text:
    William H. Hurst, Respondent, v. Cresson and Clearfield Coal and Coke Company, Appellant.

      Promise to pay made subsequent to the completion of services — allegations that they were rendered by request — ■parol evidence, when inadmissible.

    The general rule is that where a promise to pay for services, made subsequent to their completion, is alleged in a complaint, it must also be alleged therein that such services were rendered at the defendant’s request.
    "Where, however, a contract set forth in full in the complaint, not only expresses the consideration but imports that the services which constituted it were performed at the request of the defendant, and asserts a previous request, or such a request is fairly inferable therefrom, it is unnecessary that the request be specially pleaded.
    Parol evidence will be rejected when offered to cut down or take away obligations entered into between parties, and by them put in writing.
    Appeal by the defendant, the Cresson and Clearfield Coal and Coke Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 21st day of November, 1894, denying the defendant’s motion for a néw trial made upon the minutes. «

      William Strauss and Charles F. FstmicJc, for the appellant.

      JBewjamim, Yates, for the respondent.
   Parker, J.:

The object of this action was to recover the sum of $6,031.71, a balance claimed to be due to the plaintiff under a contract of which the following is a copy:

“ Boston, Mass., Jume 8, 1891.
“ In consideration for special services rendered in securing contract with the New York and New England R. R. for 200,000 tons of coal, more or less, we hereby agree to pay John E. Ingersoll, of New York, as a commission for said special services 15c. (fifteen cents) per ton on all coal sold and delivered to the said New York .and New England R. R. under contract made this day with said New York and New England R. R., from June 10, 1891, to June 10, 1892, said commission of 15c. (fifteen cents) per ton, to be paid “by us to the said Ingersoll as fast as said coal is delivered to and paid for by the said New York and New England R. R.
“ CRESSON & CLEARFIELD COAL & COKE CO.,
“ Witness: By J. 0. Wittenberg.
“ Sam’l C. Elliott.”

The complaint set up a copy of the contract, the delivery of 106,875 tons of coal by the defendant to the New York and New England Railroad Company, payment therefor by it to the defendant, payment by the defendant to Ingersoll, plaintiff’s assignor, of the sum of $10,000 on account of the amount due him from the defendant for commissions under the contract, and the assignment of Ingersoll’s interest under the contract to this plaintiff prior to the •commencement of this action.

When the cause came on for trial the defendant moved to dismiss the complaint, on the ground that it did not state facts sufficient to ■ constitute a cause of action. This motion was founded upon the authority of Lampleigh v. Brathwait (1 Smith’s L. C. 67 [Hare & Wallace ed.] [7th Am. ed.] 280); Parker v. Crane (6 Wend. 647); Comstock v. Smith (7 Johns. 87); Bartholomew v. Jackson (20 id. 28); Herendeen v. De Witt (49 Hun, 56).

These cases assert the general rule to be, that where a promise to pay, made subsequent to the completion of the services, is alleged in the complaint, it must also be alleged that such services were rendered at defendant’s request. In Comstock’s case the court .said : It does not seem requisite in every case of a past consideration to lay an express request in the declaration, though the cases in which it is not required are rather exceptions to the general rule. They are such in which a beneficial consideration and a request are necessarily implied from the moral obligation under which a party was placed.” And in Herendeen’s case the court said: “ It was formerly a rule of pleading, and such it probably is now, that where the consideration was executed, and the validity of the promise depended upon a previous request, such request . should be alleged.”

Assuming, as did the court in the last case, that the general rule asserted by the cases we have cited now obtains, still this case is not within it, because the contract not only expresses the consideration, but it imports that the services, which constituted it, were performed at the instance of the defendant. It asserts the making of the contract between defendant and the New York and New England Railroad Company on the day when the agreement in suit was executed, by which the former was to furnish the latter coal for a period of one year; and that in consideration of the special services of Ingersoll in securing for the defendant such contract, it would pay him a commission of fifteen cents a ton as fast as the coal should be delivered and paid for. In other words, defendant by its contract, said, in effect, Ingersoll has by special services in our behalf induced the New York and New England Railroad Company to enter into a contract with us this day, which is of such value, that we agree to pay him a fixed commission in consideration for such services. It is certainly a reasonable inference, from the language employed, that the special services were rendered at the request of the defendant. And when the contract asserts a previous request, or such a request is fairly inferable from the instrument, it is unnecessary that the request should be specially pleaded if the contract be set up in full. Our conclusion, therefore, is that the court did not err in denying the motion to dismiss the complaint.

The plaintiff to establish his cause of action put in evidence the contract between the defendant and the New York and New England Railroad Company, consisting of a letter of the former under date of May 20, 1891, offering coal and terms, and an acceptance by the latter by letter signed and delivered to defendant in Boston on June eighth, on which date and at the same place the contract between defendant and Ingersoll was executed and delivered by the defendant.

It was admitted that under the contract the defendant delivered to, and was paid by, the railroad company, for 9Y,500 tons of coal. And it was conceded that at the contract rate the sum remaining due under the Ingersoll contract was $5,2Y8.48. This evidence, together with the admissions contained in the answerpmade out a .cause of action.

The answer of the defendant alleged for a counterclaim to plaintiff’s cause of action, and by way of a separate defense, “ that on or about the 8th day of June, 1891, and previous to the entering into the contract hereinbefore referred to, the said John E„. Ingersoll represented, promised and agreed to and with the defendant * * * that he, Ingersoll, would obtain from the New York and New England Railroad Company special concessions and privileges for the defendant with reference to the shipment of all coal called for under the contract to be entered into with the New York and New England Railroad Company.” It further alleges that such concessions and privileges were granted by the railroad company to the defendant in respect to the 60,000 tons of coal and no more, and that the failure of Ingersoll to carry out the contract, occasioned by the railroad company’s refusal to grant the concessions and privileges as Ingersoll represented it would do, caused damage to the defendant in the sum of $15,000.

The evidence offered by the defendant in support of its alleged counterclaim was excluded, by the court upon the grounds:

(1) That it appears by the answer that the alleged promise of Ingersoll was made prior to the contract sued upon, and, therefore, became merged in the written contract executed by the defendant.

(2) That were his promises to be treated as collateral to the main contract, such promise, whatever it was, was fulfilled when he secured a contract which was satisfactory to, and accepted by, the defendant. In thus ruling the court did not commit error.

The authorities cited by the counsel for the appellant in support of the proposition, that the rule prohibiting the reception of parol evidence to vary or modify a written agreement does not apply where the original contract was verbal and entire and a part only was reduced to writing, nor to a collateral undertaking, is not applicable to this situation. There is nothing in this contract which suggests that it does not embody the entire agreement of the parties. On the contrary, it asserts that Ingersoll had performed the services which constituted the consideration for the contract.

' According to its terms Ingersoll was to be paid a commission on the coal sold and delivered to the railroad company, because of the services which he had already rendered in procuring the railroad company to enter into a contract with the defendant which it had accepted. The concessions and privileges which the defendant asserts in its answer Ingersoll was to procure it alleges were to be procured by him from the railroad company, and in the ordinary course of business would have been embodied in the contract between the railroad company and the defendant, and its acceptance of the contract, which Ingersoll procured the railroad company to make with it, .evidenced its satisfaction with the work which he had performed in that direction. Its satisfaction was further confirmed and put at rest by the agreement thereafter executed by the defendant, by which, in terms, it agreed to pay the commission of fifteen cents a ton for the services rendered by him in procuring the execution of such contract.

In the light of these facts, and by reason of the language of this contract, it must be held that the rule, which requires the rejection of parol evidence when offered to cut down or take away obligations entered into between parties, and by them put in writing, was applicable.

The appellant also attempts to invoke in its support another exception to the general rule relating to the admission of jiarol evidence to change or modify a written agreement, to wit: That parol evidence may be admitted to prove that the paper, which is in form a complete contract, was delivered to take effect only on performance of a condition.

But it seems to us a sufficient. answer to this contention to say that there is nothing in either defendant’s answer or in the evidence offered by it asserting or tending to establish that this contract was delivered upon condition that it should take effect only upon performance by the railroad company of conditions not specified in its contract with the defendant, or upon performance by Ingersoll of any future services, or to await a full realization by the defendant of the benefits expected to accrue as a result of services supposed to be fully performed. The contract on the other hand distinctly provided for payment to Ingersoll as fast as said coal is delivered to and paid for by the said New York & New England R. R.”

