument is that the executors cannot receive the rents of the one equal quarter in question, because, upon the vesting thereof in the children of Maria, they alone could collect such rents. This reasoning overlooks the fact that in the preceding eighth clause there is a general power given to the executors to collect and receive the rents, income, etc., of each equal fourth part of the general residue. So that this subsequent power in the same direction must be treated as additional, and not as mere surplusage. If additional, it plainly contemplated a contingency like the present, where what formed part of the undivided and unconverted residue has become vested in the children of Maria Tweedy and this executor as tenants in common. Now, as these children, pending partition (or distribution through the simpler process of an execution of the power), cannot well collect from the tenant one-quarter of the rent, and this executor three-quarters; and as some rent must necessarily accrue between Maria Tweedy’s death and actual division or distribution, authority is thus given to the executor to colled^ “ in the meantime,” the whole of this undivided, and, so far as the tenant is concered, indivisible rent. The word “meantime” thus refers to the execution of the power, and to its execution in just such a manner as the present, while the additional authority conferred upon the executor cannot, under such circumstances, be void, for it isreally nothing more than he would have had without it, as tenant in common with the children of Mrs. Tweedy.

While, therefore, entirely agreeing that the defendant must be able to give the plaintiff a marketable title, I am convinced that it would frustrate the clear purpose of the testator to hold that he cannot do so by the due execution of this power. In my judgment, therefore, this judgment should be affirmed, with costs,-

Bartlett, J., concurred.

Yan Brunt, P. J.

(dissenting) :

This action was brought to recover $1,000, the amount paid by the plaintiff' under a contract for the sale to him by the defendant of the premises 61 Bayard street, in the city of New York, it being alleged that the title offered was defective in two particulars: First. That an undivided third interest in said premises is vested in the heirs-at-law of Maria Burnham; and, second, that the defendant has no power, as executor of the will of Joseph N. Lord, deceased, to sell and convey an undivided fourth part or interest which, on the death of Maria Tweedy, a daughter of said testator, vested in possion in her lawful issue.

In 1815 the premises in question were owned in fee by the six children and heirs-at-law of George Thompson, deceased, namely, George Thompson, John G. Thompson, Elizabeth Pinckney, the -wife of Elijah Pinckney; Dolly Lord, the wife of Joseph N. Lord; Magdalene Crook, widow, and Maria Burnham, the wife of John A. Burnham. The first four of the heirs above named and their respective Avives and husbands executed a deed to Magdalene Crook of two undivided third parts of said premises. This deed is dated September 20, 1815, and is, in form, a bargain and sale deed, with a covenant against grantors’ acts, and expressing a consideration of $2,666.64. This deed Avas signed by all the grantors and acknowledged the day of its date, Maria Burnham, the only heir of George Thompson not a party to it, proving the identity of two of the grantors to the officer who certified the acknowledgment. This (feed was recorded on the 6th of October, 1816, for and at the request of Magdalene Crook. ' Magdalene Crook thus, upon the execution of this deed, became the owner of five-sixths of the property. In 1817 Magdalene Crook conveyed one-half of the premises to Joseph N. Lord in trust for the benefit of her sister, Maria Burn-ham. In 1825 the trust estate was reconveyed to Magdalene Crook, and Maria Burnham also conveyed to Magdalene Crook the undivided sixth part inherited by her for the consideration of $666.67. The last two deeds were acknowledged on the 7th of February, 1825, and on the same day Magdalene Crook made her will. The will gives a life estate to Maria Burnham and a second life estate to John Francis Burnham (both of whom are dead) and remainder in fee to Joseph N. Lord, the defendant’s testator. Joseph N. Lord died in 1857, when the defendant found among his papers certain deeds. In 1865 he observed four unrecorded deeds, one of which was a deed bearing date September 9,1815, and is in form a deed with full covenants and warranty from the same eight grantors who, on September 20, 1815, executed the deed to Magdalene Crook, expressing the same consideration and conveying the same undivided interest to Magdalene Crook and Maria Burnham. This deed is only partially executed by the grantors named in it, the wives of George and John G. Thompson not having signed it. The defendant then caused this deed and the others to be recorded on the 6th of September 1865.

Joseph N. Lord left a will by the eighth clause of which he disposes of his residuary estate as follows: One-fourth part thereof he gives, devises and bequeaths to his executors in trust, to rent and invest and to collect and receive the rents, issues and profits, and apply the same to the use of his daughter Maria Tweedy, for and during her natural life, and upon her death to convey and pay the said fourth part unto and among such of her lawful issue as may be then living, and the issue of any who might be then dead. The clause also contained a similiar devise of one-fonrth of the residuary estate to the executors in trust for the benefit of each of three other daughters of the testator, and a similar gift of each fourth to the issue of each daughter.

Tlie ninth clause is as follows:

Ninth. I hereby authorize and empower my said executors and the survivors and survivor of them, and such and whichever of them as shall act, at tlieir or his discretion from time to time, and at any time or times to sell and dispose of the whole or any part or parts of my estate, both real and personal, at public auction or private sale, * * * and in the meantime my said executors and the survivors and survivor, and such and whichever as shall act, are and is hereby authorized to collect and receive the rents of the whole and every part of my real estate.”

