author: Monell, Ch. J. By the Court.—Speir, J. Gardner, J., says,

text:
    HENRY BREWSTER and others, Plaintiffs and Respondents, v. JAMES M. TAYLOR, Defendant and Appellant.
    I. FRAUDS, STATUTE OF.—SALE OF GOODS OF OVER FIFTY DOLLARS IN VALUE.
    Acceptance, what not sufficient to satisfy the statute.
    The defendant, desiring to purchase a wagon fitted with a pole, went to the plaintiff’s establishment, and there saw a wagon fitted with shafts which would suit him if a pole was fitted to it. The price of the wagon as it stood was four hundred and seventy-five dollars. The defendant asked how much a pole would cost. Plaintiff answered forty dollars. Defendant said he would not give so much for a pole, that he had several poles, one of which he thought could be made to fit the wagon, and he wanted plaintiff to fit it to the wagon. Plaintiff said if it was possible to do so without going to very great expense, in fact, making almost a new pole, he would, without any extra expense, as far as the pole was concerned. Plaintiff sent for the pole and found that it could not be fitted to the wagon, and thereupon sent the wagon as it stood to McDonnell’s stable where the defendant had directed it to be sent. Defendant was not consulted in relation to plaintiff’s decision that the pole could not be fitted, nor did it appear from the evidence that he had notice of it, or consented to accept the wagon without the change,
    Held,

      no acceptance of the wagon as it stood, without having a pole fitted to it.
    Before Freedman, Curtis, and Speir, JJ

      Decided February 1, 1875.
    This is an action to recover the price of a wagon alleged, in the complaint, to have been “ sold and de
      liver eel ’ ’ by plaintiffs to the defendant for the agreed price of four hundred and seventy-five dollars.
    The answer denied the sale and delivery of the wagon, and sets up a special agreement, that the plaintiffs, having the wagon on hand, which was for one horse and shafts, and the defendant requiring a wagon with a pole for two horses, agreed with plaintiffs that they would take a pole belonging to defendant, taken from another wagon, and fit it to the wagon in question for the four hundred and seventy-five dollars, and deliver it on May 19, 1873.
    The plaintiffs received from the defendant said pole, and undertook to fit the same as they had agreed to do, provided the expense was not too great, but failed to fit the pole, and wrongfully and without authority sent the wagon in the condition it was in to the stable of one McDonnell, in Forty-first-street, where it was destroyed by fire without any fault or negligence of the defendant.
    The contract was not in writing, and no part payment of the price was ever made.
    The case was tried by a judge and a jury, and at the conclusion of the plaintiffs’ case a motion was made that the complaint be dismissed on the ground that the transaction proved by plaintiffs was void by the statute of frauds; that the proof did not show any delivery of the wagon ; and that no receipt or acceptance of the property had been shown.
    The court granted the motion, and directed a verdict for the defendant.
    The plaintiffs excepted to the direction, and asked the court to go to the jury on the question of acceptance alone, which was denied.
    A motion was subsequently made on the minutes of the court for a new trial, which motion was granted ; and from the order entered on that, motion this appeal is taken by the defendant.
   An opinion was delivered on the motion for a new trial by the judge before whom it was tried, which was as follows:

Monell, Ch. J.

At the close of the plaintiffs’ evidence, the defendant moved to dismiss the complaint, on the ground that the contract not being in writing, and being for the sale of property exceeding fifty dollars in value, was void.

But the plaintiffs claimed, that the evidence showed a sufficient delivery and acceptance of the property, to take the case out of the statute.

The Court held the contract to be void under the statute, upon the broad ground that the proof of acceptance was not sufficient.

It was assumed, however, that there was enough proof of a delivery at McDonnell’s stable, the place of delivery designated by the defendant, and that the evidence in regard to the fitting of a pole to the wagon, was so far a separate matter as not to affect the question; and it was, therefore, further assumed, that the evidence established a completed sale, accompanied by an actual delivery at the place designated by the purchaser. But as, in the opinion of the Court, there was not sufficient evidence of an acceptance of the property by the defendant, the complaint was dismissed.

I am now satisfied that I was in error in the view I took of the question at the trial.

It was a completed sale. The parties had agreed upon all the terms of the sale, and nothing remained but to send the property to the place designated by the defendant.

Except for the question arising under the statute of frauds, the title to the property passed to the defendant, and it was at his risk (Bradley v. Wheeler, 4 Robt. 18; S. C., 44 N. Y. 495).

The sale was completed and the property was deliv ered, and in legal effect, a delivery at the place designated was a delivery to the defendant in person.

It is stated, generally (Story on Sales, § 276), that so long as the contract of sale is, by its terms, subject to avoidance by either party ; or so long as either party has a claim upon the goods, as against the other; or, the purchaser may object to the quality or quantity, &c., the mere delivery will not make the acceptance complete. But where none of them exist, and the sale is completed, and the subject-matter has come into the absolute possession of the purchaser, or of some person authorized finally to receive it from him, the acceptance is final, complete, and irrevocable.

In Outwater v. Dodge (6 Wend. 397), the Court say, it is not indispensable that there should be in all cases an actual manual delivery and acceptance. A virtual delivery and acceptance may, in some instances, be equally effectual, and the acceptance need not be by the vendee in person; it may be by his agent, acting under a general or special authority.

When the defendant, upon inspection of the article, agreed to the price, and said he would take it, it was an acceptance then and there, and as much so, as if he had then manually removed the property. The subsequent delivery to the agent of the defendant, was no necessary part of the sale, and did not affect the previous acceptance of the property.

In Cross v. O’Donnell (44 N. Y. 661), the Court say, there is nothing in the statute which requires that the acceptance and receiving shall be at the same time. Either may precede the other; and after both have concurred, the contract becomes valid. In Caulkins v. Hellman (47 N. Y. 449), it is said to be a sufficient acceptance, where the purchaser has inspected the goods purchased, and directed the goods to be delivered to a designated carrier. That was this case.

The cases of Brand v. Fotch (3 Keyes, 409), and Stone v. Browning (51 N. Y. 211), are distinguishable. In the former it was found to be clear that the vendors never did and never intended to make any delivery of the property in whole or in part. And it was held in that case that a mere symbolical delivery, &c., i. e., oí a bill of lading, was not enough to show au acceptance. And in the latter case the purchaser, by the terms of the contract, was allowed a week for examination of the property after delivery. The Court held it was a question for the jury whether there had in fact been an acceptance.

In either view, therefore, of an acceptance by the authorized agent of the defendant, or of an acceptance by himself, when the purchase was completed, there was enough shown to take the contract out of the operation of the statute, and it was error to dismiss the complaint on that ground.

The verdict must be set aside, and a new trial ordered, with costs to the plaintiffs to abide the event.