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    Willoughby Weston, as Trustee, etc., of William G. Breese, Deceased, Respondent, v. Cornelia P. Goodrich and Others, Defendants; Ashbel P. Fitch, as Comptroller of the City of New York, Appellant.

      inheritance tax upon estates — fixing its amount — exclusive jurisdiction in the surrogate and his court — Laws of 1892, chap. 399, §§ 10, 11, 13, 15, 18.
    The Supreme Court, sitting as a court of equity, has no original jurisdiction to determine whether a trust fund is subject to the tax known as the collateral inheritance or transfer tax.
    The fact that a complaint in an action asks for the construction of a will and for a determination of the persons entitled to share in a trust estate, does not make .a case in which the Supreme Court, having jurisdiction over a part of the relief demanded in the action, will retain the case for the purpose of determining whether the fund is subject to a collateral inheritance tax under the laws of the State of New York.
    Taxation is a matter outside of courts of equity, and jurisdiction of the transfer tax is, for all the purposes of fixing its amount in the first instance, conferred by statute solely upon the surrogate and his court.
    The surrogate is, in effect, first made a taxing officer who, upon the report of his appraiser, enters an order fixing the tax “as of course;” from this determination an appeal lies to the surrogate sitting as a judge, when for the first time the proceeding takes on a judicial character.
    The surrogate, in fixing in the first instance the amount of the tax, acts after the manner of an assessor, and this initial step in a tax, new to our system of taxation, can by the statute (Laws of 1892, chap. 399, §§ 10, 11, 13, 15, 18), be performed by him alone.
    A complaint for the construction of a will asking, among other things, that the Supreme Court fix the transfer tax upon a trust estate, is demurrable.
    Appeal by the defendant, Ashbel P. Fitch, as comptroller of the city of New York, from an interlocutory judgment of the Supreme Court, made at a Special Term held in the county of New York and entered in the office of the clerk of the county of New York on the 15th day of February, 1895, overruling the said defendant’s demurrer to the complaint.

      Fmmet B. Oloott, for the appellant.

      Frederick Seymour, for the respondent.
   Parker, J.:

The plaintiff, who was appointed by the court to execute a trust created by the last will and testament of William G. Breese, after the trustees named in the will had either died or been removed, commenced this suit, in which he asks for a construction of a certain provision of the will, and the direction of the court concerning it; that it be ascertained what persons are entitled to share in the trust estate, and their proportions; requests a settlement of Ms accounts, and that he be discharged as trustee with an allowance for commissions, costs and disbursements; and that the court ascertain ■whether the trust fund is sxxbject to a collateral inheritance tax tmder the statutes of the State of New York. To so much of the complaint as seeks the judgment and direction of the court relating to the question whether the trust estate should pay a collateral inheritance tax, a demurrer was interposed by the defendant, Ashbel P. Pitch, as comptroller of the city of New York, “upon the ground that this court has no original jurisdiction to hear and determine whether the estates of deceased persons are subject to a collateral inheritance tax, or what was known on the 1st day of April, 1894, the date of the death of Cornelia P. Coster, as the ‘ transfer tax,’ or to fix the amount of such tax, and that the jurisdiction of this court in that regard is limited to review on appeal at General Term all such proceedings as may be had to hear and determine all questions arising under the provisions of chapter 399 of the Laws of New York, entitled £ An act in relation to taxable transfers of property,’ which took effect May 1, 1892, and under the acts prior thereto relating to such taxes, before a Surrogate’s Court of any county of the State having jurisdiction to gx-ant letters testamentary or of administration upon the estate of a decedent whose property is chai’geable with any such tax, or to appoint a trastee of such estate or any part thereof, or to give ancillary lettei-s thereupon, and that such jurisdiction to hear and determine as to the liability of estates of deceased persons is vested in the first instance in such Surrogate’s Court only.”

It will be observed that the demurrer does not present the question whether this case is of such a character as that a court of equity will take jurisdiction of it for the purpose of construing the will. And, therefore, the learned judge at Special Term proceeded, in the disposition of the question submitted, upon the view that the court having obtained jurisdiction for the special purpose of construing certain provisions of the will, it is within its province to retain tlie case for all purposes necessary to a complete adjustment of the entire controversy.

It is the general rule that where this court has concurrent jurisdiction with the Surrogate’s Court it' will decline to take it unless for the purpose of affording special relief beyond the power of the Surrogate’s Court. But if a case be presented which calls upon it to exercise its jurisdiction, it not unfrequently assumes jurisdiction of all mattei’s either in controversy or necessarily connected with it, and decrees a settlement and distribution of an entire estate. (Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 id. 115 ; Sander v. Soutter, 126 id. 193.)

In connection with this rule attention was given to the proposition equally well established, that in the absence of words of exclusion the conferring of jurisdiction upon one court does not operate to oust other courts before possessing it, for the reason that concurrent jurisdiction is not inconsistent. (Cook v. State Natl. Bank of Boston, 52 N. Y. 106.)

The courts have been frequently called upon to reassert this proposition in cases where jurisdiction has been conferred upon Surrogates’ Courts by statute to perform certain duties which the Supreme Court had jurisdiction to perform. (Widmayer v. Widmayer, 76 Hun, 251; Royce v. Adams, 123 N. Y. 402.)

Section 281Y of the Code of Civil Procedure confers upon the Surrogate’s Court jurisdiction to remove testamentary trustees for misconduct, but in Widmcoyer’s case it was held that the facts presented a proper case for this court to take jurisdiction for the removal of a trustee.

Section 2818. authorizes the Surrogate’s Court to appoint new trustees when a sole testamentary trustee dies, becomes a lunatic or-is removed by a decree of the Surrogate’s Court, and in Boyce’s-case such an appointment was made by the Surrogate’s Court where more than one trustee was named in the will, and the court said that it was not the purpose of the statute to confine the power of appointment to the case of a sole testamentary trustee. In that case the Supreme Court, as well as the Surrogate’s Court, appointed the same persons as trustees, and the court held that if there was any doubt about the authority conferred by the surrogate’s appointment, in view of the peculiar phraseology of the statute, there could be no doubt but valid authority was conferred under their appointment by the Supreme Court.

It should be observed in passing that, in these cases and all others bearing upon this question to which- the respondent calls our attention, the Supreme Court had - jurisdiction to do the very things which the Surrogates’ Courts -were subsequently authorized to do by statute. Quite a different question is presented where the Legislature, by means of statutory enactment, confers upon a court an authority, although judicial in its character, but not regarded as a part of the jurisdiction of equity.

Hogan v. Kavanagh (138 N. Y. 417) and Dunning v. Dunning (82 Hun, 462) will serve as illustrations. In Hogarís case a question was presented -which justified a court of equity in taking jurisdiction, and the trial resulted in an adjudication that a legacy bequeathed by the will of the testator Iiogan should be made a specific lien on certain real estate, the lien enforced by a sale and the legacy paid out of the proceeds. The trial court proceeded upon the theory that when a court of equity has obtained jurisdiction of the case for one purpose, it may retain it for all purposes, and, appreciating the legal right of the creditors of the testator to be paid out of the proceeds of a sale of his real estate before legacies charged thereon could be paid, provided in the judgment' decreeing a sale of the property that next after the payment of the expenses of sale, the proceeds should be applied to the payment of the debts of the decedent. This determination encountered no difficulty until it reached the Court of Appeals, when the judgment was so modified as to make the sale of the real estate for the payment of the legacies subject to the rights of creditors, who were to be paid out of the fund before the legatees, but only after the debts have been duly established in the Surrogate’s Court and such proceedings had as would authorize proceedings for the sale of- real estate for the payment of the debts of the testator. In presenting the reasons which induced such a modification of the judgment as practically transmitted to the Surrogate’s Court all questions affecting the rights of creditors who were entitled to priority of payment over the legatees, the court said that the collection of debts from the real estate of a deceased debtor was never regarded as a part of the jurisdiction of courts of equity. That such “ right was conferred by statute, and it must be asserted and proved in the manner that the statute prescribes. Here, the real estate of the deceased is directed to be sold for the payment of debts by the decree of a court of equity, without regard to any of the statutory steps that must precede such sale in the ordinary course of administration.”

If the authority conferred by the statute under consideration were strictly judicial, and intended as an extension merely of the jurisdiction of the Surrogate’s Court, the doctrine of Hogan's case would seem to be applicable, and sufficient to support a judgment sustaining the demurrer.

For, certainly, it must be said that, prior to the enactment of the statute in question, the collection and enforcement of taxes, and certainly of this tax, which came into existence at the same time as the method for its enforcement, never constituted a part of the jurisdiction of courts of equity.

Both of the cases cited supra are authority for the proposition that the Supreme Court will not attempt to draw to its jurisdiction questions remitted to a competent and sufficient authority by express command of a statute, which, in addition, establishes the procedure by which the rights of persons interested are to be affected.

For the purposes of the discussion next to be had, however, we shall only remember the rule established by the cases of Widmayer v. Widmayer and Royce v. Adams (supra). Starting with the proposition, which was not challenged by the demurrer, that the complaint presented a case which called upon the court to take jurisdiction of the principal question, and having in mind the rule that in such a case the court may go on to a complete adjudication, although the Surrogate’s Court may have concurrent jurisdiction of incidental questions involved, the conclusion was reached that the demurrer was not well taken.

But the argument advanced in support of this conclusion entirely omits consideration of the relation of the surrogate to the tax. It seems that authority was conferred upon the Surrogate’s Court in the first instance, to ascertain and determine, judicially, the amount of the tax, if any, to be paid, and upon that premise considered, with the fact that the statute does not in terms exclude any other court, it is argued that the Supreme Court, being a court of general jurisdiction, may also assess and determine the tax if incidental to a complete determination of an estate of which it has taken jurisdiction for some special reason.

The premise, however, is faulty, in that the statute does not confer jurisdiction upon the Surrogate’s Court as such, in the first instance, to assess and determine the tax.

The surrogate, as a taxing officer, after the appraiser has appraised the property, enters nis order fixing the tax “ as of course,” and thereafter any' person aggrieved ' may appeal therefrom to the surrogate. By both the initial act of 1885, and the subsequent one of 1892, a special State tax, not belonging to the system of general taxation, was created.