Maria Tweedy, the first life beneficiary under the eighth clause of the will, having died leaving children, the trust for her benefit has terminated and the undivided fourth of the real estate of the testator forming part of the capital of such trust is vested in the children of Maria Tweedy in possession, and one of the questions involved is whether such children took such real estate subject to the general power of sale given to the executors in the said ninth clause.

It is clear that the alleged deed of September 9, 1815, is wholly void and inoperative for want of delivery. In order that there should be a due execution of a deed, it must not only be sealed and signed, but it must also be delivered; in fact, delivery being the only thing which could make a deed operative. TIence the significance of the clause contained in the clause, and signed by witness in all old deeds, “signed, sealed and deli/oered in presence of.” Neither the sealing, nor the signing, nor the acknowledgment of the deed is of any effect, so far as making the deed operative and effectual is concerned, unless they are followed by delivery.

It seems hardly necessary to cite authorities to sustain this elementary proposition, but the cases of Fisher v. Hall (41 N. Y., 416) and Bryant v. Bryant (42 id., 11) sufficiently establish it. It is true that where a deed appears upon the record the recording is regarded as prima facie evidence of delivery ; but it is also true that such evidence of delivery may be rebutted even where the recording is apparently regular.

In the case at bar, the deed having remained in the possession of one of the grantors for fifty years after it was sealed and signed by a portion of the grantors, and the fact that another deed was signed, sealed and delivered by all the grantors of the same premises within a few days thereafter, raises the inevitable conclusion that the first deed was never intended to be operative and had never been delivered.

It is true that a court of equity will not impose a doubtful title upon a purchaser, and that the purchaser is entitled to a marketable title, and that a title open to a reasonable doubt is not a marketable title; and that the court cannot make it such by passing upon an objection, dependent upon a disputed fact or a doubtful .question of law, in the absence of the party in whom the outstanding rights are vested. But in the case at bar no such rules are applicable as to the point now under consideration.

It is apparent upon the very face of the record itself, upon the face of the deeds themselves, that the alleged deed of September 9, 1815, was never executed by all the grantors and never recorded until fifty years after the subsequent deed had been recorded, and then such deed of the 9th of September, 1815, was recorded without any authority in the party making the record to cause the same to be recorded, and also that Maria Burnham knew of the existence of the second deed, and that she was not a grantee named therein, which is evidenced by the fact that the indentity of two of the grantors in said deed was proven to the master in chancery by her oath and examination. From the foregoing uncontrovertible 'facts no other conclusion can be drawn but that said deed of the 9th of September, 1815, had never been delivered and never became operative.

The next objection is that the defendant, as surviving executor of Joseph N. Lord’s will, had no power of sale as to one-fourtli of the premises in question. That the power vested in the defendant under the will of Lord ceased on the death of Maria Tweed}, and the title to her undivided share passed to her children not subject to the exercise of the power of sale by the executor.

This objection seems to raise a question in regard to which an authoritative determination cannot be made in the absence of the children of Maria Tweedy, deceased. It maybe claimed, with great force, that this power of sale as to any portion of the estate terminated upon the cessation of the trust as to that portion. It is to be observed that the testator makes separate trusts in favor of his four children, giving one fourth of his property to his executors in trust to rent and invest, and to collect and receive the rents, issues and profits thereof, and to apply the same to the use of one of his daughters for and during her natural life, and upon her death to convey and pay the said fourth part unto and among her lawful issue who may be then living, and the issue of such as may be then dead. Upon the death of any one of these daughters the estate held in trust for such daughter descended immediately to her children. (1 R. S., 730, § 67; Matter of Livingston, 34 N. Y., 567.)

Now, under the power of sale, the executors are authorized to sell, in their discretion, from time to time, and at any time or times, the whole or any portion of his estate, both real and personal. But this power is coupled with the provision that, in the meantime, that is, until the sale, his executors are authorized to collect and receive the rents of the whole and every part of his real estate. Now, it cannot be claimed that after a portion of this estate has descended to the grandchildren of the testator that the executors are entitled, by force of the power contained in the will, to collect the rents and profits thereof. This portion of the estate is relieved from the trust. The executors, by virtue of the will, therefore, in such case could not collect the rents. The owners of the fee would be entitled to collect the rents. It is true that it is claimed by the respondents that, as tenants in common, the executors would have a right to collect the rents. But it is clear that they could not do so by virtue of this clause contained in the will. What did the testator mean % Did he not mean that as long as the property remained unsold, and the trust continued, his executors should collect the rents ?

It seems to us that this question is of so doubtful a character that, unless upon a proper action brought, having all the parties to be affected by the adjudication before the court, no authoritative determination can be given. It would seem, therefore, in view of this condition of things, that the title is not free from reasonable doubt. The plaintiff, therefore, should not be compelled to take this title and hereafter be called upon to defend the same against the claim of the grandchildren of the testator.

Under all the circumstances of the case, the plaintiff was entitled to recover.

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

Judgment affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RICHARD W. G. WELLING, Respondent, v. ALEXANDER MEAKIM and Others, as Commissioners of Excise, Appellants.

      Bxcise commissioners — compelled by mandamus to act and decide upon a complaint against a saloon-keeper for a violation of the statute.

