text:
    WALLACE & SON, Respondents, v. FREDERICK WALSH and Others, Appellants.

      Failwe to home an annual r&port of a corporation signed by a majority of the whole number of trustees mentioned in the certificate of incorporation, although it is signed by a majority of the whole number actually holding that office — 1818, chop. 10, sec. 12.
    In an action, brought to recover from the trustees of a corporation, created under the general manufacturing act, an indebtedness of such corporation, upon the ground that it had not made the annual report required by section 12 of chapter 40 of the Laws of 1848, as amended by chapter 510 of the Laws of 1875, it appeared that, in the certificate of incorporation of the company, the number of trustees was fixed at twelve; that some time prior to the signing of the report in question, by reason of vacancies and resignations, the number of trustees had been reduced to nine, and that at subsequent elections for trustees only nine trustees had been elected; that the report for the year in question had been made, in ' form, to conform to the statute and was signed by six of the trustees of the corporation.

      Held, that as, in point of fact, there were actually in existence only nine trustees at the time when the said report was made, that said report had been signed by a “majority of trustees "of the corporation, and that it was a sufficient compliance with the provisions of the statute, and the trustees were not liable in this action.

      Appeal from a judgment in favor of the plaintiff, entered in Onondaga county upon a decision made at a Special Term held in that county in November, 1888.
    Plaintiff is a foreign corporation existing under the laws of the State of Connecticut. In February, 1883, a corporation was organized in the city of Syracuse, N. Y., under the provisions of the act of the legislature, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” passed February 17,1848, and the acts amending the same, under the name of the “Wolfe Stove Manufacturing Company.” Its principal place of business was the city of Syracuse. In March, 1885, the name of the corporation was changed to “ Syracuse Stove Company ” by an order made at a Special Term of the Supreme Court held inOnondaga county. In the certificate of incorporation filed, the number of trustees mentioned who should manage the affairs of the company for the first year was fixed at twelve. The number was not reduced, in accordance with the terms of chapter 269 of the Laws of 1860, or the amendment thereof passed in 1878. From and after the 1st day of January, 1887, and until the 26th day of June, 1888, the date of the commencement of this action, the defendants were trustees of the Syracuse Stove Company. In the months of March and April, 1888, the Syracuse Stove Company made its five several promissory notes, in all amounting to the sum of $2,591.43, and delivered the same to the plaintiff. It appears that the notes were given for goods sold by the plaintiffs in the fall of 1887.
    There was found by the trial court, from the evidence, the following facts: “Between January 1st and January 20th, in each of the years 1886, 1887 and 1888, said Syracuse Stove Company made, filed in the Onondaga county clerk’s office, and published in a newspaper published at Syracuse, N. Y., a report or statement in writing, purporting to be the annual report of said corporation, made pursuant to the provisions of section 12, chapter 40, Laws of 1848, as amended by chapter 510, Laws of 1875, which said statement or report made in 1888 was in words and figures as follows:

      “ANNUAL EEPOET OE SYEAOUSE STOYE COMPANY.
    “ STATE OF NEW YOEK, Onondaga County,
    “ We, J. Emery Eaton, L. E. Marquisse, F. O. Alsop, F. A. Hale, Charles E. Alsop, David Stevens, trustees of the Syracuse Stove Company, and a majority thereof, and the said J. Emery Eaton, being president of said company., do hereby certify and report:
    “That the capital stock of said company is $100,000. That of the said capital stock, sixty thousand five hundred dollars thereof has been paid in in cash, and thirty-nine thousand and five hundred dollars thereof has been issued in payment for property necessary for the company’s business. That the existing debts of said company do not exceed seventy-nine thousand dollars.
    “ Witness our hands the 18th day of January, 1888.
    “ J. EMEEY EATON,
    “ President.

    “L. E. MAEQUISSE,
    “F. O. ALSOP,
    “ DAYID STEYENS,
    “F. A. HALE,
    “ CHAELES E. ALSOP,
    “ Trustees.

    « STATE OF NEW YOEK, Onondaga County,
    “ J. Emery Eaton being duly sworn, says that he is president of the Syracuse Stove Company aforesaid, and that the foregoing annual report is true to the best of his knowledge, information and belief.
    “J. EMEEY EATON.
    “ Sworn to before me, this ISth) day of January, 1888. )
    “Samuel E. Stearn,
    “ Notary Public, Onondaga Ooumtnj, JV. 7.

    “Indorsed: Filed January 18th, 1888.
    “ (A report bearing date the 15th day of January, 1886, and a report bearing date the 19th day of January, 1887, of like character, was made and filed and published in the respective years mentioned in a newspaper published in the city of Syracuse).”
    It was also found by the trial court that “ Each of said reports was signed and verified by the president of said Syracuse Stove Company, or of its board of trustees, and was also signed by four or five other trustees of said company; each of said reports contained all the statements, and was, in form and substance, as required by section 12, chapter 40, Laws of 1848, as amended by chapter 510, Laws of 1875, and the trustees so signing each of said reports were a majority of the elected and acting trustees of said Syracuse Stove Company at that time.”
    It was also found by the trial court that “ The trustees of said Syracuse Stove Company, in making, filing and publishing the annual report aforesaid, intended, honestly and in good faith, to comply with the provisions of section 12, chapter 40, Laws of 1848, as amended, and there was no intent or design on their part to evade the provisions of said section, or to make any untrue or incorrect statement as to the financial condition and affairs of said corporation, or to deceive or mislead any of its creditors, or other persons having dealings with said corporation, in any particular whatever, but said Syracuse Stove Company and its trustees, in making said reports, endeavored, honestly and in good faith, to correctly state and make public all the information as to the financial affairs and condition of said company, which the statute requires to be stated and published.”
    The trial court refused to find that “ The reports made, filed and published by said Syracuse Stove Company, as hereinbefore found, were, in form and substance, as required by section 12, chapter 40, Laws of 1848, as amended, and were signed and verified by the president of said corporation, and were signed by a majority of the trustees of said corporation within the meaning of the provisions of section 12.” The defendants took an exception to that refusal. The trial court also refused to find that the plaintiff has “ failed to establish a cause of action against the defendants herein, or either of them, and its complaint should be dismissed, with costs.” There was an exception to such refusal. There was a motion by the defendants for a nonsuit, which was refused, and an exception was taken.
    Several of the trustees having resigned, the directors concluded to reduce the number to nine, and to elect only nine trustees, and in January, 1886, and in January, 1887, and in January, 1888, only nine trustees were elected by tbe stockholders of the said company, and during those years the company, in fact, had but nine trustees, who constituted the board of trustees during such years.

      Smith, Kellogg db Wells, for the appellant Stevens.

      Knapp, Wotbmgham db Andrews, for the appellants Welch, Lane and McCarthy.

      Ide db Hubbard, for the appellants Alsops, Eaton, Hale and Marquisse.

      Ilasti/ngs db Gleason, for the respondent.
   Hardin, P. J.:

Plaintiff is not a creditor of the defendants. It seeks to enforce a liability imposed upon trustees of a manufacturing corporation in virtue of section 12 of the manufacturing act. As the provisions of the statute are penal in their nature they must receive a strict construction. (The Whitney Arms Co. v. Barlow et al., 63 N. Y., 63.)

As was said in Bruce v. Platt et al. (80 N. Y. 381): The statute in question (Laws of 1848, chap. 40, § 12) is penal, and not to be extended by construction; that in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but that every fact necessary to establish their liability must be affirmatively proved. (Garrison v. Howe, 17 N. Y., 458; Miller v. White, 50 id., 137; Whitney Arms Co. v. Barlow, 63 id., 62.)” The same principle was recognized in Blake v. Griswold (104 N. Y. 617), where the court remarks: “ The right and liabilities of parties under the penal provisions of the Manufacturing Act are not only regulated by special provisions of law, but are wholly created by such special provisions, and have no existence outside of the exceptional and peculiar authority and regulation of the statute.” It has been repeatedly held that the object of the provision requiring reports to be made,. in so far as it “ relates to creditors or persons dealing with the corporation, appears to have been to give such notoriety of the pecuniary condition of the company, through the publication of its annual statements, as to deprive it of credit if it should be unworthy of it.” (Shaler & Hall Quarry Co. v. Bliss, 27 N. Y., 297.) To the same effect is Garrison v. Howe (17 N. Y., 466); and in announcing tliat doctrine, as well as in considering the general features of the case then in hand, Judge Denio observes: “ But the provision is highly penal, and the rules of law do not permit us to extend it by construction to cases not fairly within the language.” (Merchants' Bank v. Bliss, 35 N. Y., 412; Wiles et al. v. Suydam 64 id., 173.)

Chapter 316 of the Laws of 1878, amending chapter 269 of the Laws of 1860, prescribes a mode for increasing the number of trustees to not more than thirteen, and for reducing the number to not less than three, in permissive language. The mode there prescribed, in effect, is that existing trustees of any corporation, or a majority of them, shall make and sign a certificate declaring how many trustees of the corporation shall have the future management of its business. Said certificate shall be acknowledged by the trustees, signing the same and filed in the office of the clerk where the original certificate was filed and a duplicate in the office of the secretary of State. And this act also provides that if the number shall be reduced “ the number stated in such certificate * * * shall be deemed the number of trustees of such corporation to be elected according to said act,” and who shall have the management and regulation of such corporation until the next election. It is to be observed that the section does not, in terms, forbid any other mode of reduction of the number of trustees. It is well understood that a corporation may cease to exist by abandonment or by non-user. Here we have a case that indicates that the trustees and stockholders voluntarily abandoned the number of trustees prescribed in the original certificate. Yacancies had been brought about by resignations and the number reduced to nine, and the stockholders in 1886, 1887 and 1888, accepted the situation and ouly elected nine trustees, so that, in point of fact, there were actually in existence only nine trustees. And it is literally true that the trustees who managed the said corporation’s affairs in office in 1886, 1887 and 1888 were limited to nine, in virtue of the action of the board of trustees, and in virtue of the action and acquiescence of the stockholders. And when we take up section 12 of the manufacturing act, which requires a “majority of the trustees” to make, sign and publish a report, we find that the reports in question corresponded with the physical fact, to wit, that six were a majority of the existing nine trustees, there being no other trustees then in office constituting the board of management' of the corporation in question. Nine persons were de facto the trustees. The majority of that number, in each of the years already referred to, signed the report in question. The trustees exercised the power conferred upon them to reduce the number who should manange the affairs, but they omitted to certify and file the evidence of such action in the public offices.