In character it was so entirely different from the general plan of taxation that special agencies were necessary for its enforcement. What these agencies should be, and under what rules and regulations they should proceed to enforce collection of the tax, the Legislature alone had power to determine.

The courts can only interfere when a tax law transcends the legislative power. (People ex rel. Panama R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240-250.) That, the statute in question does not do. (Matter of McPherson, 104 N. Y. 306.)

Instead of providing for the appointment of assessors, or collectors or taxing officers under some other name to execute the provisions of the law, the Legislature not unwisely determined that the surrogates of the several counties of tlie State were in a position to more economically and effectively enforce collection of the tax than any other agency that could be devised, and so the surrogates were made special taxing officers and charged with the duty of enforcing the collection of this special State tax, upon notice to those interested, and in the manner provided by the statute.

That the statute constituted the surrogate, and him alone, the assessing and taxing officer, and as such the only representative of the State in the first instance, for all purposes relating to the appraisement and taxation of property, will clearly appear from a brief reference to certain of its provisions.

By section 10 of the act of 1892 (Chap. 399) the Surrogate’s Court is given “ jurisdiction to hear and determine all questions arising under the provisions of this act.”

Section 11 empowers “ the surrogate,” upon the application of any interested party, or upon his own motion and as often as occasion requires, “to fix the fair market value, at the time of the transfer thereof, of property of persons whose estates shall be subject to the payment of any tax imposed by this act.”

Section 13 provides that the “ surrogate,” upon the report of an appraiser and other proof before him, or without appointing an appraiser, “ shall forthwith, as of course, determine the cash value of all estates and the amount of tax to which the same are liable. * * * Any person dissatisfied with the appraisement or assessment and determination of tax may appeal therefrom to the surrogate within sixty days.”

It is clear that the initial steps which the statute requires the surrogates to take are those of taxing officers and not of judges. He appoints an appraiser to appraise the cash value of the property. Upon the coming in of the report he may enter an order determining the cash value of the estate; the order may be based upon the report or upon any other proof before him, and this he does “as. of course.” But the party aggrieved may take an appeal from the order thus made to the “ surrogate,” and then for the first time the procedure takes 'on a judicial character. But it is no more so than that of a board of assessors, who are required to give public notice of the completion of the assessment roll, and the time when they will hear all parties aggrieved, at which time those who are dissatisfied may appeal to the board of assessors upon affidavits and other proofs, to make correction of the assessment roll in so far as it affects them.

By section 15 it is made the duty of the treasurer or comptroller in any county, having reason to believe that any tax is due and unpaid under the act, to notify the district attorney, who shall apply to the “ Surrogate’s Court ” for a citation citing persons liable to pay such tax to appear before the court on a day specified.

Section 18 makes it the duty of the comptroller to furnish each surrogate with a tax book, which shall be a public record, where entries relating to estates subject to the tax shall be made.

The Court of Appeals, in discussing the question of the jurisdiction of the surrogate under the act of 1885 (In Matter of Estate of Wolfe, 137 N. Y. 205), used the following language : “As I read the provisions of tliis act I think we must. differ with the conclusions below, and that the proper construction of this act makes of the surrogate the assessing and taxing officer, and, as such, the representative of the State for the purposes relating to the appraisement and taxation of property. * * *

“ When we read all of the provisions of this act it is perfectly apparent that a special system of taxation was created for the benefit of the State, with all the necessary machinery for its working, the control with respect to which was vested in the Surrogate’s Court, with a jurisdiction exclusive in its nature.

“ In the assessment of a tax upon- property passing by will or by the intestate law, the responsibility is imposed by the law upon the surrogate. He acts for the State, and he is commanded to assess and fix the tax to which the property is liable, f * *

“ I can see no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act and that upon which, in the general system of taxation in the State, tax assessors act in the assessment of persons or property for purposes of taxation. It is well settled, as to them, that in their proceedings they must determine the question of liability to taxation as a fact, which gives them jurisdiction to assess. It is not ■only an important but it is a conditional step in the proceedings for the assessment.”

In the Matter of the Estate of Ullman (137 N. Y. 406) the court, after quoting the 15th section of the act of 1885, which read: ‘The Surrogate’s Court * * * shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act,’ said, ‘Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power in broad and comprehensive language, and there can be no good reason for hampering the power thus conferred by any construction that would take from him the authority to decide every question that may ¿rise in the proceeding before him which may be necessary in order'to fully discharge the duties imposed upon him by the •act.’

“ Every officer charged with the duty of executing the taxing power, whether it be a surrogate or a town assessor, must necessarily decide, in a judicial capacity, important questions of law in order to. perform the duties of his office.”

The language employed in the decisions from which we have quoted leaves no room for doubt that it is the judgment of the court of last resort that the power conferred on the surrogate by the statute is a taxing power, and that his authority to institute the proceedings is, like that of the town assessor, exclusive.

The Supreme Court has no jurisdiction to make an assessment which the town assessor is required to make in the first instance, nor has it, in the absence of statutory authority, the right to usurp the functions of the surrogate as a taxing officer under the Taxable Transfer Act.

The question of liability to taxation is a fact to be determined by the assessors and which gives them jurisdiction to assess. It is a conditional step in the proceeding for assessment. And the court cannot, in advance of action by the assessors, take that question away from them. Their action may be reviewed by the courts, and, if it be found that they assumed jurisdiction when they had it not, the wrong will be righted.

Authority to pass upon the merits of assessments has been conferred upon this court by statute (Chap. 269, Laws of 1880), but authority to assess or command the assessment of taxes is neither a part of the original jurisdiction of the Supreme Court, nor has it ever been conferred upon it by the Legislature, which alone has power to determine all questions of State necessity involved in ordering a tax, and in selecting the agencies for its collection.

The respondent calls attention to the fact that the Supreme Court has exercised jurisdiction in McVean v. Sheldon (48 Hun, 163); Catlin v. Trinity College (49 id. 278 ; aff'd., 113 N. Y. 133), and Talmadge v. Seaman (61 N. Y. St. Repr. 73).

The first two cases were submitted on an agreed state of facts, and the last was a Special Term decision, and in neither of them was the question of jurisdiction raised.

The suggestion of respondent that because of the number of parties, and the great inconvenience which will result if it should be held that the surrogate must, in the first instance, exercise his prerogative as a taxing officer, should no more persuade a strained construction in this case than in Hogan’s Case (supra). Indeed, the argument of convenience lias less merit in the case under consideration, for the complaint does not present a single question that could not have been passed upon in the Surrogate’s Court.

The interlocutory judgment should be reversed, with costs of this appeal, and the demurrer sustained, with costs.

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

Interlocutory judgment reversed, with costs of appeal, and demurrer sustained, with costs.


author: Parker, J. :

text:
    Smith Williamson, as Executor, etc., of John L. Burnett, Plaintiff, v. Jessie T. Banning, Defendant.

      Conveyances acknowledged, out of the State, before a commissioner for the State of New York and recorded without Secretary of Staids certificate — unmm'ketable title.

    Where it appears that the plaintiff in an action claims title to real property through the record of an instrument, purporting to have been acknowledged hy the grantor before a commissioner of deeds for the State of New York in the State of Pennsylvania, and that no certificate was recorded therewith of the Secretary of State of the State of New York, as required by the statute, ’ and there is no proof that the grantee in such conveyance took possession under such instrument, and the execution of such deed cannot be established by secondary evidence, the plaintiff’s title is not marketable, and a defendant will be released from a contract for the purchase of the property.
    Submission of controversy upon an agreed statement of facts in pursuance of section 1219 of tlie Code of Civil Procedure.

      James O. de La Mare, for the plaintiff.

      William Langdon, for the defendant.
   Parker, J. :

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record.

Plaintiff claims through one James H. Hallock, and to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded, in the clerk’s office of the county of Westehester May II, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the State of New York in Philadelphia, State of Pennsylvania, but there is no certificate recorded therewith under the hand and seal of the Secretary of State of the State of New York certifying that the person taking such acknowledgment was a commissioner of deeds of the State of New York, as required by statute, in order to entitle a deed “ to be read in evidence or recorded.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged and delivered. The deed cannot be found, and it is admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Hallock took possession under such instrument; on the contrary, it is stipulated that there is no evidence now known to the parties to this submission that James IT. Hallock ever took actual possession of the said premises under or after the said deed of conveyance last above described.”

Summarized, the situation is as follows: The jfiaintiff has no record title; cannot establish, by secondary evidence, the execution and delivery of a deed to Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not, therefore, marketable.

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on account of the purchase price, with interest from November 26, 1894, together with the sum of $100 for expenses incurred in examining title, with costs.

Van Brunt, P. J., and Follett, J., concurred.

So ordered.


text:
    Z. Douglass Lansing and Others, Appellants, v. Eliphalet W. Bliss, Respondent.

      Broke)'s commissions — effect of a settlement with one of several joint claimants for commissions — receiving pay from both sides.

    ■Where several persons jointly contract with a person to find him a purchaser for his business and such purchaser is found and the sale of the business made to him, the vendor cannot, by making a settlement with one of the joint contractors, escape from his liability to pay to the others an agreed sum as commissions upon the sale.
    The rule is that when one is liable to two or more on a joint contract and he settles with one for a part of the claim, the others may sue for their part without joining the one with whom a settlement has been made.
    While it is a general principle of the law that a broker cannot accept commissions from both sides, he may recover from an' employer who has knowledge that the broker is to be paid or expects to be paid by the other side.
    Appeal by the plaintiffs, Z. Douglass Lansing and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of (New York on the 29th day of June, 1894, upon the verdict of a jury directed by the court after a trial at the New York Circuit.

