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

text:
    HATTIE GRINNELL, Respondent, v. IMRE KIRALFY, Appellant.

      Contract of employment while the employer “ shall feel satisfied ” — right to discharge the employee, Turn fan' absolute.

    A contract, under •which one Hattie Grinnell was employed as a souhrette in a theatrical troupe for the seasons of 1887 and 1888, at a salary of forty dollars a week, provided, among other things, as follows:
    The said party of the second part further agrees that if said party of the first part shall feel satisfied that the said party of the second part is incompetent to perform the duties for which said party of the first part has contracted in good faith, or is inattentive to business, careless in rendering of characters, or guilty of any violation of the rules, then the said party of the first part may annul this contract by giving one week’s notice to said party of the second part to that effect, and said party of the second part shall have no further claim upon said party of the first part.

      Held, that the words “in good faith” referred to the previous expression “shall feel satisfied,” and that the party employed was thereby protected from a capricious or arbitrary discharge from the employment.
    That the employer contracted affirmatively for the exercise of good faith on his part in discharging his employee.

    Appeal by the defendant from a judgment, entered in the office of the clerk of the county of New York on November 19, 1888, in favor of the plaintiff and against the defendant, for the sum of $163.44 damages and costs; and also from an order, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial upon the minutes.
    The action was brought to recover damages arising from the alleged illegal discharge of the plaintiff from her employment as an “ ingenue ” and soubrette by the defendant.

      Stephen O. Baldwin, for the appellant.

      August KoJm, for the respondent.
   Barrett, J.:

The single question in this case is whether the defendant had a right to discharge the plaintiff at his pleasure. The material part of the contract was in these words :

“ Tbe said party of tbe second part further agrees that if said party of tbe first part shall feel satisfied that tbe said party of tbe second part is incompetent to perform tbe duties for which said party of tbe first part has contracted in good faith, or is inattentive, to business, careless in rendering of characters, or guilty of any violation of tbe rules, then tbe said party of tbe first part may annul this contract by giving one week’s notice to said party of tbe second part to that effect, and said party of tbe second part shall have no further claim upon said party of tbe first part.”

Tbe plaintiff was tbe party of tbe second part, tbe defendant of the first. Tbe defendant contends that as there was no comma in tbe original instrument after tbe word “ contracted,” tbe good faith referred to, was bis in making tbe contract. Tbe plaintiff, on tbe other band, claims that tbe words “ in good faith ” refer to tbe previous expression “shall feel satisfied,” and that thus she was protected from a capricious or arbitrary discharge. "We think the latter is tbe fair and reasonable construction of this contract. It was superfluous for tbe defendant to affirm bis good faith in entering into tbe contract. On bis contention these words “in good faith ” have no contractual force, and simply amount to an unnecessary assurance of honesty. They are, however, both relevant and important if be meant that tbe plaintiff was not to be discharged at bis mere pleasure. If a discharge at will bad been intended, it would have been easy to say so in a few words. But clearly it was not intended to give tbe defendant this absolute power. Tbe plaintiff was an experienced actress of seventeen years’ standing, and she bad served tbe defendant in that capacity during a prior season. Thus be was well acquainted with her capacity. Tbe engagement, consequently, was not an experiment nor a mere trial.

It contemplated tbe steady employment, for a full season, of a person of recognized qualifications, but with a reasonable check upon inattention or carelessness. Tbe jury have found that tbe plaintiff performed her duties fairly and properly, and tbe defendant bad no right to discharge her upon a pretense of dissatisfaction, which, as tbe verdict necessarily establishes, was neither genuine nor honest. • We need not, therefore, consider whether, even upon tbe defendant’s construction of tbe contract, be could have discharged her at his pleasure, in other words, whether tbe case comes within tbe general principles laid down in Duplex Safety Boiler Compamy v. Garden (101 N. Y., 389) and Doll v. Noble (22 N. East. Rep., No. 16, p. 406; S. C., 116 N. Y., 230), or within the rule which governs as to contracts, made “ to gratify taste, serve personal convenience or satisfy individual preferences.”

The defendant, in our judgment, contracted affirmatively for his own good faith, and he must be held to his bargain. There is nothing in the exception with regard to the programme. That was introduced simply to show that the defendant kept the plaintiff’s name on his bills for some time after the discharge. It was read in evidence without objection, although the proof, that' it was one of the defendant’s programmes, was objected to. Being in the case without objection, it was proper to be considered. It showed, at least, that the defendant’s company was performing at its date and that such date was embraced within the season. It also showed that the week covered by that date was not one of those when the defendant did not play. It was a circumstance, too, upon the question of his good faith, and, at all events, it was plainly harmless.

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

Bajjtlett, J., concurred.

Van Brunt, P. J.:

I concur. The addition of the words “ in good faith ” in the contract in no manner changed the relation of the parties to it. The defendant, even if the words had not been there, could not have discharged the plaintiff at his pleasure.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN POWERS v. J. HAMPDEN ROBB, WALDO HUTCHINS, M. E. D. BORDEN and ALBERT GALLUP, Composing the Board of Park Commissioners of the Park Department of the City of New York, Respondents

      Poioer to remove the members of the New York city park police.

    Under tlie provisions of chapter 262 of the Laws of 1887, amending section 690 of chapter 110 of the Laws of 1882, the hoard of park commissioners of the city of New York is divested of the unqualified power previously given to it to remove the members of the park police at its pleasure.
    Absence for any cause without leave, sickness or disability, physical or mental, on the part of members of the park police, justify the hoard of park commissioners in taking or withholding pay, salary or compensation; hut, unless the disability shall have been proved to be of a permanent character, the member of the park police subject thereto cannot be dismissed from the force because thereof.
    Weit oe ceetioeaei to review tbe proceedings of the board of park commissioners in the removal of the relator from his position as a park policeman.

      Louis J. Grant, for the relator.

      Woolsey Carmalt, for the commissioners.
   Daniels, J.:

The relator was appointed to the position of a patrolman on the park police, and ujion information received by the commissioners from the police surgeon and another physician, that the relator was subject to insane delusion, they removed him from the force. This was done without notice to or hearing on the part of the relator, and the decision of the commissioners has been objected to as being without authority.

At the time when this removal took place, chapter 262 of the Laws of 188J was in force amending section 690 of chapter 410 of Laws of 1882. The original as well as the amendatory section empowered the commissioners of parks to organize and appoint a force to consist of such a number of men as the board might from time to time determine to be necessary to preserve order in the parks, and the section as it was contained in the act of 1882 further empowered the commissioners to discharge the persons so appointed at their pleasure. But this power of removal in the amendatory act of 1887 was omitted and excluded from these provisions, and in the place of that provision it was enacted and declared that “ the said board shall have power, in its discretion, on conviction by said board or by any court or officer of competent jurisdiction, of a member of the force known as the park police, of any legal or criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer, or other breach of discipline, to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, suspension without any pay during such suspension, or by dismissal from the force, but no more than thirty days’ pay or salary shall be'forfeited or deducted for any offense. The board is also authorized and empowered, in their discretion, to deduct and withhold pay, salary or compensation from any member or members of the park police force, for or on account of absence for any cause without leave, lost or sick time, sickness or other disability, physical or mental.”

And by this change made in this manner in the law, it is to be assumed to have been the intention of the legislature to divest the commissioners of the unqualified power previously given to them to remove the members of the force at their pleasure. Eor the enactment of 1887 includes so much of the original section as it was intended after that should be in force. And as this power was thereby omitted from the section, the only reasonable conclusion which can be adopted is, that it was intended by the legislature that it should be no longer possessed by the board. Besides that, it was provided by the act of 1887 when and in what cases members of the force should be removed from their positions. And by declaring and defining the cases in which such removals might be made, it is to be inferred that the legislature intended the authority in this manner given to be exclusive, and to deprive the commissioners of the power of removal in any other than the cases so specified. The qualification of the authority of the commissioners was distinct and clearly made, restricting their power of removal to the grounds mentioned in tbe act; and before tbe removal of any person from tbe force can be made, bis preceding conviction bas been required by tbe board, or by a court of competent jurisdiction, of either a legal or criminal offense, or neglect of duty, or a violation of tbe rules of tbe department, or neglect or disobedience of orders, or absence without leave or conduct injurious to tbe public peace, or welfare, or immoral conduct or conduct unbecoming an officer, or other breach of discipline. Those are tbe only causes for which a removal from tbe force may now be directed; and tbe relator in this case bas not been convicted of either of these offenses or charges. Tbe further authority which was given to tbe board over members of tbe force was to deduct and withhold pay, salary or compensation from any member for or on account of absence for any cause without leave, lost or sick time, sickness or disability, physical or mental. This included the case of the relator. For whatever disability he had become subjected to was either physical or mental, or both, according to the statements made by the physicians. And it was for that disability the commissioners removed him from the force. But it has not been provided in the act that a removal may be made for this cause. The power which the statute has given to the commissioners is to deduct and withhold the salary or compensation of the member of the force in this manner disabled. And this power has been further qualified by restricting the deduction to no more than one-half the salary of the officer. It may be in case his disability proves to be of a permanent character that he will become hable to removal from his position under the preceding part of the section defining the cases in which the board may exercise that authority. But no proceeding or determination has been taken or made against the relator under that part of the section; but the authority which has been exercised was his removal because of his physical disability, when the act permitted no more than a suspension on half pay.

This was not authorized by the statute, and the determination should be reversed, with costs.

YaN BeüNt, P. J., and Beady, J., concurred.