We have given attention to the case of Moore v. Rector, etc. (4 Abb. N. C., 51), cited in the opinion of the learned judge at Special Term. That was a case involving the validity of a bond and mortgage given by a religious corporation organized under chapter 60 of the Laws of 1813. That statute provided, in terms, that unless the rector, if there was one, and at least one of the church wardens and a majority of the vestrymen should be present, there should be no quorum for the transaction of business. And it was there held that a lesser number could not exercise tiie statutory powers of the corporation. We do not regard that. case as satisfactorily supporting the conclusion reached at the Special Term. It has been held that the statute requiring the report to be made, signed, filed and published within twenty days from the first of January is directory, and the publication thereafter will avoid the penalty. Here we have a case where the object of the statute, to wit, the giving of proper information to the public of the financial condition of the company, seems to have been attained. And we have a case where a majority of the trustees having charge and control of the. affairs of the company, a majority of the trustees in office, a majority of the number of trustees assented to by the board of trustees year after year, and also assented to by the stockholders year after year’, signed, filed and published the reports of the financial condition of the company. Apparently there was a substantial compliance with the requirements of the statute. Under these circumstances, we are not inclined to impose the penalty prescribed by the statute, which declares a joint and several liability ” upon the trustees, as they have, in good faith, made and published reports, unless the ultimate court shall so hold. These views lead us to differ with the Special Term in the conclusion reached upon the facts appearing in the appeal book.

Judgment reversed and a new trial ordered, with costs to'abide the event.

Mebwjn, J., concurred ; Martin, J., not voting.

Judgment reversed and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES R. DICKSON, Appellant, v. HARPER GAYLORD and Others, as Assessors; S. DAVIS HUBBARD, Town Clerk of the Town of Harpersfield, Delaware County, Respondents.

      Taxation of a fa/rm divided by a town line.

    Where the owner of a farm, a portion of which is situated in each of two adjoining towns (there being no resident upon the farm in question), resides with his father ‘ upon an adjacent farm owned by the latter, and wholly situated within one of such towns, and works both farms jointly with his father, the farm divided by the town line is, all of it, properly assessed in the town in which the owner thereof resides.
    Appeal from a judgment in favor of the defendants, entered in the office of the clerk of the county of Delaware on the 20th day of December, 1888, dismissing a writ of oerbiora/ri to review the assessment made upon the real estate of the relator, with costs. The appellant intending to bring up for review “ the judgment, decision of the court and findings upon which the same was rendered, and the exceptions to said decision and findings, and the exceptions to the refusals of the court to find as requested by plaintiff, and all the questions of law raised by said exceptions and judgment, and the questions of fact as well as of law.”
    The relator prepared a petition in which he alleged that in the year 1888, by the assessors of the town of Harpersfield, he was erroneously and illegally assessed upon a farm of 200 acres for the year 1888, and in his petition claimed that “ the whole of said farm is unoccupied, and the said first two parcels, consisting of one hundred and twenty-five acres of land, are legally assessable in the town of Kortright, and not in the town of Harpersfield, and are so assessed in said, town of Kortright, the present year, to your petitioner. And petitioner is the owner of but seventy-five acres of land legally assessable in said town of Harpersfield, or situated therein.”
    Hpon the petition a wilt of oertiora/ri was issued, to which the defendants filed a return traversing certain matters contained in the petition, and alleging the validity of the action of the assessors of the town of Harpersfield, in 1888, in having assessed the 200 acres of land to the relator. This return was filed in Delaware comity clerk’s office October 3, 1888. Hpon presenting the petition and writ and return thereto to a Special Term in Tioga county, in October, 1888, a reference was had to take “ evidence upon the several matters in issue, and particularly concerning the occupancy of the farm" and premises of the relator’s real estate,' and the situation thereof, and who, if anyone, resides thereon, and all the facts concerning the occupation thereof by any person, and concerning the use thereof.” "x" "x" *
    Hpon the hearing before the referee several witnesses were sworn and much evidence taken in respect to the issues, which was reported to a Special Term held in Tompkins county in December, 1888, and after hearing counsel for respective parties, the court found “ that the relator is, and since about June, 1887, and during the year 1888, has been the sole owner of the farm described in the relator’s petition herein-; and that 125 acres of said farm is situated in the town of Kortright, and 75 acres of the same is situated in the town of Harpersfield, Delaware county, N. Y. That the relator is an unmarried man, living with his father, David P. Dixon, upon a farm wholly situated within the town of Hai’persfield, and adjoining that portion of the relator’s farm situated in the town of Harpersfield. That in the year 1888 these defendants assessed the said property in the town of Harpersfield as occupied land, the occupant or owner thereof residing in the said town of Harpersfield. That during the years 1887 and 1888 the said farm has been under the joint occupancy of the relator and his father, David P. Dixon, and has been occupied land within the meaning of the statute regulating the assessment of lands divided by a town line. I find, as conclusion of law, that the land is properly assessed in the town of Harpersfield.” Thereupon .the Special Term directed a judgment dismissing the relator’s petition, with costs to be taxed as in an action.

      O. L. Andrus, for appellant.

      F. AT. Gilbert, for respondents.
   Hardin, P. J.:

Chapter 315 of the Laws of 1886 amended the Revised Statutes and provided as follows:

“ Section 4. When the line between two towns, wards or counties divides a farm or lot, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie.”
“ § 2. All acts or parts of acts inconsistent with this act are hereby repealed.”

By virtue of the provisions of the law just quoted the relator was properly assessed in the town of Harpersfield in the year 1888, if the farm of 200 acres in question was an occupied farm or lot.” It was conceded upon the hearing, and established by evidence, that the relator resided in the town of Harpersfield. It was also manifest upon the evidence that the line between the towns of Harpersfield and Kortright divided the farm in question. There was no person residing upon the farm in the year 1888. For many years prior to 1888 David P. Dixon, the father of the relator, had owned the farm of 200 acres and resided thereon. The house was “ an old one.” In the spring of 1887 the father, David P. Dixon, purchased a farm consisting of 298 acres, adjoining the 200 acres in question, in the town of Harpersfield, upon which 298 acres was a much better house than the one on the 200 acres, and he moved himself and his family, consisting of his wife, the relator and another son named Fred, into the house in Harpersfield. The relator was about twenty-three years of age, unmarried, and having always had his home with his father, continued to reside with him after his father moved upon the 298 acres. It appears, in the evidence, that the town of Harpersfield has a bonded indebtedness of about $30,000 ; it also appears that the town of Kortright has no bonded indebtedness. A controversy arose in 1887 in respect to which town the farm of 200 acres should be assessed in, and on the sixth of June of that year the father executed a conveyance of the 200 acres to the son, rather as a gift, no money having passed. In 1888, when the assessors were engaged in making up the list for their i-oll. they had an interview with David P. Dixon in respect to the assessment of the farm, and he insisted that it should be assessed 125 acres in the town of Kortright, and seventy-five acres only in Iiarpersfield. The assessors differed with him, and placed the farm of 200 acres upon the roll, extending the same against the name of the relator. The 200 acres are inclosed with a substantial fence ; the work done upon the farm was with the teams and tools of the father; the ' father’s dairy was kept and pastured on the farm, although milked on his own farm. There were various crops raised on the farm in 1887; hay was cut, and after the buildings on farm were full, the balance of the crop of hay, grain and corn was stored and fed out of the father’s barn near the residence. The team was kept near the residence that did the work upon the 200 acre tract; the hay was drawn to the home farm when needed for fodder; the father and the son worked on the 200 acre farm in digging potatoes and doing the haying with the tools belonging partly to the father and partly to the son, and some of them were stored on the 200 acre parcel; the manner of managing the 200 acre farm apparently was like that which obtained in the management of the 298 acres; the cows were pastured on the 200 acres, passing from one farm to the other; the hay that was cut on the 200 acre farm was fed out to the cattle, and the relator received directions from his father as to the manner of doing the work, and the father paid some of the help which he hired, and the relator paid some of the wages. We think the evidence and circumstances mentioned, together with the things found in the evidence, notwithstanding some conflict in regard thereto, warranted the finding made at the Special Term that the farm was jointly occupied in 1888 by the “ relator and his father David P. Dixon, and has been occupied land within the meaning of the statute regulating the assessment of lands divided by a town line.” "We are not unobservant of the facts and circumstances testified to by the relator and his father David P. Dixon to the contrary of such finding made by the Special Term, but it must be borne in mind that where there was a conflict in the evidence it was for the trial court to determine what credence should be given to the testimony of the relator and his father, who were largely interested in the issue to which their testimony was addressed.