Starr & Ruggles, for plaintiffs and respondents.

De Witt C. Brown, for defendant and appellant.

By the Court.—Speir, J.

The motion to dismiss the complaint was put upon the ground that the contract was void under the statute of frauds, there being no proof that the defendant had accepted the wagon, and that there was no proof of delivery.

The learned judge in his opinion for granting a new trial assumes that the parties had agreed upon the terms of sale, and nothing remained but to deliver the property.

Conceding that this was the agreement in respect to the wagon, I think it can hardly be said from the evidence in the case, that the jury would be warranted in finding that the defendant agreed to accept the wagon as it was, with shafts for one horse, and pay the four hundred and seventy-five dollars.

It appears the defendant wished a pole for the wagon for two horses, and asked the price of a pole, and the plaintiffs asked forty dollars. One of the plaintiffs, after having testified that he sold the wagon to the defendant at four hundred and seventy-five dollars, and delivered it, pursuant to the defendant’s directions, at McDonnell’s stable, on cross-examination further testified:

“ Q. What did he (defendant) say about it?
“ A. He refused to give that for a wagon-pole.
“ Q. Refused to pay forty dollars ?
A. Yes, sir.
“ Q. What did he say about that ?
“A. He said he had a pole, that he had several poles, and designated one especially that he wanted us to fit to this wagon. I told him if it was possible for us to do so without going to very great expense, in fact making almost a new pole, we would do so.
“Q. For the four hundred and seventy-five dollars ?
“ A. Yes; without extra expense, so far as the pole was concerned.
“ Q. Did he give you an order, or tell yon where to get it.
“A. He told us where to get it. We sent and got it to see if it could be made to fit this wagon without going to too great an expense, and if so, we agreed to do it.”

The plaintiffs decided it could not be fitted to the wagon. The above took place after the price of the wagon had been agreed upon by the parties. The defendant was not consulted in relation to the plaintiffs’ decision in not attaching the pole, nor does it appear he had notice of it, nor that he consented to accept the wagon without the change.

The above statement and testimony fairly presents all the facts in the case which bear upon the question to be determined. Was there such a receipt and acceptance of the wagon by the vendee as to pass the title, or make the vendee liable for the price %

It is to be observed that the contract is oral, no part of the price was paid by the vendee, and I think the learned judge applied to this case the rule as to delivery, which would be applicable to a valid written contract of sale, which can not apply to a contract void by the statute of frauds. In the case of a sale in writing, a delivery pursuant to the contract at the place agreed upon for delivery of the goods, in conformity with the terms of the contract, will pass the title to the vendee without any receipt or acceptance of the goods by him. By the statute of frauds there must not only be a delivery of goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title, and this acceptance must be voluntary and unconditional (Rapallo, J., Caulkings v. Hellman, 47 N. Y. 449).

The plaintiffs undertook to prepare the pole to the wagon, if it could be done without too much expense ; obtained the defendant’s pole for that purpose; and, without consultation with him, made, as they say, the delivery. No acceptance by the defendant is shown to have taken place—at least no voluntary or unconditional acceptance. It is agreed to all the cases, in order to supply the place of a written contract, some act is required on the part of the vendee or his agent, manifesting an intention to accept the goods as a performance oí the contract. It is difficult to see how the defendant can be said to have accepted the wagon which he had not seen or inspected after the plaintiffs had undertaken a conditional alteration, the result of which was absolutely unknown to the defendant.

The case of Cross v. O’Donnell (44 N. Y. 661), is relied on as an authority for the proposition that a delivery to a designated carrier is sufficient to take the case out of the statute. It holds only that the receipt and acceptance need not be simultaneous, but- that they may take place at different times. Either may precede the other; and after both have concurred the contract becomes valid.

This, as an authority, assumes that the receipt and acceptance exists as an ascertained fact, and decides only that they need not occur at the same time. The question here is, was there any receipt and acceptance hy the defendant ? All the case above cited decides is, that where the vendor’s contract is merely to move the goods to a specified place, the moment this is done, and the purchaser assumes charge thereof, and takes actual possession of any portion, the statute of frauds is satisfied.

Did the defendant take any charge, or actual possession of the wagon % I think not. The answer admits that the plaintiffs delivered the wagon with shafts without defendant’s knowledge or authority. This is not such a delivery as should bind the defendant in a contract under the statute. Besides, the only witness, who testifies on the subject says, that he had no personal knowledge whether the wagon went to McDonnell’s stable or not. There is no evidence that the defendant even saw the wagon at any time after the plaintiffs undertook to fit the pole to it, nor does it appear that he was told by the plaintiffs, or knew that it was difficult or expensive so to do.

Gardner, J., says,

“The language of the statute is unequivocal, and demands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without acceptance” (Shindler v. Houston, 1 Coms. 261). The following cases are referred to as authority in this case: Stone v. Browning, 51 N. Y. 211; Cross v. O’Donnell, 44 Id. 661; Caulkins v. Hellman, 47 Id. 449; Brand v. Fotch, 3 Keyes, 409; Story on Sales, § 276.

The order appealed from should be reversed, with costs.

Freedman and Curtis, JJ., concurred. .


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    SAMUEL SCHIFFER, Plaintiff, v. THOMAS PRUDEN, Defendant.
    DOWER. FORFEITURE OF, BY REASON OF ADULTERY.
    1. What necessary to malee adultery operate as a forfeiture in this state.

    1. A JUDGMENT DISSOLVING THE HABBIAGE CONTRACT by reason of the wife’s adultery is necessary,

      a. A judgment rendered in an action of divorce a vinculo matrimonii, brought by the husband, adjudging the wife guilty of adultery, but also adjudging the husband guilty of adultery, and adjudging the plaintiff not entitled to a dissolution of the marriage contract is not sufficient.
    Before Freedman, Curtis, and Speir, JJ.

      Decided February 1, 1875.
    This is a controversy submitted, without action, under section 372 of the Code.
    An agreement, in writing, was made on October 1, 1874, between the parties, by which Sohifrer agreed to sell, and Pruden agreed to purchase, a lot of land in the city of New York, for seven thousand dollars, to be paid in cash on delivery of a proper deed to Pruden, containing a general warranty and the usual covenants for assuring to him the fee simple of the premises, free from all incumbrances.