Decision reversed, with costs.


text:
    SHEPHERD F. KNAPP, Receiver, etc., Plaintiff, v. JAMES VAN ETTEN and another, Defendants.

      Undertaking on appeal from a judgment of foreclosure and sale — deficiency arising on a subsequent sale, when not covered thereby.

    In an action brought against the sureties upon an undertaking given on an appeal from a judgment in an action brought for the foreclosure of a mortgage, it appeared that the judgment was affirmed on appeal, and that thereafter, on a sale of the mortgaged premises, there arose a deficiency, which the plaintiff claimed to recover against the sureties in the undertaking, in addition to the value of the use and occupation of the premises, and interest and costs on appeal. The court limited the recovery to the use and occupation and costs. The undertaking complied in part with section 385, and in part with section 338 of the Code of Procedure, but contained no express agreement on the part of the sureties for the payment of any deficiency arising upon the sale of the mortgaged property.

      Held, that the fact that the undertaking provided that if the judgment appealed from should be affirmed the appellant would pay the amount directed to be paid by the judgment, did not render the 'sureties liable for the. amount of the deficiency arising upon the subsequent sale of the mortgaged premises, as such amount was not directed to be paid by the judgment appealed from inasmuch as it could not be ascertained until after the sale of the mortgaged premises.

      Post v. Horemus (60 N. Y., 371): Goodwin v. Bund (103 id., 334); Gm'r v. Sterling (114 id., 558); Gerould v. Wilson (81 id., 573); Ghamberlain v. Applegate (3 Hun, 510) distinguished.
    The provision of section 335 of the Code of Procedure were intended to include only those cases where a specific or certain sum of money is directed to be paid or recovered by the judgment.

      Ba/rnard v. Onderdonk (98 N. Y., 158), followed.
    ExceptioNs ordered to be beard in the first instance at the General Term, after a trial at the New York Circuit before the court and a jury, by which a verdict was rendered in favor of the plaintiff for $1,609.90.

      Alexander Oameron, for the plaintiff.

      Everett P. Wheeler and Homer A. Nelson, for the defendants.
   Daniels, J.:

The action was brought upon an undertaking executed by the defendants upon an appeal, taken to the General Term, from a judgment in an action for the foreclosure of a mortgage and the sale of the mortgaged premises. The judgment was affirmed, and after the sale had taken place and the application of the proceeds to the payment of the expenses, and so much of the residue as remained to the payment of the mortgaged debt, there remained a deficiency of $27,193.08. This deficiency, with interest upon it, the plaintiff claimed to recover against the sureties in the undertaking, in addition to the sum of $1,609.90, for the use and occupation of the premises, and interest and costs on the appeal in the action in which the undertaking was given. The court limited the recovery by the plaintiff to this sum of $1,609.90, and directed a verdict for that amount. Before this direction was given the plaintiff’s counsel requested the court to instruct the jury to find, a verdict for the deficiency in addition to the sum for which the verdict was directed. That the court declined to do, and an exception was taken to that refusal. And it is upon that exception, and another to a similar effect, that the plaintiff has made this motion for a new trial.

The judgment was in the ordinary form for the foreclosure of the mortgage and a sale of the mortgaged property. And it contained the direction that if the proceeds of said sale be insufficient to pay the amount so adjudged due to the plaintiff, with the interest and costs as aforesaid, the said referee specify the amount of such deficiency in his report of sale, and that the defendant Philip J. Bonesteel pay the same to the plaintiff.” It was further adjudged that there was due and owing to the plaintiff in that action the sum of $33,261.56. And the referee by whom the sale was to be made was directed to pay this sum of money, with interest upon it from March 11, 1874, or so much as the purchase-money of the premises would pay out of the proceeds of the sale. And that direction was so far complied with as the proceeds permitted it to be done. But after paying what was directed by the judgment in the way of expenses and upon the mortgage debt, there remained still the deficiency already mentioned.

The appeal was taken from the judgment in the foreclosure action in 1S74, and the sureties in the undertaking undertook “ that the said appellants will pay all costs and damages which may be awarded against them on said appeal, not exceeding five hundred dollars, and do undertake that during the possession of the said property by the appellants he will not commit or suffer to be committed any waste thereon; and that if the said judgment so appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on the said appeal; and that if the judgment be affirmed, he will pay the value of the use and occupation of said property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding the sum of one' thousand dollars, which amount is so fixed by the judge approving this undertaking.” From this statement of the obligation of the defendants, the undertaking appears to have been given to comply in part with section 335 and in part with section 338 of the Code of Procedure. But it contained no express agreement or undertaking on the part of the defendants for the payment of any deficiency arising upon the sale of the mortgaged property. And for that reason it was considered at the trial that the defendants incurred no liability for the deficiency.

By so much of the undertaking as was given under the authority of section 335 of the Code of Procedure, the defendants agreed and undertook that if the judgment appealed from, or any part of it, should be affirmed, or the appeal should be dismissed, the appellant would pay the amount directed to be paid by the judgment, or the part to which it should be affirmed, if affirmed only in part, and all damages which should be awarded against the appellant upon the appeal. But there was no amount recovered or, directed to be paid by the judgment otherwise than from the proceeds of the sale of the premises, neither were any damages awarded against the defendant in the action on the appeal. This provision of the Code was clearly not designed to impose a liability upon the sureties giving an undertaking in compliance with it, for the payment of a deficiency arising upon the sale of property in an action for the fore, closure of a mortgage. But the liability which is expressed by it, and was intended to be placed upon the sureties in the undertaking, was for the payment of the amount directed to be paid by the judgment as a final and ultimate adjudication. It was intended to include that class of cases, and only those, where a specific or certain sum of money was directed to be paid or recovered by the judgment. And so much, of the undertaking as was given to comply with this section of the Code was inoperative in the action, unless it might possibly include the amount recovered for costs and disbursements. In Barnard v. Onderdonk (98 N. Y., 158), a judgment or decree recovered in an action for the foreclosure of a mortgage was considered not to be within this part of this section of the Code. And it was there held that the judgment was not for the payment of any sum of money, and that it could only be made a personal judgment by other proceedings following the sale of the property and the application of its proceeds. That no amount of money was recovered by it, nor does it direct the payment of any sum of money. Id., 166,167.)

At the time when the appeal was taken, and the undertaking was given, no deficiency whatever was or could have been adjudged to exist in the action. And there, accordingly, could be no adjudication or direction for the payment of any sum of money which should finally appear to be left unpaid after the application of the proceeds of the sale of the property. There was no sum of money adjudged or directed to be paid by the judgment because of any deficiency. Neither could that be ascertained until the property was sold and its proceeds applied as the judgment directed that to be done. And that the undertaking given, under this section of the Code, was not intended to include a deficiency in a foreclosure suit is confirmed by the latter part of section 338. For that has provided, upon an appeal from a foreclosure judgment to obtain a stay of proceedings, that the sureties should undertake and bind themselves for the payment of a deficiency arising from the sale of the j>roperty. And this provision would not have been made a part of the section if an undertaking under section 335 had been designed, or was to be construed to provide for such a payment. Section 335 was in no manner adapted to an appeal from the foreclosure judgment. But that was regulated and provided for by section 338, which declared what the form of the undertaking should be. And the undertaking in this instance failed to comply with that direction so far as it included a possible or probable deficiency remaining after the application of the proceeds of the sale. Neither by the language of the undertaking itself, nor the application of these sections to the action, was any liability incurred on behalf of the defendants to make payment of this deficiency. They entered into the obligations assumed by them as sureties, and the extent of their liability, is to be determined by the language which was employed. ( Wood v. Fisk, 63 N. Y., 245.)

In the cases of Post v. Doremus (60 N. Y., 371); Goodwin v. Bunzl (102 id., 224); Carr v. Sterling (114 id., 558), and Gerould v. Wilson (81 id., 573), the undertaking or contract entered into was expressed in language so broad, declaratory of the liability of the sureties, as to include that which they were held to have respectively assumed. And there was, therefore, no impropriety in holding the extent of liability to be that which was enforced against them in those cases. But they are distinguishable from the present action in the important circumstance that these defendants employed no language whatever in their undertaking which, expressly or by fair implication, can be held to include an obligation for the payment of this deficiency. In Chamberlain v. Applegate (2 Hun, 510) the judgment did provide for the amount which the plaintiff was found entitled to recover. And it was, in • effect, recovered by the judgment. And then a sale of the premises included in the contract, directed to be specifically performed, was required to be made and the proceeds applied upon that judgment. The right of the plaintiff there, so far as the judgment included the debt, was fixed and absolute. It required no further proceeding or adjudication to ascertain the debt or amount finally remaining unpaid. "While in this action that could only be done upon further proceedings being taken on the basis of the report of the referee after the sale. The undertaking there was given under section 335 of the Code of Procedure, and the judgment being for the recovery of money, it was held to be within the undertaking. But that is not this case; for here no sum of money, certainly beyond the costs, was definitely recovered by the judgment in the foreclosure action against the defendant; and as the court at the trial appears to have been right in the direction which was given, the exceptions should be overruled and the motion for a new trial denied, with costs to the defendants, and the plaintiff have judgment on the verdict rendered by the jury.

YaN BkuNT, P. J., and Baeeett, J., concurred.

Exceptions overruled and the motion for a new trial denied, with costs to the defendants, the plaintiff to have judgment on the verdict rendered by the jury.


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

text:
    HARVEY F. PHIPARD and Others, Appellants, v. MARY L. PHIPARD, Executrix, etc., Respondent.

      Policy of insurance — what memorandum attached thereto by the assured and action, on his part impress it with a trust.