After a careful perusal of the facts, we are of the opinion that the conclusion upon the evidence of the trial court is in accordance with the weight of the evidence, and should be sustained. We are of the opinion, therefore, that under the statute, which we have quoted, the relator was properly assessed by the assessors in the town of Harpersfield. We think the evidence to establish the occupation is quite as satisfactory as that which was given in Smith v. Sanger (3 Barb. 360), where the question of occupation was involved. A like observation may be made in -respect to the facts and conclusion stated in Dorn v. Backer et al. (61 N. Y., 262), which case supports the contention of the respondents. So far as Fellows v. Denniston (23 N. Y., 420) is applicable, it supports the position of the respondents. In Stewart v. Chrysler (100 N. Y., 382), the lands in question were occupied for storage of lumber ; although owned by a non-resident of the State, it was held that they were to be regarded as occupied lands. Hampton v. Hamsher (46 Hun, 144), contains nothing inconsistent with the views already expressed. The controversy arose prior to the passage of the act of 1886 ah’eady quoted; and in referring to section 4 of the Revised Statutes, the judge observes that the lands mentioned “ mean other lands in a town owned by an individual, which he occupies for the purpose of cultivation or improvement either in person or by his servant or agent, but upon which he does not live.” The history of the provisions of the act of 1886 are referred to at page 111 of the “ System of Taxation,” edited by Mr. Davies, and is very clearly presented on page 111 of that excellent work. The appellant takes exception to the findings of the trial judge, but as there was some'evidence to sustain the findings, the exceptions to the same are unavailable. (Porter v. Smith et al., 7 Civ. Pro. Rep., 195.) The appellant proposed several requests for the trial judge to find certain facts -mentioned in the requests, but we are of the opinion that as there was a conflict in the evidence in respect to the facts mentioned in the requests, the refusal to find them does not furnish a basis for a reversal of the judgment. We have looked at the other exceptions urged in the argument of the learned counsel for the appellant, and we are of the opinion they furnish no ground for a reversal of the judgment, and are sufficiently answered by the views already expressed, and we are of the opinion that the judgment ought to be sustained.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    JOSEPH H. WILCOX and WARNER MILLER, Respondents, v. HARRIET PRATT, Appellant.

      Partnership — exclusion of one party from connection with a joint undertaking — equitable relief— receiver — effect of a transfer, by the party excluded, of peart of his interest.

    The defendant in this action, owning a large tract of land, entered into a contract with the plaintiff Wilcox with a view to cutting the timber thereon and making sales thereof, by the terms of which the plaintiff was to advance $5,000 and the defendant $20,000, all expenses of cutting, removing and selling the timber, together "with all moneys advanced, were to be repaid from the proceeds of sales, and as soon as said sums were paid, together with the further sum of $26,000 and interest to be paid to the defendant, it was agreed that the defendant should convey to the plaintiff an undivided half of the tract of land.
    The parties entered upon the execution of the business contemplated by their contract, and carried it on until January, 1888, when the defendant served upon the plaintiff a notice that the copartnership was dissolved and the business would thereafter be carried on by the defendant; and the defendant thereafter excluded the plaintiff from all connection with or control over said property or business. At this time about one-half of the timber growing on the land had been cut off and the remainder was still standing thereon.
    In an action, brought by the plaintiff to obtain equitable relief in the premises:

      Held, that whether the agreement created a partnership or simply a joint enterprise, that a proper case was made for the appointment of a receiver.
    That the fact that the plaintiff had transferred a part of his interest to a third party, and had pledged the other part thereof to such party by way of collateral security, did not justify the defendant in excluding the plaintiff from all connection with or control over said property and business.
    Appeal by the defendant from a judgment entered in the Lewis county clerk’s office June 12, 1888, upon a decision made at Special .Term, held April 26, 1888, in that couixty.

      Walter Ballou, for the appellant.

      G. D. Adams, for the respondents.
   Hardin, P. J.:

Hpon the evidence produced before the trial court it is very evident that the case was one for equitable cognizance. (Whiton v. Sprung, 74 N. Y., 169.)

Defendant, owning 15,225 acres of land in the county of Herkimer, entered into a contract with the plaintiff Wilcox for the purpose of cutting the timber thereon and making sales, with a mutual agreement that the respective parties should contribute money and carry forward the contemplated enterprise with the respective sums of money mentioned in the contract. Wilcox was to advance $5,000, and the defendant was to advance $20,000 in money or credit for the purpose of carrying on said business. It was provided in the contract, viz.: “ That all expenses incurred in cutting, removing, selling and disposing of such timber, bark and spars and spiles, together with interest on all moneys received as advances, and all indebtedness incurred, connected with or growing out of said business, including all taxes assessed or which may hereafter be assessed thereon, shall be paid in full from the pioceeds of such sales; and as soon as said several sums shall be paid in full, together with the sum of $26,000, with interest thereon from the date hereof, from the proceeds of such sales as aforesaid, shall be paid to the said Harriet Pratt, then, and in that case, said Harriet Pratt agrees to convey to Joseph IT. Wilcox, by good and sufficient deed, an undivided onelialf part of said tract of land.”

The plaintiff Wilcox and the defendant entered upon the execution of the business contemplated by their agreement and carried it forward until, in January, 1888, the plaintiff giving “his services and attention to the detail thereof, and it was so conducted and carried on by the parties jointly.” On the twelfth of January the defendant sei’ved upon Wilcox a notice “ that the copartnership heretofore existing between Harriet Pratt and Joseph H. Wilcox has been dissolved, and the business hereafter will be carried on by her.”

It is found, as a fact, that the defendant “ has had the exclusive possession and control of all the personal property and assets of sai'd firm of Pratt & Wilcox, down to the commencement of this action, * * * and lias excluded the plaintiff from all connection witli or control over said partnership property or business, and absolutely refused to allow him to participate in said business or. in conducting and carrying on the same in any manner whatever.”

It appears that about one-half of the timber growing on the lands at the time’the contract was entered into has been cut off, and the remainder is standing thereon. We are of the opinion that the conduct of the defendant warranted the plaintiff in seeking relief from a court of equity, and we think the language used by Huger, Oh. J., in King v. Barnes (109 N. Y., 285), is pertinent to the case in hand. He said: “ It is entirely immaterial whether this agreement constituted a partnership in a technical legal sense, or whether it was a joint enterprise to be conducted by the parties for their mutual benefit. So far as their rights and liabilities are concerned in this case, the result is the same, and rests upon the express terms of the agreement, and they are now to be enforced upon the principles applying to partnership transactions. (Dyckman, v. Valiente, 42 N. Y., 285.)”

We think a. proper case was made for the appointment of a receiver, and the proper directions were given to him in the premises. (Heatherton v. Hastings, 5 Hun, 460.)

In Hubbell v. Buhler (43 Hun, 84) it was said that where there was an agreement for a joint adventure, “ it must necessarily be implied that the understanding was that the partnership, or joint adventure, was not determinable at the will of any one of the partners, but that it was to continue until the single enterprise undertaken should be concluded ” That case differs very essentially from the one before us.

We are of the opinion that the transfer by Wilcox of a part of his interest to the plaintiff Miller, and the pledging of the other part thereof to him as collateral security, did not warrant the defendant in excluding the plaintiff Wilcox “ from all connection with or control over said partnership property or business,” as found in the fourteenth finding of the trial court. In partnership eases a disagreement among partners has often been the occasion for the appointment of a receiver with directions to carry on the business, or to close it out according to the best interests of the parties concerned. (Marten v. Van Schaick, 4 Paige, 479; Jackson v. De Forest, 14 How. Pr., 81; Smith v. N. Y. Consolidated Stage Co., 18 Abb., 433.)

"We are of tlie opinion that the facts appearing upon tbe trial warranted tbe exercise of tbe judicial discretion of the court in the direction which it took in awarding the costs of the action to the plaintiffs.

The judgment should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


text:
    JOHN THOMAS and VAN BUREN THOMAS, Respondents, v. MILO SCUTT, Appellant.

      Bill of sale — when.it constitutes a contract, which cannot he varied hy parol evidence tending to show it to he a mortgage. '
    Where the owner of chattels, to secure an indebtedness owing by him, has executed to his creditor a mortgage thereon, and subsequently gives to such creditor a bill of sale thereof, in which latter instrument are apt and absolute words of conveyance, and by which a definite consideration is agreed to be paid for the property mentioned therein (the respective prices for each of several classes of property being specified), and it is further provided that the said price shall “apply on the amount due on said chattel mortgage, ” it is not competent for the creditor, who has accepted such bill of sale, to offer parol evidence to prove that prior to, and at the time of drawing the bill of sale the debtor refused to make an absolute disposition of the property, and that such was not the intention of such bill of sale; that the bill of sale was given simply to secure the indebtedness, and that the debtor was to have the full benefit of the proceeds of sale of said lumber when made, after paying his debt and the expenses of marketing it.

      Marsh v. McNair (99 N. Y., 179) followed.
    Such an instrument is more than a mere assignment, it constitutes a contract in writing within the rule which prohibits parol evidence to explain, vary and contradict such contracts.
    Appeal from a judgment in favor of the plaintiffs, entered in the office of the clerk of Delaware county March 9, 1888, upon the report of a referee.
    Action to recover for “ lumber, timber, scantling and boards had and received by the defendant of plaintiffs, sold and delivered, and for which he promised and agreed to pay.” The answer, among other things, sets up “ that all the lumber had by the defendant of the plaintiffs was had under and by virtue of an agreement which the plaintiffs had failed to fulfill on their part, and that by virtue of the terms of the agreement the defendant is not liable to account for the same.” Certain counter-claims are also set up. Plaintiffs are lumbermen residing in the town of Hancock. Defendant is a store-keeper residing in the same town. In the spring of 1884 the plaintiffs were the owners of a raft of lumber, called the Peas Eddy raft, then in their possession and lying in the town of Hancock. The defendant took and disposed of it, and the plaintiffs have had a recovery for the value thereof, less twenty-three dollars and ninety-one cents, the balance of an account found to be due the defendant from the plaintiff.
    Much evidence was taken upon the trial, in respect to the items of dealing between the parties, extending over a series of ■ years. March 29, 1883, the plaintiffs owed the defendant about $1,303.13, and for the purpose of securing that amount, and certain advances to be made by the defendant, prior to the 1st of May, 1883, the plaintiffs executed a chattel mortgage to the defendant upon a large quantity of lumber in the sum of $1,600. Hpon June 11, 1883, the plaintiffs executed and delivered to the defendant a bill of sale, which was attached to a copy of the chattel mortgage, which is in the following language: “ For the consideration hereinafter named, we hereby sell, assign,, transfer and deliver to Milo Scutt, one raft of hemlock toggle timber, and loading thereon, now lying at Equinunk Eddy, just below the rock, in Buckingham township, Pa., the said lumber being covered by a chattel mortgage, of which the mortgage hereto attached is a copy, viz.:
    “4,000 feet of cherry boards, at $12.................. $48 00
    “ 35,000 maple plank, about, at $10 .................. 350 00
    “ 11,000 feet of toggle timber, at 3c................... 330 00
    $728 00
    “ The same to apply on the amount due on said chattel mortgage, and if any mistake in amount of lumber, same to be corrected.
    “Dated Jume 11, 1883.
    “JOHN THOMAS,
    “ For John and Yan Burén Thomas.”