      Schiffer, at the time and place mentioned in the agreement, tendered to Prnden the requisite deed, containing a proper description of the parties and premises, duly signed, sealed, and acknowledged, and demanded of Prnden seven thousand dollars, who refused to pay and to accept the deed, claiming that the premises were not free from incumbrances, but were subject to the inchoate right of dower of Mrs. Harriet Dietz, wife of John Gr. Dietz.
    The lot had been conveyed to Schiffer by John Gf-. Dietz, May 1, 1872, by deed executed and acknowledged by him alone, who was then a married man; and his wife Harriet Dietz, then and still living, did not join with her husband in the conveyance ; nor did she then, or at any time, execute or deliver to Schiffer, or to any one else, any conveyance or release of her right of dower in the premises. Dietz at the time owned said lot in fee simple, subject to the inchoate right of dower of Harriet Dietz.
    On March 17, 1873, John Gr. Dietz commenced an action in this court against Harriet Dietz, for a divorce on the ground of her adultery, charging specific acta She appeared in the action, denied the adultery charged, and by way of counter-claim charged adultery against John Gr. Dietz. The action was referred to a referee, who reported that both parties to the action had been guilty of adultery as charged.
    On July 1, 1874, a judgment or decree was entered in the action, adjudging and decreeing the report oi the referee, so far as the same finds and reports that Harriet Dietz did commit adultery, as charged in the complaint, be confirmed; and that the report that John Gr. Dietz did commit adultery, as charged in the counterclaim, be confirmed, and that the plaintiff is not entitled to the relief asked for in his complaint, and that the defendant is not entitled to the relief asked for in her counter action.

      Charles Jones, attorney, and of counsel for plaintiff urged:
    I. Prior to the making of the agreement and the tender under it, Harriet Dietz had ceased to have any right of dower, inchoate or otherwise, in any part of the said premises.
    (1.) By the statutes of this State it is provided that •'a wife being a defendant in a suit for a divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate or any part thereof, nor to any distributive share in his personal estate” (2 Rev. Stat. 146, § 48; 3 Id. (5th ed.), 237, § 61).
    II. In Wait v. Wait (4 N. Y. 95), at page 100, the court in enumerating some of the ways in which a wife may be divested of dower, includes her conviction of adultery in a suit for divorce brought by her husband, referring to the provision of the statute above mentioned (Pitts v. Pitts, 52 N. Y. 593). In this case the referee having found that the wife had committed adultery, but that the husband had condoned it, judgment was entered in favor of the wife, dismissing the complaint. The court of appeals held that the adultery having been condoned, it was the same in effect as if she had never been guilty of adultery, and that, therefore, there could not be a conviction of adultery. In the opinion, however, the court states the broad proposition that “a wife can only be barred of dower by conviction of adultery in an action for divorce, and by the judgment of the court in such action. ”
    III. The following provision in the Revised Statutes, “ In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed” (1 Rev. Stat., pt. 2, ch. 1, tit. III, § 8, 741; 3 Id. (5th ed.) 32, § 8), does not affect this case. The only misconduct for which a divorce dissolving the marriage contract in this state can be granted is adultery (2 Rev. Stat., 144, § 38; 3 Id. (5th ed.) 235, § 51).

      It is plain that the two sections of the statute do not refer to exactly the same thing—the one provides that a woman shall not be endowed where she is divorced on account of her adultery—the other provides that a woman shall not be endowed where, in an action by her husband for divorce, she shall be convicted of adultery, irrespective of the question as to whether her husband is divorced from her or not.
    IV. The history of this provision of the statute, as traced through the law, shows clearly that the construction which should be put upon this statute is, that where the wife is convicted of adultery, irrespective of the question of divorce, except that it must be in an action for divorce, she is barred of her dower (3 Black Com., 130; 4 Kent Com., 52., 13 Edw. I., ch. 34; 3 Greenl., 294, § 7; 3 Rev. Laws, 1813, 199, § 8; 2 Rev. Stat., 146, § 48; 3 Id. (5th ed.), 337, § 61; 3 Rev. Stat. (5th ed.) 33, § 8).

      J. Edgar, attorney and of counsel, for defendant, urged:
    I. At common law, adultery of the wife did not work a forfeiture of right of dower.
    II. By the statute of 1787, adultery on the part of the wife worked a forfeiture of dower, unless condoned by the husband (1 Rev. Laws, 58, § 7).
    III. But that law was repealed by the revised statutes in 1830, and since then, adultery on the part of the wife does not work a forfeiture of dower, unless followed by a decree of divorce a vinculo (2 Rev. Stat., 3rd ed., 37, § 8). The statute (2 Rev. Stat., 3rd ed., 305, § 46) which is almost a re-enactment of 2 Rev. Laws, 199, § 8, must be construed to'mean that, in an action for divorce, a conviction of adultery can only be by a decree of divorce. In such an action, although the wife be found guilty of adultery, she can only be convicted of adultery by a judgment of divorce, and not by a judgment of dismissal of the action (See Re

      viser’s Notes, 3 Rev. Stat. (1st ed.) 597, § 8; 2 Scribner on Dower, 502; Reynolds v. Reynolds, 24 Wend. 198, 196, 197; Waite v. Waite, 4 Comst. 95, 102; Cooper v. Whitney, 4 Hill, 99). In the case of Deitz v. Deitz, the finding of the wife guilty of adultery was not a necessary finding for dismissing the complaint of the husband, and consequently no conviction. It was only a necessary finding for the dismissal of her cross-action. But the statute does not provide that if a wife be convicted of adultery in an action brought by her for divorce, she shall not be endowed, &c. This statute was never intended to benefit the husband guilty of the same sin as the wife. The old principle “ that he who asks equity must do equity,” may be considered to cover this case. The husband and wife may yet be reconciled, and their respective misconduct condoned, in which event no one could claim that the wife was not endowed of the husband’s real estate.
   By the Court.—Speir, J.

The question presented for consideration, is whether Mrs. Harriet Rietz has an inchoate right of dower to the land agreed to be conveyed.

By our statute, which is taken substantially from the common law, “Ho act, deed, or conveyance executed or performed by the husband, without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law to pass the estate of married women, and no judgment or decree confessed by, or recovered against him, and no laches, default, covin, ‘ or crime by the husband, shall prejudice the right of the wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto ” (Rev. Stat. 693, § 16, Edmonds' ed.).

Rower is a title inchoate, and is an interest which attaches on the land as soon as marriage and seizin concur. This right is consummated upon the death of the husband. While the husband lives the wife has no right, interest, or estate in the land, but she has the capacity to take in the event of her surviving her husband,—she is dowable. When she becomes a widow she is entitled to dower. Bronson, J., in Reynolds v. Reynolds (24 Wend. 193), says, “It was the widow, not the wife, who was provided for by Magna Charta ” (9 Hen. Ch. 7; 2 Inst. 16). The relation of husband and wife must have existed, and it is this relation which invests the wife with dowable capacity. If there be seizin during coverture the capacity to be endowed is converted into what is called an inchoate right of dower, “which attaches on the land as soon as marriage and seizin concur” (4 Kent. Com. 50). Hence the statute before cited enacts, in accordance with the common law, that the husband alone can not defeat his wife’s estate by any act in the nature of alienation or charge without the assent of the wife given and proved according to law.