    The sum of $10,000 agreed, by the terms of a tontine life policy, to be paid upon the death of the assured, was paid to his widow as his executrix.
    After the policy was issued to the assured, he made and executed and attached to the policy, and deposited with it in a safe deposit company, the following instrument:
    "New York, Feb’y 24th, 1883.
    “The within policy in the Equitable Life Assurance Co. for ten thousand dollars ($10,000) on my life is for the benefit of my children, and in the event of my death before it (the policy) matures, the money, when paid by the Co., is to be equally divided amongst those of my children that are alive at that time, share and share alike. '' A\" \1 T PHIPARD ”
    From time to time during the life of the assured it was stated by him, in referring to the policy, that it had been obtained for the benefit of the children.
    In an action brought by the children of the assured against the widow, the foregoing facts were proved, but the trial court held that they were not sufficient either to create a trust in favor of the children or to constitute a gift of the policy to them.

      Held, that the evidence was sufficient to impress the insurance policy with a trust in favor of the children, and to characterize the subsequent possession of the policy and the instrument attached thereto by the testator, as that of a trustee, for their use and benefit. (Van Brunt, P. J., dissenting.)
    That the act of the assured fully complied with the provisions of the statute, providing that every grant or assignment of any existing trust in lands, goods or things in action, shall be in writing, subscribed by the party making the same or by his lawfully authorized agent.
    That the statutory provisions in relation to trusts in real estate had no application to this case.
    Appeal by tbe plaintiffs from a judgment dismissing the plaintiffs5 complaint, on the 2d day of April, 1889, and entered in the office of the clerk of the county of New York, and also from an order of May 22, 1889, denying the plaintiff’s motion for a new trial.

      Isaac I. Miller, for the appellants.

      A. G. Shenstone, for the respondent.
   Daniels, J.:

The plaintiffs’ canse of action was for tbe sum of $10,000 received by tbe defendant as executrix of tbe estate of William T. Pbipard, deceased, upon a policy of life insurance. ^ This policy was issued to the testator by tbe Equitable Life Assurance Society of tbe United States on or about tbe 24th of February, 1883.

Tbe sum of money mentioned in it was payable to tbe testator, his executors, administrators or assigns, within sixty days after proof ■of his death should be furnished to tbe company. It was what was called a tontine life policy. And tbe sum of $10,000 agreed by it to be paid uj>on tbe death of the testator was afterwards paid to the defendant, as bis executrix, by tbe society. .

The plaintiffs are four infant sons of tbe testator and assured. Their ages range from eighteen, which was tbe age of tbe eldest, to ten years, which was the age of tbe youngest at the time of the trial of the action. And they were the only children of the assured. When be applied for tbe policy be applied for it designing it tó be, according to bis statement, for tbe benefit of bis children. And after it was issued be made and executed, and attached to tbe policy and deposited it with the policy with the Safe Deposit Company, the following instrument:

New ToeK, FeVy 24, 1883.

Tbe within policy in tbe Equitable Life Assurance Co. for ten thousand dollars ($10,000) on my life is for the benefit of my children and in tbe event of my death before it (tbe policy) matures, tbe money when paid by tbe Coi is to be divided equally amongst; those of my children that are alive at that time, share and share alike.

WM. T. PHIPARD.

Witness:

W. Geaoe, March 6, 1883.

134 Fast iU street, H. Y. City.

A. Y. MaoKwald,

315 Hieles street, Brooklyn, JV. Y.

And from time to time during his life, in referring to the policy, it was stated by him, as this instrument expressed the fact to be, to have been obtained for tbe benefit of these children. , And these facts were found to have been proved by tbe evidence in tbe •decision of the court before which the trial took place. But it was held that they were not sufficient, either to create a trust in favor of •the plaintiffs or to constitute a gift of the policy to them. But the instrument which was in this manner subscribed and attached to the policy, as well as the statements at various times made by the testator, were directly to the effect that the policy had been taken out and was held for the benefit of these children. If that had been stated in the policy itself, no doubt could exist, under the authorities, that it would enure to their benefit upon the decease of the assured. And this instrument appears to have been made by the testator, intending •to impress upon the policy that precise character; and to place it legally in the position where, with the statement, it was declared to be, and was, in fact, devoted to these children for their benefit upon his decease. And that appears to have been sufficient to impress the insurance with a trust in favor of the children, and to characterize the subsequent possession of the policy and the instrument by the testator as that of a trustee for their use and benefit.

The case is not affected by the statutory provisions concerning trusts, which have been held to relate to trusts created in real estate. And that statute not being applicable to this transaction, which affected personal property,- or a mere chose in action, a trust could be created in it according to the principles of the common law. And they required no particular formality to create the trust. But •“ Any agreement or contract in writing, made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property, or a certain fund, shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him voluntarily, or with notice. And the statute of frauds will be satisfied if the trust can be manifested or proved by any subsequent acknowledgment by the trustee, as by an express declaration, or any memorandum to that effect. * * * In short, by any writing in which the fiduciary relation between the parties and its terms can be clearly read.” (1 Perry on Trusts [2d ed.], § 82.)

This instrument, and the statements afterwards made and repeated by the testator, brought this case within the operation of this principle. Yery much more was done than was held not to be-sufficient to create either a gift or a trust in certain bonds obtained by the deceased in Matter of Crawford (113 N. Y., 560, 564, 565). For apt language was made use of, not only in the instrument itself, but also in the statements from time to time made by the-assured, and in the presence of one or more of these children, to create a trust for their benefit in the policy. And that, within the case of Taylor v. Kelly (5 Hun, 115), made his possession of the policy that of a trustee. The case, in this respect, is fully within, the facts, as well as the principle maintained in Martin v. Funk (75 N. Y., 134). For there no more had been done than to deposit the money in a savings bank in trust for the beneficiary. And that, was held to create a legal trust in favor of the person so to be benefited. And this principle was reasserted and repeated in Willis v. Smyth (91 N. Y., 297). And it was still further sanctioned by Mabie v. Bailey (95 N. Y., 206). And as the facts of this case-were disclosed, by the evidence made applicable to this case, by Garner v. Germania Life Insurance Company (110 N. Y., 266). And what is shown to have taken place was not deprived of this, effect by anything contained in Young v. Young (80 N. Y., 422). The act of the assured also fully complied with what the statute directed to be necessary, providing that every grant or assignment of any existing trust in lands, goods or things in action should be in writing, subscribed by the party making the same, or by his lawfully authorized agent. (3 R. S. [6th ed.], 145, § 2.) There was-no deficiency whatever in this respect. And if, as was held in Barry v. Lambert (98 N. Y., 300), the trust could be created by mere words, it was sufficiently evidenced by what the assured repeatedly stated. It was there said, in course of the opinion: “ It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal and plainly imply that the party making them intended to divest himself of his interest in the property, and toliold it thereafter for the use and benefit of another.” (Id. 306.} And what was shown to have taken place more than fairly complied with this rule. But this case does not rest wholly upon these facts- and authorities.

For after the decease of the assured, the policy, with this instrument attached to it, was found in the possession of the Safe Deposit Company. And the court, in its decision, further found, .as a fact, that the assured delivered to his son Harvey F. Phipard, one of the plaintiffs, the key to the box in the safe deposit vaults in which the policy was kept, together with an order directed to the custodian of the vaults to deliver the box to his son, whom he directed to take possession of it. The proof fully supporting this finding has not been inserted in the case. Neither has it been stated that all the evidence given upon the trial is contained in the case. And it is accordingly to be assumed that this finding of fact conformed to the evidence which was given upon the trial. And that established, as a fact, that a delivery of the policy, with the instrument attached to it, was made to one of the plaintiffs; and that, under the law relating to mere gifts, was sufficient to comply with all its requirements to vest in the plaintiffs the title to this insurance. More, certainly, was done than was held to be a delivery of the policy in Hurlbut v. Hurlbut (49 Hun, 189). For by the delivery of the key to this plaintiff, who was the eldest' son of the assured, accompanied with the order for the box containing the policy and the instrument attached to it, a constructive delivery was made. And that was sufficient for all the purposes of the law, for an actual delivery to render a gift complete is not necessary, but a symbolicál delivery will be sufficient. In Hankins v. Baker (46 N. Y., 666), the delivery of an order on a warehouseman for goods was considered to' create such a delivery. And this principle was sanctioned and followed, and further authorities cited in its support, in Cooper v. Burr (45 Barb., 9). And so it also was in Marsh v. Fuller (18 N. H., 360), where the delivery of the key itself was held to be a constructive delivery of the article which, by its use, was to be obtained.

The judgment which was rendered in the case should be reversed. And as the facts have all been found in the plaintiffs’ favor, which are necessary to entitle them to recover this money, judgment should be entered for them for the recovery of the money, with the interest upon it, and the costs of this appeal.

BRAdy, J., concurred.

Van Brunt, P. J.

(dissenting):

I cannot concur in tbe conclusion to which. Mr. Justice DaNiels-. has arrived in this case. It is clear that nothing which was done in resjiect to this policy vested any interest in the children of the assured unless there was a delivery of the papers. (Matter of Crawford, 113 N. Y., 560.) There is no finding that there ever was a delivery of the papers; and as the case does not state that it contains, all the evidence, we must take the findings of the fact as stating the true facts. In fact, the learned justice who tried the cause refused so to find.

The mere fact that the testator previous to his death delivered to. the plaintiff the key to his safe deposit box, in which box these papers were, together with an order for the delivery of said box, showed no intention to deliver by that act these papers. It is not claimed that the plaintiff could claim any of the rest of the contents, of the box because of this alleged delivery, and how is any distinction to be made. Besides, as has been already said, there is no finding that the papers in question were ever delivered which is essential to the plaintiff’s success.