    A mandamus may properly issue against a board oí commissioners of excise, commanding tliem to decide a complaint, the evidence in regard to which has been presented to them, against a saloou-keeper charged with a violation of the statute forbidding the keeping open of his saloon on election day.
    Any citizen has a right to apply for a mandamus in such a case, as the duty imposed by the statute upon the Commissioners of Excise is a public duty.

      Semble, that this is particularly so in the case of the Commissioners of Excise of the City of New York, as that board is required to act “upon the complaint of any resident ” of the city.
    The Board of Commissioners of Excise is bound not only to hear the witnesses upon both sides but to decide upon the complaint; and they are not at liberty to decline to act upon a case, except when “ they shall have become satisfied ” that the accused person has violated the statute.
    Their failure to act is not proof that they have not become satisfied.
    When the facts are undisputed, the question as to what is a reasonable time within which action should be taken by a public board is usually one of law.
    Appeal by the defendants, tlie Commissioners of Excise of tlie City of New York, from an order made and entered in the above-entitled j>roceedings on the léth day of April, 1890.
    The order appealed from directed that a peremptory writ of memdeurms issue directed to the Excise Commissioners of the City of New York, commanding them to decide a proceeding before them, which was instituted to procure the revocation of a license to sell liquor held by one Scheuplein.

      Edward Browne, for tlie appellants.

      L. L. Delafield, for the respondent.
   Yan Brunt, P. J.:

This is an appeal from an order granting a peremptory mandmuts against tlie Commissioners of Excise of this county, directing them to decide a certain complaint presented to them by the relator against one Scheuplein.

The relator presented this complaint on the twenty-seventh of last January; it was for keeping open a saloon upon election day in violation of the statute. Notice was given to Scheuplein and the matter was set down for hearing upon the twelfth of the following February. Upon the latter date the board adjourned the hearing, although the relator was ready to proceed, to the twenty-first of February, when it was again adjourned (the relator being still prepared to proceed) to the twenty-eighth of February. On the twenty-eighth of February the hearing took place. Two witnesses testified that Scheuplein’s saloon, which was but 229 feet from a neighboring polling place, was open on the last general election day and that beer was then and there sold. This was not denied, though Scheuplein was examined and testified that he knew nothing about this violation of law, and that he left orders not to sell anything over the bar that day. Upon these very simple facts the case was closed and left with the board for decision. Subsequently the commissioners were repeatedly called upon for a decision, but without avail; and as late as the eighth of April they informed a person, who applied to them upon behalf of the City Reform Club, of which the relator is treasurer, that “ there was no decision.”

Upon this state of facts the 'mandamus was granted simply to set the board in motion. The appeal was submitted, and the first point which we find in the appellants’ brief is that “ the power to revoke licenses is a purely discretionary power lodged in the Commissioners of Excise, and, therefore, mandamus will not lie to compel them to exercise, or to refuse to exercise, such discretion.” This point, although .elaborately considered and enforced by the citation of numerous authorities, seems to us to have no bearing upon the real question presented by this appeal, and for the sufficient reason that there was no attempt on the part of the Special Term to interfere with the discretion or judgment of the board. The mandamus required the board to exercise its discretion and judgment, and required nothing else. The rules on this subject are well settled. Where the duty is pei-emptory or absolute the writ may require the doing of a specific act. Where, however, official discretion and judgment are involved the writ will only command the board to act. It will not direct the board to'act in a specific manner, nor attempt to control its judgment. Even in the case of inferior courts, mandamus lies to compel them to proceed with the trial of causes which they have delayed without sufficient reason (High on Extraordinary Remedies, § 250); and the author adds (§ 251, citing numerous cases) that “ the rule may now be regarded as well established that mandamus lies in all cases to compel an inferior court to proceed to the trial of a' cause, and to set it in motion, when it has unreasonably delayed the proceedings, or where its refusal to proceed amounts to a denial of justice.” (tíee, also, 14J, 148, and 3 Black. Com., 111.) The cases in this and other States are numerous where ministerial officers, clothed with quasi-judicial powers, have thus been set in motion, although the court have scrupulously avoided interfering with the manner in which the discretionary duty should be performed.

The learned counsel for the appellant evidently misapprehends the language of Emott, J., in People ex rel. Belden v. Contracting Board (27, N. Y., 378, quoted and disallowed in People ex rel. Duff v. Booth, 49 Barb., 31, and People ex rel. Livingston v. Taylor, 1 Abb. Pr. [N. S.], 200). The learned judge there observed that to entitle the relator to a mcmdamus “ there must be a clear legal right, not merely to a decision in respect to the thing sought, but to the thing itself.” That language had reference to a case wdiere the mandamus was granted to compel the thing sought, not merely to compel a decision. Plainly what was meant was, that the mere right to a decision did not involve the right to a decision in a particular way. The language does not convey the idea that where there is a right to a decision of some kind, a mandamus will not lie to compel such decision. Such a doctrine would be contrary to the entire current of authority in this country and in England.

