text:
    In the Matter of the Settlement of the Accounts of John S. Cameron and Another, as Executors, etc., of John Cameron.

      Gift by will — when nested — when contingent - — • will, how construed.

    It is a general principle that where a gift contained in a last will and testament is-absolute, and the time of payment only postponed, time not being of the substance of the gift, but relating only to the payment, the vesting of the title to the thing given is not suspended, but the payment only is deferred; but where there is no gift, but only a direction to executors or trustees to pay or divide at. a future time, the vesting of the title to the subject of the gift in the beneficiary will not take place until that future time arrives.

      While a court should always encourage the construction of a will which leans to the vesting of legacies, and seek diligently for evidences of such purpose and intention, yet it must construe a will and not make it over to suit its own notions of what might have been wisest.
    Appeal by Isabel Cameron, a residuary legatee under the last will of John Cameron, deceased, from a decree of the Surrogate’s Court of New York county, entered in the office of the clerk of the New York County Surrogate’s Court on the 13th day of June, 1893, settling and allowing the accounts.of the executors of John Cameron, deceased.
    The will of John Cameron was as follows:

      “First. I direct my executors, hereinafter named, to pay all my just debts and funeral expenses as soon as may be after my decease.

      “Second. I give and bequeath unto my dear wife, Sarah II. Cameron, her executors, administrators and assigns, all and singular my personal property of every name and nature and wheresoever •situate.

      “ Third. I give and devise unto my executors, hereinafter named, and to the survivors and survivor of them, and to such one or more •of them as shall qualify, all my real estate of every name and nature and wheresoever situate, in trust.
    “ 1st. To rent the same for the best sums that can be obtained ■therefor, and collect the said rents, and after deducting taxes, assessments, repairs, insurance, commissions and all legal, just and proper •charges out of the net proceeds thereof, to pay over the sum of one hundred and twenty-five dollars to my wife, Sarah II. Cameron, and also a like sum to each of my daughters, Mary, Isabel Y. and Hannah E., quarter-yearly on the first days of May, August, November and February of each year, and at the same times, of the residue to pay one-third thereof to each of my sons, "William E., George H. and John Spencer Cameron.

      “ 2. I do hereby authorize, empower and direct my said executors, the survivors and survivor of them, as soon as my lots and buildings known by the street numbers two hundred and sixty-six (266) and two hundred and sixty-eight (268) Bleecker street, and number four (4) Commerce street, New York city, can be sold for forty thousand dollars, or more, during the lives of my daughter Hannah B., and my son John S. Cameron, and in any event upon the death of the survivor of them, to sell said premises for cash, or part cash and part credit, hereby giving and granting to my said executors or the survivor full power and authority to make and execute good and sufficient deed or deeds therefor to the purchaser or purchasers and receive good and sufficient bonds and mortgages upon the premises sold for part of the purchase money, and thereupon to divide the whole of such purchase money and mortgages as follows:
    “ My son William E. Cameron having had from me at various times certain sums of money amounting to, at least, six thousand seven hundred and fifty dollars ($6,750), and my son George H. Cameron also having had from me, at least, one thousand dollars ($1,000), it is my desire, and I do so direct, that each of the other members of my family shall first receive out of my estate amounts equal to the aforesaid sums that my sons have already had from me, and I do hereby direct my said executors, and the survivors and survivor of them, to divide the whole proceeds of said sale among my beloved wife, Sarah H. Cameron, and my beloved children, Mary, Isabel, Hannah E. and John S., share and share alike, until each of them shall have received the sum of one thousand dollars ($1,000) for each of their sole use and benefit and behoof forever; and thereafter divide the residue of said purchase money among my beloved wife, Sarah II., and my beloved children, Mary, George H., Isabel, Hannah E. and John S., share and share alike, until each shall have received out of the said balance the sum of five thousand eight hundred and fifty dollars ($5,850) for each of their sole use, benefit and behoof forever; and thereafter to divide the residue (if any) into seven equal shares and to retain and invest one of said one-seventh shares and pay over the income thereof to my beloved son William E. Cameron during his life, and after his deatli pay the principal sum over and equally among his children then surviving, share and share alike, and also to pay over another one-seventh share to my wife, Sarah H, and also a like one-seventh to each of my said other children, Mary, George II., Isabel, Hannah E. and John S., for their and each of their sole use, benefit and behoof forever. If any of my said children shall have departed this life before me, leaving lawful issue, such issue shall take their deceased parentis share amongst them, share and share alike.

      “ Fourth. It is my will, and I do hereby direct, that the provision made herein for my wife shall, if accepted by her, be in lieu and bar of all dower or right of dower in my estate.
    “ Fifth. In the event of the marriage of any of my daughters it is my will that they and each of them shall retain possession of their share of my estate in their own right and name, and that their husbands have no hand or voice whatever therein.

      “ Sixth. I do -hereby constitute and appoint my wife, Sarah IT. Cameron, and my sons George H. Cameron and John S. Cameron, and my daughter Hannah D. Cameron, all of the city of New York, executors of this my last will and testament, hereby revoking all other and former wills and codicils by me at any time heretofore-made.”

      Robert O. Taylor, for the appellant.

      Schuyler G. Garitón, for the respondents.
   O’Brien, J.:

The single question for our determination is, whether the legacies given by the will were vested or contingent. In the leading case of Warner v. Durant (76 N. Y. 136) it is said: “It is a general principle that where the gift is absolute, and the time of payment only-postponed, time not being of the substance of the gift but relating-only to the payment, does not suspend the gift, but merely defers-the payment. * * * Another rule is to be noticed. It is this: "Where there is no gift, but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives.”

In Smith v. Edwards (88 N. Y. 109) it is said: “ "While we are to encourage always a construction which leans to the vesting of legacies, and seek diligently for evidences of such purpose and intention,, we must still construe the will and not make it over to suit our own notions of what might have been wisest.”

This tendency to seek diligently for evidence in order that the-legacy may be held to be vested, rather than contingent, in cases of' doubt, explains many of the cases, which are really exceptions to the-general rule laid down in Warner v. Durant (supra), which, as; shown from the citation, is authority for the view that where the; only gift is in a direction to pay or distribute at a future time, without words of present gift, the estate will not vest until the coming of that future time. Thus, in Vanderpoel v. Loew (112 N. Y. 167) the circumstance that the whole income of each share was given to the person to whom the share itself was given, was held controlling as denoting an intention to vest a remainder. So, in Goebel v. Wolf (113 N. Y. 405), the fact that the personalty was vested was regarded as throwing light upon the testator’s intention to have the realty also vest.

Applying the general rule laid down in Warner v. Durant, viewed in the light of the exceptions founded on the cases cited, it seems to us reasonably free from doubt that the legacies were contingent, and that the circumstances which were resorted to in those cases to vest the interests are not here present. From the will it will be seen that all the personalty is given outright and absolutely to the wife. So far as the rents are concerned, or the income, the amounts which the persons named are to take are unequal, though the desire of equalizing in the final distribution the interests of all parties in the property is apparent.'

Moreover, the realty, unlike the personalty, is devised to the executors in trust, with direction until the same is sold to pay over the income in equal amounts to the widow and children ; and in the event of the property reaching a certain value during the lives of two of his children, but in any event upon the death of the survivor of them, the executors are authorized and directed to sell the premises for cash, or part cash and part credit; and then follows what we must regard as significant language used by the testator, that they are “ thereupon to divide the whole of such purchase money and mortgages as follows.” This is succeeded by the provisions in which the share each is to receive is indicated; and at the end of these provisions it will be noticed that, while nothing is said about the wife’s share, there is a provision to the effect that “ if any of my said children shall have departed this life before me, leaving lawful issue, such issue shall take their deceased parent’s share amongst them, share and share alike.”

The intent, we think, from the whole context of the will was, that the interest or share of each one was to be determined by the situation wlien at the period in the future designated the property should be sold and the division made. As suggested by appellant, we find here no words of present gift, and the whole scheme of distribution is introduced by the word “ thereupon,” which, it is urged, should here be given the same force and effect as and held tantamount to the word “then;” which, as shown, has been many times adjudicated by the Court of Appeals to be the pivot upon which the decision of that court turned. (Hobson v. Hale, 95 N. Y. 588; Shipman v. Rollins, 98 id. 311, 324; Quackenbos v. Kingsland, 102 id. 128.)

Giving due weight, therefore, to the well-settled rule that should incline to a vesting rather than a contingency, we fail to find in this will language which, under the cases to which we have adverted, could be regarded as sufficient to distinguish it from the leading-case already referred to of Warner v. Durant. And thinking- as we do that the general rule laid down in that case should control here, our conclusion is that the legacies were contingent, and that the surrogate was wrong in his construction that they were vested.

The decree, therefore, should be reversed and the matter remitted to the surrogate for distribution accordingly.