Judgment should be affirmed, with costs.

Judgment reversed and judgment entered for plaintiffs for the recovery of the money, with interest upon it, and the costs of this, appeal.


author: Daniels, J.

text:
    In the Matter of JOHN O’BYRNE.

      Fugitive from justice — appeal by, from an order of commitment for contempt.

    One John O’Byrne, having been required to answer certain questions propounded to him in an investigation proceeding before the commissioners of accounts of' the city of New York, and having refused to answer, a commitment was issued against him; he thereupon left the State of New York and took up his residence in Jersey City and thereafter moved that the commitment be vacated.

      Held, that while he continued to be a fugitive from justice the courts of this State, while he avoided and defied their authority, would not aid him by reviewing the proceedings against him.
    Appeal by Jolm O’Byrne from an order made at a Special Term field in tfie city of New York on the 20tfi day of December, 1889, and entered in tfie office of tfie clerk of tfie county of New York on that day, denying a motion to vacate and set aside a certain wax-rant for the arrest of the said O’Byrne.
    Upon the hearing at Special Term a preliminary objection was made that the motion should be dismissed upon the gi’ound that the court should decline to hear any argument at all conceiving the matter while the said O’Byrne i*emained out of the State of New York and refused to submit himself to the jurisdiction of the court, which objection was sustained. The pi’oceedings were had with a view of compelling John O’Byrne to reply to certain questions put to him in proceedings had in an investigation which was being made before the commissioners of accounts of the city of New York.
    Donohue, Newcombe <& Ga/rdozo, Abraham Gruber and Henry I. Icmdon, for the appellant O’Byrne.

      Thomas P. Wiohes, for the commissioners of accounts, respondents.
   Daniels, J.

The appellant, John O’Byrne, was required to answer certain questions propounded to him in an investigation proceeding before the commissioners of accounts. He refused so to answer, and for that refusal a commitment was issued against him by one of the justices of this court. The object of the commitment was to imprison him until he should answer these questions. He ivas not arrested under the commitment, but moved to discharge it as unauthorized. In answer to this motion it was shown that he had left this State and taken up his residence in Jersey City, in the State of New Jersey, there to remain until this pi'oceeding shall be heard and concluded. The fact itself has been proved by the affidavits used to resist the motion; and their force was not ovei’come by what he himself has sworn to, for his absence from this city, the place of his former residence, has been clearly shown, together with the further circximstance that he, with his wife, are boarding at a hotel in Jersey City. He may, it is true, return occasionally to this city, but there is no reason for believing that he has, at any time, in that 'manner encountei’ed any danger of arrest under the commitment. The decided probability, on the contrary, is that on these occasions he has taken care not to meet the officer whose duty it has become to arrest him. As the circumstances have been shown, no substantial doubt can exist as to the reason inducing the appellant to make this change in the place of his residence. It was as the affiant Fitzgerald has stated it to be, and that is to remain out of the State until the matter of his attempted arrest has been carried through the courts.

This was a conclusive answer to the motion in his behalf, for the State will not aid him in reviewing the proceedings against him while he remains a fugitive in another State, avoiding and defying its authority. (People v. Genet, 59 N. Y., 80; affirming Matter of Genet, 1 Hun, 292; McMonagle v. Conkey, 14 id., 326; Keenan v. O’Brien, 53 id., 30.) If that is not his condition, the best proof he can make of the fact is to present himself to the officer who holds, and whose duty it is to arrest him on the commitment; until that shall be done it may reasonably be held that his absence has been induced by what he stated to Mr. Fitzgerald, and that is, to remain away until his liability to arrest has been decided by the courts. That he is at liberty to do, but the courts will not, in the meantime, endeavor to abridge his absence by either hearing or sustaining the applications which may be made, in his behalf.

The order should be affirmed, with ten dollars costs, together with the disbursements, but without prejudice to a renewal after the appellant shall submit himself to the jurisdiction of this court.

YaN BbuNt, P. J., and BRady, J., concurred.

Order affirmed, with ten dollars costs and disbursements, but without prejudice to a renewal after the appellant shall submit himself to the jurisdiction of this court.


text:
    JOHN H. GRAHAM and WILLIAM A. GRAHAM, Appellants, v. WILLIAM I. NEGUS and WILLIAM B. C. CARPENTER, Respondents.

      Acceptance of the note of a debtor for a pre-existing debt does not extend the time of payment of the debt.

    The mere acceptance of the note of a debtor, payable at a future time, representing the amount of a pre-existing debt, in the absence of any agreement on the part of the creditor to extend the time for the payment of the debt until the note matures, or of any new consideration for an acceptance of the note in place of the debt, does not operate as an extension of the time for the payment of a debt due at .the time when the note is made and delivered to the creditor.

      Appeal bj tbe plaintiffs from a judgment, entered, after a trial at tbe New York Circuit before tbe pourt and a jury, in tbe ■office of tbe clerk of tbe county of New York on tbe 27tb day of September, 1888 and from an order denying plaintiffs’ motion for .•a new trial.

      Arthur Furher, for tbe appellants.

      William F. Macrae, for tbe respondents.
   Daniels, J.:

Tbe complaint alleged tbe sale of goods by the plaintiffs to tbe ■defendants between tbe 1st of July, 1887, and tbe last day of January, 1888, amounting to tbe sum of $2,745.40. And it was .alleged that there was due and owing upon this amount, at tbe time ■of the commencement of tbe action, $2,527.55, with interest from the 15th of October, 1887. Tbe answer did not deny the sale and .delivery of the goods by tbe plaintiffs to tbe defendants, but it alleged that tbe goods were sold on credit, which had not expired at tbe time of the commencement of tbe suit. And for a further defense it was alleged that in settlement and discharge of the indebtedness, except as to tbe sum of $285.84, tbe defendants gave ■their negotiable promissory notes to tbe plaintiffs, which bad not matured at tbe time of tbe commencement of tbe action. Fpr this excepted balance tbe court directed a verdict in favor of tbe plaintiffs and thereby rejected tbe residue of their demand.

Tbe allegation that tbe plaintiffs bad sold and delivered tbe goods to tbe defendants was not denied, and it accordingly stood as an .admitted fact in tbe action. And it was for tbe defendants to .establish a defense relieving them from liability for tbe price of tbe .goods before a recovery in favor of tbe plaintiffs could be prevented. They offered no evidence as to tbe fact of tbe goods having been ¡sold upon credit. And it may, by reason of tbe absence of such proof, as tbe facts were alleged in tbe complaint, be assumed that there was no credit extended to tbe defendants for tbe purchase-price of tbe goods. "What they did endeavor to prove by way of defens e was under tbe other subdivision of their answer, alleging that notes bad been delivered to tbe plaintiffs which bad not matured at the time of the commencement of the suit. No agreement on the part of the plaintiffs to extend the time for the payment of the debt until the notes should mature was alleged in the answer. But it stood solely and wholly upon the fact that the notes-themselves, being in this manner given, did extend the time for the payment of the indebtedness until they respectively matured. One of the plaintiffs was called and examined as the only witness sworn upon the trial, and he was a witness for the defendants. And his testimony was that the notes were not given to him at the time the goods-were purchased, but were given after he had tried to collect the debt; that he was then informed by the defendants that they were-short, and was asked to take the notes as an accommodation, and these notes were for the amounts of the bills he had rendered. This was the only further evidence appearing in the case upon which it was held that the taking of these notes precluded a recovery by the plaintiffs for the amount unpaid upon the goods at the time when the notes were received. Neither party requested the court, to submit any question of fact to the jury, but each applied for a direction of a verdict in their own favor. And the court, assuming that the plaintiffs were precluded by the receipt of the notes, which were produced and offered to be surrendered at the trial, from recovering the indebtedness for which they were given, directed the jury to render a verdict for so much only of the price of the goods as was not included in these notes. To that direction the plaintiffs excepted, and whether this exception is well founded is the point-presented for the disposition of this appeal.

■ In support of the direction the cases of Claflin v. Taussig(7 Hun, 223); Jagger Iron Company v. Walker (76 N. Y., 521), and Fleischmann v. Stern (90 id., 110) are relied upon as authorities establishing the legal proposition that the acceptance of- the notes operated as'an extension of the debt until the time of their respective maturity. And expressions are contained in the opinions in these cases favorable to that as a legal principle applicable to this-controversy. But in neither of those cases was the point presented, as it has been by this appeal, whether the notes in and of themselves, without any agreement for the extension of the indebtedness, would be entitled to that effect. "What they contained was no more than promises to pay the indebtedness which had accrued and become-due before they were given, at future periods of time. No new consideration passed between the parties by or for which the plaintiffs became bound to give this extension for the payment of their debt, but the notes were given and received for the simple, reason that the defendants at the time could not pay the amounts, they had become obligated to pay for the purchase-price of the-goods. If the promises to pay in the future had been verbal only, as there was no consideration to sustain them, the plaintiffs, after accepting them, would have been at liberty at once to disregard the promises and commence an action for the recovery of their debt. This was considered and held to be the law in Parmelee v. Thompson (45 N. Y., 58). The authorities were there examined' and the conclusion adopted that such a promise would impose no-obligation whatever on the part of the creditor afterwards to delay the collection of the debt included in the promise. And that was' considered to be the legal rule, also, in Warren v. Hodge (121 Mass., 106). And the circumstances that the promises in this action were made in writing, and in the form of' promissory notes, adds nothing in the way of creating an obligation on the part of tire plaintiffs afterwards to extend the time for the-payment of the debt. What they were obligated to do by receiving-the notes was to produce and surrender them at the trial when the-action was brought, as it was prosecuted by them for the recovery of' the price of the goods. And that obligation they complied with, having the notes present when the trial took place and offering.tosrrrrender them to the defendants. The effect of the delivery of notes of this description, under these circumstances, was considered in Auburn, etc., Bank v. Hunsiker (72 N. Y., 252), where it was. stated, with the concurrence of all the judges, that the debtor’s notes, given on account of a preceding indebtedness produce “ no extinguishment of the precedent debt unless there is an express agreement to-accept the new obligation or security as a satisfaction of the old. One executory agreement is not a satisfaction of another, unless by virtue of some contract between the parties, and this contract cannot be inferred, but must be proved by evidence.” (Id., 257, 258.). And this view of the law was maintained and followed in Moore v. Fitz (59 N. H., 572).