The appellant’s second point is that no right existed in the relator, either individually or as a citizen, to a judicial determination of any question by the Commissioners of Excise. This proposition overlooks the fact that it is a public duty which is sought to be here enforced, and that, as was observed by Mr. Justice Daniels, in People ex rel. Boltzer v. Daley (37 Hun, 461), “ all citizens are equally concerned in securing its performance.” (See the cases and treatises cited in that opinion.) It also overlooks the fact that under the statute the board is required to act upon the complaint of any resident ” of the city, and that the present relator, as such resident, was the complainant in the case charged to have been unreasonably delayed. The precise point was decided by Mr. Justice Lewis, in the People ex rel. Sickles v. Becker (3 N. Y. St. Rep., 202), and we concur in his conclusion on that head.

It is also urged that the board was not bound to act upon the complaint further than to examine the witnesses on both sides; that is, if we understand the learned counsel, to hear the case and not decide it. This is a strange proposition, and if correct it would lead to a strange perversion of the legislative intent. The act reads as follows:

“ The board of excise of any city; town or village, may, at any time, and upon the complaint of any resident of said city, town or ■village, shall summon before them any person or persons licensed as aforesaid ; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary, to enter upon the premises and take possession of and cancel such license. Upon an inquiry the said board, or the party complained of, may summon, and the said board may compel, the attendance of witnesses before them and examine them under oath.” (Laws .1870, chap. 175, § 8, as amended by Laws 1873, chap. 549, § 4.)

Taking this literally, the appellants contend that they are only bound to act when “ they shall have become satisfied ” that the accused person has violated the act, and that their non-action is proof conclusive that they have not become satisfied. The difficulty with this position, and it is not the only difficulty, is that the statute contemplates the satisfaction of the board, and that the absence of such satisfaction on the part of the board cannot be predicated of non-action, otherwise the law could be evaded by the failure of the board to meet. Whether the board is satisfied or dissatisfied can only be known after a consideration of the case by the board, and the taking at a meeting thereof of the sense of its members. But the entire provision plainly contemplates a summary trial. (People ex rel. Kimball v. Haughton, 41 Hun, 560; People v. Schewe, 29 id., 124; People ex rel. Presmeyer v. Commissioners, 59 N. Y., 96.)

Upon the complaint of the resident a summons must be issued and served upon the accused. The board or the accused may thereupon summon or compel the attendance of witnesses and examine them under oath, and the proceeding is styled an inquiry.” Such an inquiry must have a definite result. It would be the height of absurdity to go through all the machinery of a trial, and then and there let the whole matter rest without any consideration by the board, the complaint being treated as thus fully disposed of and the case decided.

Such a construction would be as dangerous to the accused as it would be injurious to the public. The non-action of the board could be continuously and indefinitely held over the head of the accused. He would never know the day or the hour when the rod of affirmatively expressed satisfaction as to his guilt might be laid upon him. He would be completely in the power of the board, and the grossest oppression, personal or political, might be practiced upon him. Upon the other hand, of what avail to the people would be the complaints of public-spirited citizens, residents of the city, seeking to enforce the law for the benefit of all, if such complaints are deemed to be legaby passed upon by contemptuous silence ?

In our judgment it was the plain intent of the legislature, as expressed in this act, that after hearing all the testimony the board, as a loard, should consider such testimony and thereupon decide by a vote of the commissioners whether the accused person has or has not violated any of the provisions of the act. If such accused person has so violated any of the provisions of the act, the duty to revoke the license is imperative. In that case, to quote the language of the act “ they shall revoke, cancel and annul the license.” And this duty cannot be evaded or the rights of the people trifled with by non-action or silence.

In the People ex rel. Funke v. Board of Excise (24 Hun, 195), the court held that the duty of revoking licenses was dependent upon the board’s becoming satisfied “ that the licensee had violated some provision of the statute.” The language used in that case involved the concession that the statute is mandatory, and casts upon the board the duty of revoking licenses when so satisfied of a violation of some provision of the statute.

In People ex rel. Beller v. Wright (3 Hun, 309), Hardin, J., said that the commissioners “ were simply to become satisfied in their judgment and then this right, as well as duty, to revoke the permit which had been given the relator, was clear.”

And in People ex rel. Presmeyer v. Commissioners of Police (59 N. Y., 96), Grover, J., says that the statute authorizes “ an inquiry into and determination of the question whether the party licensed continues to be a suitable and proper person to sell intoxicating liquors.” That there must be an affirmative “determination ” has, in fact, never been doubted.

The remaining question is, as to whether a peremptory writ should have been granted. The appellants insist that an issue of fact on the question of unreasonable neglect was raised by the opposing affidavits, and that, consequently, the relator was only entitled to an alternative writ. It is undoubtedly true that a peremptory writ can issue only when, upon the conceded or undisputed facts, the right is dependent upon questions of law. In the present case none of the facts stated in the moving affidavits are denied, nor is new matter stated in justification, explanation or extenuation of the neglect of the board to consider this particular case. The commissioners deny that they have “ unreasonably delayed or neglected and refused to decide or take any action upon the eomplaints so made as aforesaid by the City Reform Club,” referring not to this particular case of Scheuplein, but “ that, since on or about the 1st of January, 1890, numerous complaints for violation of the Excise law have been made by the said City Reform Club against persons licensed in the city of New York.” As to this particular case the commissioners were charged as follows:

X. That, in violation of the provisions of law in such case made and provided, the said commissioners have unreasonably delayed, have wholly neglected and have refused to decide or take any action upon the deponent’s said complaint.