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

Order reversed and case remitted to surrogate.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    James M. Constable and Others, Appellants, v. Matthew Hardenbergh and Others, Respondents.

      Bill of pan'ticulars — no inra/riable rule —to enable defendant to frame an answer and, for use on the trial, distinguished — discretionary — contents of an affidavit to procure.

    There is, under section 531 of tlie Code of Civil Procedure, no inflexible or invariable rule applicable to motions for bills of particulars, each case being decided by the application of certain general principles which determine the circumstances under which the power vested in the court to order a bill of particulars will be exercised.
    There is a distinction between the office of a bill of particulars ordered to enable a defendant to answer and one required for use upon a trial, and an application made in the same case to obtain the same particulars for the purpose of framing an answer may properly be denied, where it appears that without such particulars an answer could be interposed, while a bill of particulars would be furnished to prevent surprise upon the trial.

      An order for a bill of particulars is not a matter of right, but rests in the sound discretion of the court, to be either refused or granted according to the circumstances of each case.
    An affidavit to procure a bill of particulars should state the facts upon-which the court may determine, in its discretion, to either grant or refuse a bill of particulars, and should not contain merely a bare statement that the particulars aslced for are necessary in order to enable the .defendants to frame an answer.
    Appeal by the plaintiffs, James M. Constable and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1894, granting the defendants’ motion for a bill of particulars.
    This action was brought to set aside a general assignment for the benefit of creditors, made by the defendants Hardeuhergh and Kelly to the defendant Hugo Ilirsli, as assignee, upon various grounds stated in the complaint. After the complaint was served the defendants demanded a bill of particulars of the allegations set forth in the plaintiffs’ complaint, specifying
    1. As to paragraph Y of said complaint, in what respects the said assignment is insufficient in form and in what respects the said assignment is fraudulent and void on its face and wherein it is not in accordance with the statute in such case made and provided.
    2. As to paragraph YI of said complaint, in what manner said assignment was made so as to hinder, delay and defraud these plaintiffs.
    3. As to paragraph YII of said complaint, in what respect the schedules filed by said assignee failed to state all the assets and property of the assignors, and what portions thereof were concealed and secreted with intent to defraud creditors, and what said concealed or secreted assets consisted of and where they were concealed or secreted.
    4. As to paragraph YIII of said complaint, wherein the said Matthew Hardeuhergh and George H. Kelly withheld from the operation of the said assignment certain property not exempt by law from levy and sale under execution.
    These particulars not having been furnished, the defendant Hirsh obtained an order to show cause why they should not be furnished, rrpon an affidavit, which, after reciting the facts already stated, proceeded as follows:

      “ That defendants’ time to answer herein expires on the 29th day of January, 1891, and that it will be impossible for deponent to answer herein without the facts stated and asked for in the said demand for a bill of particulars.”
    Upon this affidavit, from which we have taken all that is stated therein as to the necessity for a bill of particulars, the motion was granted by the court at Special Term, ordering, as fully as vras demanded by the defendants, the plaintiffs to furnish such particulars, and from such order this appeal is taken.

      Jesse 8. Epstein, for the appellants.

      William 8. I>erkins, for the respondents.
   O’Brien, J.:

Section 581 of the Code provides that “the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party.”

Although the language of this section is clear and unambiguous, we feel called upon from time to time to repeat it, because counsel in support of one view or the other insist on arguing that there is a class of cases wherein a bill of particulars will be, and a class of cases in which one will not be ordered.

In a late case where we had occasion to examine this question, that of Faxon v. Ball (50 N. Y. St. Repr. 495), it was said: “ There is as shown by the very wording of the section of the Code quoted, no inflexible or invariable rule applicable to motions for bills of particulars, there being certain general principles which may, with profit, be referred to in determining under what circumstances the power vested in the court will be exercised in a given case in ordering a bill of particulars.” And where in that case it appeared that all the facts and circumstances with respect to the act of the assignor were particularly within reach of the assignee, and that the particulars were asked for simply for the purpose of limiting the evidence upon which the plaintiff might rely to sustain her charges, it was held that the motion was properly denied. (See, also, Passavant v. Cantor, 21 Abb. N. C. 259.)

The facts here appearing upon which a bill of particulars was sought are not nearly so strong as in the case of Faxon v. Ball (supra). There it was asserted that the evidence was needed to be used upon tlie trial and to prevent surprise. Here tlie only purpose for which, the particulars are required, as shown from the quotation given from the affidavit, is to enable the defendants to answer.

This distinction between the office of a bill of particulars in order to enable a defendant to answer, and one required for use upon a •trial, must not be lost sight of, because it might very well be that, while particulars would be required to be furnished to prevent surprise upon the trial, an application made in the same case to obtain the same particulars for the purpose of answering might be denied, where it appeared that without such particulars an answer could be interposed.

To summarize, the particulars demanded have reference to those allegations of the complaint which, in addition to alleging the insufficiency in form and the invalidity on the face of the assignment, charge certain acts of fraud in secreting the property, in omitting from the schedules a portion of the assets, and that the assignment was made to hinder, delay and defraud creditors. In other words, it may be said that the complaint seeks to set aside the assignment upon two general grounds, first, that it is void upon its face; and, second, that it is void for actual fraud committed by the assignors, of which, it is claimed, the assignee had knowledge.

With respect to the first, as to whether the assignment is void on its face, the attorney for the defendants should be as competent and as well skilled in determining this question as the attorney for tlie plaintiffs, and a compliance with the order would necessitate the plaintiffs’ counsel furnishing his arguments, legal reasons and conclusions upon which he bases his claim of invalidity. We are familiar with no case which requires, nor do we think it in furtherance of justice to require, the plaintiffs’ counsel to educate the attorney for the defendants upon a question of law, and to that end be compelled to practically furnish him with his brief.

Upon the second ground of the fraudulent disposition and secretion of property, if this was done by the assignors with the knowledge of the assignee, they are in a position to know; and if the charge is false, there is nothing to prevent their putting in a general denial, which is all that would be required to put in issue these allegations. In other words, apart from the failure to show any necessity for the particulars in order to answer, we have no means of determining from the affidavit submitted whether the defendants have or have not knowledge of the fraudulent acts with which they are charged. And the necessity of this appearing becomes at once apparent when we consider its bearing upon the exercise of the court’s discretion. If they have such knowledge, then clearly they should not be assisted in finding out whether the plaintiff's also knew of their fraudulent acts. If guiltless, little danger need be apprehended from groundless charges. And the question whether, under these circumstances, the information should be given would depend upon their situation and opportunity for obtaining the knowledge, and the necessity therefor, either for the purposes of pleading or to prevent surprise upon the trial.

All of which is suggested for the purpose of showing that an order for a bill of particulars is not, as the defendants would assume from their naked statement that the information is needed in order to frame an answer, a matter of right, but is a matter resting in the sound discretion of the court, to be either refused or granted, according to the circumstances of each ease.

The language of the Code vests a discretion in the court to determine whether or not the information should be furnished. But, in determining which way the discretion should be exercised, either in granting or refusing, the court should have before it some facts. As shown, the affidavit states no facts,’but contains a bare statement that the particulars asked for are necessary in order to enable defendants to frame an answer.

We do not think, therefore, that the application was made in good faith, because it is evident that this information was not necessary for that purpose. It will be noticed that they do not say that such information was necessary upon the trial of the action. If, however, there had been a mere statement that it was intended to be used upon the trial, then it should not have been granted unless it appeared, at least by the affidavits of the defendants, that they had no knowledge on the subject and had not the means of obtaining the information required, and that it was necessary to have such knowledge as was within the possession of the plaintiffs in order to prevent surprise upon the trial.

In a case, therefore, where these facts, or some of them, are not made to appear, but where, on the contrary, it does appear that the application is made in good faith, but is made with a view of limiting the evidence, or to compel the plaintiffs to disclose the same, then it should be denied.

In discussing the rules which we regard as applicable to bills of particulars, we have wandered from the point which is presented •here, but this has been thought necessary on account of the earnestness of the arguments which have been pressed upon our consideration in favor of upholding the order, but which are not strictly germane to the point involved.

The only question presented upon this appeal, as we have shown from the affidavit used upon the motion, was whether, upon the facts appearing, the court would, to enable the defendants to answer, require the plaintiffs to furnish the particulars in all respects as demanded. And having reached the conclusion that the plaintiffs should not have been so required, we think the order was wrong, and that it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Yan Brunt, P. J., and Follett, L, concurred.

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


author: Van Brunt, P. J. :

text:
    Samuel P. Dexter and Others, Respondents, v. Louis Adler, as Assignee, etc., and Others, Appellants.

      Fraudulent assignment■ — order refusing commissions to an assignee, affirmed.