The interest of the wife which has thus attached by the concurrence of marriage and seizin,—her inchoate right of dower—may be barred or divested in many ways, as by her uniting with her husband in the execution of a conveyance, or by sale under foreclosure of a mortgage for the purchase-money, or by conviction of adultery in a suit for divorce brought by her husband (2 Rev. Stat. 146, § 48).

The question here is, whether the wife’s inchoate right of dower is barred by a determination in a suit in which both she and her husband have been found guilty of adultery, there being no decree dissolving the marriage relation. The facts in the case present a new question in the construction of the statutes relating to the forfeiture of dower.

The common law gave to the wife a right of dower in all lands of which the husband was seized during marriage, and the same has by statute become the law of this state (1 Rev. Stat. 691. § 1, Edm. Stat. at L.).

Prior to 1830, by the statute of 1787, adultery on the part of the wife worked a forfeiture of dower, unless condoned by the husband. By the repeal of that law, the mere fact of living in adultery ceased to be a bar to dower. A new provision was made in the following words: “In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed” (1 Rev. Stat. Edm,. Ed. 699, § 8). Under this statute which relates to “ estates in dower,” the adultery which is doubtless the misconduct referred to, is not enough to disbar. It must be followed by a dissolution of the marriage contract.

The argument of the learned counsel for.the plaintiff is put upon the ground that inasmuch as the only misconduct of the wife for which a divorce dissolving the marriage contract in this state can be granted, is adultery, and as by section 48 of the statute, relating to divorces, which says nothing about a divorce having been decreed, but simply provides, “that whenever, in a suit for divorce brought by her husband, the wife shall be convicted of adultery, she shall not be entitled to dower,” he claims it does not follow that the husband should obtain a decree of divorce in his favor in order to disbar his wife.

It appears to me that the statute has provided for the case where the fact of adultery has been established. By section 42 of article 3, 2 Rev. Stat. 151, Edm. Ed., it is enacted, “ although the fact of adultery be established, the court may deny a divorce in the following cases,” of which the fourth subdivision of this section is one, as follows: “ Where it shall be proved that the complainant has also been guilty of adultery under such circumstances as would have entitled the defendant, if innocent, to a divorce.” This is the case at bar. The complainant was proven guilty of adultery which would have entitled the defendant, had she been innocent, to a - divorce, and the court must deny the husband’s divorce.

The marriage relation, therefore, continues to exist between the parties, notwithstanding both have been found guilty of adultery, and the wife is not divested of her inchoate right of dower to his land (Pitts, et al. v. Pitts, et at., 52 N. Y. 593; Reynolds v. Reynolds, 24 Wend. 193; Waite v. Waite, 4 Coms. 95).

The defendant, Thomas Pruden, is entitled to judgment, with costs.

Freedman and Curtis, JJ., concurred.


author: By the Court.—Speir, J. Freedman, J. (concurring).

text:
    SAMUEL H. RANDALL, Plaintiff and Respondent, v. CHARLES DUSENBURY, Trustee, &c., Defendant and Appellant.
    I. LIEN ON TRUST FUNDS FOR SERVICES RENDERED TO THE TRUSTEE ON HIS EMPLOYMENT.
    1. When trustee mat contract to erra a libn.

      a. Where the trustee Tims no funds in his hands and services are necessary to be performed, either for obtaining possession, or for the preservation of the trust property, he may enter into a contract to have the same performed, not on his personal responsibility, but solely on the faith and credit of the trust property so that payment thereto shall be contingent on success and to be made out of the trust property.
    1. Exception. This is an exception to the general rule that a trustee can not make a contract with a third party which shall bind the estate or fund, and is personalty Hablo for his contracts with regard to the estate or fund.

      H. ESTOPPEL.
    1. Persons acting under the claim or pretense oe being TRUSTEES.

      a. Having in proceedings instituted by them secured the fruits if the services of one employed by them, they are estopped from shielding themselves against liability for payment for such services out of such fruits, on the ground that their acts were unlawful and void.

    IH. ASSIGNMENT UNDER ACT OF 1860, § 348.
    1. Validity oe, attacking collaterally. a. It can not be so attacked on the ground that it was not acknowledged before delivery.
    Before Freedman, Curtis and Speir, JJ.

      Decided February 1, 1875.
    The action was brought to recover three thousand and fifty dollars from defendant, as trustee of a certain surplus fund under an assignment or deed of trust from one Selah Hiler to one George W. Haight, to which defendant succeeded as trustee on resignation of said Haight.
    The assignment directed the payment of said fund to said Hiler’s creditors “after first paying all legal expenses growing out of said trust.” The claim is for professional services rendered by plaintiff as attorney and counsel to the trustees on the faith and security of the fund, in collecting and securing against adverse claimants the sum of seven thousand one hundred and ninety-two dollars of said fund, and to have said three-thousand and fifty dollars declared a lien thereon, and for payment of the claim and lien from the fund prior to all other payments.
    Certain issues of fact- were directed to be submitted to the jury which were found in plaintiff’s favor, and thereafter the action was again brought on for final hearing under an order of the court at the special equity term, and judgment was entered in favor of plaintiff against defendant for the amount claimed, directing payment from the fund as claimed by the plaintiff.
    The case comes up for review (upon case and exceptions), on appeal by defendant, from the judgment.

      L. M. Northrop, attorney, and Ira D. Warren, of counsel, for appellant urged:
    I. Haight was never a trustee under such assignment. He never had, as trustee or otherwise, any title to, or interest in such fund. The pretended assignment was absolutely void on its face, for the reason that it was never acknowledged before delivery, as required by Laws of 1860, ch. 348, § 1. The title of this whole fund is still in Huyler (Hardman v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 Id. 55). “A trustee of a void deed can not claim a lien on the fund for his expenses. It was as though no trust deed had ever been made” (Smith v. Dresser, L. R. 1 Eq. 251).
    II. If Haight ever was a trustee under this instrument, Dusenbury was not. A trustee can not himself appoint a new trustee, though the new trustee consent (Webb v. Shaftsbury, 7 Bing. 480; Hubbard v. Ray, 7 Hare, 106; Kennedy v. Tumly, 6 Ired. Eq. 399; 1 Edm. Stat. (2 ed.) 682, § 71). If it be answered that Dusenbury acted as a trustee, and is, therefore, estopped from denying it, we reply that these papers were all known to the plaintiff, and all Dusenbury and Haight’s rights under them. A portion of them he drew. He knew all the facts, and the maxim ignorantia juris non excusat is not a harsh rule to apply to a lawyer in his own case. There is, therefore, no question of estoppel which will aid the plaintiff.
    III. The defendant, as trustee, could not bind the trust estate, nor by any act of his create a lien on it in favor of a third party. This question has been so often passed upon that it may be considered settled (Austin v. Monroe, 47 N. Y. 367; Ferrin v. Myrick, 41 Id. 325; Worrall v. Harford, 8 Ves. 4; Perry on Trusts, § 907; Hill on Trustees, 4 Am. Ed. 879; Hall v. Laver, 1 Hare, 571; Lightfoot v. Kean, 1 Mees. & W. 745; Lewin on Trusts, 561, and cases cited). The case of Noyes v. Blakeman (6 N. Y. 567), does not militate against this docrine. In that ease the attorney was employed by the cestui que trust and trustee, the trustee expressly stipulating against any personal liability, and both agreeing that it should be paid out of the future income of the estate, which, in fact belonged to the cestui que trust. . The judgment as it was, was affirmed by a divided court and by only one majority.
    IY. The instrument of itself does not create a lien. The language is “to pay all legal and proper disbursements and expenses growing out of said trust.” This, the court holds, created a first lien on the trust fund. The case of Worrall Harford, before cited (8 Ves. 4), contained exactly such a provision, but the court held that the attorney had no lien on the fund, and could look to the trustee alone for his fees.