      On June 18, 1883, the plaintiffs paid to the defendant the sum of $865,52, which paid up the chattel mortgage debt, if the sum of $728 named in the bill of sale be applied thereon. July fifth a charge was made against the plaintiffs by the defendant for twenty-three dollars and ninety-one cents, when the dealings between the parties ceased. The defendant claimed, however, a balance due him, and by reason thereof took possession of the Peas Eddy raft of lumber The plaintiffs insisted they were not indebted to defendant, and on different occasions, in the spring of 1884, they sought a settlement with the defendant and offered to pay any balance, but such settlement was not had, and defendant took possession of the property owned by the plaintiffs. Apparently the defendant was not fortunate in handling the property covered by the bill of sale, and after allowing it to remain through the summer months in Philadelphia, he finally sold it for fire-wood, and his position upon the trial was that the plaintiffs, and not he, should sustain the loss.

      II. <& W. J. Welsh, for the appellants.

      J. J3. Gleason and A. Taylor, for the respondent.
   Hardin, P. J.:

After the plaintiffs had given evidence of the cash payments made upon the chattel mortgage and read the bill of sale in evidence, they took the position that the defendant’s chattel mortgage had been paid, and that the defendant had no title to or interest in the lumber mentioned in the complaint; that having taken and converted the same to his use he was indebted to the plaintiffs therefor. To controvert this position the defendant insisted upon the trial that the bill of sale was executed and delivered as a collateral security, or that the same was a conditional sale. The defendant put a witness upon the stand who drew the bill of sale, upon which occasion one of the plaintiffs and the defendant were present. To the witness the defendant propounded the question, viz.: “ State what was said between the parties in reference to the bill of sale ? ” This was objected to on the ground that it was immaterial and improper, and that the writing is the best evidence and cannot be contradicted or avoided by parole. Thereupon the defendant avowed that he “ intends to show that Exhibit B (bill of sale), was given as security only.” Thereupon the objection was sustained and the defendant excepted. Then the defendant proposed “ to prove by this witness that, prior to and at the time of the drawing of the bill of sale, the plaintiffs refused to make an absolute disposition of the lumber; that they were informed that such was not intended, but that the raft was in Pennsylvania, and that the chattel mortgage did not protect defendant against a levy upon or disposition of the lumber by the plaintiffs in that State; that plaintiffs should have the full benefit of the lumber and what it brought on the sale when marketed, after paying the plaintiff’s claim and the expense of running and marketing it; that plaintiffs said they were satisfied with that and would make the bill of sale on this basis, and thereupon did sign the bill of sale.” Plaintiffs stated the same grounds of objection as have been mentioned above, and the objections were sustained and the defendant excepted.

After the defendant had been examined as a witness, and near the close of the evidence in the case, the plaintiffs moved “ to strike out all that part of the evidence of Milo Scutt as to what occurred between him and John Thomas with reference to the bill of sale of June 11,1883, prior to and down to the time of the execution of the bill of sale, on the ground that parol evidence cannot be given to contradict or vary the terms of that instrument.” This motion was objected to by the defendant “ on the ground that the evidence tends to show a conditional sale and is not inconsistent with and does not dispute the bill of sale; that the motion extends to the acts of the parties, and is not limited to what was said.” The motion was granted and the defendant excepted. These two rulings present the principal question involved in the appeal now before us. It was conceded at the trial that the defendant took possession of the property under the bill of sale. That instrument stated the consideration to be $728 for the property mentioned therein, and that the plaintiffs thereby did “sell, assign, transfer and deliver” to the defendant. The words of transfer were absolute ; the price for each class of property was mentioned, and the total price of the property was therein stated to amount to $728. It then contains an agreement between the parties, mutually, as to how the $728 should be paid or credited between the parties. Their contract was in precise words, definite and certain, with no ambiguity. The bill of sale used this language, after a statement of the price of the lumber at $728, viz., “ the same to apply on the amount due on said chattel mortgage.” We, therefore, see, by an inspection of the instrument, that the plaintiffs agreed to sell for $728, and the defendant agreed to buy for that amount, and to apply that amount upon the chattel mortgage which he held against the plaintiffs. By the terms of the instrument the precise consideration upon which the property was transferred is specified, and it is stated that the defendant shall apply that sum upon the chattel mortgage.

We think the language of the court in Marsh v. McNair (99 N. Y., 179), is applicable to the bill of sale. In that case the court said: “ This instrument is more than an assignment. It contains what both parties agreed to do. It shows that the assignment was made for the purposes mentioned, and precisely what Gibson was to do in consideration thereof. He became bound to do precisely what was specified for him to do, and he could have been sued by the assignors for damages if he had failed to perform. Hence the instrument is not a mere assignment or transfer of the policy. It is a contract in writing within the rule which prohibits parol evidence. to explain, vary or contradict such contracts.”

Applying the language laid down in Marsh v. McNair (99 N. Y., 179), we are of the opinion that the rulings made by the referee, rejecting the evidence offered and striking out the evidence that had been received, tending to show that the bill of sale was taken as collateral security, were correct. The writing itself was the highest controlling evidence of the contract between the parties. (Long v. Millerton Iron Company, 101 N. Y., 638; Eighmie v. Taylor, 98 id., 288; Renard v. Sampson, 12 id., 561; Shaw v. Republic Life Insurance Co., 69 id., 286.)

We are of the opinion that the referee committed no error of law in refusing to find that the parties had waived the force and effect of the bill of sale. What credence should be given to the testimony of the defendant as a witness was a question for the referee to pass upon ; besides his testimony upon that subject was largely contradicted by the testimony of the witness Yan Burén Thomas. There was much conflicting evidence given in respect to the property taken by the defendant and its value. After a careful consideration of the evidence on either side of the question that is involved, and after giving the findings of the referee their proper influence, we are of opinion that we ought not to disturb the same by holding that they are unsupported by evidence or contrary to the weight of the evidence.

Judgment affirmed, with costs.

Martin and Merwin, J J’., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, by FRANKLIN H. DEWEY and GEORGE E. EDINGER, as Loan Commissioners, etc., Respondents, v. GEORGE K. BURDICK and ABIGAIL BURDICK, Appellants.

      Writ of assistance — not issued to put in possession a purchaser at a sale under a foreclosure by the United States loan commissioners — Gode of Giiiil Procedure, sea. 2232.
    Section 2232 of'the Code of Civil Procedure, authorizing proceedings to recover tlie possession of land against “ a person who holds over and continues in possession of real property, after notice to quit the same has been given as prescribed in section 2236;” does not apply to a mortgage foreclosure by advertisement, conducted by the commissioners for loaning certain moneys of the United States, pursuant to section 5 of chapter 150 of the Laws of 1837, where the mortgage contains no ‘ ‘ power to the mortgagee, or any other person, to sell the mortgaged property upon default being made in a condition of the mortgage.”
    Such a proceeding is not covered by the provisions of subdivision 2 of section 2232 of the Code of Civil Procedure.

      Semble, that, under the provisions of such statute (chap. 150 of 1837) immediately upon the default of the mortgagor, the mortgage becomes foreclosed by operation of law, and nothing remains in the mortgagor but a special privilege of redemption.
    Appeal from a final order, judgment and decree, entered, in the above entitled action by direction of the county judge of Onondaga county, in tlie office of tbe clerk of said county on tbe 9tb day of January, 1888, whereby it was ordered, adjudged and decreed that the plaintiffs have immediate possession of the premises referred to in said order, and that a warrant be issued to the sheriff of Onondaga county to remove tlie defendants therefrom.

      On the 17th of March, 1879, the defendants executed their certain mortgage, covering real estate therein described, to “ the commissioners for loaning certain money of the United States, of the county of Onondaga,” for the consideration of $1,000, interest payable annually, and the principal sum in 1881. A proceeding for the foreclosure of the mortgage by advertisement was had and the land was bid off by O. E. Billington, as loan commissioner. Notice of foreclosure was given “pursuant to an act authorizing the loan of certain moneys belonging to the United States, passed April 1, 1837.” The notice was dated November 1, 1882, the sale was to take place the first Tuesday in February, 1883. A notice to quit was served. A petition, signed by Franklin H. Dewey and George Fdinger, was prepared and verified on the 25th of November, 1885, and presented to the county judge of Onondaga county, who, on the 26th of January, 1886, issued an order to show cause, returnable on the 29th day of January, 1886, before him. The proceedings-were adjourned to the 20th of February, 1886, when the defendant stated certain objections to the proceedings which were overruled. An answer was filed denying the allegations of the complaint, except that the parties were officers as averred, and setting up that the mortgage was void by reason of an alteration thereof. Evidence was given tending to show that the figures “ 68,” designating a lot number of the premises, were changed to the figures “ 78.” It appeared that the premises were in the town of Olay, and that the metes and bounds covered premises located in lot 78 in said town. On the 9th day of January, 1888, the county judge granted an order wherein it was “ adjudged and decreed that said petitioners, and their successors in office, are entitled to the immediate possession 'of said premises, and that said defendants have no title thereto or right of possession therein, and that a warrant may be issued to the sheriff of the county of Onondaga forthwith commanding him to remove the defendants and all persons from said premises, and to put the said petitioners and their successors in office, as loan commissioners aforesaid, in possession thereof, and plaintiffs are awarded ten dollars and seventy-five cents as costs of this special proceeding.” The defendants appealed from the order and judgment.