The only answer to this charge is a denial of what is not directly averred, namely: “ That the said board, or any of the Commissioners thereof, are unwilling or have refused to revoke the license of said Scheuplein, or any other licensee, for a violation of the law as is alleged in said affidavit. On the contrary, deponent alleges that the Board of Excise, and the Commissioners thereof, are entirely willing to decide the said matter of Scheuplein, and all other matters brought before them.”

This is clearly an admission of (by failure to specifically deny) the charge that the commissioners have “ unreasonably delayed, have wholly neglected and have refused, to decide- or take any action upon ” the relator’s complaint. It is simply an expression of present willingness, at the time when the affidavit was verified, to decide the case; that is, of willingness under the stress of the proceedings. But even if the commissioners had denied the charge of unreasonable delay, they have not attempted to deny any of the facts upon which that charge was predicated. It appears, without dispute, that Scheuplein’s license was to expire on the 25th of April, 1890, yet, on the eighth of April, the case had not even been considered, although the commissioners had “ often been requested so to do.” Thus it appears that when the case was closed, and submitted for decision on the twenty-eighth of February, the license had fifty-eight days to run. Forty of these fifty-eight days were permitted to pass without the slightest action, and thus, when these proceedings were commenced but eighteen days were left of the term of the license. Under such circumstances, a denial of unreasonable neglect would simply be a denial of the self-evident conclusion that there was gross neglect, and that the commissioners, by their willful non-action, were permitting the accused to enjoy with impunity the remainder of his term. . We agree with the respondent that the facts fully justified the legal inference that the commissioners did not intend to take any action in the matter; that their delay was unreasonable, as matter of law, and equivalent, to a refusal to act.

In the People ex rel. Aspinwall v. Supervisors of Richmond County (20 N. Y., 252) a judgment refusing a peremptory mandamus was reversed, although the claim under consideration was “not allowed nor disallowed by any formal action of the board.” Johnson, Oh. J., speaking of this claim, said: “ It was laid aside without other action, when the duty of the board was to proceed and act upon the claim, * * * and we must hold their conduct to be equivalent to a rejection of the claim, or else leave it in the power of boards of supervisors to postpone action in all cases till such time- as they tlwnh it fit to proceeds

This case was followed in the People ex rel. Wetmore v. Supervisors (2 Keyes, 291) where Porter, J., observed that it was quite evident from the inaction and delay of the board of supervisors as well as from the grounds on which the application for a mandamus toas resisted, that the board did not recognize its obligation to raise the moneys in question under the act of 1860. There w-as, it is true, no formal refusal; but we think the court below was right in holding that, under the circumstances disclosed in the affidavits, the neglect of the board was equivalent to a refusal to comply with the requisition.” (See, also, The Queen v. The Vestrymen, 8 Ad. & Ell., 887; and The Queen v. Commissioners, reported as note, Id., 901.)

The case of the People ex rel Hammond v. Leonard (74 N. Y., 445), does not conflict with these cases. There the mcmdamus was not merely to set the officer in motion, and to require him to act upon his judgment, but it directed him to do the specific thing as to which he was clothed with discretion. But even there Church, Oh. J., said it was not a case of refusal to act at all, “ delay is alleged and this is explained by the defenclamt.”

Where the facts are undisputed the question of what is a reasonable time is ordinarily one of law. (Roth v. Buff and State Line R. R. Co., 34 N. Y., 553, and cases there cited; Hedges v. H. R. R. Co., 49 id., 225; Davis v. Gwynne, 57 id., 677.) Whether that doctrine is strictly applicable here need not be definitely decided, as not only are the facts undisputed, but also the conclusion directly charged against the commissioners with regard to this particular complaint.

Upon both the facts and the law, we think the order appealed from was right and should be affirmed, with costs.

Brady, and Daniels, JJ., concurred.

Order affirmed^ with costs.


author: Daniels, J.:

text:
    SOLON HUMPHREYS and EDWIN D. MORGAN, Trustees of the Car Trust of New York No. 2, Respondents, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Trustees of a wlunta/ry association — right to sue — right to set up in a complaint a previous adjudication as constituting an estoppel against the defendant.

    In an action brought by the trustees of a voluntary association to recover moneys alleged to be due under an agreement entered into with the defendant for the use of certain chattels delivered to and used by it, the plaintiffs, for the purpose of showing their capacity to sue as parties plaintiff, set up in the complaint that a preceding suit had been brought against the defendant for other prior installments of money falling due under the same agreement, and that judgment had been recovered therein in favor of the plaintiffs, as trustees.

      Reid, that such allegations would not be stricken out from the complaint as irrelevant, upon the motion of the defendant.
    In such a case the plaintiffs may rely upon their right, as trustees of an expressed trust under the terms of the agreement under which such voluntary association was formed, and also upon their right to rest upon the estoppel existing in their favor, against the defendant, by reason of the preceding adjudication.