    An assignment for the alleged benefit of creditors having been set aside, an order of the Supreme Court was made disallowing the assignee’s commissions. On appeal therefrom it was stipulated that the papers presented upon the appeal contained all the papers upon which the court below acted in making the order, but it was apparent that such was not the case. The records stated that the only question before the court on appeal was whether the assignee was entitled to commissions as such where the assignment was set aside on the ground of the assignor’s fraud only, but it did not appear whether any such record was presented to the court below or not.

      Meld, that, under the circumstances, the order should be affirmed.
    Appeal by the defendant, Louis Adler, from that portion of an order of the Supreme Court, made at the New York Special Term on the 27th day of June, 1888, and entered in the office of the clerk of the county of New York, sustaining the exception of the plaintiffs to the allowance by the referee of commissions to the defendant as assignee.

      A. Bhomenstiel, for the appellants.

      F. Bien, for the respondents.
   Van Brunt, P. J. :

On the 5th of October, 1883, the firm of Adler Bros. & New-bower made an assignment for the alleged benefit of their creditors to the defendant Louis Adler. An action having been brought by the plaintiffs to set aside the assignment, such proceedings were had that a judgment was entered therein on the 21th of May, 1886, setting the same aside, and appointing a receiver and a referee to take and state the accounts of the assignee. Such proceedings were subsequently had that in February, 1888, the referee made a report, to a portion of which report exceptions ivere filed, and in June, 1888, an order was entered confirming the report except as to that part thereof which allowed the assignee’s commissions. An appeal was taken from that portion of the order which disallowed the commissions, and nearly six years thereafter the appeal seems to be brought on for argument.

Although it is stipulated by the counsel for the respondents and appellants that the papers presented upon this appeal contain all the papers upon which the court below acted in making the order, it is apparent that such is not the case ; and there is nothing presented upon this record which shows that the court Mras wrong in the conclusion which it reached.

It is true that the record states that the only question before the court on this appeal is whether the assignee is entitled to commissions as such, where the assignment is set aside on the ground of the assignor’s fraud only, but it does not appear from the papers before us whether any such record was presented to the court below or not, and, therefore, the order should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Order affirmed, with costs.


author: Per Curiam :

text:
    Bowman, Thompson & Company, Limited, Respondent, v. Joseph F. Fuerst and Others, Appellants.

      Order of arrest — right thereto depending upon the construction of a, writing — order not reversed on appeal.

    Where the right to maintain an action and an order of arrest depends upon the construction to be given to an agreement which may depend upon the course of business between certain parties, upon an appeal from an order denying a motion to vacate an order of arrest granted therein, the construction of such agreement should not be attempted, and the order should be affirmed.
    Appeal by the defendants, Joseph F. Fuerst and others, from an order of the Supreme Court, made at the New York Special Term on the 24th day of January, 1894, and entered in the office of the clerk of the county of New York, denying the defendants’ motion to vacate and set aside an order of arrest.
    Tlie amended complaint in this action alleged the conversion by the defendants of certain moneys, the property of the plaintiff. The agreement referred to in the opinion was as follows :
    “ The following agreement has this tenth day of February, 1892, been made and entered into between the undersigned, viz.: Mess. Bowman, Thompson & Co.,'Ltd.; Lostock Graham, near Northwich, in England, and Mess. Fuerst Bros. & Co., of the city, county and State of New York, U. S. A.
    “No. 1. Messrs. Bowman, Thompson & Co., Ltd., appoint Messrs. Fuerst Bros. & Co. their sole agents in the United States and Canada., and give Messrs. Fuerst Bros. & Co. sole control for the sale in the United States and Canada of the chemicals manufactured by Messrs. Bowman, Thompson & Co., Ltd.
    “No. 2. Messrs. Bowman, Thompson & Co., Ltd., agree to sell to Mess. Fuerst Bros. & Co., and Messrs. Fuerst Bros. & Co. agree to purchase from Messrs. Bowman, Thompson & Co., Ltd., five thousand (5,000) tons of 48$ and of 58$ ammonia alkali as good in quality and test, and as uniform, as any soda ash made by the ammonia process now being sold in the American market.
    “ No. 3. The price for the 5S$ alkali in casks free of charge to be five pounds ten shillings (£5.10 | ), less 1$ per ton of 2,240 pounds f. o. b. Liverpool or f. o. b. Birkenhead, in the option of Messrs. Fuerst Bros. & Co., and to he understood for actual net weight delivered. The price for the 48$ alkali to lie proportionately less, in accordance with usage.
    “ No. 4. Shipments of these five thousand (5,000) tons to begin not later than the first of March, 1892, from Liverpool or Birkenhead, and to be made in equal monthly lots during 1892.
    “ No. 5. It is agreed that the payment for the first shipments (up to and not exceeding in all 500 tons) shall be cash in 60 days after arrival in the ports of the United States and Canada. The payments for the balance of the five thousand (5,000) tons to be cash in 30 days from each shipment from Liverpool or Birkenhead after right and true delivery in the ports of arrival.
    “No. 6. It is also agreed that Messrs. Bowman, Thompson & Co., Ltd., guarantee not to sell their products to any one in England, or anywhere else, unless it be with a strict guarantee that the goods are not to be shipped directly or indirectly to the United States or Canada. ' Messrs. Bowman, Thompson & Co., Ltd., also agree to communicate to Mess. Fuerst Bros. & Co. the contents of all letters and advices which they may receive from interested business friends in the United States and Canada, direct or indirect, and that they refer all this correspondence or communications to Messrs. Fuerst Bros. & Co. for their action.
    “ No. 7. It is further agreed that Messrs. Bowman, Thompson & Co., Ltd., will reserve annually for the American and Canadian markets additional quantities of at least five thousand (5,000) tons and up to ten thousand (10,000) tons of Soda Ash, which Messrs. Bowman, Thompson & Co., Ltd., will send on consignment to Messrs. Fuerst Bros. & Co. in successive shipments for best possible sale, for which Messrs. Fuerst Bros. & Co. shall receive a commission of two and a half (24$) per cent for selling, in addition to the money expended for the cost of duty, delivery, warehousing, insurance and any other incidental expenses whatsoever, with the exception of office and traveling expenses. Messrs. Fuerst Bros. <& fío. further agree to guarantee the accounts for all sales made for and on behalf of Jlessrs. Bowman, Thompson d Co., Ltd., for a further commission of one {if)per cent which Messrs. Bowman, Thompson ds Co., Ltd., agree to pay for said guarantee. The payments for the goods so consigned to be made after sale and right a/nd 1/rue delivery to purchaser.

      “ No. 8. It is also understood, that Messrs. Bowman, Thompson & Co., Ltd., agree to advertise continuously and sufficiently during the continuance of this contract, their products in trade papers in the United States and Canada, and the cost thereof to be borne exclusively by Messrs. Bowman, Thompson & Co., Ltd. Such advertisements shall, in substance, also mention Messrs. Fuerst Bros. & Co., as sole consignees and sole agents in the United States and Canada.
    “No. 9. This agreement to commence on the date hereof, and to terminate on the 31st day of December, 1893. And both parties to come to a mutual arrangement on or before the 31st day of March, 1893, in regard to the continuance of this contract beyond the 31st day of December, 1893. The terms and conditions for the year 1893 to be the same in every respect as for the year 1892, with the exception of the prices, which are mutually to be agreed upon hereafter.
    “ No. 10. It is also agreed that the goods shipped to the United States and Canada are to be branded with a special brand, which brand shall embody the words of ‘Fuerst Bros. & Co., New York, sole consignees.’
    “ No. 11. Messrs. Bowman, Thompson & Co., Ltd., further agree to save, bear and keep harmless Messrs. Fuerst Bros. & Co. from any and all losses sustained by them by reason of the non-fulfillment by Messrs. Bowman, Thompson & Co., Ltd., of this contract,, so far as regards the quality of their various shipments.
    “ No. 12. Messrs. Bowman, Thompson & Co., Ltd., agree, so tar-as they are able, to give every assistance possible to Messrs. Fuerst Bros. & Co., with a view to the successful disposal of their products, and Messrs. Fuerst Bros. & Co. likewise agree to exert all possible energy and use every means in their power to further the interests of Messrs. Bowman, Thompson & Co.
    “ In witness whereof, Messrs. Bowman, Thompson & Co., Ltd., and Messrs. Fuerst Bros. & Co., have hereunto set their respective corporate and firm names this tenth day of February, 1892.
    “ [seal.] FUERST BROS. & CO.
    « [seal.] p. pro. BOWMAN, THOMPSON & CO., Ltd.
    “ Walter Thompson,
    “ Director.”

      J. M. Dittenhoefer, for the appellants.

      James Dv/nne, for the respondent.
   Per Curiam :

As tbe right-to maintain this action and the order of arrest granted herein both depend upon the construction to be given to the agreement entered into between the parties to this action, and as this construction may depend upon the course of business of the parties under it, which course of business can only be satisfactorily established upon the trial, we think that upon this appeal we should not attempt such construction, and, therefore, affirm the order appealed from, with ten dollars costs and disbursements.