      Samuel H. Randall, attorney and of counsel for respondent, urged:
    I. Defendant is estopped from attacking the validity of bis trust, or denying he is trustee, or denying his liability to discharge the duties of his trust, the first of which is “ to pay all legal expenses growing out of said trust ” (People v. Norton, 9 N. Y. 176; Hill on Trustees 3 Am. Ed. § 219; Cruger v. Halliday, 11 Paige, 319; Sprigg v. Bank of Mt. Pleasant, 10 Pet. 257; Welland Canal Co. v. Hathaway, 8 Wend. 480; Dezell v. Odell, 3 Hill, 215).
    II. The clause in the trust deed providing for an accounting between Hiler and his creditors named therein, before payment of their claims by trustees, did not require any attorney who should be employed by the trustee to secure or protect said fund to first account with Hiler, and get his consent to the payment of claim by trustee.
    III. The plaintiff held an attorney’s lien on said fund for his services in collecting same, which no change of title of trustee of said fund could affect or destroy ; nor did plaintiff ever abandon or give up his lien on said fund for payment of his services (Bowling Green Savings Bank v. Todd, 52 N. Y. 489; Fox v. Fox, 24 How. Pr. 418).
    IV. While a trustee may not ordinarily make a contract with a third party which shall bind the estate or fund, and is personally liable for his contract with regard to the estate or fund, yet an exception to the rule exists when the estate or fund is in peril, where no funds exist for payment of services to secure or protect it, and where the trustee makes the contract in his representative capacity, and stipulates not to be personally liable in the premises (Noyes v. Blakeman, 6 N. Y. 567; Choteau v. Suydam, 21 Id. 180; Ferrin v. Myrick, 41 Id. 322; Opinion of Freedman, J., Randall v. Dusenbury, action No. 2, special term, November, 1874).
   By the Court.—Speir, J.

On December 7, 1872, Selah Hiler executed and delivered to George W. Haight, an assignment to pay certain specified creditors of Hiler’s named, in order “first to pay all legal and proper disbursements and expenses growing out of said trust,” and then provides for payments of specific amounts to various persons, naming each in the order of payments. Those several payments were to be made after an accounting shall have been had by the. said respective parties, and the amount due and owing to said parties by Hiler agreed upon, and the balance to be held for Hiler.

It clearly appears that the plaintiff’s employment was made wholly on the faith and credit of the fund, with no compensation for services unless in the event of success ; no money being in the hands of the trustees to pay for services, and the defendant stipulating in no event to be personally liable for plaintiff’s services. This arrangement was entered into with the plaintiff by the trustee Haight, his successor the defendant, and Hiler acting as their agent.

The plaintiff under, and by virtue of such employment,rendered services for the benefit of the trust, in securing the fund to the trustee ; the defendant as trastee accepted the benefit of the plaintiff’s services and received from the plaintiff the sum of seven thousand one hundred and ninety-two dollars and seventy-five cents of the surplus fund, by a check of the city chamberlain, payable to the order of defendant upon a promise to pay to the plaintiff the amount of his lien upon the fund.

The learned judge has found that the plaintiff under the first provision of the deed of trust has a lien upon the fund, and is entitled to be paid therefrom for his services, as a part “of the legal and proper disbursements and expenses growing out of the said trust,” and prior to any payments to be made under the remaining provisions of the deed.

The appellant’s counsel asks a reversal of the judgment upon three grounds :■

First. That the assignment was void on its face, for the reason that it was never acknowledged before delivery, as required by the statute of 1860, and that the title to the whole fund is still in Hiler.
Second. Admitting that Haight was a trustee, he could not himself appoint a new trustee even if the latter consent.
Third. That the defendant as trustee could not bind the trust estate, nor by any act of his create a lien on it in favor of a third party.

I am of the opinion that neither the' trustee nor his assignor can be allowed to raise the objection on either the first or second grounds. There were no funds in the hands of the defendant to pay for services, no property had passed to him under the deed, and he stipulated that in no event would he become personally liable. The trustee got possession of the trust estate solely through the services of the plaintiff, upon a special agreement that the fund should be charged with the disbursements and expenses growing out of the trust, and upon an employment already recognized by both Haight and Hiler. The omission to have the assignment acknowledged before delivery may be irregular or erroneous and upon a direct proceeding by proper parties may be set aside or reversed, but its validity can not be questioned in a collateral action. These parties can not be allowed upon any principle of law or justice (after having secured the fruits of plaintiff’s services through proceedings instituted by them) to shield themselves upon the ground that their acts were unlawful and wholly void. The defendant, after having obtained the property under the pretense of being the trustee can not be permitted to deny his liability to account as such. This is an exception to the general rule which undoubtedly is, that a trustee can not ordinarily make a contract with a third party which shall bind the estate or fund, and is personally liable for his contracts with regard to the estate or fund (People v. Norton, 9 N. Y. 176; Noyes v. Blakeman, 6 Id. 567). The principle is a familiar one that no acts of the assignor, after the assignment has been executed and delivered and possession of the property taken by the assignees, or any omission on his part can invalidate the assignment. This rule applies with equal force to the assignees (Hardman v. Bowen, 39 N. Y, 196, and cases cited).

The last objection is also untenable.

It is clearly settled that it is the duty of the trustee to use reasonable diligence to protect the trust estate, and that under certain circumstances he will have a lien upon it for the expense of such protection, although not expressly provided for in the instrument creating the trust. In the case at bar, the provision is explicit, “to pay all legal and proper disbursements and expenses growing out of said trust.”