      Delos MeGurcby, for the appellants.

      Benjamin F. Traey and Fdwa/rd M. Shepard, for the respondent.
   Parker, J.:

The complaint alleges in substance that the defendant, being desirous of selling his business, agreed with the plaintiffs and one Samuel S. Smoot that if they would procure for him á purchaser at a satisfactory price, he would pay them $100,000 for their services. That the plaintiffs and Smoot did procure a purchaser, to whom defendant made a sale. That the defendant settled with Smoot, and paid to him $15,000 for his commissions, who released the defendant from any further indebtedness to him on account of the commissions agreed to be paid.

These allegations are denied by the answer. On the trial the plaintiffs presented testimony tending to establish the contract alleged in the complaint, although some portions of it would permit a finding that a different contract was made than that alleged in the complaint, but with the different inferences of fact as to the contract, permitted by the evidence, we have no present concern.

The testimony being closed, counsel for defendant moved for a direction of a verdict in favor of the defendant upon the whole case, specifying several grounds.

The trial court refused to consider any of the grounds of the motion, save one, which was that Mr. Smoot, one of the parties in interest with the plaintiffs, had been paid $15,000 for commissions, and had released the defendant from all obligations to him under the contract, which had the legal effect to discharge the defendant from all liability thereunder to these plaintiffs, as well as Smoot, and on that ground he directed a verdict in favor of the defendant.

In support of this ruling the respondent cites the following cases : Pierson v. Hooker (3 Johns. 68); Austin v. Hall (13 id. 286); Fitch v. Forman (14 id. 172); Bulkley v. Dayton (Id. 388); Wheeler v. Curtis (11 Wend. 653); Wells v. Evans (20 id. 252.)

In a later decision (Gock v. Keneda, 29 Barb. 120), which was a case of two tenants in common of chattels for the conversion thereof, it Avas held that a settlement of an account and the release of the defendant by one of the parties could not operate to defeat the rights of the other to recover his portion of the damages.

In the opinion the court considered Austin v. Hall (supra) and Decker v. Livingston (15 Johns. 479), and pointed out the distinction between those cases and the one then under consideration, reaching the conclusion that the rule prevailing in actions by tenants in common for trespass upon lands is not applicable to tenants in common of personal property, and citing with approval cases holding that Avlien one is liable to tAvo or more on a joint contract, and settles with one for part of the claim, the others may sue for their part without joining the one settled with, because a settlement by one tenant in common of personal property, Avithout the consent of the others, only inures as a settlement with the party settling.

This case unquestionably supports the plaintiff’s position. So far as our examination discloses, its authority has not since been called in question.

It is cited in Goodwin v. Griffis (88 N. Y. 629-636) and Hathaway v. Orient Ins. Co. (134 id. 409-412), and in the latter case as furnishing an exception to the rule of Austin v. Hall and Decker v. Livingston (supra).

The respondent urges that should it be held that the ground upon which the trial court directed a verdict in favor of the defendant was not tenable, still the judgment should be affirmed, if upon the whole case it should appear that' the defendant was entitled to a direction of a verdict. Without considering that proposition, we proceed to a brief consideration of the other grounds upon which, in part, the motion was based.

(1) It is claimed that the evidence shows that the employment of the plaintiffs and Smoot was to sell the property for $1,350,000, in which event the plaintiffs were to have $100,000 for their services; that in any event, by the terms of the contract, the property was to net the defendant, over and above all payments for brokerage or otherwise, the sum of $1,250,000, and that no such sale was effected.

It is undisputed that in all the conversations had between the defendant and the plaintiffs or Smoot, the defendant insisted that the price he should receive should be $1,250,000 net. But some of the plaintiffs testified that the agreement with the defendant was that they should find him a purchaser, and that the price should be $1,350,000, $100,000 of which should be paid to the plaintiffs and Smoot, leaving to him the sum which he desired to obtain for his property. Their position was that together with Smoot they found him a purchaser, but that in violation of his agreement with them the defendant only asked and received $1,250,000; by reason whereof they became entitled to the commissions agreed upon.

Against their position, which suffers embarrassment from contradictory statements on the part of one or more of the plaintiffs, is the significant fact that the negotiations with the brokers in London, who acted for the real purchasers, seem to have been conducted in behalf of the plaintiffs by their associate Smoot, who, with the defendant and the London brokers, arranged the terms of purchase and sale, and subsequently accepted from the purchasers’ brokers, for his services, a certain sum of money, together with a number of shares of the stock of the new corporation, in payment for his services. Again, the plaintiff Fisher, in an affidavit made December 24, 1891, said : “ I have no claim whatsover against said defendant for or on account of commissions earned or claimed by me to Lave been earned by reason of tlie sale or transfer of the capital stock and property of the E. W. Bliss Company.” The affidavit wras made some two weeks after this action was brought, and, unexplained, has a tendency to show what his understanding of the original contract was, and its bearing upon his right to recover commissions for the sale effectuated through the defendant and plaintiffs’ associate, Smoot, to whom he testified : I trusted my affairs on the other side to Mr. Smooth and my interest. He represented me on the other side. * * * Whatever time he went to London he represented this property that lie was negotiating. He represented us four gentlemen who were associated; he was doing the entire business.” In explanation of his affidavit he said he had been informed by the defendant that he managed the whole thing himself, and consequently the plaintiffs were not entitled to anything, and that .believing the statement he made the affidavit. But subsequently, reaching the conclusion that he had been deceived, that Bliss had not managed it himself, but, on the contrary, the sale had been brought about by his associate Smoot, who was representing him and the other plaintiffs ,in London, he changed his mind as to Bliss’ liability to him' for commissions.

A further consideration of the evidence under this head will not be profitable, because the questions relating to the weight of testimony, the consideration to be given to the apparent contradictions, the explanations offered in relation to them and the proper inferences to be'drawn from the testimony as a whole, are for the jury, not the court, to pass upon.

The further point is made that Smoot having finally accepted a commission from the purchasers, the plaintiffs cannot recover a commission from the seller even though the contract with the defendant was as claimed by them. That plaintiffs did have an understanding with their associate Smoot that they were to receive some shares of stock from the purchasers, in the event of the consummation of the sale, is made clear by Fisher’s testimony, and were there no evidence that such expectations on the part of the plaintiffs were understood by the defendant Bliss at about the time of the making of the alleged contract between defendant and these plaintiffs with their associate Smoot, defendant’s point would be well taken.

Employment of a broker by an owner of property is to effect a sale on terms most advantageous to liis employer. This the broker cannot do, and at the same time render similar services to the party to whom he attempts to sell the property.

It is impossible for the broker to negotiate for the benefit of both, for if he gets a good price for the property sold it is obtained from the man who buys, and if the man who buys secures a good bargain it is necessarily at the expense of him who sells, and so the general rule has come to be well established, that where an agent accepts a commission from the seller, he cannot also receive one from the purchaser, although in advance of tlie'uale the purchaser may have contracted to pay him a commission. The rule was established to prevent fraud, and it has an exception which grows out of a situation where the reason for the rule does not exist.

If a party employs a broker, agreeing to pay him for his services, and has knowledge that he is also to be paid or expects to be paid by the other party, the agreement will be enforced. (Rowe v. Stevens, 53 N. Y. 621.)

Fisher testifies that his conversations with Smoot in respect to the expected contributions to the brokers by the purchasers, of certain of the shares of stock, was communicated by him to the defendant, Bliss, in his private office, who with such knowledge assented to the further negotiations had by plaintiffs and Smoot under the arrangement which he had with them. If Fisher’s testimony in such respect be true the defendant was within the exception to the general rule. Whether it was true presented a question for the jury..

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

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

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


text:
    Van Camp Packing Company, Respondent, v. James F. McGuire, Appellant, Impleaded with Another.

      Evidence —purchase by a vendee of goods rejected by him and sold for the vendor’s account — requests to charge matters already covered by the charge.

    Where an action is brought for goods sold, and the defense is that the sale was by sample and that the goods were not equal to the sample, the plaintiff may properly prove that, after the defendant had objected to the goods, he sold them at public auction for the plaintiff’s account and bought them in at a nominal price, and subsequent to the commencement of the action sent them to his manufactory and used a largo part of the goods to make the same product as that for the manufacture of which the goods were originally purchased. Evidence of this character does not necessarily alter the rights of the parties nor authorize a recovery by the plaintiff, but is to be considered by the jury upon the question of the good faith which attended the defendant’s rejection of the goods.
    When the court has instructed the jury upon the legal aspect of a case and the effect of certain transactions, it is not error for it to refuse to charge an isolated proposition already covered by the charge made.
    Appeal by tlie defendant, James F. McGuire, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on tlie 27th day of February, 1894, and entered in said clerk’s office denying his motion for a new trial made upon the minutes.
    ’ William L. Snyder, for the appellant.