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

Oi’der affirmed, with ten dollars costs and disbursements.


author: Follett, J.:

text:
    George M. Robeson, Respondent, v. The Central Railroad Company of New Jersey, Appellant.

      Action by an attorney against a foreign corporation to recover for prof essional services — maintainable in the Mew York courts— Gode of Givil Procedure, § 1780 — Statute of Limitations not mailable to a foreign corporation — statutes of other States —• how proven — amendment of answer.

    Where a contract, under which an attorney rendered certain professional services to a foreign corporation, was made in the State of New York and part of such services were rendered in that State, the case -is within section 1780 of the Code of Civil Procedure, and there is no merit in the contention that because the price of the services to be rendered under the contract was not fixed thereby there was no contract within the meaning- of that section.
    A foreign corporation cannot avail itself of the Statute of Limitations of the State of New York in an action brought in the New York courts.
    Where a defendant seeks to plead the Statute of Limitations of another State, such statute or its substance should be set forth in the answer, or it should be therein referred to by the date of its enactment or by reference to the public statutes of such State.
    The Statute of Limitations is an affirmative defense which must be proved by the pleader.
    It is beyond the power of a referee appointed to hear and determine the issues in an action to allow an amendment to an answer which would introduce a new defense.

      In an action brought by an attorney against a foreign (New Jersey) corporation to recover the value of professional services rendered, tbe defendant insisted that the plaintiff could not maintain the action, because under the laws of the State of New Jersey an action could not be maintained for the recovery of services rendered by an attorney or counselor at law. There was no evidence given on the trial as to what the law of New Jersey was upon the subject.

      Held, that the law of New Jersey must be presumed to be the same as that of the State of New York.
    Appeal by the defendant, The Central Railroad Company of New Jersey, 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 12th day of October, 1893, upon the report of a referee.
    The plaintiff is a resident citizen of New Jersey and an attorney and counselor of the courts of that State and of the Supreme Court of the United States. The defendant is a corporation of that State, but for many years has had an office for the transaction of business in the city of New York, which was the office of its president and the place where all the meetings of its board of directors were held. On the 29th of May, 1883, the defendant leased its railroad and leased lines to the Philadelphia and Reading Railroad Company for 999 years, for a'yearly rental payable quarterly, sufficient to enable the lessor to pay its fixed charges, the interest on its liabilities, which were upwards of $50,000,000, and six per cent annually on its capital, amounting to $18,563,200, and $18,000 annually to enable it to maintain its organization.
    In June, 1884, the lessee being insolvent, a receiver of it was appointed by the Circuit Court of the United States for the eastern district of Pennsylvania, who entered into possession and control of its property. On the 1st of December, 1884, the lessee made, default in the payment of the quarter’s rent due on that day, and it. became necessary for the lessor to obtain possession of its road and of its income, so as to enable it to discharge,its obligations to its creditors, and to pay the taxes levied upon its property.
    On the 12th of December, 1884, at a meeting of the defendant’s board of directors, and on the 28th of January, 1885, at a like meeting of said board, the defendant’s president was authorized to employ counsel to protect the interests of the corporation arising out of the breach of the lease, and also to contest its liability for taxes under the law of the State of New Jersey, passed April 10, 1884. The referee finds that in December, 1884, the plaintiff and defendant, through its president, entered into a contract at the office of the defendant in the city of New York, by which the plaintiff was retained to render professional services for the defendant in securing the possession of its road, and defeating the taxes under the law mentioned. The referee finds that thereafter, and before June 1, 1886, the plaintiff, at the defendant’s request, rendered professional services for it at the city of New York and elsewhere, in proceedings to obtain repossession of defendant’s property theretofore leased to the Philadelphia and Reading Railroad Company, and in certain proceedings before the board of tax assessors, the Supreme Court of the State of New Jersey, and the Court of Errors of that State, in opposition to the taxation of the defendant under the act of April 10, 1884. The referee finds that under the retainer the plaintiff rendered professional services of the value of $15,000, $10,000 being the value of his services rendered in obtaining repossession of the defendant’s property, and $5,000 the value of his services rendered in resisting the taxes, and that $4,000 has been paid on account of his services. The referee directed a judgment in favor of the plaintiff for the remaining $11,000, with interest from April 8, 1892, the date when this action was begun.

      Robert TP. De Forest, for the appellant.

      George II Adains, for the respondent.
   Follett, J.:

The defendant concedes that it employed the plaintiff to conduct legal proceedings to recover possession of the property leased by it to the Philadelphia and Reading Railroad Company, the defaulting lessee. The value of these services the defendant ought to pay. The defendant answers that $4,000, which the plaintiff admits he received, is an adequate compensation for the services rendered in recovering possession of the property. The learned and experienced referee found that these services were worth $10,000, which left, after deducting the payments, $6,000 due and unpaid. The valuation of the plaintiff’s services by the referee is certainly not excessive, in view of the services proved to have been rendered, the value of the subject-matter of the litigation (about $70,000,000) and the eminence and experience of the plaintiff. The defense of pay-meat for these services was not sustained by the evidence as the referee well found.

, The defendant also asserts that the courts of this State are without jurisdiction of the subject-matter of the action. The referee found that the contract under which the services were rendered was made in the State of New York, and that part of the services were rendered in this State, which brings the case within section 1780 of the Code of Civil Procedure. There is no merit in the contention that because the price of the services to be rendered under the contract made in this State was not fixed by it there was no contract within the meaning of the section of the Code last mentioned. The complaint contains but one count or cause of action for the recovery of all the services rendered by the plaintiff. The defendant, without moving to have what it claims to be two separate causes of action separately stated, answered and, among other defenses, averred: “ VI. That the alleged cause of action stated in the complaint herein did not accrue within six years before the commencement of this action.”

The defendant being a foreign corporation cannot avail itself of the Statute of Limitations of this State. (Olcott v. The Tioga Railroad Co., 20 N. Y. 210; Rathbun v. The Northern Central Ry. Co., 50 id. 656; Boardman v. Lake Shore & Michigan Southern Ry. Co., 84 id. 157; Mallory v. Tioga Railroad Co., 3 Keyes, 354.)

The Statute of Limitations of the State of New Jersey is not referred to nor legally pleaded in the answer. The statute or the substance of it should have been set forth, or it should have been referred to by the date of its enactment, or by some reference to the public statutes of that State. In this answer there is no reference to the Statute of Limitations of the State of New Jersey, nor is there any allegation in it that there is a statute on that subject in that State. The answer was insufficient to raise this question. (Van Santv. Pledgs. [Moak’s ed.] 208; Boone’s Code Pledgs. § 29, and cases cited; Bliss’ Code Pledgs. §§ 184-304.) The learned counsel for the defendant insists that if the New Jersey statute was not well pleaded, the referee should have allowed the answer to have been amended. This would have introduced a new defense, which was beyond the power of the referee. (Riley v. Corwin, 17 Hun, 597; Case v. Phœnix Bridge Co., 26 J. & S. 435 ; Code Civ. Proc. § 1018, and cases cited.) But assuming that the New Jersey Statute of Limitations is well pleaded, we think the defendant failed to establish this defense. ' November 7, 1885, the defendant drew its check to the order of the plaintiff for $1,500, which the defendant received and receipted for on the ninth of the same month, and on the 2d of April, 1886, the defendant drew to the order of the plaintiff a check for $2,500, which was mailed to the defendant at "Washington. The date when this check was mailed by the defendant to the plaintiff does not appear, nor does it appear when the plaintiff received it, nor when it was paid. Both of these checks were, as is claimed by the defendant, paid on account of the proceedings taken to recover possession of the defendant’s property. If the last check was received by the plaintiff subsequently to April 8,1886, the action was brought within six years from the date of the last payment, and the Statute of Limitations had not applied as a bar. The Statute of Limitations is an affirmative defense which must be proved by the pleader.

The proceedings to recover possession of the leased property from the Philadelphia and Reading Railroad Company were begun March 24, 1885, and the final order was entered April 0, 1886, when the defendant claims the plaintiff’s retainer in this matter terminated, but the evidence is that, in May and June following, the plaintiff had consultations with the directors and officers of the defendant with reference to the matter. The plaintiff appeared before the tax commissioners December 15, 1884, and argued the appeal in May, 1886, before the Court of Errors. The referee found that the plaintiff rendered services under his general retainer between December 1, 1884, and June 1, 1886, and there is no finding nor any request to find that services were not rendered within six years prior to the commencement of the action,.except the referee was requested to find that the services in the proceedings to recover possession of the property ended April 6, 1886. The Statute of Limitations did not begin to run on the demands until the plaintiff’s services were terminated. (Bathgate v. Haskin, 59 N. Y. 533; Mygatt v. Wilcox, 45 id. 306.) As before stated, the defendant made no attempt to separate the claim for the services rendered for recovering possession of the property and to interpose the plea of any Statute of Limitations as a bar to plaintiff’s recovery for such services.