      Waters <& MeLermam, for the appellants.

      B. N. Bailey and William Nottingham, for the respondents.
   Hardin, P. J. :

In the petition it is averred that Dewey and Edinger were duly elected loan commissioners in and for the said county of Onondaga, and duly qualified and entered upon their duties as such officers.” They assumed to make the petition as loan commissioners in and for the county of Onondaga.” After describing the premises by metes and bounds, the petition avers in respect thereto, in respect to said premises, viz.: “ Being the same premises conveyed to the commissioners of said fund for Onondaga county by said mortgage.”

Section 5 of chapter 150 of the Laws of 1837 (1 It. S. [7th ed.], 511), provides as follows: “ The commissioners of the several counties to be appointed in pursuance of this act shall, respectively, be known and distinguished by the name and style of £ the commissioners for loaning certain moneys of the United States of the county,’ of which they are respectively commissioners, and they shall be named and dscribed by such name and style in all legal and other proceedings which may be had under the provisions of this act.” From the quotations we have already made from the petition it is obvious that the petitioners were not££ named and described by Such name and style,” as the statute from which we have just quoted requires. The petition was irregular in stating that the commissioners were duly elected, whereas section 2 of the 'act already referred to provides that the governor shall nominate, and with the consent of the senate, shall appoint two reputable inhabitants, etc.

By chapter 337 of the Laws of 1850 “ loan commissioners for the several counties in this' State of the loans of 1792 and 1808 are abolished.” (See title of the act, 1 R. S. [7th ed.], 529, and section 6 id., page 531; Thompson v. The Commissioners, 79 N. Y., 55.)

Section 2232 of the Code of Civil Procedure extends the summary proceedings for the recovery of land to four enumerated cases, and allows such proceedings to be instituted and conducted against “ a person who holds over and continues in possession of real property after notice to quit the same has been given, as prescribed in section 2236.” The respondent seeks to uphold the proceedings in question, and insists that the county judge had jurisdiction in virtue of subdivision 2 of section 2232. That subdivision is as follows: “ 2. Where the property lias been duly sold, upon the foreclosure, by proceedings taken as prescribed in title 9 of this chapter, of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected.” Title 9 of the Code of Civil Procedure relates to “ proceedings to foreclose a mortgage by advertisement,” and section 2387, which is found in title 9, prescribes what mortgages may be foreclosed by advertisement. The section contains the following: “A mortgage upon real property, situated within the State, containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon default being made in a condition of the mortgage, may be foreclosed in the manner prescribed in this title, where the following requisites concur: (1.) Default has been made in a condition of the mortgage, whereby the power to sell has become operative, -x- * * (3.) The mortgage has been recorded in the proper book for recording mortgages, in the county wherein the property is situated.”

The mortgage which was given by the defendants was substantially in the form prescribed by section 56 of the act of 1837, chapter 150. (1 R. S. [7th ed.], 523.) The mortgage contains no “ power to the mortgagee, or any other person, to sell the mortgaged property upon default being made in a condition of the mortgage.” Under such a mortgage as was given by the defendants, after default for twenty-three days in the payment of money due thereon, “ all title and interest of the mortgagor in the land is gone.” “ The whole title to it vests in the commissioners. But as the State wants no more than its debt and interest, the mortgagor is relieved from the forfeiture he has incurred, if he will, before the actual sale, come forward and pay it with the expenses. (Pell v. Ulmar, 18 N. Y., 116.) By the mortgagor’s default the mortgage became foreclosed by operation of law, “ and nothing remained in the mortgagor but a special privilege of redemption.” (Citing 4 Abb. Ct. of App. Dec., 588; Pell v. Ulmar, supra.)

Inasmuch as the petition and proof before the county judge did not show that the property in question had been sold upon a foreclosure authorized by the provisions of title 9 of the Code of Civil Procedure, there was a failure to show facts conferring jurisdiction upon the county judge to conduct the summary proceedings. (See People on Relation of Sheridan v. Andrews, 52 N. Y., 445.) It seems that the authority to sell premises covered by a mortgage, like the one in question, rests upon the statute rather than a power of sale contained in tire instrument. It seems that section 2409 of the Code of Civil Procedure was adopted to exclude from the operation of the other sections of title 9 the foreclosure of mortgages given like the one before us.

In Sherwood v. Reade (7 Hill, 433) it was said the authority to sell, as conferred by this statute, is special in its nature, and must be strictly jmrsued or the sale will be invalid.

Judgment and order reversed, with costs.

Merwin and Martin, JJ., concurred.

Judgment and order reversed, with costs.


author: Merwin, J.;

text:
    MARY NIXON, Respondent, v. PORTER S. STILLWELL, Appellant.

      Measure of damages for the wrongful cutting of trees — the damages a/re to be determined by the value of the trees to the land on which they stand.

    Appeal by tbe defendant from a judgment, entered upon a verdict in the Onondaga County Court on October 19, 1887, and from an order denying a motion for a new trial made on the minutes of the court.
    The action was in trespass for wrongfully entering upon the land of plaintiff, the same being in her possession, and without leave cutting down and carrying off trees. Treble damages were claimed under sections 1667 and 1668 of the Code. The jury rendered a verdict for the plaintiff for $200 damages, and answered in the negative the question whether the defendant, when he committed the injury, had probable cause to believe -that the land was his own. Thereupon treble damages were awarded to the plaintiff.
    The court at General Term said: “ Upon the exceptions in this case the main question relates to the matter of damages. The plaintiff and defendant owned adjoining farms. Near the line fence on the north and south line, and on plaintiff’s side of the fence there were eight basswood trees, three in one clump and five in another, that were cut by the direction of the defendant without the leave of plaintiff. It was shown, on the paxt of the plaintiff, that the utility of the trees consisted in their furnishing a shade and windbreak for cattle. The question was then asked: ‘ What were those three trees, which were first cut down, worth to the laxxd on which they stood for the pux’pose for which they were used ? ’ This was objected to ‘ as not being the true rule of damages.’ Several questions of this character were put, in soxne cases the objection being as above and in other cases the expression being added: £ We claim the true measure of damages to be the value of the trees as standing there upon the land at the time.’ No objection to the form of the question in other respects was taken. The objection was, in each ease, overruled and exception taken. These rulings present the question whether, in an action of this kind, it is proper to show how the value of the land is affected by the destruction of trees used for shade and a wind-break. It is easy to see that their value for wo.od or timber, or as trees simply, may be very little, and still that the land without them may be appreciably diminished in value. It is not like the case of destruction of fruit trees that have in themselves a productive value. (Whifbeck v. JY. Y. C. R. R., 36 Barb., 644.) It is rather a case where there may be a special value, as connected with the farm, altogether independent of and superior to their intrinsic value for purposes of fuel. (Hogeboom, J., in Vcm Deusen v. Young, 29 Barb., 19; Wallace v. Goodall, 18 N- H., 456; Chip-mam, v. Sibberd, 6 Cal., 162.) It may be that the form of the question was not proper, but no objection was made to that. The objection that was made was properly overruled. Upon the same subject the court charged that £the value of the trees merely for wood is not the proper measure of damages, but the jury must take into consideration the location and the use to which they were put and the value to the land on which they stood.’ This was not erroneous.” "

      Giles B. Everson, for the appellant.

      W. O. Goodelle, for the respondent.

       The court considered from the evidence given that the damages allowed were excessive, and on that ground granted a new trial.— [Rep.

   Opinion by

Merwin, J.;

Hajrdin, P. J., and Martin, J., concurred.

Judgment and order reversed and a new trial ordered upon defendants paying costs and disbursements of last trial, costs of appeal to abide the event. If costs and disbursements of trial are not paid, judgment affirmed, with costs.


author: Pratt, J.: Barnard, P. J.

text:
    ALBERT W. VAN WINKLE, Plaintiff, v. SYLVANUS L. FOWLER, Defendant.

      WiU — what provisions confer, by implication, a power'of sale upon the executor thereof.

    Allen Hubbard died intestate, seized in fee simple of certain land devised to him by tire will of one Elmina H. Graves, leaving nine children, one of whom, Sarah E. Higgins, subsequently died, leaving a will, which contained the following clause: “I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue' of her said will and testament, * * * or all the right, title and interest which I, as one of the children of Allen Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmina H. Graves, in trust, that my executor shall use the same for the purpose of clothing, educating and maintaining my said children; and in case my said executor shall die before the whole of the estate which shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain iu his hands at the time of his decease shall be divided equally between them, share and share alike, and in case any of my said children shall die without issue, the survivor shall take such deceased child's share.”

      Held, that this clause gave a power of sale to the executor, and that a conveyance, executed by the executor of the said Sarah E. Higgins, purporting to convey the interest of the said Sarah E. Higgins in the said land, vested a good title thereto in the purchaser. (Barnakd, P. J.( dissenting.)