In this case, as the evidence was given upon the trial, there was no. proof whatever tending to establish the existence of the agreement required by this statement of the law. And for this reason, as well ■as the additional fact that there was no consideration whatever for •the notes, they were, as the plaintiffs elected to regard them, legally inoperative in the way of extending the time of payment for the ■debt which was due at the time when they were made and delivered to the plaintiffs.

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

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

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


author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE E. CARRIGAN v. THE BOARD OF POLICE, FOR THE CITY OF YONKERS.

      Police forceof Yonkers— “ absence, without leame,” from roll-call, when not a ground for dismissal —1873, chap. 163, sea. 31.
    An absence from roll-call, which was necessitated by a real and serious illness, does not constitute the offense of “ absence without leave” for which a member of the Board of Police .of the City of Yonkers can, under the provisions of section 31 of chapter 163 of the Laws of 1873, be removed from office.
    Certioeari to review the determination of the police commissioners of the city of Yonkers in removing the relator from the-police force of said city.
    The petition of the relator alleged that, in pursuance of chapter 163-of the Laws of' 1873, and the amendments thereto, there had existed since 1873, in the city of Yonkers, the Board of Police for the City of Yonkers, composed of four commissioners; that the petitioner, on July 27, 1887, was duly appointed a patrolman on the Yonkers police force; that on December 27, 1888, the petitioner was taken with a disease, which for a time confined him to bed and prevented him from doing active police duty. The relator was charged, among other things, with a violation of rule 10, which provides for the punishment of a member of the police force because “ of absence without leave; ” also with a violation of rule 213, which provides for his punishment when loss of time arises from “ sickness or disability, feigned or simulated, or when it arises from carelessness, improper or vicious conduct, excessive indulgence of appetite or other bad habit.”

      John F. Brennan, for the relator.

      J. P. Banders, for the police commissioners.
   Pratt, J.:

The testimony of the police surgeon proved relator’s illness to be real and serious. It was a valid ground for his absence from duty, and he requested his physicians to make a report of his illness to the police authorities, which report was, in fact, made, although not till half an hour after roll-call. Such an absence froni roll-call does not •constitute the offense of “ absence without leave ” for which he ■could legally be removed from office. Nor was the charge of misleading the police surgeon established. He requested his physician to inform the police surgeon of his illness, which was, in fact, done. 'The surgeon was not misled. He was not only notified of the illness, but of its nature, and the treatment pursued. After such notice from relator’s physician there was no reason why relator should give .any further information on the subject.

The evidence does not establish that the illness was the result of misconduct. Other possible causes were given by the police surgeon. 'There is no presumption in favor of crime, and the legal presumption is the other way.

It follows that relator’s discharge from the police force was unauthorized, and the proceedings must be reversed.

Barnard, P. J., concurred.

Order dismissing relator reversed.


text:
    JOHN J. WHITE, Appellant, v. HORACE K. THURBER, Respondent.

      Landlord — right of, to enter upon and repair the demised pn'emises after notice from the Brooklyn department of buildings.

    Where a landlord, upon the requirement and after notice from the department of buildings of the city of Brooklyn, enters upon demised premises for the purpose of making repairs required by such department, it is not a breach of the covenant of quiet enjoyment contained in the lease thereof.
    The refusal of the tenant to permit the repairs to be made does not affect the right of the landlord to make them, where they are necessary, in order to prevent injury to others arising from the fall of the demised building.
    Appeal by the plaintiff from a judgment entered, in the office of the clerk of the county of Kings on the 20th day of February, 1889, upon the report of a referee dismissing the plaintiff’s complaint.
    The complaint alleged that the plaintiff was lawfully in possession of certain real estate known as No. 189 Columbia street, in the city of Brooklyn, which he used partly as a residence and partly as a place of business as a dealer in boots and shoes; that the defendant, and his agents and servants, acting under his directions, forcibly and wrongfully, against the will of the plaintiff, entered into and upon •the premises and took down and removed one of the principal walls of the building, and erected another wall in the place thereof, to the ■plaintiff’s damage and the' injury and embarrassment of his business.
    The property in question was held by the plaintiff under lease from the defendant, who, on June 9, 1886, was notified by the commissioners of the department of buildings of the city of' Brooklyn that the building in question was in an unsafe condition, in violation of law, and that said department of buildings directed that said “ violation be immediately removed; ” in pursuance of which the defendant entered into and upon the premises, and did the several acts complained of by the plaintiff in conformity with such notice.

      James & Thomas JET. Troy, for the appellant.

      H. Apj/Mngton, for the respondent.
   Pratt, J.:

The covenant of quiet enjoyment was not broken by the landlord entering upon the premises to make needful repairs. That covenant is directed to an eviction by title superior to that of the landlord ;• and is not violated by an unlawful trespass. But in this case the-entry was not unlawful. It was in obedience to a high duty owed to society, viz., to keep the building in repair that it should not injure people by its fall. The refusal of the tenant to permit the repairs, to be made does not affect the legal right.

It was proven, without dispute, that the landlord acted upon the requirement and notice of the department of buildings, and the evidence is to the effect that due care was taken to avoid interfering with the business of the tenant. Such injury as was caused to plaintiff’s business was rendered necessary by the insecure condition of the premises, and cannot be recovered for by action.

The judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    TIMOTHY DOLAN, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Salaries — fixed at a less sum than that prescribed by law — the remedy is by mandamus, not by an action for damages.

    Under tlie provisions of chapter 582 of the Laws of 1887, which requires that the pay of the engineers in the uniformed fire force, in the city of Brooklyn, shall be fixed by a majority of all the members of the board of estimate of the eity of Brooklyn at certain specified sums, which vary with the length of service of the individual, if the board of estimate fixes the respective salaries at less sums than such as are directed by the said act, the remedy is not by action against the city of Brooklyn to recover the difference, but by mandamus to compel the board to fix the salaries at- the sums specified in the act.
    Appeal by the plaintiff, upon questions of law and upon the facts, from a judgment entered in the office of the clerk of the county of Kings on the 26th day of July, 1889, after a trial before the court without a jury.
    The action was brought by the plaintiff on his own behalf, and as the assignor of others, engineers of steamers in the fire department of the city of Brooklyn, to recover certain pay alleged to be due, under chapter 582 of the Laws of 1887, and withheld from them because of the action of the board of estimate of the city of Brooklyn in fixing such pay at a smaller rate than that prescribed by the statute.

      F. A. MoOloslcey, for the appellant.

      Almet F Jenles, for the respondent.
   Pratt, J.:

Plaintiff sued the city of Brooklyn to recover the difference between the salary he and his assignors should have received and that which they did receive, as engineers in the uniformed fire force of the city of Brooklyn.

The claims are founded on chapter 582, Laws 1887, which provides that the pay of uniformed members of the department shall be fixed by a majority of all the members of the board of estimate of the city of Brooklyn. The act gives the board of estimate discretion in fixing the amount of the pay of certain of the members, but gives the board no discretion in fixing the amount of the pay of engineers. Their pay is to be fixed at certain specified sums, which vary with the length of service of the individual. The board of estimate fixed the salary of plaintiff and his assignors, all of whom were engineers, at less sums than as directed by the act. The question to be determined is whether the city of Brooklyn can be sued for the difference in salary before the board of estimate has fixed the salary at the sum provided by the act of 18S7.

It seems to us that such an action will not lie. The act directs . the board to fix the salary of an engineer at a specified sum. If the board neglects to fix it at all, or fixes it at a sum other than as directed, the person grieved has his remedy by mandamus. There can be no default* on the part of the city, and consequently no right of action against it, until the persons designated by the act have fixed the amount of plaintiff’s salary and the city has failed to' pay the salary so fixed.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred,

Judgment affirmed, with costs.


text:
    SOPHIE CLOOS, Appellant, v. BERNARD CLOOS, Respondent.

      Oonveyance to husband and wife “ as joint-tenants” 'prevents their taking as tenants

    Where, hy the terms of the instrument of conveyance, property is conveyed to a husband and wife “as joint-tenants,” to be held by them, “their heirs and assigns, forever as joint-tenants, and notas tenants in common,” a joint-tenancy, and not a tenancy by the entirety, is created between the husband and wife. Bertles v. Nunan (92 IT. Y., 152) distinguished.
    Appeal by tlie plaintiff from a judgment, entered in tlie office of the clerk oí the county of Kings on the 18th day of October, 1889, dismissing the plaintiff’s complaint after a trial before the court at Special Term without a jury.
    The action was in partition, the complaint alleging that the plaintiff and defendant were joint-tenants of certain premises on Hudson avenue, in the city of Brooklyn, and demanding the usual judgment.
    The title was conveyed by two deeds ■ to Bernard Cloos and Sophia Oloos, his wife, one of August 1,1884, by Mary Driscoll of the first part “ and Bernard Oloos and Sophie Oloos, as joint-tenants, and not as tenants in common, of the same place, parties of the second part,” the other of April 23, 1887, between John Finley and wife of the first part, “ and Bernard Cloos and Sophie Oloos, his wife, of the same place, as joint-tenants, parties of the second part, * * * to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their heirs and assigns, forever, as joint-tenants, and not as tenants in common.”