The defendant also insists that the plaintiff cannot maintain this action because, under the laws of New Jersey, an action cannot be maintained for the recovery of services rendered by an attorney or counselor at law. The answer to this is, as stated by the learned referee, that there was no evidence given on the trial as to what the law of New Jersey was upon that subject, and that it must be presumed to lie the same as the law of the State of New York.

There is no claim that any Statute of Limitations is a bar to the claim for services rendered in the tax proceedings. The defenses interposed to this demand are that.the courts of this State are without jurisdiction, and' that, under the laws of New Jersey, counsel cannot recover for professional services, and that the plaintiff was never employed by the defendant to conduct these proceedings. The first two defenses have been sufficiently discussed and little need be said on the merits. The plaintiff testified that he was so employed, and it was undisputed that he was actively engaged 'as counsel in those proceedings for more than two years, and it is plain that he earned the sum allowed by the referee. The only question is, which of the several railroad corporations, jointly interested in this question, employed the plaintiff ? This issue was found by the referee in favor of the plaintiff, and upon evidence which, we think* is entirely sufficient to sustain his conclusion.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Jacob Ringle and Another, Respondents, v. The Wallis Iron Works, Appellant, Impleaded with Another.

      Mechanic’s lien — invalidated by a false statement therein.

    A mechanic’s Hen, in which, it is knowingly and falsely stated that all of the work has been performed and materials furnished pursuant to the contract, and that the whole amount of the contract price is due, is invalid.
    Appeal by the defendant, The Wallis Iron Works, from a judgment of the Supreme Court in favor of the plaintiffs entered in the ■office of the clerk of the county of New York on the 12th day of July, 1893, upon the decision of the court after a trial at the New York Special Term.
    In 1891 the Southern Pacific Company was the lessee in possession of pier No. 37, North river, upon which there was a shed, and on the 16th of June, 1891, the corporation entered into a written contract with the Wallis Iron Works by which the latter agreed to construct an extension of said shed according to the specifications contained in the contract. The first specification, of which the following is a copy, is the one over which this litigation alises :
    “ First. That, in consideration of the payments hereinafter agreed to be made' by the steamship company, the iron works hereby covenants and agrees to construct, deliver and erect all the iron work, and furnish and put in place all I. O. and I. X. tin roofing, laid on rosin-sized roof paper, and painted one good coat below and two coats on top, and securely fastened, that may be required for the extension of shed on pier 37, North river, in the city of New York; and to malee two (2) new openings in present shed, as shown ■on blue prvnt hereto annexed, including the f rames and doors — ■said new openings being two (2) new gangway openings, as shown (one on each side), which are to be cut in present shedP

    For the performance of the contract the Wallis Iron Works was to receive $17,500, one-half upon notice that it had shipped the iron required for the pier, and the remainder on the performance of the ■contract, which was to be completed within eight weeks after the Wallis Iron Works was notified to begin work..
    On the 16th of July, 1891, the Wallis Iron Works entered into a written contract with the plaintiffs under their firm name of Jacob Ringle & Son, by which the latter agreed to construct certain iron work required for the pier according to specifications annexed to and forming a part of the contract. One of the specifications is an ■exact copy of the first specification contained in the contract between the Southern Pacific Compauy and the Wallis Iron Works above quoted. For the work to be performed by the plaintiffs they were to be p>aid $3,259, as follows: “ As and when said party of the first part shall receive payments under its said contract for their work, including work done or materials furnished under this contract, it will pay to said parties of the second part the same proportion of such payment as the work of the parties of the second part, included in the estimate upon which such payment shall be made, bears to the whole amount of such estimate.”
    The contract contains a provision that in case Jacob Ringle & Son should neglect, refuse or fail to employ a sufficient number of skilled workmen, or to furnish promptly the required materials, or should neglect, refuse or fail to complete the work, the Wallis Iron Works might complete it and charge the expense thereof to the contractors and deduct it from any unpaid balance due under the contract. The plaintiffs were to complete their work within eight weeks after notification that the pier was ready for them. October 20, 1891, the notice was given and they immediately commenced work and finished December 30, 1891, something more than eight weeks after the notification.
    November 11, 1891, the Wallis Iron Works was paid by the Southern Pacific Company $8,750, and April 30, 1892, $8,750, making the total contract price of $17,500.
    On February 16, 1892, the plaintiffs filed a mechanic’s lien, and, on the nineteenth of the same month, served copies thereof on the defendants. In the notice of lien the claimants asserted that they had furnished all of the materials and performed all of the labor required by their contract, and that there was due them from the Wallis Iron Works $3,259, the full contract price. It was also stated that the last-work was performed and materials furnished on or about January 29, 1892. /
    April 1, 1892, the Wallis Iron Works gave a bond and procured the lien to be discharged from the pier, pursuant to the 6th subdivision of the 24th section of the Lien Law. May 5, 1892, this action was begun.

      William G. Wilson, for the appellant.

      3£. L. Collier, for the respondents.
   Follett, J.:

This action was brought for the foreclosure of the mechanic’s lien filed by the plaintiffs on the pier, and the defenses interposed by the appellant are: (1) That the plaintiffs refused to perform their contract according to its terms, and that the Wallis Iron Works was compelled to and did complete the contract at its own expense; (2) that the statement in the notice of lien filed that the plaintiffs had peformed the work and furnished the materials in accordance witli the contract was untrue; (3) that when the lien was filed and when this action was begun the Wallis Iron Works had received no payment from the Southern Pacific Company for work done nor for materials furnished by the plaintiffs.

The court found: “ That the plaintiffs did not make the two new. gangway openings in the old portion of the shed, including frames and doors,” required by the specifications which are a part of the contract. There seems to have been no reasonable excuse for the failure of the plaintiffs to do this work. The requirements of the contract are plain and specific, and one of the plaintiffs testified that they did not perform this work, but why they failed to do it does not appeal’. One of the plaintiffs testified, that the cost of completing the contract would not exceed thirty-five dollars, but the treasurer of the iron works testified that it cost the corporation $121.90 to complete it. The plaintiffs in their notice of claim asserted that they had performed their whole contract, and that there was due them the full contract price ($3,259), while the fact was, as testified to by one of the plaintiffs, and as found by the court, that the contract had not been performed and that there was not due from the Wallis Iron Works to the plaintiffs the full contract price. A mechanic’s lien in which it is knowingly and falsely-stated that ail of the work has been performed and materials furnished, pursuant to the contract, and that the whole amount of the contract'price is due, is invalid, unless the mis-statement is an. unimportant one. (Foster v. Schneider, 50 Hun, 151; Close v. Clark, 16 Daly, 91; Brandt v. Verdon, 44 N. Y. St. Repr. 885.) By reason of the mis-statement the plaintiffs failed to acquire a valid lien upon the pier, and it was error for the court to hold that a lien was acquired and that the bond given to discharge it'might be enforced. By section 15 of chapter 342 of the Laws of 1885 —the Mechanic’s Lien Law — it is provided that in case the plaintiff fails to establish a valid lien under the act he may nevertheless recover in an action brought to foreclose the lien, the amount due him from the defendant the same as though the action had been brought on the contract for the recovery of the contract price. In the contract between these litigants there is a clause which provides that, in case of the failure of the contractors to perform their contract, the Wallis Iron Works might complete it and charge the expense thereof to the contractors. There is evidence in this case showing that the Wallis Iron Works, instead of abandoning the contract and declaring it at an end, gave notice to the plaintiffs that they would complete it and charge them with the cost, and that in pursuance of this clause and the notice, the work was so completed. The defendant having done this was liable for the contract price less the sum expended by it in completing the work, which is shown to have been $121.90, but, by an error in addition, it was found by the court to have been $111.90, an error of ten dollars against the appellant.

The court found that “the Wallis IronWorks did not receive any payments under its contract with the Southern Pacific Company for work, which included work done or materials furnished under its contract with the plaintiffs, until April 30,1892.” Under the terms of the contract between these litigants, the plaintiffs were not entitled to recover any part of the contract price until the Wallis Iron Works had received payments “ for work done or materials furnished under this (plaintiffs’) contract,” but, notwithstanding this, the court awarded interest on the sum which it found due from December 30, 1891, which was error.

The judgment should be modified by striking therefrom (1) the part thereof which declares that the plaintiffs acquired a valid lien by virtue of their notice filed; (2) ten dollars, the error in addition, should be deducted from the plaintiffs’ claim; (3) the interest on $3,137.10 should be allowed from April 30, 1892, instead of from December 30, 1891, and, as modified, the judgment should be affirmed, without costs.