      Semble, that a voluntary association, formed under an agreement by which the trustees, who were to be appointed, were authorized to lease and provide for the sale of rolling stock, and which provided that the moneys to be paid therefor should be collected and received by them, are trustees of an express trust, within the provisions of section 449 of the Code of Civil Procedure, and empowered to maintain an action in their names, as trustees, for the recovery of such money.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from an order, entered in the office of the clerk of the county of New York on the 5th day of March, 1890, which denied a motion to strike out certain portions of the complaint in the above-entitled action as immaterial and irrelevant.
    The agreement under which the Car Trust of New York, of which the plaintiffs were trustees, was formed, provided, among other things, as follows:
    13th. That the trustees should have power, under the direction of the board of managers, to make leases to the above-named defendants, The New York, Lake Erie and Western Railroad Compunja of all the cars and locomotives which should thus be purchased and delivered to them upon certain specified conditions, among which are the following, viz :
    That the lessees should pay a rent to be determined in and by the respective leases which should be made, and also the expenses of conducting the trust, and a compensation to the trustees, not to exceed one thousand dollars per annum, and all taxes that might be imposed upon the property leased, or upon the interest payable upon the shareholder’s certificates which should then be outstanding ; and also that upon full payment by the said lessees of all the rent or sums of money, which should be provided for in said leases respectively, then upon the payment by them of the further sum of one dollar, the said trustees should forthwith sell to said lessees the property so leased, which should forthwith thereupon become their absolute property.
    14th. That the trustees should enforce the performance of all the covenants in said proposed leases, and should collect and receive the rents that should fall due thereunder, and should apply and distribute the same substantially as follows, viz. :
    . Ohcvrles Steele, for the appellant.

      George De Forest Lord, for the respondents.
   Daniels, J.:

The action has been brought by the plaintiffs as the trustees of a voluntary association, to recover eight different amounts upon an agreement entered into with the defendant, for certain rolling stock delivered to and used by it. This rolling stock was received by the defendant under and pursuant to the agreement, -which was made for the term of ten years from the 1st of November, 1881, unless sooner terminated, as the agreement or lease itself afterwards provided it might be.. And by the covenants or stipulations contained in the agreement, the defendant bound itself to pay certain sums of money for the use of the rolling stock, and upon the full and complete payment of which it was to become the owner of that stock. A portion of the payments to be made consisted of half yearly sums during the term, which should be equal to six per cent per annum upon the whole amount of the principal represented by the certificates of shares issued under the authority of the association, and be outstanding at tlie timé of such payment. On the 17th of March, 1885, a further agreement was entered into, reducing this percentage to the sum of five per cent, so far as the reduction had, or should be authorized, or ratified, by the persons holding the certificates of the association. This reduction was qualified by certain other amounts from time to time payable, and not required to be noticed in the decision of the appeal. The holders of a majority of the certificates did ratify or authorize this change in the agreement, which originally had been made, but a minority of about $100,000 in amount declined to do that, and their refusal to ratify the reduction entitled them to the preceding rate of interest agreed to be paid by the defendant. And it was for the recovery of that difference that the action seems to have been brought, and to maintain it eight different causes of action of this description have been set forth in the complaint.

It was further alleged that a preceding suit had been brought against the defendant for other and prior installments, maturing under the lease or agreement, and that judgment had been recovered in favor of the plaintiffs as trustees for such installments. And it is these allegations relating to the prior recovery which the defendant applied to have stricken from the complaint.

The object of the motion is stated to be to place the defendant at liberty to demur to the complaint on the ground that the plaintiffs are without legal capacity to sue for the recovery of these installments maturing after the commencement of the preceding suit. In support of the motion it lias been apparently assumed that, inasmuch as the association, known as “ The Car Trust of New York Number 2,” was voluntary and unincorporated, that the plaintiffs as trustees could not maintain an action for the recovery of these installments arising under the lease. But by the agreement under which the association was formed, and to which the defendant was a party, it was agreed that the trustees who were to be appointed should be authorized to lease and provide for the sale of the rolling stock as that was done in the agreement with the defendant, and that the installments, or moneys to be paid by the defendant, should be paid to, or recovered by them, and that vested these trustees with such power and authority as under section M9 of the Code of Civil Procedure empowered them to maintain this action. They were within the language of that section trustees of an express trust, capable of enforcing the observance of the agreement with the defendant by action for the benefit of themselves and the associates in this manner represented by them. And so it was considered by the court when the preceding action was disposed of by the General Term.

The manifest object of setting forth the proceedings in the action already determined was to establish the fact by way of estoppel against the defendant, that the plaintiffs, as trustees, were authorized to maintain this action. The design and object of the allegations were to support the position that an adjudication to this extent had already been made in favor of the plaintiffs and against the defendant, and in that manner to prevent further litigation of it by the defendant. There certainty appears to be no good reason for depriving the plaintiffs of this advantage, if it has in this manner been obtained by them. Indeed, the court would have no right to divest them of that advantage, for it would be a fact tending to sustain their ability as trustees to prosecute and maintain the action. To strike it out from the complaint would deprive the plaintiffs of a fact existing in their favor and considered by them to be material to the disposition of the controversy; and that the court should not do simply for the purpose of exposing their complaint to the liability of a demurrer. If the effect of the preceding judgment is to adjudicate the ability of the plaintiffs to maintain an action for the enforcement of the agreement made with the defendant, they are entitled to its benefit and to all the aid and assistance which may be secured by it in their favor.