It has been repeatedly adjudged in this court, in the late court of chancery, and in the court of appeals, that a debtor may provide in his assignment for present and prospective costs of suits going on, and that may be brought, relating to some of the assigned property, without its invalidating such assignment, by a provision authorizing the assignee to prosecute or defend all suits which he may deem necessary to the execution of the trust.

These decisions are put upon the ground that although they give to the trustee large and extensive powers, which may be liable to abuse; yet it can not be said that they grant any other or further power or authority than the law would imply as necessary to carry the trust into execution (Lentilhon v. Moffat, 1 Edw. Ch. 451; Van Best v. Yoe, 1 Sand. Ch. 4; Jacobs v. Remson, 36 N. Y. 668; Townsend v. Stearns, 32 Id. 209).

The judgment must be affirmed, with costs.

Curtis, J., concurred.

Freedman, J. (concurring).

At the trial the learned judge seems to have had before him, among other things, not only the findings of the jury upon the questions submitted to them, but also the testimony upon which such findings were based; and his decision recites that such findings were approved and adopted by him. From such testimony it appeared that the arrangement made with the plaintiff as to the rendition of services, was assented to by Haight, Hiler, and the defendant; that plaintiff’s employment was made wholly on the faith and credit of the expected fund ; that his compensation depended upon his success ; that at the time of the making of the arrangement there was no money, or fund, or property, in the hands of, or under the control of, the trustee with which to pay the plaintiff; that the defendant had stipulated against a personal liability ; and that the defendant, as trustee, received from the plaintiff the amount of the surplus fund in the shape of a check of the city chamberlain,upon his promise to pay the plaintiff the amount of the lien which plaintiff claimed to have.

The judge, therefore, might, and if he had been requested, undoubtedly would have found these additional facts, especially as, with the single exception of defendant’s promise, as to which there was a conflict of evidence, the existence of these facts was not questioned, but tacitly conceded by all parties ; and these facts, if found, would have brought the case directly within the decision of the court of appeals in Noyes v. Blakeman, 6 N. Y. 567.

That these facts were not found, constitutes no sufficient reason for a reversal. Every reasonable intendment on questions of fact as well as of law, is to be made in support of the judgment, and the appellant was bound to show error. This he has not done.

It has even been held that where a judgment, after a trial by the court, comes up for review without any findings of fact, nothing will be presumed against the correctness of the decision, but the presumption will always be in the favor of the decision rendered (Viele, et al. v. Troy & Boston R. R. Co., 20 N. Y. 184; McKeon v. See, 4 Rob. 449, affirmed, 51 N. Y. 300).

I therefore concur, that, for the reasons stated by my brother Speir, the judgment should be affirmed.


author: By the Court.—Monell, Ch. J.

text:
    MARGARET L. HOFFMAN, Plaintiff and Appellant, v. WILLIAM E. TREADWELL, Defendant and Respondent.

      Belief in equity by a married woman who seeks the cancellation of promissory notes made and endorsed by her for the amnwmodaMonof her husband.

    In the case at bar, the plaintiff, a married woman, made and indorsed five several promissory notes of five hundred dollars each, for the accommodation of her husband; one of which has been collected after judgment, an action commenced upon another, and separate actions threatened upon each of the others. She claims that she is not liable for the payment of either of these notes, and states sufficient reasons that would amount to a valid defense to any action brought against her on the same, and she prays for equitable relief.
    1. That her signature on the notes be canceled.
    2. That she be released from all liability by reason of her signature upon them.
    3. That defendant be enjoined and restrained from commencing or maintaining any action against her on account of said notes.
    On the demurrer of the defendant alleging that the complaint did not state facts sufficient to constitute a cause of agtion. Held— That although the plaintiff incurred no legal obligation by her indorsement, &c. (Phillips v. Wicks, 36 Super. Ct. 254) and has a valid defense to any action upon them, she can not relieve herself of the obligation in a court of equity. She must wait until she is summoned before a court of law, when her defense interposed will be heard, and her legal rights declared.
    Under the decisions and under the principles of equity, as adjudicated and understood, nothing appears in the facts of this case that will give a court of equity jurisdiction: The remedy of the plaintiff is perfect, and attainable in a court of law, in her answer to any action brought on these notes or any one of them.
    The demurrer sustained.

      Before Monell, Ch. J., and Freedman, J.

      Decided March 1, 1875.
    Appeal from an order sustaining a demurrer.
    In her complaint the plaintiff alleges that she is the wife of Bindley M. Hoffman.
    That under the circumstances hereafter stated she wrote her name upon the back of five several promissory notes, bearing the same date, and being for the same amount, but payable at different times.
    One of said notes is as follows :—
    “$500. Hew Yore, February 1, 1871.
    “ Twenty-one months after date, I promise to pay to the order of Mrs. Margaret B. Hoffman five hundred dollars, value received.
    j Internal Bevennej. “ M. B. HOFFMAN.
    “Ho. , dueHov. 1-4, 1872.”
    Upon the back of said note was written “ M. B. Hoffman.”
    The plaintiff then alleges that she is not engaged in any business; that her indorsement was at the request and for the accommodation of her husband, and was without consideration; that she had no knowledge that her husband intended to deliver the notes to the defendant; that she did not charge or intend to charge her separate estate; that no benefit resulted to her separate estate; that the defendant commenced an action against her in the marine court, in the year 1872, upon a note for five hundred dollars, bearing the same date as the notes herein described; that the defenses which she had thereto, as set forth herein, were not, through oversight, averred in her answer, nor presented on the trial of that action; that judgment therein was recovered and affirmed by the court of common pleas against her, and that she has paid the same.
    That the defendant has, since the commencement of this action, brought suit against her on the note for five hundred dollars fourthly described in the complaint, in which suit she has answered; that that action is still pending, and has not yet been reached for trial.
    That the plaintiff, before the commencement of the action by the defendant last mentioned, requested him to commence one action on all of the five notes herein described, and not to bring separate actions on each note; but that he declined so to do.
    That it is the defendant’s purpose to bring separate actions against her on each of the said five notes, at intervals of time, so as to increase the costs,' and to get an advantage, in subsequent actions, of the knowledge of defense and evidence she sets up and presents in the earliest one; and that he brings his actions in the marine court, in order to prevent the actions from going to the court of appeals on appeal.
    That the action upon the first note upon which judgment went against the plaintiff, as stated in section 13 of this complaint, was not tried upon the allegations made in this complaint, nor upon the evidence which plaintiff is ready and able to present on the trial of this action, and that the decision in that action has no bearing upon the cause of action herein set forth.
    That all of the six notes herein set forth and referred to, were made in one transaction, at the same time, of uniform date, and for an aggregate sum of three thousand dollars, divided only into parcels in respect to the time at which the several notes should mature.
    The plaintiff demanded judgment against the defendant:
    1. That her signature upon the said five notes, and each of them, be canceled.