Yan Brunt, P. J., concurred.

Judgment modified as directed in opinion and as modified affirmed, without costs.


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    The People of the State of New York ex rel. W. & J. Sloane, Respondents, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Assessment of the property of a corpoi'ation by tax commissioners —refusal to answer questions — deduction of non-taxable assets from debts, improper.

    The action of the commissioners of taxes and assessments in the city of New York, in making an erroneous assessment of the property of a corporation for the purpose of taxation, cannot be justified by the fact that the treasurer of the corporation, when examined before them, pursuant to section 820 of the Consolidation Act, declined to answer questions put by them to him, when it is not shown by the record what questions such treasurer refused to answer nor the subject to which they related.
    In ascertaining the taxable property of a corporation, it is illegal for the commissioners to deduct from the indebtedness of the corporation the non-taxable assets thereof.
    Aeread by the defendants, Edward P. Barker and others, commissioners of taxes and assessments of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, dated November It, 1893, and entered in the office of the clerk of the county of New York upon the report of a referee, and also from an order entered in said clerk’s office on the 23d day of October, 1893, directing the cancellation of a certain assessment.

      George 8. Golemazi, for the appellants.

      Henry H Anderson, for the respondents.
   Follett, J.:

W. & J. Sloane is a business corporation organized in January, 1891, under the laws of New York, with a share capital of $3,000,000, all of which has been paid in and all of the shares issued. The principal office or place for transacting the financial business of the corporation is and has been kept at Nos. 880 to 888 Broadway.

In 1892 the deputy tax commissioner, whose duty it was to value the corporation’s capital for taxation, valued it at $3,000,000, which assessed valuation was entered in the books of the commissioners of taxes and assessments. Afterwards, and on the 18th of February, 1892, the corporation, by its treasurer, made, verified and filed with the commissioners the following statement:

« Statement made and delivered to the Commissioners of Taxes and Assessments of the City and County of New York, for and in behalf of the corporation of W. & J. Sloane, showing its condition, for the purpose of assessment, on the second Monday of January, 1892:

« Total gross assets on January 1................ $7,974,698 87

« Capital stock actually paid in, or secured to be paid in.................................. 3,000,000 00

Amount of surplus earnings................... 300,000 00

Rate of dividend of last year, or last annual dividend .................................... 2 00

Indebtedness in detail as follows: Bonds, loans, bills payable and book accounts.. 5,556,118 00

« Assessed value of real estate (describing particularly by Ward and Ward map numbers) :

Ward. Map numbers. Location, Assessed value.

“ 5th... 354 to 356,1732*. Nos. 407 to 411 Greenwich street and No. 15 Hubert street____ $57, 500 00

«15th.. 1321 to 1323.... Nos. 14 to 18 West 13th street......... 37,500 00

«18th . 335 to 339, 4264 to 4266,4340 to 4344......... Nos. 880 to 888 Broadway, 33 to 35 East 18th street, 28 to 34 East 19th street..... 500, 000 00

«18th . 4344*, 4345..... Nos. 36 to 38 East 19th st................. 40, 000 00

$635, 000 00

« Amounts invested in the stocks of other corporations which are taxed upon their capital...... $610, 875 00

« Amount invested in H. S. securities............ 400, 000 00

« Imported goods in unbroken packages..........- 1,006, 310 OO

«Portion of capital invested in foreign countries and in other States 578, 949 34

“ (If the stock of the Company is worth less than par, state the actual value, and give the facts under oath .which will justify such estimate of its value.)

“ The stock of the Company has no market value, as no sales have been made in open market, and it depends largely upon the personal skill and capacity of the managers.

“The principal office, or the place of transacting the financial business of the said corporation, is situated in the Eighteenth "Ward of the City of Now York, at Nos. 880 to 888 Broadway.”

After this statement was filed, and in February or March, 1892, the treasurer of the corporation was examined before the commissioners, pursuant to section 820 of the Consolidation Act, who thereafter made an assessment upon the following basis:

Corporation’s gross assets...................... $7, 974, 698 87 Deductions allowed by commissioners :

Corporation had invested in shares of other corporations taxed on their capital................. $610,875 00

Corporation had invested in IT. S. securities.................... 400,000 00

"Value of goods imported by the corporation and on hand in unbroken packages............ 1, 006, 310 00

2, 017,185 00

$5, 957, 513 87

Indebtedness of corporation...... $5, 556, 118 00

.Less non-taxable assets (as above).. 2, 017,185 00

3, 538, 933 00

$2, 418, 580 87

Assessed value of corporation’s real estate ....................... $635,000 00

Corporation’s property outside of this State.................... 578,949 34

Surplus, 10$ on $3,000,000 ...... 300,000 00

1, 513, 949 34

Yalue of assessable personalty.............. $904,63.1 53

. The assessment was made for $902,631, an error of $2,000 having been made by the commissioners.

Upon what theory the commissioners deducted the sum of $2,017,185, denominated by them “ non-taxable assets,” from the indebtedness of the corporation is not apparent. This, in effect, was what was attempted to be done in People v. Ryan (88 N. Y. 142), and was held to be illegal.

The commissioners should have made up their statement as follows: Gross assets of corporation, real and personal..... $7, 974, 698 87

Investments in taxable shares of other' corporations. Not assessable. (Chap. 456, L.' 1857, § 3.) $610, 875 00

Investments in U. S. securities.

Not assessable. (U. S. R. S. § 3701; People v. Commissioners, 90 N. Y. 63).. .. ...... 400, 000 00

Goods imported by corporation and held in unbroken packages. Not assessable. (Brown v. Maryland, 12 Wheat. 419; Bur. Tax. 86; Cool. Tax. 61, et seq.)......... 1, 006, 310 00

Property outside of the State. Not assessable. (People v. Commissioners, 23 N. Y. 224; Graham v. First Nat. Bank, 84 id. 393.) 578, 949 34

Surplus on capital stock. Not assessable.- (Chap. 456, L. 1857, §3)......................... 300,000 00

Assessed value of real estate to be deducted from gross assets. (Chap. 456, L. 1857, § 3)...... 635, 000 00

3, 531,134 34

$4, 443, 564 53

Indebtedness of corporation to be deducted from taxable assets. (People ex rel. Second Ave. R. R. Co. v. Barker, 141 N. Y. 196)............ 5, 556, 118 00

$1,112, 553 47

After deducting the non-assessable property of the corporation and its assessed real estate from its gross assets, real and personal, its indebtedness exceeds the remainder by $1,112,553.47, as appears by the foregoing statement.

The commissioners now seek to justify their action on the ground that the treasurer of the corporation, when examined before them, declined to answer questions put by them to him. The difficulty with this position is that the record does not disclose the questions which the treasurer refused to answer, nor the subject to which they related. It does not appear that the questions related to the indebtedness of the corporation, and, for aught that appears, they may have related solely to the amount invested in United States securities, and further, the commissioners did not disallow any of the items of the statement made and filed, but found it to be true and made their assessment on the basis of the truth of the statement. If, for example, the treasurer had refused to answer proper questions put by the commissioners in respect to the corporation’s indebtedness, or had given evasive or unsatisfactory answers, and the commissioners had found that the indebtedness was less than the amount stated, a different question would have been presented.

The .order of the Special Term should be affirmed, without costs.

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

Order affirmed, without costs.


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    Thomas Nolan, Respondent, v. The Rockaway Park Improvement Company, Limited, Appellant.

      Owner of land bordering on the ocean — right to land between high and low-water mark — action by a ti'espasser, for damages resulting from an assault and battery.

    At common law the owner of land bordering on the ocean has a legal right to possess and occupy the land between high and low-water mark, subject, however, to the right of the State and of the United States to take the land for its own use, or to authorize it to be taken by a corporation for public use, and, also, subject to the right of the public to use it in aid of navigation.
    He may occupy to low-water mark for the purpose of gathering seaweed or building wharves, or for any private purpose not inconsistent with the rights of the public, and such legal right is a sufficient title to enable him to maintain ejectment against an intruder upon lands between high and low-water mark, when the lands above and below are embraced in the same action and are recovered in the same judgment.
    A judgment was rendered in favor of the plaintiff in an action brought to recover the damages resulting from an assault and battery, where the answer was molliter manus imposuit, that the defendant was the owner of a beach whereon the plaintiff was trespassing, and that its employees used no more force than was necessary to prevent the plaintiff from continuing his trespass.
    It was sought to maintain the judgment on the theory that the plaintiff entered on the beach for the purpose of serving a summons and complaint on one of the defendant’s employees.