If their right or ability to sue is dependent upon this fact, then, by striking out the allegations presenting it they might be defeated in the action, when, according to the existing circumstances, they would be entitled to maintain it; and there is no good reason for placing them in that position. If, under the agreement or by virtue of the preceding adjudication, or both together, they have obtained the authority to prosecute the defendant for the payment of these installments, they are entitled to the benefit of both so far as they will contribute to the maintenance of the action. Facts which contribute to the right of the plaintiffs to maintain their action are in no possible sense either irrelevant or redundant; but they are pertinent to the case, and there is no more authority for striking out such facts in one case than there would be in any other. If these allegations could be stricken out to expose this complaint to a demurrer, then material averments might just as well be stricken out in other cases to afford the defendant the opportunity to demur. That practice would be literally trifling with the administration of the law, opposed not only to its spirit but also to its language.

The application was rightly denied and the order should be affirmed, with ten dollars costs and the disbursements attending the appeal.

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

Order affirmed, with ten dollars costs and the disbursements attending the appeal.


author: Learned, P. J.

text:
    Stephen Van Rensselaer, Respondent, v. John J. Shafer, Appellant
   Order reversed, with ten dollars costs and printing disbursements and motion denied. Opinion by

Learned, P. J.


author: Learned, P. J.;

text:
    The People of the State of New York ex rel. The Delaware and Hudson Canal Company, Respondent, v. John Ganley and others, Assessors, Appellants.
   Order affirmed, with costsand disbursements against appellants personally. Opinion by

Learned, P. J.;

Fish, J., taking no part.


author: Landon, J.

text:
    Jonathan A. Betts, Appellant, v. The Village of Gloversville, Respondent.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Landon, j.

text:
    Ann Keane, Respondent, v. The Village of Waterford, Appellant
   Judgment and order affirmed, with costs. Opinion by

Landon, j.


author: Landon J,;

text:
    John J. Olcott and others, Respondents, v. John Erwin and others, Appellants.
   Judgment affirmed, with costs Opinion by

Landon J,;

Learned, P. J., takes no part.


text:
    Catharine Diefendorf, Appellant, v. Mariah Diefendorf and others, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.;

Fish, J., taking no part.


author: Landon, J., and Learned, P. J.

text:
    John Rousseau, Administrator, etc., Appellant, v. Jennie Bleau and others, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Opinions by

Landon, J., and Learned, P. J.


author: Landon, J.;

text:
    Cornelius Fonda, Appellant, v. Edward N. Lape and others, Respondents.
   J udgment reversed, new trial granted, costs to abide event. Opinion by

Landon, J.;

Fish, J„ taking no part.


author: Learned, P. J.,

text:
    Henry L. Gladding, Appellant, v. Alice S. Gladding, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.,

and by Fish, J., dissenting.


text:
    In Matter of Estate, Appellant, of Lewis Depuy, Respondent.
   Motion for reargument and for •leave to go to Court of Appeals, denied.


text:
    Maggie Tyriell v. James York.
   —Motion to dismiss appeal. Motion denied. (No opinion written.)


text:
    Matter of City of Amsterdam.
   Order amended. 1. By affirming appraisement of damages. 2. By stating that the reversal of that part of the Special Term order which sent the matter back to commissioners, was made on the ground that the statute in question did not provide for notice to the parties to be assessed, and was therefore illegal.


text:
    Marvin Lane, Respondent, v. The Town of Hancock, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.;

Mayham, J., not acting.


text:
    In Matter of Estate, Appellant, of Lewis Depuy, Respondent
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by *

Learned, P. J.


text:
    Alexander C. Morrison, Receiver, Appellant, v. Edward J Maxwell and others, Respondents.
   Cause stricken from calendar, with ten dollars costs. (No opinion written.)


text:
    Catharine E. Deerman, Respondent, v. Gardine Smith, Appellant.
   —Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Amos Potter, Respondent, v. Abram F. Gates, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    John Campbell and others, Appellants v. William D. Perry, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Bernard Kelly, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.;

Mayham, J., not acting.


text:
    The People of the State of New York ex rel. Albany Land Improvement, etc., Company, v. Edward A. Maher and others.
   Determination affirmed, with fifty dollars costs and disbursements. Opinion tiy

Landon, J.


text:
    John Jarrard v. Randell M. Bissell and Nathan Lapham.
   Motion to go to the Court of Appeals denied.


text:
    The People of the State of New York ex rel. Libbie E. Healey, Appellant, v. Commissioner of Excise, Respondent.
   Disbursements allowed on settlement of orders. (No opinion written.)


text:
    Alice Grace, Respondent, v. Archibald W. Gilchrist, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    John Avery, Appellant, v. Manly B. Mattice, Respondent.
   Judgment affirmed, with cost?. Opinion by

Landon, J.


text:
    James Thompson v. Clarence R. B. Fuller.
   Motion to modify order denied. (No opinion written.)


text:
    Matter of Application of John McCall, Respondent, v. The Village of Saratoga Springs, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Landon, J.


text:
    William L. Finger, Respondent, v. The City of Kingston, Appellant.
   Order refusing to strike out parts of complaint affirmed, with ten dollars costs and printing disbursements. Order granting injunction reversed, with ten dollars costs and printing disbursements, and motion for injunction denied, with ten dollars costs. Opinion by