      Jno. B. Adger Mullally, for the respondent.
   Parker, J.:

Tlie judgment under review awards to the plaintiff tlie contract price of 500 barrels of tomato pulp, sold and delivered to the defendant during the month of November, 1889. The making of the contract, its terms, and a delivery by the plaintiff of the quantity of tomato pulp called for by it is not disputed, the defense being that the goods were sold by sample and that the delivery made was inferior in quality to tlie sample shown at the time the contract was made. On the part of the plaintiff it was proved that the sample barrel was taken from a lot of 100 barrels without any selection, every one of which" was made by the same process, in the same manner and at the same time, from the same tomatoes and under the same conditions. After the defendant had contracted to take 500 barrels like the sample they were all taken from this same lot of 100 barrels and shipped to the defendant. On the part of defendant evidence was offered that the 500 barrels were inferior in quality to that of the sample barrel.

"We shall not discuss this evidence because it is not contended that, the verdict rendered by the jury in favor of the plaintiff was against the weight of evidence. The questions on this appeal relate to the rulings of the court in admitting evidence, and in refusing to charge .as requested by the defendant.

.The first exception brought to our attention was taken to the admission of evidence showing that the defendant was a partner of Mr. Lawson at Camden, N. J., and that he became such in April, 1890. It appears that after the tomato pulp had been received, and the defendant had notified plaintiff that he refused to accept it as a fulfillment of the contract to deliver to him 500 barrels like the sample, that he- stored it in his own name, and after some little time had elapsed, during which a number of barrels were tested and used, he caused the barrels remaining unopened to be sold on the plaintiff’s account.

It is not questioned but that the sale was made by a licensed auctioneer in the regular way and upon notice to plaintiff. Upon this sale the defendant became the purchaser at a nominal price. All of this took place after the commencement of this action, and it was not claimed upon the trial that this sale, or the fact of the purchase by the defendant, in any way affected the legal rights of the parties, which were fixed prior to the commencement- of the action.

But it seems that after the defendant had purchased 435 barrels at the auction sale he sent them over to Camden, where they were manufactured into tomato catsup, and it was for that purpose they were originally purchased by the defendant. Francis Hemphill testified that he was in the employ of Mr. Lawson and this defendant McGuire in 1890, when McGuire sent over the tomato pulp in question for manufacture into catsup by the firm of which he was a member. Hemphill said that the catsup made from this pulp was like that made from other pulp put up in barrels, and that from every barrel and one-lialf of pulp they manufactured a barrel of catsup. Without further reference to the testimony of this witness it will be seen that the object which the plaintiff had in view was to show that the pulp which the defendant insisted upon was worthless, was made into catsup by a firm of which he was a member. It is true, as the appellant urges, that if the fact was that the pulp was inferior to the sample pulp, the manufacture of it by defendant’s firm, after it had been purchased by him at the auction sale, would not entitle the plaintiff to recover, but it constituted a fact which it was proper for a jury to consider in weighing the evidence presented by the defendant for the purpose of establishing that it was not of the quality bargained for, because, among other reasons, it tended to support the evidence of Hemphill, the employee of defendant’s firm at Camden, that it made good catsup and the usual quantity; and it was also a circumstance proper to be considered in connection with other facts found bearing upon the good faith of the defendant in rejecting the pulp.

The court refused to charge, at the request of defendant’s attorney, that whether they did or did not use the nineteen barrels of pulp after this action was commenced is entirely immaterial to this case.” It was a fact that nineteen of the barrels were used after the commencement of the action, and by this request the defendant sought to take away from the jury the right to consider it in connection with the other facts proved. If he meant by that request that the fact of the use of the nineteen barrels could not be considered in connection with other facts bearing upon the good faith of the defendant, the request was too broad; if, on the other hand, it was intended .by it to instruct the jury that the use of the nineteen barrels, after the commencement of the action, could not affect the legal rights of the parties, because they were fixed at the time of its commencement, the legal proposition embraced in the request was correct. But on that ground he has no legal grievance, because of its refusal, for the court had already charged the jury to that effect, and the defendant was not entitled to have the same proposition charged a second time. For the same reason the court did not err in refusing to charge the following request: “I ask your Honor to charge the jury, that the sole question on the merits of this .case for the jury to determine-is, whether the 500 barrels wrere tip to the sample. If they were, tiren the plaintiff is entitled to a verdict; but if they were not, then the defendants are entitled to a verdict for $6o9.'T3.”

The court had ’ fully and fairly presented this issue to the jury, and, in the course of the presentation, had made such allusions to the evidence as would naturally tend to aid the jury in reaching a proper conclusion with reference to that issue. By this request the defendant sought to have the proposition recharged, but apart from the comments which the court had deemed it its duty to make in connection with it — a method of securing a little advantage often resorted to and quite too frequently with success. But to this request the trial court responded: “ That I refuse, except as already charged.” As it already had been sufficiently charged, as we have observed, the disposition made of the request was proper.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.:

text:
    The Mercantile Trust Company, as Trustee, Respondent, v. The Atlantic Trust Company, Appellant, Impleaded with Others.

      Contract to hold property as security — secret contract as a defense thereto — waiver of a covenant in a contract, an estoppel — informality in the execution of a guaranty

    A trust company, liaving contracted to hold certain shares of stock of a corporation as security for certain bonds, cannot avail itself of a secret contract, by ■which it received such shares of stock in pledge, as a defense to an action to compel it to perform its contract to hold the stock as security for such bonds.
    Where a party to a contract has waived the performance of a covenant contained therein, he is estopped from setting up its non-performance as a defense to an action upon the contract.
    The fact that there may have been some informality in the execution of a contract of guaranty, is not available as a defense to a person who is neither a surety nor a guarantor, but a mere depositary of property under an agreement that he would hold the same as security for the performance of the contract of guaranty.
    Appeal by tlie defendant, The Atlantic Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of January, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, directing the sale and disposition of the proceeds of certain stock.
    ' On June 26, 1889, the Julien Electric Traction Compan}'-, a New Jersey corporation, executed a mortgage on its property to the Mercantile Trust Company as trustee, to secure the payment of 200 bonds of $1,000 each, dated on that day and payable July 1, 1894, with interest at the rate of six per cent, payable on the first days of January and July in each year. On October 18, 1889, said mortgagor executed a supplemental mortgage to the trust company further to secure the payment of said bonds, 102 of which are described in the contract of guaranty hereinafter quoted.
    April 18, 1890, the Consolidated Electric Storage Company, a New Jersey organization, issued to the Atlantic Trust Company 119,960 shares of its capital stock for the purchase of certain property specified in the resolution authorizing the issue of said shares, which property was afterwards, and before April 28,’ 1890, acquired and transferred to the corporation. After paying for this property there was left in the possession of the trust company 60,000 shares of said stock, 30,000 of which are -mentioned in the contract of guaranty.
    On April 28,1890, the United Electric Traction Company, a New Jersey corporation, executed and delivered to the Mercantile Trust Company the following agreement:
    “For value received the United Electric Traction Company, a corporation created and organized under the laws of the State of New Jersey, does hereby, for itself, its successors and assigns, guarantee to the Mercantile Trust Company, as trustee, the payment of principal and interest, at maturity, of one hundred and two (102) bonds of the Julien Electric Traction Company, of $1,000 each, being numbers 1 to 30, 57 to 64, 67 to 70, 76 to 105, 110, 118, 123 to 150 ; and the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant and agree to comply with all the conditions, stipulations and agreements contained in the Mortgage or Deed of Trust executed by the Julien Electric Traction Company to the Mercantile Trust Company, trustee, bearing date June 26, 1889, and a supplemental mortgage confirming the same bearing date October 18, 1890, to secure said bonds, more especially the requirements of said mortgage as to renewing, replacing and keeping in good condition all the property cov ered by said mortgage and said supplemental mortgage ; and the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant, stipulate and agree that the United Electric Traction Company aforesaid will not make, nor allow to be made or issued any mortgage, mortgage bonds, debentures or any preference securities other than the $2,000,000 in preferred stock provided for in the said the United Electric Traction Company’s articles of incorporation, until all of the said 102 bonds, above referred to, both principal and interest, shall .have been paid or redeemed pursuant to the terms of said bonds.
    “ In witness whereof, the United Electric Traction Company aforesaid has hereunto caused its corporate seal to be affixed and these presents to be subscribed by its proper officers thereunto duly authorized, this 28th day of April, 1890.
    “UNITED ELECTRIC TRACTION COMPANY,
    “ By R. L. Belknap,
    “ President.

    “ Signed, sealed and delivered in the presence of “[i, s.]
    “ Attest:
    “W. B. Stevenson,
    “ Secretary.”
    At the date of this agreement, the Atlantic Trust Company, by its president, executed and delivered to the plaintiff this receipt, which was indorsed on the contract of guaranty:
    “ There has been deposited with the Atlantic’Trust Co. 30,000 shares of the Consolidated Electric Storage Company’s stock security for the performance of above guarantee.
    “W. H. MALE, “Pi.”
    The bonds not being paid, the plaintiff demanded that the Atlantic Trust Company deliver the shares of stock to the plaintiff, or that the Atlantic Trust Company sell the shares and apply the avails towards the payment of the bonds, which the trust company refused to do, whereupon this action wras brought to compel it to deliver the stock to the plaintiff. Before the action was begun, a receiver had been appointed for the United Electric Traction Company. The Consolidated Electric Storage Company and the United Electric Traction Company and its receiver are joined as parties defendant with the Atlantic Trust Company. The trust company and the receiver answered, the other defendants making default. After a trial at Special Term, a judgment was ordered adjudging that the Atlantic Trust Company deliver the shares of stock to plaintiff, from which the trust company alone appeals.