      Held, that this afforded no justification for his so doing, as the plaintiff’s right to enter on the premises was not placed on that ground by the court, and at the time of entering the plaintiff did not assert his right to enter for that purpose, but insisted that, as one of the public, he had an absolute legal right to enter at his own will and pleasure, and although he had abundant opportunity to serve a summons and complaint he made no attempt to do so.
    Appeal by tbe defendant, The Rockaway Park Improvement Company, Limited, 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 23d day of June, 1893, upon the verdict of a jury for $500, after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 28th day of June, 1893, denying the defendant’s motion to set aside the verdict, and for a new trial made upon the minutes.

      William J. Kelly, for the appellant.

      Stephen G. Baldwin, for the respondent.
   Follett, J.:

This action was brought to recover damages for an assault and battery committed by two employees of the defendant. The answer is mollite'r manus imposuit — that defendant was the owner of a beach whereon the plaintiff was trespassing, and that its employees used no more force than was necessary to prevent him from continuing his trespass.

Since August 5, 1889, the defendant has been the owner in fee and in possession of twenty-one acres of upland at Rockaway Beach in the town of Hempstead, which is 4,331 feet wide east and west, and is bounded on the south by the Atlantic ocean. April 26,1890, the State of New York, by its letters patent, granted to the defendant about 100 acres of land bounded on the north by the south line •of the piece of land first mentioned, and extending south below low-water mark and into the Atlantic ocean.

It appears by undisputed evidence that the defendant used the ■upland as a place of recreation, and the beach as a bathing place for •its guests.

On the 25th of July, 1891, the plaintiff entered upon the beach .and was walking between high-water and low-water mark, when he was ordered away by the. defendant’s employees, and on refusing to go, he was ejected by them.

The court in submitting the question of the plaintiff’s right to enter on the beach charged that, “ In his (plaintiff’s) entry upon the beach between high ana low-water mark (he) was merely enjoying and proposing to pursue his strict legal right. He liad a right of passage along the beach between high and low-water mark, and neither this defendant nor the defendant’s servants had any legal right to interrupt, obstruct or turn him therefrom.” To this instruc■tiou the defendant excepted and asked the court to charge the con■verse, which request was refused and an exception taken. In giving this instruction and in refusing the, one asked by the defendant •the court erred.

At common law the owner of land bordering on the ocean has a ■legal right to possess and occupy the land between high an,d low-water mark, subject, however, to the right of the State and of the United States to take the land for its own use or to authorize - it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation. The adjoining ■owner may occupy to low-water mark for the purpose of gathering ■seaweed or building wharves or for any private purpose not inconsistent with the rights of the public. (People v. Tibbetts, 19 N. Y. 523 ; East Haven v. Hemingway, 7 Conn. 186-203; Blundell v. Catterall, 5 B. & Ald. 268.)

’ This legal right of the adjoining owner is a sufficient title to ■enable him to maintain ejectment against an intruder upon lands ■between high and low-water mark, when the lands above and below ;are embraced in the same action and are recovered in the same judgment. (Nichols v. Lewis, 15 Conn. 137; Jackson v. Buel, 9 Johns. 298 ; Jackson v. May, 16 id. 184; People v. Mauran, 5 Den. 389 ; Brown v. Galley, Hill & Denio, 308.)

In addition to the common-law right of the defendant in this beach it had an absolute grant from the State of the land below high-water mark and extending some distance into the ocean, subject only to the following limitation : “ Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above-described premises, in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce, by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.”

It appears that the defendant had erected a pier and dock on the-land granted to it by the State, and used the beach as a bathing, place in connection with its upland, thus applying the land granted by the State to the “ beneficial enjoyment of the adjacent owner,” and the position that grantees who are in possession of and using the subject of the grant have not the right to exclude persons entering thereon for their own pleasure, or to gratify their curiosity, cannot be maintained. Such a rule would be destructive of many valuable rights acquired in the navigable waters adjacent to the maritime-cities of this State. It is sought to maintain this judgment on the theory that the plaintiff entered on the beach for the purpose of serving a summons and complaint on one of the defendant’s, employees. It is a sulficient answer to this position that the plaintiff’s right to enter on the premises was not placed on that ground by the court, and, besides, the plaintiff, at the time of entering, did not assert his right to enter for that purpose, but insisted that, as. one of the public, he had the absolute legal right to enter at his own will and pleasure, and, further, though the plaintiff had abundant opportunity to serve a summons and complaint, he made no attempt to do so.

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

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

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


author: Follett, J.: Van Brunt, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of Solomon Farian, as Administrator, etc., of Charles Wiegel, Deceased, Respondent, v. Frederick W. Wiegel and Others, Appellants.

      Gfift causa mortis —evidence necessary to establish it.

    'There is no presumption of law or fact either against or in favor of a gift, and one who claims title to property through a gift must establish it by evidence which is clear and convincing, strong and satisfactory; there should be no relaxation of such rule in favor of a donee who claims the entire estate of the donor, to the exclusion of his next of kin, by a gift made to him during the donor’s last sickness and under apprehension of death.
    Appeal by Frederick W. Wiegel and others, heirs at law and next of kin of Charles Wiegel, from a decree of the Surrogate’s Court of New York county, entered in the office of the clerk of the New York County Surrogate’s Court on the 30th day of October, 1893, settling and allowing the accounts of Solomon Farian, as .administrator, etc., of Charles Wiegel.

      Frederick W. IIolls, for the appellants.

      Alfred Steckler, for the respondent.
   Follett, J.:

Charles Wiegel died intestate at the city of New York on Wednesday, March 11, 1891, and April 16, 1891, respondent, claiming to be a creditor, was appointed administrator of his estate by the ¡Surrogate’s Court of the city and county of New York. This controversy arises over the title to $8,536.29 on deposit to the credit of the intestate at the date of his death in six savings banks. The respondent asserts that Wiegel gave him these moneys on Sunday, March 8, 1891, during his last sickness and in apprehension of death, while the appellants, intestate’s next of kin, who are resident citizens of Germany, assert that these deposits were not given to the respondent, but that the title to them is in him, as administrator and not individually.

The referee appointed to determine the rights of the parties reported in favor of the respondent and his report was sustained by the Surrogate’s Court. ' The decision of this appeal depends upon whether, within legal rules, the testimony is sufficient to sustain the conclusion, reached by the referee and the Surrogate’s Court. Before entering upon a discussion of this question it will be well to state the rule of evidence declared by the courts to be applicable to such cases. 'In this State the rule is that while there is no presumption of law or fact against a gift there is no presumption of law or fact in favor of one, and lie who claims title to property through a gift must establish it by evidence which is clear and convincing, strong and satisfactory.” (Devlin v. Greenwich Savings Bank, 125 N. Y. 756; S. C., 35 N. Y. St. Repr. 922, reversing 16 Daly, 98; Ridden v. Thrall, 125 N. Y. 572-576 ; Lewis v. Merritt, 113 id. 386; Harris v. Clark, 3 id. 93-121; Bedell v. Carll, 33 id. 581, 585 ; Grymes v. Hone, 49 id. 17-23 ; Scoville v. Post, 3 Edw. Ch. 204; Pom. Eq. Juris. § 1146.)

This rule should not be relaxed in a'case where the donee claims the entire estate of the donor to the exclusion of his next of kin. The intestate was a German by birth and a tailor by trade, and, after working for a few years in Paris, France, came, in 1870, to the city of New York where lie resided until he died. In 1871 he began working at his trade for the donee, a merchant tailor, and continued in his employ until his last sickness in March, 1891. lie was never married, and, so far as is known, had no relatives in America. In the early part of his service for the donee lie roomed for several years in his house and afterwards slept for some years in his shop, but in December, 1890, he took a room at No. 421 Sixth street, a house kept by Mrs. Fix, where he remained until Sunday, March 8, 1891, when he was removed to Mt. Sinai Hospital, where he died. The foregoing circumstances are established by undisputed testimony and afford about all the information given in respect to the decedent and his mode of life. The donee and his wife testified that on Thursday, March 5, 1891, the donor was taken ill, and, on the advice of the donee’s wife, left the shop and went to his lodgings. On Friday and Saturday Mrs. Farian visited him at his lodgings, and on Saturday found him no better and advised him to go to the Mt. Sinai Hospital, to which he. had previously expressed a desire to be taken in case of sickness. Mrs. Farian testified that about ten a. m. Sunday, March eighth, she and her husband drove to the donor’s lodgings for the purpose of taking him to the hospital. They found him in bed, and, at first, he seemed reluctant to go to the hospital, but soon consented, and she left the room while he dressed, with the aid of her husband. When the' intestate was nearly dressed her husband called her, and she re-entered the room just as the donor was putting on his coat, when, according to her testimony, the following Occurred: Q. Then, what happened there ? A. Then he says to my husband : ‘ Mr. Farian, I think I am a very sick man.’ He said this in German. He put his hand in his pocket.

“ Mr. IIoixs.— Tell what he said in English and give the words in German afterwards.