Landon, J.;

Mayham, J., not acting.


text:
    Matter of Dissolution of The Brunswick Manufacturing Company, Mortgagees, Appellants, Receiver, Respondent.
   Order modified by striking out the words “directed” and by requiring undertaking of $1,000 to secure costs. (No opinion written.)


text:
    Elmer J. Albert, Respondent, v. Elnathan Sweet and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Learned, P. J.


text:
    Harriet H. Vilas, Administratrix, Appellant, v. Peter Butler and others, Respondents
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Stacia Cullen, Administratrix, Respondent, v. Frederick O. Norton, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


author: Fish, J.

text:
    John Gibbons, Respondent, v. Edward P. Van Alstyne, Appellant.
   Judgment of County Court affirmed, with coBts. Opinion by

Fish, J.


author: Van Brunt, P. J.

text:
    Christopher B. Keogh and others, Plaintiffs, v. Ferdinand R. Minrath, Defendants, Impleaded, etc.
   Exceptions overruled and judgment ordered upon the dismissal of the complaint for. (he defendant, with costs. Opinion by

Van Brunt, P. J.


text:
    Gustav Amberg, Appellant, v. William Kramer, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    In the Matter of John R. Graham, Deceased.
   Decree affirmed, with costs against the appellants in favor of both respondents. Opinion by

Van Brunt, P. J.


text:
    John Bannen, Respondent, v. Annie L. McCahill, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


author: Barrett, J.

text:
    George Hoepfner and others, Appellants, v. August L. Sevestre, Respondent.
   Judgment reversed and new trial ordered, with costs to the appellants to abide the event. Opinion by

Barrett, J.


text:
    George Hoepfner and others, Appellants, v. August L. Sevestre, Respondent.
   Appeal dismissed, without costs. Opinion by

Barrett, J.


author: Bartlett, J,

text:
    Sarah Frances Blake, Respondent, v. Alfred C. Barnes and others, Appellants.
   Order reversed with ten dollars costs and disbursements and motion granted; but with leave to the plaintiff, on payment of such costs and disbursements, to amend the complaint if she so desires, so as io omit therefrom all matters except such as are relevant to a single cause of action. Opinion by

Bartlett, J,


text:
    Frank B. Stearns, Appellant, v. St. Louis and San Francisco Railway Company, Respondent.
   Judgment affirmed, with costs. Opinion Per Curiam.


text:
    Philo L. Mills and others, Plaintiffs, v. J. Forster Parkhurst as Assignee, etc., Defendant.
   Judgment modified as directed in opinion, and as modified affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    John C. Freeman as Receiver, etc., Appellant, v. Hugh J. Grant, Sheriff, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Henry Harbeck, Respondent, v. Sarah K. Pupin and others, Appellants.
   Motion granted.


text:
    Blanche L. Andrews, Plaintiff, v. William C. Brewster and others, Executors, etc., Defendants.
   Exceptions sustained anda new trial ordered, with costs to the defendant to abide event. Opinion by

Van Brunt, P. J.


text:
    Frederick H. Smith, Jr , Appellant, v. Francis W. Savin and others, Respondents.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    Charles A. Post, Respondent, v. William A. Simmons and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Stephen M. Chester, Plaintiff, v. Francois Henry Jumel and others, Defendants,
   Order affirmed, with ten dollars costs and disburse-, menls. Opinion by

Daniels, J.


author: Brady, J.

text:
    Augusta C. Genet, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment reversed, with • costs. Opinion by

Brady, J.


text:
    William L. Stow, Respondent, v. Martin A. B. Stacey, Appellant.
   Order reversed and the motion to vacate the attachment granted, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Christopher Clark v. Stephen B. French and others, Commissioners, etc.
   Writ dismissed, with costs. Opinion by

Van Brunt, P. J.

Dissenting opinion by Bra*dy, J. .


text:
    Erastus H. Barnes, Respondent, v. Walter P. Denslow and others, Appellants.
   Judgment, as modified by opinion affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    William A. Copp, Appellant, v. Harry B. Hollins and others, Respondents.
   Judgment and orders affirmed, with costs. Opinion by

Barrett, J.


author: Van Brunt, P. J,

text:
    Michael J. Collins, Respondent, v. Thomas Manning, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion by

Van Brunt, P. J,


author: Bartlett, J.

text:
    Mary L. Butterfield v. James Gordon Bennett, John Townshend, Appellant.
   Order affirmed, with disbursements to the respondents, with leave to apply upon payment of such disbursements for a rehearing of the motion upon the new affidavits filed upon motion for resettlement and upon such other proof as he may be advised. Opinion by

Bartlett, J.


text:
    Henry S. Akersloot, Respondent, v. The Second Avenue Railway Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Jose A. del Valle. Respondent, v. Jose E. Navarro, Appellant
   Motion granted, with costs.


text:
    Anne E. Pollock v. William Briggs.
   Motion granted, with costs.


author: Barrett. J.

text:
    Watson A. Fox, Appellant, v. Livingston Satterlee and others, Respondents
   Judgment modified by striking out the words “ on the merits,” and, as modified, affirmed, without costs. Opinion by

Barrett. J.