      James Richards, for the appellant.

      Moffett <& Kramer, for the respondent.
   Pratt, J.:

The common-law rule, that where lands are conveyed to husband and wife jointly they hold as tenants by the entirety, still prevails in this State, and has not been abrogated by the various acts of the legislature with respect to married women. (Bertles v. Nunan, 92 N. Y., 152; Zorntlein v. Bram, 100 id., 12.) That husband and wife may hold lands as joint-tenants, or as tenants in common, would seem to be recognized by chapter 472, Laws of 1880. When they so hold an action in partition will he at the suit of either against the other. (Moore v. Moore, 47 N. Y., 467.)

The only question in this case is whether the two deeds, which conveyed the premises in question, created a joint-tenancy, or a tenancy by the entirety as to those lands. The deed of August 1,1884, is between Mary Driscoll, as grantor, and Bernard Cloos and Sophie Cloos, as grantees as joint-tenants, and not as tenants in common.” It conveys to them their heirs and assigns forever.” The deed of April 23, 1887, is between John Farley, as grantor, and Bernard Cloos and Sophie Cloos, as grantees, “ as joint-tenants,” and conveys to them “ their heirs and assigns forever.” In this deed the habendum clause is to the grantees “ their heirs and assigns forever, as joint-tenants, and not as tenants in common.” It seems very clearly to have been the intention of the parties to create a joint-tenancy. We think such a tenancy was created unless it is impossible for husband and wife to take other than by the entirety where they take under one deed. We do not understand that such a disability exists where apt words are used in the conveyance. (Hicks v. Cochran, 4 Edw. Ch., 107; McDermott v. French, 15 N. J. Eq., 78.) To the same effect are Washburn on Real Property (vol. 1, chap. 13, § 4); 4 Kent’s Commentaries (363), and Preston on Estates (132). In Bertles v. Nunan the conveyance was to husband and wife, their heirs and assigns, without designating any particular estate as to each. It simply gave them the fee, and the Court of Appeals held that they took as tenants by the entirety under the common law. It does not seem to us that the court intended to decide, or in fact did decide, in that case that husband and wife could not take by deed either as joint-tenants or as tenants in common where proper words were used. W e are, therefore, of opinion that the court at Special Term erred in dismissing the complaint.

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

Barnabd, P. J., concurred; Dykman, J., not sitting.

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


author: Dykman, J.:

text:
    NICOLA LOFRANO, Respondent, v. THE NEW YORK AND MOUNT VERNON WATER COMPANY, Appellant.

      Dangerous employment — when the master is Háble for an injury done to the servant.

    In an action brought to recover damages resulting from the alleged negligence of the defendant the court charged the jury: “If this plaintiff, although he may have been wholly ignorant of the risks of handling dynamite, told this company that he was capable, the law takes him at his word, and whether he was ignorant or not he cannot recover for an accident which happened in the course of his employment.”

      Held, that the charge could not be sustained, as under it no verdict could be given for the plaintiff unless the jury found that he was unskilled in the use of dynamite, and did not assume to understand its management, and to be able to conduct the operation of blasting in all its departments.
    The foreman of the defendant directed the plaintiff to warm a quantity of dynamite preparatory to its use, and while in the performance of that duty he was injured by the explosion of the dynamite. The plaintiff was not employed to perform the services in the discharge of which he received this injury.

      Held, that the defendant violated the duty it owed to the plaintiff by putting him in a dangerous place at a perilous service without warning.
    That the plaintiff was justified in assuming the safety of the service which he was directed by the foreman to do.
    That as the danger was not open and apparent to him, and within his knowledge, he could not be held to have assumed the risk attendant upon this service.
    Appeal by tlie defendant from á judgment entered in the office of the clerk of the county of Westchester on the 10th day of June, 1889, after a trial at the Westchester County Circuit, before the court and a jury, by which a verdict was rendered m favor of the plaintiff for the sum of $7,000 ; and, also, from an order denying a motion made by the defendant for a new trial upon the minutes of the judge.
    The action was brought to recover damages for injury to the person of the plaintiff alleged to have been caused by the negligence of the defendant.
    The complaint alleged that the plaintiff was employed by.the defendant as a day laborer to dig out a reservoir, and aid in the construction of a dam for the defendant at or near Pelhamville, in the county of Westchester; that the defendant negligently provided and used frozen dynamite cartridges and unsafe and improper means for softening the same; that the plaintiff was ordered and

      directed by tbe defendant to place said frozen dynamite cartridges before the fire in tbe open air, and warm one side first and then to turn them around and warm tbe other side, and that in doing so, without any negligence or carelessness on bis part, tbe cartridges exploded, to tbe serious injury of tbe plaintiff.

      Joseph S. Wood, for tbe respondent.

      Isaac W. Mills, for tbe appellant.
   Dykman, J.:

Under the charge of tbe trial judge in this action no verdict could be made for tbe plaintiff unless tbe jury found that be was unskilled in tbe use of dynamite and did not assume to understand its management, and to be able to conduct tbe operation of blasting in all its departments. Tbe charge even contains this emphatic language: “ If this plaintiff, although be may have been wholly ignorant of the risks of handling dynamite, told this company that be was capable, tbe law takes him at bis word, and whether be was ignorant or not, be cannot recover for an accident which happened in tbe course of bis employment.”

Tbe jury having rendered a verdict for tbe plaintiff, be is before us on this appeal, a man without experience in tbe use of dynamite, and without a knowledge of tbe dangers attending its use, and without a profession of such knowledge.

In that state be was directed by tbe foreman of tbe defendant to warm a quantity of dynamite preparatory to its use, and while in tbe performance of that duty some of tbe substance exploded and caused tbe injury to the plaintiff for which be seeks compensation in this action.

The plaintiff was not employed to perform tbe services be was directed to discharge on tbe occasion of bis injury, and did not, therefore, assume tbe risks incident thereto, and such perils were not apparent; neither was any warning given to tbe plaintiff of tbe dangers accompanying such service, and it was to him unknown.

Tbe defendant, therefore, violated tbe duty it owed to tbe plaintiff by setting him in a dangerous place at a perilous service, without warning or admonition of any kind, instead of providing him with a safe place and safe implements as tbe law required; and as none of those duties could be delegated to tbe foreman, so as to exonerate the company, the defendant is liable for the act of the foreman. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368.)

The foregoing view admits no contribution of negligence by the plaintiff. • He obeyed the orders of the foreman and did no more than was necessary to carry them into execution. Upon the assumption of the safety of the service, he was justified in all that he did ; and, as we have seen, if there was danger lurking around the service and incident thereto, he was entitled to warning, which he did not' receive. Neither can he be defeated because he assumed the risk of the service. As the danger was not open and apparent to him and within his knowledge, he assumed only the risks incident to the service after the defendant has used proper care and caution for his safety and preservation, and, as we have also seen, the company failed in the performance of that duty which the law cast upon them. Many objections and exceptions are presented by the record, both to the rulings and charge of the trial judge, but they disclose no error.

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

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

Judgment and order denying new trial affirmed, with costs.


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    MYTTON MAURY, Respondent, v. ALFRED B. POST, Appellant.

      Specific performance — of am, agreement to convey land, the consideration to be paid, for which is submitted to arbitration.

    The respective owners of abutting land agreed, in writing, that one should convey to the other a right of way, as laid out and existing at the time, for which there should be paid a valuable consideration, as to the amount of which the parties were unable to agree. Such difference was submitted to arbitrators, and the arbitrators subsequently made and signed an award, which the party agreeing to convey the right of way refused to abide by.

      Held, that a judgment for specific performance would be granted by the court.
    The method adopted in such cases of fixing the consideration is equivalent to a liquidation of the same, and is equally obligatory upon the parties to the contract.

      Appeal by the defendant, upon questions of law, and upon the facts, from a judgment entered in the office of the clerk of the county of Orange on the 2d day of August 1889, by which it was adjudged .that a certain contract or agreement entered into between the parties to this action was a valid and binding contract; that the same should be specifically performed, and that within fifteen days from the entry of said judgment, and service of a copy thereof and notice of entry thereof upon the defendant, the defendant execute to the plaintiff a good and sufficient warranty deed of the right of way in. question in this action, in consideration of the payment of $150 to be paid to the defendant or his attorney.

      Harrison W. Hcmny, for the appellant.

      W. D. Mills, for the respondent.
   Dykman, J.:

It was the object of this action to enforce the specific performance of a written contract between the parties, drawn and executed for a double purpose.

The plaintiff was the owner of a tract of about two hundred and seventeen acres of land, which was surrounded on three sides, and a portion of the fourth side, by swamp. The defendant was the owner of lands lying between the land of the plaintiff and the highway, and there was a lane and way, fixed and defined, across the land of the defendant from the Goshen and Deckertown ■turnpike to the land of the plaintiff. The lane was fenced a part of the way and unfenced for the rem.aind.er. Negotiations were opened between these parties for a conveyance to the plaintiff by the defendant of that right of way, but they found themselves unable to agree upon the Sum to be paid as the consideration for such conveyance. Finally, on the 16th day of January, 1888, they entered into the written agreement which is now sought to be enforced in this action.