      J. Langdon Ward, for the appellant.

      Wm. JS. Ilornblower, for the respondent.
   Follett, J.:

"When this action was before this court on the appeal from the first* interlocutory judgment sustaining a demurrer to the matter pleaded in avoidance in the original answer, it was held that the facts so pleaded were insufficient to constitute a defense, but leave was given to serve an amended answer. (69 Hun, 264.) Subsequently the Atlantic Trust Company served an amended- answer pleading further facts by way of avoidance, to which the plaintiff demurred on the ground that they were insufficient to constitute a defense. The demurrer was sustained and an interlocutory judgment entered which granted leave 'to the defendant to plead anew; of which privilege the defendant availed itself and filed and served a second amended answer. Upon the issues so joined, the action was tried and a judgment ordered for the plaintiff.

A demurrer runs through all the pleadings, and the effect of the interlocutory judgments is that the facts alleged in the complaint, unless successfully controverted or avoided, are sufficient to constitute a cause of action, and that the facts pleaded in the original and first amended answer by way of avoidance are insufficient to constitute a defense. The facts alleged in the complaint were proved on the trial, and thus, under our former decision, a cause of action was established, unless a valid plea in avoidance was proved.

The Atlantic Trust Company, by way of a defense, proved that April 28, 1890, the United Electric Traction Company pledged to the trust company said 60,000 shares of stock as security for the repayment of all moneys loaned by the trust company on the promissory notes of the United Electric Traction Company, and that April 28, 1890, the date of the contract of guaranty, and after the trust company had indorsed its receipt thereon and delivered it to the plaintiff, it loaned from time to time to the United Electric Traction Company large sums of money secured to be paid by eleven promissory notes, the first dated May 12, 1890, and the eleventh November 10, 1890, given by the traction company to the trust company, which have not been paid, and that by reason of these facts the trust company has a lien on the shares. It is not alleged in the answer of the trust company, nor was it proved on the trial, that the plaintiff or the bondholders, for whom it acted as trustee, had notice that the shares were so pledged, and the Atlantic Trust Company, having contracted to hold the 30,000 shares as security for the 102 bonds, cannot now avail itself of the secret c®n-tract by which it received the shares in pledge as a defense to an action to compel it to perform its contract to hold them as security for the 102 bonds.

By reference to the contract of guaranty it will be seen that it contains this covenant: “ And the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant, stipulate and agree that the United Electric Traction Company aforesaid will not make, nor allow to be made or issued, any mortgage, mortgage bonds, debentures or any preference securities other than the $2,000,000 in preferred stock provided for in the said the United Electric Traction Company’s articles of incorporation, until all of the said 102 bonds above referred to, both principal and interest, shall have been paid or redeemed pursuant to the terms of said bonds.”

December 8, 1890, the United Electric Traction Company mortgaged its property to the Mercantile Trust Company (the plaintiff), as trustee, to secure the payment of 1,800 bonds, amounting to $700,000. As a defense the Atlantic Trust Company alleges that the execution of the mortgage was a violation of the above covenant, and that the plaintiff, being a party to the mortgage, cannot compel the defendant to deliver the 30,000 shares, which it alleges it has the right to retain as security for the payment of said eleven promissory notes. The answer to this is that the Atlantic Trust,Company knew before the mortgage was executed that it was to be given, and its president advised that it should be executed to the Mercantile Trust Company as trustee. These facts were proved on the trial and were not disputed, though the president of the Atlantic Trust Company was a witness. More than this, he corroborated the testimony of the witnesses who testified- to these facts." This-appellant, having waived the performance of the covenant, is estopped from urging its non-performance as a defense to this action. The defendant gave no evidence of any defense not pleaded in its original and first amended answer,■'and it seems quite unnecessary further to discuss the propositions which were considered at General Term (69 Hun, 264) and subsequently at Special Term on a demurrer to the first amended answer.

As a ground of error, the learned counsel for the appellant insists that the execution by the United Electric Traction Company of the-'guaranty was not legally established. It is urged that this contract is one which the officers of the corporation could not execute without the authority of the board of trustees. On this trial it was proved and not denied, that the contract was executed by the president of the corporation, and that its corporate seal was affixed. This the defendant insists was not sufficient, and asserts that the plaintiff should have gone further and proved that it was executed by the authority of the board of directors. ¥e think the defendant is not in a position to raise this question. It is not a surety nor guarantor, but a mere depositary of the shares under an agreement that it. would hold them as security for the performance of the-contract of guaranty. The fact that there may have been some informality in the execution of the contract of guaranty, is not available as a defense to this defendant. It is in the same position as an agent who collects money for his principal which the principal could not have collected in an action against the person who pays it. In such a case the agent cannot interpose as a defense, when called on to pay over the money to his principal, that he could not-have enforced the demand as against the person from whom collected. It is like the case of a public officer who collects money upon an execution or a warrant which could not have been enforced had the person against whom it was issued resisted. The officer is-bound to pay over the money collected, in accordance with the command of his warrant, and a defense which might have been available to the person from whom the money was collected is not available to the officer. (People ex rel. Martin v. Brown, 55 N. Y. 180.) It was not necessary for the plaintiff to -prove that the board of directors authorized the execution of the guaranty in order to lay the foundation for a judgment against the defendant requiring it to deliver the 30,000 shares of stock in accordance with its agreement. The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    The People of the State of New York, Plaintiff, v. The Mutual Benefit Life Association of America, Defendant. Thomas C. Smith, Appellant; Samuel W. Milbank, Receiver of The Mutual Benefit Life Association of America, Respondent.

      Insolvent corporation — lien upon its assets in a foreign jurisdiction — must exist before entry of judgment dissolving the corporation — foreign attachment, proof of its existence.

    In order to maintain a lien upon the assets of a corporation, no matter where they may be situated, it must be shown that such lien existed' prior to the entry of a judgment dissolving the corporation.
    Where the only proof from which a determination could be made, as to whether an attachment had been levied in the State of Connecticut prior to the entry of a judgment dissolving a corporation in the State of-Hew York, consisted in two returns of a sheriff of a county in the State of Connecticut, which were contradictory, one of which returns was equivocal in its language and evidently false in respect to its date, such returns will be disregarded as being unreliable and affording no basis for a judgment.
    Appeal by Thomas C. Smith from so much of an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1895, as directs and requires him within ten days after the service of a copy of such order to discontinue and withdraw his action against The Mutual Benefit Life Association of America pending in tlie State of Connecticut, and all attachments and proceedings taken therein.

      Wilmore Anwcoy and Chas. H. Truaw, for the appellant.

      Hen-ry W. Sachett, for the receiver, respondent.
   Van Brunt, P. J.:

The defendant in this action is a domestic corporation, and proceedings having been taken for its dissolution, on the 20th of October, 1894, a judgment dissolving such corporation was entered in said action, which judgment contained an injunction clause restraining all persons whatsoever from commencing any action or proceeding against the defendant or from taking any further proceedings in any action or proceeding already commenced.

It is claimed that prior to the entry of this judgment the appellant, Thomas 0. Smith, obtained and caused to < be levied an attachment upon the property of the defendant in the State of Connecticut, and the only question necessary to be determined upon this appeal is whether such attachment was levied prior to the entry of the judgment aforesaid or subsequent thereto.

It is clear that in order to maintain his lien upon the assets of the corporation, no matter where they may be situated, the appellant Smith must show that such lien existed prior to the entry of the judgment. This fact, it is claimed upon the part of the appellant Smith, lias been shown by the papers which were used upon the motion in the court below. Upon an examination of these papers we find no proof whatever as to what, under the laws of Connecticut, constitutes a valid levy It is true that in one of the affidavits filed upon the part of the appellant a conclusion is stated, but no facts as to what the law of the State of Connecticut was in that respect.

We further find that the sheriff makes two contradictory returns, the latter one being equivocal in its language and evidently false in respect to its date. In the return first appearing in the papers the sheriff certifies, under date October 22, 1894, that lie then and there levied the attachment. Upon the part of the appellant a certificate of the same sheriff is offered in evidence, bearing date the llth day of October, 1894, in which the sheriff certified that he levied the attachment on the seventeenth day of October, and left with the garnishee a true and attested copy of the writ, summons and order of notice, which was manifestly false as the order of notice was not made until the 19th of October, 1894.- No" reliance could be placed upon certificates of this character as they are manifestly untrue. The court was correct in disregarding the same as being utterly unreliable and affording no basis for a judgment. There would seem, therefore, to be no reason for interfering with the order of the court below, so far as it was appealed from, and it should be affirmed, with costs.

Parker and O’Brien, JJ., concurred.

Order affirmed, with costs.


text:
    The Roman Catholic Church of the Transfiguration, Plaintiff, v. Nathaniel Niles, Defendant.

      Collateral inheritance tax — devise to a bishop — cha/pter 169 of. 1892 releases tmes upon such property.

    Under the provisions of chapter 169 of the Laws of 1892, which provides that any property theretofore or thereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from and not be subject to the provisions of such act, property which had been devised in October, 1885, to a person who was a bishop, and' upon which the collateral inheritance tax has not been paid under the Collateral Inheritance Tax Law, passed June 10, 1885, is released from the payment of such tax, whether such devise had become operative prior to the passage of the act or subsequent thereto.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of tbe Code of Civil Procedure.