      % That she may be released and discharged from all liability, by reason of her signature upon said notes, and each of them.
    3. That the defendant be enjoined from commencing or maintaining any action for the enforcement of the notes above set forth, or either of them, against the plaintiff, and for such other and further relief as may be just.
    The defendant demurred, alleging that the complaint did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained at special term, and the plaintiff appealed.

      Mr. W. R. Martin, for appellant.

      Mr. N. Quackenboss, for respondent.
   By the Court.—Monell, Ch. J.

Upon the facts stated in the complaint, the plaintiff incurred no legal obligation by her indorsement. Being a married woman, and not binding or intending to charge her separate estate, and deriving no benefit, either directly or indirectly, from her indorsement, the plaintiff can not be held responsible upon her contract (Phillips v. Wicks, 36 Sup’r Ct. R. 254).

It is proper, therefore, to assume, that she has a valid defense to any action which may or might be brought against her to recover upon the notes. But is that, in conjunction with the other facts stated in the complaint, sufficient to sustain the present action ?

It is a principle of equity, that where no remedy to enforce a right exists elsewhere, chancery, to prevent a total failure of justice, will furnish the remedy. So if the remedy at law is doubtful and very difficult, it is equally a principle of equity, that if the remedy at law is adequate and attainable, chancery will not entertain jurisdiction.

The case before us falls within the latter principle. There is no doubt that the plaintiff can, at law, avail herself of her defenses to the notes; and unless the circumstances under which her indorsement was given, and her marital relation, give her some superior equity, she must wait until she is summoned before a court of law, before she can relieve herself of her obligation.

The judgment demanded is the cancelation of the plaintiff’s signature, and her discharge from liability which is equivalent to a cancellation of the instrument itself, but which is never done, except where the grounds upon which it is sought is such, that a court of equity alone can take cognizance of it; and the general principle applicable to all these cases may be included under one common head of equity jurisdiction, the prevention of an injury that might otherwise prove irreparable.

These common heads are carefully collected in McHenry v. Hazzard (45 N. Y. 580), but the facts stated in the complaint before us do not bring this case within any of the heads there collected; nor can I bring it under any known head of equity jurisdiction.

The attempt of the plaintiff is to avoid her contract, on the ground that she had no legal capacity to make it. She does not allege any fraud, deceit, misrepresentation, duress, or oppression, under which she made it. She voluntarily gave her signature, and probably knew that it was intended as a security for her husband’s debt, or to enable him to negotiate the paper.

There is nothing, therefore, that a court of equity can seize upon, to give it jurisdiction.

In Geer v. Kissam (3 Edw. Ch. 129), the court refused to order the cancellation of a promissory note, where it appeared there was a defense at law. The vice-chancellor says, “ the note being past due can be negotiated no further to the complainant’s prejudice. It will always be subject to the same equity and defense in the hands of any subsequent holder that it is now subject to. It is only when there is danger that a negotiable instrument improperly obtained, or which ought not to. be negotiated, will get into the hands of a tona fide holder, without notice, and for a valuable consideration, to the prejudice of the rights of the maker, that this court ought to interfere to restrain the negotiation, and to cause it to be delivered up.”

In Allerton v. Belden (49 N. Y. 373), the plaintiff, an accommodation indorser, sought the cancellation of his signature, on the ground that the note was void for usury. The complaint alleged these and other reasons for equitable relief, but the court, on demurrer, held the reasons to be insufficient, and that the remedy at law was adequate.

The want of legal capacity to make the contract in question, by reason of the marital relation of the plaintiff, does not increase or enlarge her equity.

A married woman may, for some purposes, make a valid contract. She may do so in respect to her separate estate, and in her separate trade or business.

So she may become security for another; but the intent to charge her separate estate must appear, or the consideration must move directly to the benefit of her separate estate or business. Unless one or the other of these is shown, as was early held in Tale v. Dederer (18 N. Y. 265), she incurs no liability upon her contract.

A married woman being, therefore, competent to contract in all cases, where she intends to charge or bind her separate estate, she can only successfully defend against her contract, on the ground that the intention to bind her separate estate, or that she was benefited by the contract, is not shown, and such defense can be alleged in an action brought upon the contract to enforce its obligation.

It may be desirable and convenient to end the litigation which must ensue upon an attempt to collect the notes. But it can not be done in the action now before us. A judgment was obtained upon one of the notes which the plaintiff has paid ; and she alleges a suit now pending to recover upon another. The remaining notes must soon be prosecuted, or they will be barred by the statute of limitations. And as they are all due, separate actions would be consolidated. There can not be such a multiplicity of suits as would authorize a court of equity to take charge of the litigation, even if that was a ground for interference, and the plaintiff must abide the time when she can assert her defense at law.

The order sustaining the demurrer must be affirmed, with costs.

Freedman, J., concurred.


text:
    ELLEN GOLDBERG, Plaintiff and Respondent, v. GEORGE W. DOUGHERTY, Defendant and Appellant.
    Fraudulent representations, made by one member of a firm, which induced the purchase of property from the firm, creates a liability wholly disconnected from the liability of the firm, upon the contract made with them. For the fraud the member of the firm committing the same is alone liable to the person injured.
    The recovery of a judgment against the firm (by the person defrauded) upon the violation of the contract, is no defense to an action against the individual member of the firm for the fraud. The causes of action are several, and the obligation or liability incurred by the individual member, by his deceit, is an additional and separate security to the purchaser (Morgan v. Skidmore, 55 Barb. 268).
    Before Monell, Ch. J., and Freedman, J

      Decided March 1, 1875.
    Appeal from an order overruling a demurrer to the complaint.
    The complaint alleged that the defendant, a member of the firm of Utley & Dougherty, made certain false and fraudulent representations to the plaintiff concerning the value of certain bonds; and thereby induced plaintiff to purchase of said firm several of said bonds, they giving to her a written agreement to re-purchase the same from her at any time within six months, at the price she paid therefor. It is then alleged that an action upon said agreement was brought, and a judgment recovered therein against the said firms, but which is unpaid.
    The relief demanded is to recover damages for the fraud.
    The defendant demurred for insufficiency. The court overruled the demurrer. The defendant appealed.