The agreement recited that the defendant had agreed to, and was willing to, convey by a good and sufficient warranty deed, a certain right of way, as then laid out and existing, from the land of the plaintiff to the Goshen and Deckertown turnpike, to the plaintiff, and that the plaintiff had agreed to take the said right of way and to pay the defendant a valuable consideration therefor, and that the parties were unable to agree upon the consideration to be paid and received for such conveyance. Then the parties agreed to submit such difference between them, respecting the consideration to be paid for such right of way by the plaintiff to the defendant to the arbitrament of three persons named in the agreement, and mutually agreed that the award to be made by such arbitrators should, in all things, be well and faithfully kept and observed by them and each of them. There were provisions in the agreement which are immaterial here, as they have all been satisfied.

The arbitrators made and signed an award, and the defendant refused to abide by it, and refused to execute the conveyance under the agreement. The cause was tried before a judge without a jury, and he found all the facts in favor of the plaintiff, and awarded a judgment for specific performance, which has been entered and from which the defendant has appealed.

The enforcement of the performance of contracts is a well recognized branch of equity jurisprudence; but whether the power of the court will be exerted in any given case rests in the sound judicial discretion of the court, and cannot be invoked as matter of right by either party to the agreement. The great and paramount object of the courts is the attainment of justice, and they will not interfere to compel a specific performance of a contract, except in cases where it is equitable so to do. But where a contract respecting real estate is fair in all its parts and unambiguous in its terms, and where it is certain and for a fair and adequate consideration, and is free from fraud or mistake, and is capable of enforcement, it is as much a matter of course 'to command its execution and enforce its performance specifically as it is for courts of law to give damages for its violation.

The case is plain. The parties by the recital in their written contract recognize and recite a right of way, laid out and existing, and an agreement to convey the same. It led to the plaintiff’s land and was the only mode of access thereto at that time. The defendant was willing to sell and convey such right of way and the plaintiff was willing to buy the same. They differed only upon the price, and the mode they adopted to fix and settle the consideration was equivalent to a liquidation of the same by themselves, and was equally obligatory upon them. There was no fraud and no mistake or misapprehension, and it is eminently equitable to afford the plaintiff a means of ingress and egress to his land, which he secured by his agreement with the defendant.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


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    JOSEPH B. ROSE, Appellant, v. ASA L. HATCH and Others, Respondents.

      Life estate, with power of disposition — rights of creditors of the beneficiary.

    A testatrix, by her will, gave her estate to her husband, in trust, to his own proper use during his life, intending that out of the estate, its income, substance, profits and avails, the husband should derive his support, in whole or in part, with the desire on the part of the testatrix that so much of said estate, or its profits and avails, as the husband should die seized or possessed of, “ shall be by him so left, secured and disposed of as to be devoted.to the support and education of orphan children.” The testatrix also gave to her husband power to sell the property,
    “provided that if any portion thereof, its avails in money or valuables, be used by my said husband, such use shall be restricted to his personal wants and necessities in providing for his support and livelihood.”
    In an action, brought by a creditor of the husband to enforce his claim against this property upon the theory that an absolute power of disposition was given to the husband, which, under the statute, enlarged his estate, acquired by virtue of the will, into a fee in respect to the rights of creditors:

      Held, that the claim could not be maintained; that the power bestowed upon the husband was not general and beneficial, because others than the grantee of the power had, by the terms of its creation, an interest in its execution.
    That the power of disposition was to be exercised during the husband’s life, and, therefore, was not absolute, as an absolute power included a power, as well, of disposal by will.
    That the power of sale was conditional because confined to .the personal wants and necessities of the husband, in providing for his support and livelihood, and did not operate to enlarge the estate given to him into a fee.
    That the power of disposal given to the husband, under the will, was not the absolute power of disposition, and his estate was not, therefore, such as to render the gift over repugnant thereto and void.

      Appeal by plaintiff from a judgment in favor of the defendants, entered in the Queens county clerk’s office August 7, 1884, dismissing the complaint after a trial before the court without a jury.

      W. Lindsay, for the appellant.

      Dailey <& Bell, for the respondents.
   Dykman, J.:

The facts involved in this case are uncontroverted and simple, but they are loaded with serious questions of law.

The action is for the recovery of real property, and these are the fact's: Elizabeth Hatch was the first wife of the defendant, Asa L. Hatch, and during her lifetime and at the time of her death, she was the owner of the premises in question. She died on the 12th day of March, 1884, leaving a last will and testament made and dated March 7, 1884, and proved and admitted to probate October 27, 1884. The portions of the will which are pertinent and important to this case, are as follows :

Second. I give, devise and bequeath all my estate and property, whether real, personal or mixed, of which I may die possessed, to my beloved husband, Asa Lyon Hatch, in trust, to be by him held, enjoyed and disposed of as follows, that is to say:

1. To his own proper use, benefit and advantage during his natural life, meaning and intending, that out of the said estate, its income, substance, profits and avails, my said husband may, and shall derive his support, in whole or in part, accordingly as said estate may be made available and my said husband may determine, but it is my desire that so much of said estate, or its profits and avails as my said husband shall die seized or possessed of, shall be by him so left, secured and disposed of, as to be devoted to the support and education of orphaned children in such way and manner as in his judgment may best conserve this object.

2. I furthermore desire my said husband to make such gifts or mementoes, in my name, to such of my surviving relations and friends as I have heretofore verbally named and requested of him in this, as in all other matters, having-the fullest confidence and belief that he will faithfully observe and carry out my wishes, by him clearly understood.

3. I nominate and appoint my beloved bnsband, Asa Lyon Hatch, my sole executor of this my last will and testament, and I request that no bond in this behalf shall be required of him.

I further give to and confer upon my before-mentioned executor and trustee full power and authority, by public or private sale, or in such way or manner, and at such price or prices and terms of credit as he shall deem expedient, to bargain, sell and convey any and all the real, personal and mixed estate of which I may die seized, and the trust hereby created is intended to confer such right and authority unqualifiedly, as well as to authorize and empower my said executor and trustee to make, execute and deliver any such deed or conveyance as shall be needful and proper to fully carry out and complete any sale, transfer or incumbrance of the whole or any part of said estate, and to use or invest the proceeds arising from such sale or sales in other real or personal property and estate, with like powers of disposition over the same, as are hereby given in respect to the identical estate and property by me possessed at the time of my decease. Provided that if any portion thereof, its avails in moneys or valuables be used by my said husband, such use shall be restricted to his personal wants and necessities in providing for his support and livelihood.

4. It is my will that my said executor and trustee shall not be held answerable, in any way or manner, for any loss or damages that may arise from any sales, transfers or other disposition by him made of the whole or any part of the estate or property which may and shall come to his hands under the provisions of this my last will and testament.

On the 7th day of February, 1883, the plaintiff recovered a judgment against the defendant Asa L. Hatch, for $289,283, which was docketed in Queens county, where the premises in question are located, on the 7th day of August, 1884. Acting upon the assumption that the will of his wife gave to the defendant Hatch an absolute power of disposition which the statute enlarged into a fee in respect to the rights of creditors, the plaintiff caused this land to be sold under an execution issued upon his judgment against Hatch, and the plaintiff became the purchaser at the sale on the 23d day of January, 1886, and received a deed of conveyance of the premises in pursuance of such sale on the 28th day of April, 1887, and that constitutes the foundation to his claim to recover the premises in this action.

On the 31st day of December, 1886, the defendant Hatch, claiming to act under the power and authority conferred by the will of his deceased wife, conveyed this property to Helen A. Richards for a nominal consideration, and she at the same time conveyed the premises to the defendant Almira F. Hatch, the present wife of the defendant Asa L. Hatch, for $6,500, which was paid by her to the defendant Asa L. Hatch, as executor. The premises were sold subject to a mortgage for $7,000, and the defendant Almira F. Flateh has since continued in possession of the premises under such purchase. No fraud is imputed and the rights of the parties depend upon the construction to be given to the last will and testament of Elizabeth Hatch, deceased.

The trial of the action was had before a judge without a jury, and he gave judgment for the defendant, dismissing the complaint of the plaintiff, with costs, and the plaintiff has appealed from the judgment. As we have already said in another way, the plaintiff contends that, as to creditors, the defendant Asa L. Hatch took the lands in question in fee under the will of his deceased wife, and that his judgment, therefore, became a lien thereon, which ripened into a title in him by virtue of the sale and conveyance to him under his judgment; and that the deed to the defendant Almira F. Hatch, consequently, conveyed no title to her. Contrary to such contention, the defendants insist that Asa L. Hatch took a life estate only in the premises, with a power of disposal which was not enlarged into a fee.

The solution of the question thus presented depends upon the will of Elizabeth Hatch, deceased. It is to be observed, first, that the power bestowed upon Asa L. Hatch by the will of his wife is not general and beneficial, because others than the grantee of the power have, by the terms of its creation, an interest in its execution. (1 R. S., 732, § 79.)

By the express terms of this will a trust is created for the benefit of persons other than the defendant Hatch, and, therefore, the estate of the life tenant is not changed into a fee by virtue of the grant of the power of disposition. (1 R. S., 732, § 81.)

Hence the decision of this court in the case of Tilton v. Sprague is not an authority here. There was an express life estate granted to Asa L. Hatch by this will, and where a testator gives to the first taker an estate for life, only by certain and express words, and annexes to it a power of disposal, the devise does not carry any absolute fee. (Jackson v. Robins, 16 Johns., 537.)