      F. J. MoLoughlÁn, for tbe plaintiff.

      Joseph W. Tuttle, for tlie defendant.
   Van Brunt, P. J.:

Tbe plaintiff in tbis action on tbe 20th of July, 1894, contracted witb the defendant to sell to him certain premises in the city of New York. The defendant objected to the title upon tbe ground that it was liable to an inheritance tax. The property in question belonged to John McOloskey, cardinal archbishop of New York, ■at the time of his death on the 10th of October, 1885. By his will Cardinal McOloskey devised all. his estate to Archbishop •Corrigan of the city of New York, Bishop Loughlin of Brooklyn ■and Bishop. McNierney of Albany, as joint tenants and not as tenants in common. On the 2d of January, 1886, Bishop McNierney conveyed to Archbishop Corrigan all his interest in said real estate, .and on the 19th of January, 1886, Bishop Loughlin made a similar conveyance. On the 19th of February, 1886, Archbishop Corrigan conveyed the premises in question to the plaintiff. At the time of the death of Cardinal McOloskey, the Collateral Inheritance Act, passed on the 10th of June, 1885, was in operation, and the real estate bequeathed by him was liable to such tax. No tax, however, was ever paid upon the same. On the 19th of March, 1892, an act of the Legislature became a law (Chap. 169, Laws of 1S92) whereby section 1 of the act of 1885 designating the property to be taxed was amended and the following clause was inserted therein: “'Provided further, that any property heretofore devised or bequeathed, or which may hereafter be devised or bequeathed, to any person who is a bishop, or to any religious corporation, shall be exempted from and not be subject to the provisions of this act.”

It is claimed upon the part of the defendant that the act in question did not apply to those cases where the tax had become due, but had not been paid, but to those cases where no appraisement could be made nor any tax imposed immediately upon'the death of the testator, because of the want of vesting of the estate so that its value could be ascertained. Upon the other hand, it is claimed that the act was intended to and did apply to all cases falling within the exemption. The claim for the payment of this tax was one upon the part of the State, which the State had an undoubted right to release if it desired so to do, and the only question which can be raised is : Was there an intention to make an exemption as to property which had passed to a devisee prior to the passage of the amendment ? It seems to us that the language of the statute is explicit on this point. It is: “ Any property heretofore devised or bequeathed.” It is a familiar rule of law that a will speaks from the death of the testator. It has no legal effect or existence prior ■to tliat time; and. although in such a will property may be described and by its terms be bequeathed, it is entirely inoperative and confers no rights until the death of.the testator, and such property cannot be by any stretch of the imagination said to be devised or bequeathed. It can only be said after the death of the testator that it is devised and bequeathed. The language of the act is that property which had theretofore been devised or bequeathed should be exempt. The claim upon the part of the defendant that this language was intended to apply only to those cases where it had been impossible to assess the tax because no appraisement could be made, is not borne out by anything contained in the statute. It applies to all sorts of property in possession or in expectancy, and makes no distinction; and it was the evident intention of the Legislature to release property which had been thus devised from the provisions of the Inheritance Tax Act, whether such devise had become operative prior to the passage of the act or subsequent thereto.

If our construction of the act is correct, then there is no power upon the part of the State now to collect such tax, its right having been released by an effective legislative act, and the plaintiff is entitled to judgment, with costs.

O’Brien and Parker, JJ., concurred.

Judgment ordered for plaintiff, with costs.


author: Yan Brunt, P. J.:

text:
    Kate Ryan, as Administratrix, etc., of William Ryan, Deceased, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Master and servant — recovery under a contract for services repudiated by the master ■ — •a question for the jury.

    Upon the trial of an action, brought by the administratrix of a decedent to recover for services performed by her intestate as an inspector of masonry upon the New York aqueduct, it appeared that the division engineer wrote to the chief engineer of the aqueduct that he had ordered the plaintiff’s intestate to report to him under suspension; that thereupon the chief engineer communicated such fact to the board of aqueduct commissioners, and a few days after the resignation of the plaintiff’s intestate was demanded. Said intestate never reported for duty thereafter, although he made repeated applications for reinstatement, which applications were denied.
    The defendant asked to go to the jury upon the question as to whether it was the understanding of the parties that the communication to the plaintiffs intestate was his discharge, which request was denied and a verdict was directed for the plaintiff.

      Held, that, as the right to recover under a contract for services depends upon the rendition of such services or upon an offer to serve and a refusal to accept such service, it was error to direct a verdict, and that the defendant had a right to go to the jury for the purpose of having it determined what was the understanding of the parties as evidenced hy the action which had heen taken.
    Axu'eal by the defendant, The Mayoi-, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of October, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New- York Circuit, and also from an order entered in said clerk’s office on the 17th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Fra/ncis 1C. Scott and J. T. Malone, for the appellant.

      E. G. Delaney and Lyman E. Warren, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the sum of $3,120 alleged to be due the plaintiff’s intestate for services performed as inspector of masonry upon the new aqueduct from October 24, 1887, to December 24, 1889. The complaint alleges the appointment by the aqueduct commissioners of the city of New York, on the 8th day of June, 1887, of the said Ryan as inspector of masonry, to supervise and inspect the woi’k of construction of the new aqueduct, at a salary of $120 per month; and further, that the plaintiff’s intestate entered upon said employment and faithfully performed all the duties and services required of him from the 8th day of June, 1887, to the ■ 24th day of December, 1889, when he was dismissed; that there was paid to him for his services a certain sum, and that there remained due to him the sum of $3,120. The answer admitted the appointment but denied that Ryan had performed services from the 8th of June, 1887, to 24th of December, 1889, and alleged the discharge of said Ryan on the 24th of October, 1887, and that he had performed no work since that time.

The evidence showed the appointment as admitted, and that Ryan served from the time of such appointment until the 24th of October, 1887, and had been paid for such services. On the 25th of October, 1887, the division engineer wrote to the chief engineer that he had ordered said Ryan to report to him under suspension. Thereupon the chief engineer communicated with the board of aqueduct commissioners, and on the 28th of October, 1887, the resignation of Ryan was demanded from him, and he ceased thereafter to do any work upon the aqueduct. There is evidence that since this time Ryan never reported for duty, although one witness upon the part of the plaintiff swore to having seen him subsequently upon the work. Ryan, however, made repeated applications for reinstatement, which applications were denied.

Upon this state of the evidence the defendant asked to go to the jury upon the question as to whether it was the understanding of both of these parties that the communication to Ryan was his discharge. The court denied this motion and directed a verdict for the plaintiff, which was excepted to.

It seems to us that this was error. The right to recover under ■ a contract for services depends upon the rendition of those 'services or upon an offer to serve and a refusal to accept the same. We have been unable to find in this case any evidence whatever npon the part of Ryan that he offered his services subsequent to his claimed discharge. All his efforts were to be reinstated. From this circumstance the jury would have a right to infer that Ryan understood and the aqueduct commissioners intended that their communication should operate as a discharge.

The fact of their subsequent resolution dismissing Ryan from service was evidently brought about by certain decisions which had been made respecting suspensions, and offers but a very slight clue as to the intention with which the previous communications were made. As already suggested, it seems to be evident that Ryan understood when his resignation was called, for that his place was vacant, as it does not appear that he tendered any services at all thereafter, but made continual applications for reinstatement.

"We think that the defendant has a right to go to the jury for the purpose of having it determine from this evidence as to what was understood by these parties by the action which had been taken.

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

Parker and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    John A. Holmes, Respondent, v. Andrew Little, Appellant.

      Creditors action — deed in fraud of creditors —• acceptance thereof — preference of creditor bringing an action in default of action by an assignee.

    James Boyle, in 1873, executed and liad recorded a deed oí his real estate to Andrew Little. The latter did not know of the existence of this deed until 1878, when he objected to it and returned it to Boyle, who remained in possession of the premises until his death in 1881. In 1878 'Boyle became a bankrupt and an assignee of his estate was appointed. In 1880 the plaintiff Holmes became a judgment creditor of Boyle upon an indebtedness, none of which accrued earlier than 1874. In 1883 Little began to collect, and until 1891 continued the collection of the rents of the premises, and in 1891 conveyed the premises for value to John Neely. In 1893, by leave of court, the plaintiff sold the premises upon an execution against Boyle; a deficiency resulted, and an action was brought to charge Little with this upon the basis •of rents collected by him or which might have been collected by him during all the time that he claimed to have held possession of the property. Upon the trial of the action the court found that the deed of Boyle to Little was executed in fraud of creditors, but did not find that it was in fraud of subsequent creditors.

      Meld, that it was essential that Little should accept the deed from Boyle, and that, never having done this, the conveyance was defective;
    That while the fact that Little collected the rents from 1883 might imply an acceptance by him from that time, he could not be charged with the rent of the premises prior to the time of such collection;
    That the intent of Boyle in making the deed to Little was immaterial to the plaintiff, who was not a creditor of Boyle at the time of the conveyance, and who, so far as appeared, had not given Boyle any credit based upon the latter’s possession of said real estate;
    That upon the appointment, of an assignee in bankruptcy all the property of Boyle, including the right to the rents and profits of his real estate, passed to the assignee and there remained;

      That if such an assignee should fail or refuse to bring an action to recover property transferred in fraud of his estate, a creditor bringing such an action and making the assignee a defendant, would not thereby gain a preference; the fruits of such an action must be brought into court, there to be administered in the interest of all the creditors.
    Appeal by tlie defendant, Andrew Little, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the city and county of New York on the 11th day of October, 1894, upon the decision of the court rendered at the New York Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 14th day of May, 1894, the amendments thereto and an order amending the same "and all proceedings had before a referee appointed herein and the report of said referee.