      Controversy submitted, upon an agreed statement of facts, pursuant to tbe provisions contained in sections 1279 to 1281 of tlie Code of Civil Procedure.
    Elmina H. Graves died, leaving a will by which she devised the premises in question to her brother, Allen Hubbard, and his heirs. Allen Hubbard died intestate, leaving nine children, all of whom were living at the time of the commencement of this action, except a daughter,' Sarah E. Higgins, who died, leaving a will wherein she appointed her husband, Joseph Higgins, executor. All the heirs of Allen Hubbard have conveyed their interests in the premises in question to the plaintiff, and Joseph Higgins, as executor of Sarah E. Higgins, has conveyed to the plaintiff all the right, title and interest which she had in the premises at the time of her death.
    The defendant, with whom the plaintiff had entered into a contract to sell the said premises, declined to fulfill the same on the ground that the will of the said Sarah E. Higgins did not contain any power of sale.

      Herbert G. Hall, for the plaintiff.

      W. M. Safford, for the defendant.
   Pratt, J.:

The sole question in controversy in this case relates to the construction of the following clause in the will of Sarah E. Higgins :

Item. I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June 12, A. D. 1876, or all tlie right, title and interest which I, as one of the children of Allen Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmina T-T. Graves, iu trust that my said executor will use the same for the purpose of clothing, educating and maintaining my said children; and in case my said executor shall die before the whole of tlie estate which shall come to him shall be expended for the benefit of my children as aforesaid, then it is my will that whatever balance shall remain in his hands at the time of his decease shall be divided equally between them, share and share alike, and in case any of my said children shall die without issue, the survivor shall take such deceased child’s share.

We think it clear, from all the facts and circumstances submitted, that this clause must be held to give a power of sale to the executor. A power of sale may be implied where the circumstances are such that the will cannot be carried out without such an implication. The clause gives the property to the executor in trust for a specified object,' which cannot be carried out except by a sale of property.

It is not very clear what was in the mind of ’the testatrix, as to whether the property she was to receive under the will of Mrs. Graves was real estate or money, but she used language sufficiently comprehensive to include both. She gives the balance of money, also all the right, title and interest which I, as one of the children of Allen Hubbard, am entitled to under and by virtue of the last will of Elmina H. Graves. The title is thus clearly vested in the executor in trust.

The sole object the testatrix had in view by this clause of the will was that the property, whether personal or real, should be used for the benefit of her children. As she stated in the will: “ In trust that my said executor will use the same for the purpose of clothing, educating and maintaining my said children. Here is a clear power conferred upon the executor to use the estate for a specific purpose. The whole object of the trust will fail in this case unless the executor can convert the real estate into money.

The plaintiff must have judgment on the agreed statement of facts, with costs.

Dykman, J. concurred.

Barnard, P. J.

(dissenting):

Allen Hubbard was the owner in fee simple of the land in question when he died, by devise from Elmina II. Graves. The fee, however, was chargeable with legacies which there was no personal estate to satisfy.

Hubbard died intestate leaving nine children; one daughter has since died leaving nine children and leaving a will which contains this clause: “ I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June 12, A. D. 1876, or all the right, title and interest which I, as one of the children of Allen Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmfna, H. Graves, in trust, that my said executor will use the same for the purpose of clothing, educating and maintaining my said children, and in case my said executor shall die before the whole of the estate which shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands at the time of his decease, shall be divided equally between them, share and share alike.”

The executor of Sarah E. PEggins conveyed, as such, the interest of Sarah E. Higgins in the land, and the question is whether, by the claim in question, he had power to sell her own ninth interest in the property. The will contains no express power of sale. The testatrix included a bequest of money to be received, and also all right, title and interest to whatever she was entitled. The trust was to use the same for the support of the children. The trust to use a fund made up of real and personal property, in the absence of a specific direction, does not warrant the conclusion that the testator intended a conversion of the real estate into personalty. The duty of making a final division of the real estate does not imply a power of sale. (Hobson v. Hale, 95 N. Y., 588; White v. Howard, 46 id., 144.) There is nothing in the will to show an intent that the executor should not use the land, as land, and the sale thereof is not justified.

There should, therefore, be a judgment for the defendant upon the submitted case, with costs.

Judgment for plaintiff upon submitted case, with costs.


author: Pratt, J.:

text:
    ANNIE E. LYON, Plaintiff, v. THE INDUSTRIAL SCHOOL ASSOCIATION OF BROOKLYN, E. D., Defendant.

      Legacy to an infant — when it runs with interest from the death of the testatrix.

    Annie Lizzie Lyon, who was a niece of Eliphalet Lyon, the husband of Ann M, R. Lyon was, at the age of eight weeks, with the consent of her father, taken into the family of Mr. and Mrs. Lyon, where she continued to reside and was supported until Mrs. Lyon's death Her father did not contribute towards her support, although he never formally surrendered his parental rights or the control of the plaintiff, nor has he been released from his parental obligations to her.
    The plaintiff was well and sufficiently supported, in accordance with her station in life, by Mr. Lyon until liis death in 1883, when a legacy of $10,730.39 was left to her by his will, which was duly received by her.
    Prior to Mr. Lyon's death, and in 1871, Ann M. R. Lyon died, leaving a will which contained the following clause: “I give and devise to my adopted daughter, Annie Lizzie Lyon, the sum of $5,000, to be paid over to her when she shall have arrived at the age of 25 years.” All the rest of her property was bequeathed to her husband for life, and upon his death to the defendant.
    In a controversy, submitted without -action, to determine whether Annie Lizzie Lyon was entitled to receive interest on this legacy from the death of the testatrix:

      Held, that, as it was competent to prove the surrounding circumstances in order to raise a presumption that the testatrix intended a legacy to draw interest, it was also proper to prove all the surrounding circumstances in order to rebut any such presumption, or to show that no such intent could have existed.
    That as the plaintiff had a father living who was bound to support her, and as she was living with and supported by her uncle, and as the testatrix was under no obligation to maintain her during or after her minority, and as, in this case, the plaintiff was in no way dependent upon the interest for her maintenance she was not entitled thereto.
    The rule which allows interest upon a legacy to an infant child is based upon the presumption that the testatrix intended to provide for the support of the child until the legacy becomes payable, and this presumption arises out of the fact that the child is not otherwise provided for. It does not rest upon the fact of infancy, but on the moral or legal obligation to support the infant, coupled with the fact that unless interest is allowed the legatee will be without means of support.
    Controversy submitted, upon an agreed statement of facts, pursuant to provisions contained in sections 1219 to 1281 of tbe Code of Civil Procedure.

      John A. Tcmjlor, for tbe plaintiff.

      Joseph Á. Burr, Jr., for tbe defendant.
   Pratt, J.:

This is a submitted controversy, and the only question to bo determined is whether the plaintiff is entitled to interest upon her legacy under the will of Ann M. R. Lyon, deceased, since the death of the testatrix. The testatrix died in 1871, and her husband, Eliphalet Lyon, in 1883. It further appears in the submitted statement of facts:

“Sixth. That there are no funds of the estate of Ann M. R. Lyon applicable to the payment of the legacy in controversy, other than property of said estate now in possession of defendant.
Seventh. The father of Annie E. Lyon is still living and has never formally surrendered his parental rights or control of said Annie E. Lyon, nor been released from his parental obligations to her.
“Eighth. Said Annie E. Lyon was never adopted by either Mr. or Mrs. Lyon by any formal act of adoption. She was a niece of Mr. Lyon and not of kin to Mrs. Lyon, but at the age of eight weeks was, with the consent of her 'father, taken into the family of Mr. and Mrs. Lyon, where she continued to reside and be supported until Mrs. Lyon’s death, her father not contributing to her support.
Ninth. Miss Lyon has been well and sufficiently supported, in accordance with her station in life, by Mr. Eliphalet Lyon since the death of Mrs Lyon, and upon his death was provided for, as appears by his will, and duly received all the legacy and provision therein made for her. The amount so paid to her, as appears by the accounting, was ten thousand seven hundred and thirty-six dollars and thirty-nine cents.”

• The clause of the will under consideration is as follows; “ I give and devise to my adopted daughter, Annie Lizzie Lyon, the sum of five thousand dollars, to be paid over to her when she shall have arrived at the age of twenty-five years. All the rest, residue and remainder of my real and personal estate I bequeath to my beloved husband, Eliphalet Lyon, to have and to hold for his own use and benefit during his natural life, and upon his death the same to be given to the Industrial School Association of Brooklyn, Eastern District, to be applied to the uses and purposes of said association.”

The plaintiff was about ten years of age at the death of the testatrix. It is to be observed that there was never any formal surrender by tbe lather of the plaintiff or adoption by Mrs. Lyon, and the father remained liable for her support during all the years she was in the Lyon family. It is also clear that she was supported and cared for by her uncle from the time she entered the family until the death of Mr. Lyon in 1883. She was also provided for in his will, so that if we are to resort to facts outside of the will itself, there is nothing to raise a presumption that Mrs. Lyon intended that the plaintiff should be maintained at her expense until she arrived at the age of twenty-five years. Mrs. Lyon was under no legal or moral obligation to furnish such support, and it does not appear that she ever contributed anything for such purpose.

If it is competent, as it seems to be, to prove surrounding circumstances in order to raise a 'presumption that a testator intended a legacy should draw interest (Thorn v. Garner, 42 Hun, 507), it must be also proper to prove all the surroundings to rebut any such presumption or to show that no such intent could have existed. The rule that allows interest upon a legacy to an infant child is based upon the presumption that the testator intended to provide for the support of the child until the legacy becomes payable, and this presumption rests or arises out of the fact that the child is not otherwise provided for. It does not rest on the fact of infancy, but on the moral or legal obligation to support, coupled with the fact that unless interest is allowed the legatee will be without means of maintenance.

Thus, in Heath v. Perry (3 Atkyn, 102), it is said: “ How far a legatee who is not entitled to the payment of his legacy immediately, shall have interest in the meantime depends upon particular circumstances. * * * But all these cases are subject to this exception, if it is in the case of a child; for then let a testator give how he will, either at twenty-one or at marriage, or payable at twenty-one, or payable at marriage, and the child has no other' provision, the court will give interest by way of maintenance, for they will not presume the faflier inofficious or so unnatural as to leave a child destitute.” (Also, Hearle v. Greenbank, 3 Atk., 716.)