“A. ‘ Mr. Farian, I am a very sick man, and you always have been very good to me.’ Putting his hand in his pocket lie handed my husband .a package, and he said, ‘If I should die all the money in bank belongs to. you,’ and then we opened the door and went down stairs to the can’iage. Q. And your husband had these bank books ? A. My husband took the package and put it in his pocket. Q. How were these bank books wrapped ? A. Wrapped up in a newspaper with a piece of twine around it.”

Thereupon the donor and donee entered the carriage and were driven to the hospital, at which, three days afterwards, the donor died. When Mr. Farian returned to his home the package which the intestate had delivered to him was opened, and found to contain six savings bank books wherein the money in dispute was credited. The foregoing constitutes all of the evidence which tends to establish a gift of the deposits.

On the 16th of March, 1891, Mrs. Farian made an affidavit in which she stated: “ That she was present at 121 Sixth street, city of New York, on Sunday, March 8th, 1891, when her husband and herself came to take said Wiegel to the Mt. Sinai Hospital, and seen the said Charles Wiegel hand her husband six savings bank books, and heard said Wiegel tell her husband that he was a very sick man, and that if he should die all that was in the bank he would give to her husband, as he had no relatives living as he knew; that deponent and her husband had taken care of him and been good friends to him, and that he wanted him and his wife to have what little he had saved if he should die.”

On the 16th of April, 1891, the donee was appointed sole administrator of the intestate’s estate, and on September 23,1891, he verified and thereafter filed in the surrogate’s office an inventory, in which he included the accounts in the six savings banks as belonging to the estate. Five of the banks paid their deposits to the administrator, and, under some arrangement, the amounts were deposited with the State Trust Company, but the German Savings Bank refused to pay the amount to the credit of the intestate, and April 30, 1891, JVIr. Farian, as administrator of the estate of the intestate, brought an action against the bank in the Supreme Court to recover the amount to the credit of the decedent. It was alleged in the complaint, which was duly verified by Farian, that the money belonged to the estate of the intestate, and that he, as administrator, was entitled to recover it.

We do not think the evidence by which the gift is sought to be established is “ clear and convincing, strong and satisfactory.” All of the testimony tending to support the gift was given by the donee’s wife, and, while she had no present legal interest in establishing it, experience has shown that the interest of a loyal wife in the affairs of her husband is as intense as his own and quite as likely to warp her judgment and accuracy when testifying in his behalf as is the legal interest of the husband to warp his judgment when testifying in his own interest. Besides the fact that the title by gift is supported only by a witness who has, in all senses except the legal one, a strong interest, there are circumstances of great probative force which render the testimony of the wife improbable, or, at least, far from satisfactory and convincing. The record shows that Farian gave an administrator’s bond in the penalty of $16,000, which, presumptively, is twice the value of the estate as stated by the petitioner in his application for letters. (Code Civ. Proc. § 266Y.)

In the “ true and perfect inventory of all the goods, chattels and credits of such * * * intestate,” made, verified and filed by the administrator (]\Ir. Farian), pursuant, to article 1, title 3, chapter 6, part 2 of the Revised Statutes (then in force), it was stated that the sums to the credit of the intestate in the six saving-shanks belonged to his estate, and in the action brought by Farian, as administrator, against the German Savings Bank, he swore in the verified complaint that the deposit belonged to the estate. These oaths were not the unadvised acts of a person unacquainted with his legal rights, for Farian testified that, as soon as he heard of the intestate’s death and before he was buried, he consulted with Nones, an attorney and counselor of the courts of this State, who assisted in obtaining letters of administration, in making the inventory and who began the action in the Supreme Court against the German Savings Bank. Aside from the deposits, which are the subject of this controversy, the estate of the intestate amounted to less than seventy-five dollars, and we do not think a stranger to the blood of the intestate should be allowed to succeed to the entire estate upon testimony of the character which was offered to sustain liis claim. In Harris v. Clark (supra) it was said: Assuming, as we must in this case, that the draft is genuine, there is no doubt of the intention of Mr. Smith to give the money in question to his sister — and I come to a conclusion against her right with reluctance —• a reluctance qualified, however, by the belief that the clear policy of the law is against the encouragement of gifts of this nature. They are essentially testamentary; they are to take effect only in case of the testator’s death, and they are revocable during his life. The same considerations of prudence and caution which induced the legislature to require wills of personal estate to be executed, published and attested with great formality, would seem to forbid these informal dispositions of property in expectation of death. The temptation to fraud and imposition in regard to these gifts is as powerful and as dangerous as in the case of wills, and yet has been left unchecked and unregulated by statute; and they ought not to be tolerated by the courts unless they are attended by all the requisites which the common law prescribes to give them validity.”

This language is peculiarly applicable to this case. The intestate was not in extremis when it is asserted that he made the gift, but he had ample opportunity to express his intention by a will, executed in accordance with the laws of this State.

We are of the opinion that the decree is not supported by the evidence, and that it should be reversed and a new hearing had in the Surrogate’s Court, with costs to the appellants to abide the event.

O’Brien, J., concurred.

Van Brunt, P. J.:

While concurring in the result of Mr. Justice Eollett’s opinion, I cannot concur in the reasons which he has assigned therefor.

It is undoubtedly true tliat in order to support a gift such as is claimed in this proceeding the proof should be reasonably clear and satisfactory ; but the fact that the witness by whom it is sought to establish the gift may be said to be interested in the result should not preclude a finding that the gift had been established by the evidence of such a witness. If the question as to the gift was being tried before a jury, the mere fact that the witness proving the gift was the wife of the donee would not permit the court to take the question from the jury; and if the jury under proper instructions believed the wife, and there was nothing which made it manifest that the story of the wife was incredible, the verdict could not be disturbed. So in the case at bar the mere fact that the respondent sought to establish the gift by the testimony of his wife did not prevent a finding in his favor notwithstanding that she may have had a large interest in his success.

"Upon an examination of the evidence in this case it seems to us that the wife is singularly supported by the affidavit which she made, and which it is claimed upon the part of the appellants is a contradiction of her testimony in this proceeding.

It is further insisted that the conduct of the respondent in placing in the inventory the subject-matter of the gift, which is claimed in this proceeding, also tends to weaken the testimony which was given in support thereof. It appears from the evidence that the respondent consulted an attorney. What advice the attorney gave we do not know; but thereafter the respondent and wife made the affidavit referred to and the money in bank was included in the inventory, which inventory was sworn to by him. Now, the fair inference to be drawn from these facts is that the respondent was advised that the facts which are now claimed to have constituted a gift of the moneys in bank were not sufficient to transfer the title, and this being the condition of mind of these parties, the affidavit in question was sworn to by the respondent and liis wife. In her affidavit she says that she saw the deceased hand her husband six savings bank books, and heard him tell her husband that he was a very sick man, and that if he should die all that was in the bank he would give to her husband, as he had no relations living as he knew; that deponent and her husband had taken care of him and had been good friends to him, and that he wanted him and his wife to have wliat little lie liad saved if lie should die. This affidavit was made at a time when these parties evidently believed that such a transaction was insufficient to transfer the title. The only valuation from this story in the evidence she gave upon the stand, perhaps, is the failure to identify the books as clearly as they are in the affidavit, and the testifying to the statement of the deceased that the witness and her husband had taken care of the deceased and been good friends to him and that lie wanted him and liis wife to have wliat little he had saved if he should die. This variation was entirely immaterial, because it is manifest, taking the whole statement together as contained in the affidavit, that the gift was to be to the husband, and that the statement that the deceased wanted him and his Avife to have what little lie had saved, applied to the assumption upon the part of the deceased that the wife would enjoy Avliat Avas given to her husband. It seems to me that if the wife was a credible witness her evidence could be and was sufficient to make out a complete gift cenosa mortis.

The result of holding that such a gift cannot be predicated upon the testimony of the wife, is adding a new rule to the law of evidence, aúz., that to establish a fact in reference to a gift causa mortis, evidence of parties entirely indifferent is necessary.

But I think, however, that upon the proof as it stands, there was one fact Avhicli Avas insufficiently established ; and that is that the bank books Avhicli are now claimed by the husband were all handed over to him at the time testified to by the wife. All that she saw Avas a package which the husband put in his pocket, and she did not see what she supposed to be that package for hours thereafter; and it Avas then in her husband’s possession and lie opened it and shoAved to her some bank books. But there is no evidence that she even then kneAV Iioav many there were or that they were the bank books in question. And there was ample opportunity upon the part of the husband to put into that package anything he pleased. • And as. a result the probative force of the testimony of the wife Avas fatally defective in her not being able to identify that which was handed to the husband at the time of the alleged gift. And for this reason it seems to me the gift Avas not established.

Decree reversed and new hearing had in the Surrogate’s Court, with costs to the appellants to abide the event.