      A. 0. Thomas, for the appellant.

      T. J. Keigharn, for the respondent.
   Yan Brunt, P. J.:

From the findings made by the court upon the trial of this action it appears that on the 1st of November, 1873, one James Boyle was seized in fee simple of certain lands and premises known as Nos. 22 and 24 Mangin street in-the'city of New York; and that on or about said 1st of November, 1873, said James Boyle and Margaret, his wife, signed, sealed and acknowledged a deed of said land and premises purporting to convey the same to one Andrew Little, the defendant. The consideration expressed in said deed was the sum of $16,000, and the assumption of mortgages upon said property amounting to the sum of $4,900. The paper só signed, sealed and acknowledged was caused to be recorded on said 1st of November, 1873, by said Boyle. At no time prior to the recording of said deed did the defendant authorize or sanction the placing of the same upon record; and the defendant was ignorant of the existence of the same until about the month of January or February, 1878, when the same was handed to him and he objected to the same and returned the same to said Boyle or his attorney, and left the same with said Boyle’s attorne;y to have the same corrected or exchanged. The defendant never afterwards got said deed from said Boyle or said Boyle’s attorney. The consideration of $16,000 expressed in the deed was never paid, and the grantee never paid or agreed to pay for said property the sum of $16,000, and never agreed to assume or pay the mortgages upon said property. From the day said paper was signed, November 1, 1873, down to the time of his death on the 26th of January, 1881, James Boyle remained in possession and control of the premises and he never paid to the defendant Little, the grantee in said deed named, and the said defendant never asked, demanded or received from said Boyle, any rent for the same.

The court further found that said alleged deed was signed, sealed and acknowledged by said James Boyle with the intent and for the purpose of hindering, delaying and defrauding his creditors, and not with the intent of conveying said property to the pretended grantee; and that during the year 1874 and down "to and after the year 1879, the said Boyle was indebted to the firm of W. & A. Holmes & Co., hereinafter mentioned, and was, during a part of that period, engaged in creating or incurring the debt for which the judgment found in the first finding herein was rendered and given.

During the year 1878 James Boyle was adjudicated a bankrupt on his own petition in the District Court of the United States for the southern district of New York, and the court refused to grant him a discharge from his debts.

On the 26th of October, 1880, the plaintiff John A. Holmes and his co-partners, doing business under the said firm name of ~W. & A. Holmes & Co., recovered a judgment against Boyle in the Supreme Court of the State of New York for the sum of $9,637.30. Subsequently the plaintiff became the sole owner of said judgment.

From the year 1883 to the 6th day of January, 1891, the defendant has received from said premises as rent for the same sums varying from $700 to $800 each and every year, the exact amount of which is unknown.

The assignee appointed in bankruptcy died before the commencement of this action, and he never took or instituted any legal proceedings to have the alleged deed, which was signed, sealed and acknowledged by said James Boyle and wife on the 1st of November, 1873, to the defendant, declared void, or to compel the said defendant to account for the proceeds of said property.

On the 1st of November, 3873, James Boyle was not indebted to the firm of W. & A. Holmes & Co., nor was said firm nor its members then creditors of said Boyle. The claims for which the judgment .of the firm of W. & A. Holmes & Co. against Boyle was obtained were upon three notes, one dated September 8, 1875, one dated October 16, 1877, and the other dated December 15, 1877.

On the 19th of January, 1891, the defendant sold and conveyed to one John Neely the premises in question for the consideration of $16,000. The defendant received from said Neely $5,000 of said purchase money, and now holds a mortgage for $11,000 on said premises, upon which interest has been paid by Neely to the defendant.

Prior to the 16th of January, 1893, the plaintiff duly instituted and took legal proceedings to obtain leave to issue an execution upon said judgment against Boyle to enforce and collect the same out of said real estate, and on the 8th day of May, 1891, -the Surrogate’s Court duly made and entered a decree granting the plaintiff leave to issue said execution. On the 16th of January, 1893, such execution was duly issued, and the same was levied upon the real estate in question, and such real estate was sold for the sum of $12,165.75, leaving a balance remaining uncollected of said judgment of $4,656.15.

Upon this state of facts the court found as conclusions of law that the alleged deed signed, sealed and acknowledged by said James Boyle on the 1st of November, 1873, was signed, sealed, acknowledged and recorded by him with the intent and further purpose of hindering, delaying or defrauding the creditors of said Boyle; that said alleged deed was never delivered to or accepted by the defendant prior to January or February, 1878 ; that ever since the 26th of October, 1880, said judgment recovered by Holmes & Co. has been, and continued to be, a lien on said land and premises down to and including the 18th ’of March, 1893, the day upon which the sheriff sold the same under said execution; that the plaintiff is entitled to judgment in this action against the defendant, declaring said alleged deed of said premises fraudulent and void as to the plaintiff; that there was due to said plaintiff on said judgment the sum of $4,656.15 ; and that the plaintiff -was entitled to judgment against said defendant for an accounting of the rents and profits of such land and premises received by him, and a referee was appointed to take and state the account.

This interlocutory judgment was subsequently amended by requiring the defendant to account for the rents which said defendant might or could have received, and also to take proof of the amount of money which the said defendant might or could have received during all the time he held or claimed to hold possession of said property as rents and profits from the same.

An accounting being had before the referee, the referee refused to allow the defendant the taxes and assessments paid upon the property besides the interest paid upon the taxes, and charged the defendant with a yearly rental amounting to about $800 as the rental which he might or could have received from said premises between the 1st of November, 1873, and the 1st of September, 18S2, when he first began to collect the rents.

Upon the coming in of this report a final judgment was entered, and from said interlocutory and final judgment this appeal is taken.

Upon an examination of the foregoing facts, it seems to us that they are fatally defective in the first ¡alace in not finding that there was ever any execution, of the deed in question by delivery to the defendant. And in the next place, the question as to what was the intent of James Boyle in the signing, sealing and acknowledging of the deed on the 1st of November, 1873, seems to be entirely immaterial as far as this plaintiff was concerned. He was not a creditor of Boyle at that time; it is not found that he expected to be a creditor, or that Boyle expected him to be a creditor, nor that Boyle signed, sealed, acknowledged and delivered the deed in question with any intent of -defrauding subsequent creditors. The claims upon which the judgment is obtained, which is the foundation of this suit, seem to have accrued in 1877, and, therefore, the conveyance by Boyle in 1873 does not seem to have done much harm to this plaintiff. If it be said that Boyle remained in possession of the premises to the time of his death, and was in possession thereof at the time of the contracting of this debt, our attention has not been called to any evidence or to any finding that any portion of this debt was contracted upon the faith or knowledge, or the assumption of knowledge of ownershijo in Boyle in the premises in question. It is expressly found that the defendant never accepted the deed, and consequently there never was a, complete execution of the deed, it never having been delivered to and accepted by him. It is true that from 1883, down to the time of the sale to Neely, the defendant collected the rents of the premises in question, and from such action it might be inferred that the defendant had, from that date, accepted the conveyance and gone into possession of the premises; but how, under such circumstances, he can be charged with the value of the use and occupation of these premises from the 1st of November, 1873, down to the time when he commenced to take the rents, it is difficult to imagine.

Further, it is found that during the year 1878 James Boyle was adjudicated a bankrupt on his own petition, and it would appear that an assignee in bankruptcy was appointed, because it is found that the assignee appointed in the bankruptcy proceeding died before the commencement of this action, having taken no proceeding to set aside the deed in question. Now, it is a well-settled rule of law that, upon the appointment of an assignee in bankruptcy, all the property of the bankrupt becomes 'vested in the assignee by virtue of the adjudication of bankruptcy and the appointment of such assignee, and all property conveyed by the bankrupt in fraud of his creditors is expressly included therein.

The title to the rents and profits which are claimed in this action by the plaintiff was vested, therefore, in the assignee in bankruptcy,, and, he having died, belong to his successor, when such successor shall be appointed, even if it be assumed that the creditor, where an assignee refuses to bring an action for the purpose of recovering property belonging to the estate, may bring such action making the assignee a party; the fruits of such action, however, must be brought, in court for the benefit of the creditors of the bankrupt to be administered in due course of proceedings in bankruptcy Such an action, is an aid to the bankruptcy proceeding, and of the application of the property fraudulently disposed of by the bankrupt to the payment, of his creditors generally. In such a proceeding no creditor can procure a preference by reason of the bringing of such an action. In the case at bar the plaintiff seeks to seize upon this asset without regard to the rights conferred by the bankruptcy proceeding, and without regard to the rights of any other of the creditors of James'. Boyle, who may be entitled to participate therein. In other words., the plaintiff seeks to have this court administer the estate of the bankrupt, the title to which has been divested by the proceedings in bankruptcy and not represented before the court.

It seems to us that the judgments must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien and Follett, JJ., concurred.

Judgments reversed, new trial ordered, costs to appellant to abide event.