It seems to me clear in this case that the plaintiff was in no way dependent upon the interest for her maintenance. She had a father living who was bound to support her, besides she was living with and supported by her uncle, and the testatrix was under no obligation to maintain her during or after her minority. If the fact exists that the legatee is not dependent, then no presumption exists that the testator intended the postponed legacy to draw interest, and it is immaterial whether or not there is any other provision in the will for the legatee.

In Van Bramer v. Hoffman (2 Johns. Cas., 200) the court says : “ The legatee in the present case had a father living, as we are to presume, and capable of maintaining her,” and interest was refused. Neither is interest allowed in favor of a married legatee having a competent maintenance. Even had plaintiff been the child of Mrs. Lyon, she was under no obligation to support her during the life of her husband. (Gladding v. Follett, 2 Dem., 58 ; Beer v. Corley, 20 N. Y. Week. Dig., 109.)

We are not unmindful of the fact that the expression has been used, in many cases where interest has been allowed, that “ no other provision allotted by the will,” seeming to imply that the will alone can be looked at to determine the question, but, as I have before remarked, if we can go outside of the will to make a case for claiming interest, no reason exisits for not going outside to defeat interest. (In re Wood, 1 Dem., 559.) This is a case where it seems probable that the testatrix intended only that interest should be payable from the date fixed for the payment of the legacy. Such is the plain and natural construction of the will, and there does not seem to be any facts to take the case out of that rule, except the’ absence of any other allotment in the will.

Other questions are raised by the defendant, but if the views above expressed are sound, it is not necessary to discuss them, except, perhaps, to say that even if interest should be allowed, it could only be claimed up to the period of the plaintiff arriving at the age of twenty-one years. But we cannot find from the facts submitted that the testatrix stood “ m loco pawenUs ” to the plaintiff, or that she ever assumed her support or contributed thereto. Neither was she ever under any obligation to maintain the plaintiff, nor was the latter ever dependent up on the testatrix’s bounty for maintenance, or without other and ample means of support.

The defendant should have'judgment, but without costs.

Dykman, J., concui’red; Barnard, P. J., dissented.

Judgment for defendant upon submitted case.


author: Dykman, J.:

text:
    DWIGHT B. BAKER and JAMES KEEGAN, Respondents, v. CHARLES HART and JAMES HART, Appellants.

      Lease of a stone qua/rry — right of action against one removing stone therefrom,— measure of damages

    In an action, brought by the lessees of certain lands in the county of Kockland, under a lease which gave to them the exclusive right to the demised premises, and the sole and exclusive right to quarry and remove stone therefrom during the term of ten years, it appeared that the defendants, who were lessees of an adjoining lot from the same lessor, entered upon the quarry of the plaintiffs and dug out a quantity of stone, cut them and took them to New York.
    Upon the trial of the action at the circuit the defendants moved to dismiss the complaint on the ground that the instrument under which the plaintiffs held the quarry conveyed to them no title to the stone which they did not (ako out, and only gave them the right to stone which they took out themselves.

      Reid, that the motion was properly denied.
    That the plaintiffs had an interest in all the stone in the quarry, and as that was their only source of profit under the lease it gave them a right of action for the wrongful conversion of the stone in question by the defendants.
    The defendants insisted that the plaintiffs could only recover the value of the stone in the quarry.

      Reid, that the plaintiffs were properly permitted to give evidence of the value of the stone after they were cut by the defendants and transported to their place of destination, and to recover the damages arising from its increased value.

      Betts v. Lee (5 Johns., 348); Baker v. Wheeler (8 Wend., 505); Silsbury v. MeOoon (3 N. Y., 379); Guehenheimer v. Angevine (81 id., 397) followed.
    Appeal by the defendants from a judgment recovered at the Rockland Circuit, which was entered in the office of the clerk of said county on October 15, 1888, and from an order entered in the said clerk’s office on the 31st day of October, 1888, denying a motion for a new trial made by the defendants upon the minutes of the justice presiding at the trial.

      Johnson & Ict/rrib, for the appellants.

      Alexander B. Butts and O. P. Hoffman, for the respondents.
   Dykman, J.:

The plaintiffs are lessees of certain lands in the county of Rock-land, under a lease which gives them the exclusive right to the demised premises and the sole and exclusive right to quarry and remove stone therefrom during the term of ten years.

The defendants are lessees of an adjoining lot from the same lessor, and they entered upon the quarry of the plaintiffs and took out a quantity of stone and cut them and took them to New York, and this action was brought for the recovery of the value of the stones so taken. The cause was tried at the circuit and a verdict was rendered in favor of the plaintiffs, and the defendants have appealed from the judgment entered upon the verdict and from the order denying the motion for a new trial upon the minutes of the court. Upon the trial at the circuit the defendants contended against the right of the plaintiffs to recover damages for the conversion of the stone in question, because the instrument under which they held the quarry conveyed to them no title to stone which they did not take out, and only gave them the right to stone which they took out themselves, and a motion was made in the early stage of the trial to dismiss the complaint on that ground. That motion was denied, and we think the ruling was not erroneous. The defendants were trespassers and wrong-doers, and, as such, appropriated the stone to which the plaintiffs had a right. They had an interest in all the stone in their quarry, and that was their only source of profit under their lease, and such interest gave them a right of action for the wrongful conversion of the stone in question by the defendants.

The principal objection of the appellants, however, is lodged against the measure of damages adopted by the trial court. The defendants insisted that the plaintiffs could only recover the value of the stone in the quarry, while the plaintiffs were permitted to give evidence of their value after they were cut by the defendants and transported to their place of destination. The charge is not printed, but the question is sufficiently presented by exceptions taken during the trial and opens a very interesting subject. The liability incurred by the wrongful conversion of personal property, and its change in form or value by the wrong-doer, is well settled under the common law as it was under the civil law. So long as the property retains its original form or substance it belongs to the original owner, without reference to its improvement or the enhanced value imparted to it by the person guilty of the • conversion. Our law, like the Roman law, treats those who expend money or labor upon property wrongfully taken by them as volunteer servants of the owner. So far the authorities, both English and American, seem to be harmonious and in accord with the rule of the civil law (Year Books, 5 Hen. 7, fol. 15; 2 Bl. Com., 404 ; 2 Kent’s Com., 363; Betts v. Lee, 5 Johns., 348; Baker v. Wheeler, 8 Wend., 505; Silsbury v. McCoon, 3 N. Y., 379 ; Guckenheimer v. Angevine, 81 id., 397); and the rule of damages deduced from the principles of law is tins, as the owner may recover his property in its improved condition specifically, he may, therefore, when driven to his action for damages, recover its increased value.

There has been some disagreement in our courts, in cases of this character, respecting the rule to be adopted when the identity of the property has been destroyed by its conversion into a different species, as where wine is made from another’s grapes. But even in such cases, and in respect to such property, the only exception to the general rule with us is in favor of an innocent purchaser or holder, and there is no distinction in favor of a wrong-doer. He can acquire no property in the goods of another by any change wrought in them by his labor or skill, provided that the improved article was made from the original material. (Silsbury v. McCoon, 3 N. Y., 379.)

It follows that the rule of damages adopted at the circuit was correct, and, as we find no errors, the judgment and order denying the motion for the new trial should be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.: Pratt, J.:

text:
    JOHN H. HALSEY, Plaintiff, v. MARGARET BEER, Defendant.

      Alien womcm —married to a naturalized non-o-esident citizen of the United States— right to talce real estate by descent.

    In a controversy, submitted without action to determine the succession to certain real property, it appeared that David E. Pierson died seized and possessed of the property in question, leaving him surviving two aunts, Margaret Beer, wife of John Beer, and Catharine Powles, and two cousins, children of a deceased aunt, all of whom were of English parentage and resided in England. Neither they nor their parents had ever been in the United States previous to the death of David E. Pierson.
    John Beer, the husband of Margaret Beer, the maternal aunt of David E. Pierson, came to this country in the year 1833, and was naturalized as a citizen of the United States on the 12th day of October, 1840. He subsequently returned to England and married Margaret on July 4, 1876, at Southampton. Margaret, who was a woman of English birth and parentage, never was in the United States, and. after her marriage resided with her husband in England.

      Held, that Margaret Beer was entitled to the lands in question by virtue of the following provision contained in the act of congress, passed on February 10,1855: “ And be it further enacted that any woman who might be lawfully naturalized under the existing laws, married, or who shall be married, to a citizen of the United Slates, shall be deemed and taken to be a citizen.'’
    That the language employed in this law referred to the inherent capacity of the woman and not to her present qualifications; and that any woman possessing the capacity, sueli as race and blood, to enter upon the path leading to judicial naturalization, became, by marriage with an American citizen, invested with his citizenship, and with all the rights and privileges incident thereto.

      Burton v. Bw'ton (1 Keyes, 359); Luhrs v. Mmer (80 N. Y., 177) followed.
    Controversy submitted, upon an agreed statement of facts, pursuant to sections 1279 to 1281 of the Code of Civil Procedure.

      M. H. Topping, for the plaintiff.

      Robert JE. Toppiwy, for the defendant.
   Dykman, J.:

This is a submission, without action, to determine the succession to real property in the county of Suffolk, described in the statement printed in the case.