The general scheme of the will is plain and apparent. It was the purpose of the testatrix to give all her property to her husband for life, with full power of disposal during his lifetime for his own proper use and benefit, and to give so much as should remain at his death for the support of certain orphan children. But the power of disposition was to be exercised during his life, and, therefore, the power was not absolute within the meaning of the law, because such a power includes a power of disposal by will. (Terry v. Wiggins, 47 N. Y., 516.) And we do not think the testatrix intended to give her husband such an absolute power of disposition as to bring the case within the rule which would avoid the limitation over to the orphans. The language of the gift is, to his own proper use, benefit and advantage during his natural life, meaning and intending that out of the said estate, its income, substance, profits and avails, by said husband shall derive his support, in whole or in part, accordingly as said estate may be made available, and my said husband may determine, but it is my desire that so much of said estate or its profits and avails as my said husband shall die seized or possessed of shall be so left, secured and disposed of as to be devoted to the support and education of orphaned children in such way and manner as in his judgment may best conseiwe this object.”

Then there is an unqualified power of sale bestowed upon the executor to enable him to apply the avails and substance of the estate, so far as may be necessary, to his support, and the use of the same is restricted by the following proviso : “ Provided that if any portion thereof (meaning the estate), its avails in moneys or valuables, be used by my said husband, such use shall be restricted to his personal wants and necessities in providing for his support and livelihood.”

The power of sale so conferred is conditional and bestowed for the purpose of securing to the husband the benefit of the property for his “ personal wants and necessities in providing for his support and livelihood,” and does not operate to enlarge the estate into a fee.

The broad and comprehensive provision of section 85 (p. 733) that “ every power of dispositiomshall be deemed absolute by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit,” can have no operation here, because, as we have seen, the'testatrix did not intend to confer upon her husband an absolute power of disposition, inasmuch as the purposes for which such disposition might be made were limited to the purposes defined and specified in the will. The power could only be exerted by the husband by a conveyance which should take effect during his lifetime, according to the general scope and design of the will. Neither does section 81 of the statute apply to this case, because here the power of disposition was accompanied and restricted by a trust, and it is immaterial whether such trust was valid or void. (Flanagan v. Flanagan, 8 Abb. N. C., 413.)

After a careful examination, our conclusion is that the will in question gave the donee for life a right to dispose of the property in any manner in his lifetime except by will, and did not, therefore, clothe him with the absolute power of disposition, and did not, therefore, render the gift over repugnant and void. That it conferred on him the right to use all the property for the purposes specified therein, even to its entire absorption during his lifetime, and that any possible remainder at the death of the husband went to the orphans, if the limitation over was valid, or to the heirs of the testatrix if it was. void. These conclusions are justified in our view by the following authorities: Flanagan v. Flanagan (8 Abb. N. C., 414); Smith v. Bell (6 Pet., 68); Terry v. Wiggins (47 N. Y., 512; S. C., 2 Lans., 272); Jackson v. Robins (16 Johns., 587); Norris v. Beyea (13 N. Y., 273); Colt v. Heard (10 Hun, 190); Trustees, etc. v. Kellogg (16 N. Y., 83).

If the foregoing views are correct, the plaintiff took nothing by his conveyance, and the defendant Almira F. Hatch became vested with a good title to the premises by the conveyance to her.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    MARY J. MILLSPAUGH, Appellant, v. DE WITT VAN ZANDT, Individually and as Executor of the Last Will and Testament of ABRAM B. VAN ZANDT, Deceased, and Others, Respondents.

      Power of sale, when it survives the death of the life tenant.

    A testator, by bis will, gave the residue of his property, including a certain farm, to his executors, in trust, to hold during the natural life of his wife, “unless before that time the sum of ninety dollars per acre can be realized therefor, or unless before that time, in the judgment of all my executors hereinafter named, or so many of them as shall be then surviving, it shall be deemed to be for the best interest of my said estate and of my said wife and children that the same should be sold at a less price; ” in which case they were authorized to sell the farm.
    The will further provided: “When the said farm shall be sold, as hereinbefore provided, I direct my executors to convert all my estate into cash and to divide the proceeds into such number of equal parts as will give one share to my wife if then living.” The executors did not sell the farm during the lifetime of the widow.

      Held,, that the power of sale did not cease because not exercised during the widow’s life.
    Appeal by tbe plaintiff from a judgment, entered in tbe office of tbe clerk of tbe county of Orange on tbe 27th day of June, 1889, after a trial at Special Term, upon which it was adjudged “ that tbe said executor bolds the said farm in fee for tbe purposes of tbe trusts created in tbe said will; that the plaintiff is not entitled to a partition and sale of tbe said premises; that tbe defendant De Witt Yan Zandt, as executor of the last will and testament of Abram B. Yan Zandt, is entitled to judgment in bis favor dismissing the complaint.”
    Tbe action was brought for the purpose of obtaining a partition of certain real estate in the county of Orange.

      leiois JEEasbroueTc, for tbe appellant.

      William Vcm Amee, for tbe respondents.
   Dykman, J.:

' This is an action for the partition of real property, and is brought in disregard of a will which undertook to dispose of tbe property.

Abram B. Yan Zandt died seized and possessed of the premises in question in July, 1881, leaving a last will and testament, which was duly proved and admitted to probate in the following month. By his will, after some provisions unimportant here, the testator gave all the residue of his property, which included the farm in question, to his executors in trust for several purposes, and this, among others: “ It is my desire, and I hereby direct my said executors to hold my said farm for the purposes of the trust herein declared for and during the natural life of my said wife, unless before that time the sum of ninety dollars per acre can be realized therefor, or unless before that time, in the judgment of all my executors hereinafter named, or so many of them as shall be then surviving, it shall be deemed to be for the best interest of my said estate and of my said wife and children that the same should be sold at a less price, and in each of the several cases above contemplated I hereby authorize, direct and empower my said executors to sell my said farm at public or private sale, and give to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance thereof.”

Another object and purpose of the trust was to apply certain income from this farm towards the support and maintenance of the wife of the testator so long as she remained unmarried.

Another provision of the will was this: “ When the said farm shall be sold as hereinbefore provided, I direct my executors to convert all my estate into cash, and to divide the proceeds into such number of equal parts as will give one share to my wife, if then living.” * * *

The executors executed the will but never sold the farm. They applied the income to the support of the widow until her death in March, 1886, and now the theory of the plaintiff, upon which this action is prosecuted, is that the power of the executors to sell the land has ceased, because the power of sale was not exercised during the lifetime of the widow.

Our view is directly the reverse. The primary intention and purpose was plainly expressed, to place the title of the property in the executors m trust, tobe held by them for the benefit of his wife during her life, unless sold for ninety dollars an acre, or for some other cause which they might deem sufficient, and on the death of the wife they were to convert the whole property into money and make a division of the same among the devisees in the manner provided. It follows that the plaintiff has no title and that the action cannot he maintained.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


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    JENNIE E. REILLY AND JENNIE REILLY, Plaintiffs, v. CHARLES HART, Defendant.

      Service of a summons by publication — death of the plaintiff pending the publication, effect thereof.

    In an action, brought for the foreclosure of a mortgage, publication of the summons was commenced pursuant to the order of the court, and when about half the time prescribed for such publication had expired the plaintiff in the action died. The publication was continued without regard to the plaintiff’s death, and the action was subsequently revived in the name of his executrix, and the suit was prosecuted to judgment and sale.

      Held, that by the death of the plaintiff the publication of the summons became ineffective, and its continuance after such death did not constitute a sufficient service in the foreclosure action on the defendant, whom it was thus sought to serve, and the court acquired no jurisdiction, as against such defendant, to enter judgment of foreclosure.
    SubmissioN of a controversy, under the provisions of section 1219 of the Code of Civil Procedure, without' suit.
    Tñe defendant objected to the plaintiffs title to land purchased by the defendant, upon the ground that the equity of redemption therein was not cut off by the foreclosure action, under which the plaintiff claimed title thereto. The owners of the equity of redemption were not residents of the State, and it was attempted to serve them by publication of the summons.

      John JR,. 'Kuhn, for the plaintiffs.

      Jesse Johnson, for the defendant.
   Dykman, J.:

This is a submission, without action, of a controvercy which has arisen between these parties respecting the obligation of the defendant to perform a contract which he made with the plaintiff for the purchase of real property.

In 1874 the premises in question were owned by Bartholomew L. Lynch, who resided in the city of New Orleans, and there was then a mortgage upon the same held by Caleb Cogswell. In the latter part of that year Cogswell commenced an action for the foreclosure of his mortgage and procured an order for the service of the summons upon Lynch by publication.

The publication of the summons was commenced and was about half completed, that is, about one-half of the time during which the summons was to be published under the order had expired, when the plaintiff in the action died. The publication was continued without regard to the plaintiff’s death, and the action was subsequently revived in the name of the executrix of the mortgagee, and the suit was prosecuted to judgment and sale, and the plaintiff holds under that title.

Did such publication of the summons, subsequent to the death of the plaintiff in the action, constitute a sufficient service on the defendant Lynch, and give the court jurisdiction to make the judgment of foreclosure against him % If it did, then the title of the plaintiff is merchantable and the defendant must complete his purchase and perform his contract.

If such service was incomplete and insufficient, then the defendant must have judgment for the cancellation of his contract, and the return to him of the sum of $300 which he has paid on the contract.

The service was plainly incomplete at the time of the death of the plaintiff, and, therefore, no action had been commenced and none was continued.

The defendant should, therefore, have judgment, without costs.

BaRnaed, P. J., concurred.

Judgment for defendant on submitted ease, without costs.