David E. Pierson died seized and possessed of the property in question on the 16th day of February, 1888, intestate as to this real estate. He was twenty-one years of age at the time of his death, and this property was devised to him by the last will and testament of his father, David Pierson, who died on the 14th day of October, 1871; who was the only child of his father, who had owned this property many years before his death; and who was the grandson of Captain David Pierson, who died February 25, 1829, seized and possessed of the lands in question. David E. Pierson left him surviving no father or mother, brother or sister, or descendant of any brother or sister; no uncle or aunt on his father’s side, or descendant of any uncle or aunt on the side of his father. On the side of his mother, Susan A. Pierson (formerly Susan A. Powles), who died June 20, 1881, David E. Pierson left two aunts, Margaret Beer, wife of John Beer, and Catharine Powles, and two cousins, children of a deceased aunt, all of whom are of English parentage and reside in England, and none of whom, or their parents, had ever been in the Hnited States previous to the death of David E. Pierson. John Beer, the husband of Margaret Beer, the maternal aunt of David E. Pierson, came to this country in the'year 1833, and was naturalized as a citizen of the United States on the 12th day of October, 1840. He subsequently returned to England and married Margaret on the 4th day of July, 1876, at Southampton. Margaret was a woman of English birth and parentage, and has resided with her husband in England since her marriage, and has never been in the United States. John H. Halsey is a collateral relative of David E. Pierson on his father’s side, who is entitled to succeed to the lands in question, provided Margaret E. Beers is deprived of such succession.

Our conclusion is in favor of Margaret Beer. The only obstruction in the way of her inheriting the property by descent is her disability to inherit by reason of her alienage, and such disability was removed by the act of congress of February 10, 1855, which reads as follows : “And be it further enacted that any woman who might be lawfully naturalized under the existing laws, married or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.” Tlie language employed in this law to denote the intention of its makers refers to the inherent capacity of the woman, and not to her present qualifications. It is language of potentiality, capacity or power as distinguished from actuality. Any woman possessing the natural capacity or power to enter upon tlie path leading to judicial naturalization, such as race and blood, becomes by marriage with an American citizen invested with lr s citizenship, and with all his rights and privileges incident thereto.

Margaret Beer might have become lawfully naturalized at any time, and, therefore, she falls under the protection of the law of congress, which was evidently designed to include all such cases. Wo have thus far based our conclusion upon principle and reason, but, so far as judicial opinion has found expression, it seems to be in the same direction, and although much that has been said upon the subject in written opinions has been unnecessary to the determination of the case in which it was said, yet it discloses the opinions of eminent judges and is entitled to great weight and consideration.

In the case of Burton v. Burton (1 Keyes, 359) it was decided by our Court of Appeals that the alien widow of a naturalized citizen of the United States, although she never resided in the United States during the lifetime of her husband, was entitled to dower in his real estate; and Judge Wright, who wrote the prevailing opinion, in speaking of the act of congress quoted above, said: “ The effect of the act was to grant the privileges of citizenship to women married to citizens of the United States, without regard to the fact whether the ceremony of marriage had preceded the ceremony of naturalization, in cases where the husband was a naturalized citizen, provided the woman herself might lawfully be naturalized under the then existing laws.” In reference to the requisites for naturalization he further said: The existing naturalization act required no more than that the person claiming its benefits should be a free white person and not an alien enemy. Such a person might lawfully be naturalized.” Upon the question of residence he said: “ It is true that from some cause she never actually resided in this country, but the act does not require that the woman claiming its benefits shall have resided within the United States.”

In the case of Luhrs v. Eimer (80 N. Y., 177) Judge Andrews, in writing the unanimous opinion of the Court of Appeals, said: “ Barbara Eimer, by her intermarriage with Gottfried Baur in 1857, who was a citizen, became herself a citizen by virtue of such marriage and capable of taking and holding lands in this State by purchase or descent; ” and he cites the act of congress of 1855, Burton v. Burton (1 Keyes, 359) and Kelly v. Owen (7 Wall., 496). In this last case Mr. Justice Field, in writing the opinion of the court, said in reference to the act of congress in question: “ As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of congress provide. * * * The terms ‘who might lawfully be naturalized under the existing laws only limit the application of the law to free white women.”

¥e, therefore, record our determination that Margaret Beers, as heir-at-law of David E. Pierson, is entitled to take the lands and property in question, and judgment should be rendered in her favor for the possession of such lands, with costs.

Barnard, P. J., concurred.

Pratt, J.:

The rule seems to be that an alien woman who intermarries with a citizen of the United States is to be regarded as a citizen of the United States, within the meaning of the act of February 10, 1855, though she may never have resided in this country; that the marriage Kj>&r se” invests the woman with the citizenship of her husband in the place and stead of her former allegiance. The act of congress is as follows: “ And be it further enacted, that any woman who might be lawfully naturalized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen.”

It would be a very restricted meaning to the words, “ who might be lawfully naturalized under existing laws,” to hold that they must include, at the time of marriage, all the qualifications necessary for a judicial naturalization, such as residence, good character, declaration of intention, etc. The whole intent of the law would be. nullified. To avail herself of the benefits of the law, under such a construction, an alien woman would be obliged to comply with all the requirements of becoming a citizen, except obtaining a judicial decree.

The more reasonable construction seems to be that these words refer to the inherent and natural capacity of the woman to be naturalized by reason of race, without reference to residence or any other qualification required by the naturalization laws, Unless this construction prevails all her rights of citizenship under the statute, by reason of marriage, remain suspended until she can qualify herself to become a citizen by complying with all the requirements of the laws relating to naturalization. The authorities all seem to hold that the instant marriage takes place the woman becomes invested with the citizenship of her husband. (Yol. 14, Opinions of Attorney-General, p. 402j and authorities therein cited.)

The act of congress referred to seems to conform to the act (7 and 8 Yic.) passed in 1844, which declares that an alien woman marrying a British subject becomes naturalized by the act of marriage. (Regina v. Manning, 2 Car. & Kir., 886; 61 English Common Law Rep.) The word “ might ” in the act of congress must refer to the time of marriage, and must refer to the inherent capacity to take the initial step towards naturalization, to wit, of the proper race or blood, to bring her within the naturalization laws. Margaret Beer, at the time of her marriage, met this requirement, and must, therefore, be held entitled to recover in this proceeding. (Kelly v. Owen, 7 Wall., 496; Leonard v. Grant, 6 Sawyer, 603, referred to in the attorney-general’s opinion.)

Judgment to defendant on submitted case, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM HENRY HAZEN, Appellant.

      Oysters — taking of, from South Bay, Suffolk county, with a steam dredge— chap. 234 of 1870.
    The first two sections of chapter 234 of 1870, entitled “ An act for the preservation of sliell-fish in the waters of the South Bay, in Suffolk county,” are as follows:
    Section 1. Ho person shall catch or take any oysters, clams, mussels or shells in the waters of the South Bay, in Suffolk county, with a dredge or drag.
    § 2. No person shall have in his possession, or use a dredge or drag in the waters of the South Bay, for the purpose of catching or taking oysters, clams, mussels, shells or any substance growing on the bottom.

      Held, that the mode oí taking oysters from public or private grounds in the South Bay was regulated by this statute, and that the use for that purpose of a steam dredge was absolutely forbidden and prohibited in that bay.
    That the legislature had the power to make the law in question.

      Phelps v. Baccy (60 N. Y., 10) followed.

      Appeal by the defendant from a judgment convicting the defendant of a misdemeanor after a trial, under an indictment, at the Court of Sessions of Suffolk county on the 7th day of December’, 1888.

      T. M. Griffing and A, A. Spear, for the defendant, appellant.

      Wilmot M. Smith, district attorney, for the People.
   Dykman, J.:

The defendant was convicted of a misdemeanor in the Court of Sessions in Suffolk county, under an indictment charging him with a violation of chapter 234 of the Laws of 1870, entitled “An act for the preservation of shell-fish in the waters of the South Bay, in Suffolk county.”

There was no dispute or question about the facts, for the defendant stated in his testimony, as a witness upon the trial, that he operated a steam dredge to take up oysters upon a private bed. The lot, upon which he so operated the steam dredge, had been leased by the trustees of the freeholders and commonalty of the town of Brookhaven to a private individual, and the defendant was acting under a power of attorney from such lessee. The question for solution, therefore, has reference to the operation and validity of the law in question, the contention of the defendant being that the law has no application to private oyster beds, and cannot operate to restrict the mode of operation in taking up oysters from such beds. The prohibitory portion of the law is contained in the first two sections, which are as follows:

“ Section 1. No person shall catch or take any oysters, clams, mussels or shells in the waters of the South Bay, in Suffolk county, with a dredge or drag.
“ § 2. No person shall have in his possession or use a dredge or drag in the waters of the South Bay for the purpose of catching or taking oysters, clams, mussels, shells or any substance growing on the bottom.”

These two sections of the statute are sufficiently comprehensive to prohibit the taking of oysters with a dredge in the waters of the South Bay, whether they are located on public or private -grounds. The language employed is plain and positive, and if it is to be allowed its full force and meaning, it can receive but one interpretation. It was tbe intention of the legislature to provide a remedy for an evil which was found to prevail, and we must assume that this law was enacted with full knowledge of all the facts, and with the full intention of making a law upon which no exceptions could be engrafted by interpretation, otherwise such exceptions would have been expressed in words as unmistakable as those employed in the statute.

A further evidence of the intentional severity of this statute is found in the fourth section, which makes the bare possession of a dredge on the waters of the South Bay by any person prima facie evidence of an intent to use the same in violation of the provisions of the act. Again, there is no exception in this section in favor of private owners of oysters or lessees of oyster lots. "We conclude, therefore, that the mode of taking oysters from both public and private grounds in the South Bay is regulated by this statute, and that the use of a steam dredge is absolutely forbidden and prohibited there for that purpose.

Respecting the competency of the legislature to make the law in question, there is no longer any doubt in this State. That question has been often discussed and determined by our courts with one uniform result, and it would be unprofitable to enter upon its examination here. (Phelps v. Racey; 60 N. Y., 10 )

The judgment and conviction appealed from should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concurred.

Conviction and judgment affirmed.