      G. A. Black, for the appellant.

      H. O. Southworth, for the respondent.
   By the Court.—Monell, Ch. J.

The case made by the facts stated in the complaint can not be distinguished from Morgan v. Skidmore (55 Barb. 263), affirmed by the court of appeals (not reported). In that case the fraudulent representations were made by an individual member of a copartnership firm, in regard to the solvency of the firm, and the sale was made to the firm in reliance upon the truth of the representations of the individual member. Upon the failure Of the firm to pay, it was sued, and a judgment upon their contract obtained. The court held that the recovery of the judgment against the firm upon its contract was not a. defense to an action against the individual member for the deceit. The causes of action, they say, are several, and the guaranty or obligation incurred by the individual member is an additional and independent security to the creditor.

When the defendant in this action made the fraudulent representations, he at once became liable for the fraud. And that liability was in no way affected by the independent agreement which was the subject of the action against the firm.

The objection that there was no offer to make restitution by the plaintiff of the property purchased, is inapplicable to the case made by the complaint. There was no disaffirmance of a contract entered into by the defendant. The only contract was made by the firm, of which the defendant was a member, and that contract and its breach was the cause of action upon which the judgment was obtained. N or did the recovery of the judgment disaffirm the sale, or affect any liability which has been incurred under it. The defendant stood, in a sense, as security, and was liable in the same manner as if he had guaranteed the debt of a third person. In a word, his liability was wholly disconnected from the liability of his firm, which subsisted upon the written agreement alone. The sale was perfected and the bonds delivered. Except for the agreement to repurchase, the plaintiff could have had no remedy for any loss against the firm. And for the fraud the defendant alone can be held.

The order overruling the demurrer should be affirmed, with costs.

Freedman, J., concurred.


text:
    THOMAS RAE, Plaintiff and Appellant, v. THE MAYOR, &c., OF NEW YORK, et al., Defendants and Respondents.
    assessments.
    The act of 1858 (Session Laws, 1858, ch. 338) authorized a judge of the supreme court, at special term, to vacate assessments upon the allegation and proof of “any fraud or legal irregulan'ity ” therein.
    An amendment to this act, by the act of 1874, struck out the words “or legal irregularity,” and substituted the words, “or substantial error,” and a further amendment provided that “hereafter no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but the owners of . property shall hereafter be confined to their remedies in such cases to the proceedings under the act hereby amended.” .
    In the case at bar the plaintiff seeks to restrain, by injunction, the sale of his property by the corporation, and the collection of the assessment by any other mode or process, thus invoking the equity jurisdiction of the court, for relief, instead of the remedies provided in the act,

      Held, that such an action can not be maintained. The remedies under the act are adequate to the relief of the plaintiff, and should be pursued by him.
    SUPERIOR COURT; ITS JURISDICTION.
    The act of 1874, is not in conflict with the provision of the constitution (art. 6 § 12) which continued the superior court with the powers and jurisdiction that it held and possessed at the time of the adoption of the constitution.
    The act of 1874, merely affects the remedy to be pursued by the ' person injured.
    The legislature has always, and rightfully, assumed the power to change the forms of proceedings and remedies, and to limit them to certain tribunals, and any general law affecting the mode of obtaining a remedy, can not be construed into an infringement of constitutional jurisdiction or power.

      Held, that the amendment of 1874, is a valid and constitutional law.
    Before Monell, Ch. J., and Van Vorst, J.

      Decided March 1, 1875.
    Appeal from an order dissolving an injunction.
    The action was to obtain an injunction to restrain the defendants from selling or leasing for a term of years certain real estate of the plaintiff, for the nonpayment of an assessment for grading one of the avenues in the city, or from otherwise interfering with the quiet possession and enjoyment of such real estate by the plaintiff.
    The complaint alleged that an assessment for grading the avenue was confirmed, and was thereby imposed upon such real estate ; that the said assessment is apparently valid, but that the same is in fact wholly void by reason of certain extrinsic facts, which can only be established by other evidence than the assessment itself, namely, from the contract under which the work was done, and the surveyor’s return of such work ; that the defendants threaten to sell said real estate for the non-payment of said assessment.
    It is alleged that the assessment is illegal, and void, and fraudulent for the following reasons:

      First. That there is included in the assessment and assessed upon the property of the plaintiff, with others, the sum of one hundred dollars, alleged to have been paid the aforesaid contractors, for drain pipe, which drain pipe was not called for or authorized by the contract, and was not otherwise legally or rightfully furnished or authorized.

      Second. That there is included in the assessment, and assessed upon the property of plaintiff, with others, the sum of nineteen thousand and fifty-three dollars and seventy cents, as the amount alleged to have been paid the contractor for grading the street; that six thous- and six hundred and sixty six dollars and fifty cents, parcel of such sum is in excess of the contract price of the work of grading; and that a suit at law is now pending, brought by the said town of Morrisania against the said contractor or his sureties, to recover said last mentioned sum, on the ground that the same was an illegal and overpayment.
    That the reason the last mentioned sum is illegal is, that the contract price was at and after the rate of forty-five cents per cubic yard for grading, and the contractor was paid at and after the rate of seventy cents per cubic yard, making an illegal and fraudulent payment of twenty-five cents per cubic yard.
    A preliminary injunction was granted, with an order to show cause why it should not be continued during the pendency of the action.
    Upon the return of the order to show cause, the injunction was dissolved, and the motion to continue denied.
    The plaintiff appealed.

      Johnson & Ward, for the appellants, and Irving Ward, of counsel.

      E. Delafield Smith, counsel to the corporation, for the respondents, and William Barnes, of counsel.
   By the Court.—Monell, Ch. J.

The court at special term is understood to have held, that upon the pleadings the plaintiff had shown a case, for the equitable interposition of the court, to restrain the sale, if not prevented by the provisions of the act of the legislature of 1874 (Sess. Laws of 1874, ch. 312), which was in effect when the action was commenced. But the court decided that such act was a complete bar to the maintenance of the action.

It is now insisted, first: that the subject of the action is not covered by or included in tbe provisions of the act; or, second, if it is, that the act is void.

The act of 1874 is mainly amendatory of the act of 1858 (Sess. Laws, ch. 338), relating to frauds in assessments, which authorized a judge of the supreme court at special term, to vacate assessments upon the allegation and proof of “any fraud or legal irregularity” thereon.

The amendment by the act of 1874, struck out the words “or legal irregularity,” and inserted “or substantial error i" so that the grounds for proceeding now are “fraud or substantial error.”

And a further amendment provided that “hereafter no suit or action in the nature of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title ; but the owners of property shall hereafter be confined to their remedies in such cases to the proceedings under the act hereby amended.”

The nominal or specific relief the plaintiff seeks in this action, is to restrain the sale of his property by the corporation, and the collection of the assessment by any other mode or process ; and such relief, it is alleged, is not provided for by the act of 1858.

But to entitle the plaintiff to such relief, facts must be established invalidating the assessmentand the court must adjudge that some fraud or substantial error has been committed, which should and does render the assessment void. Fraud is one of the grounds, and the plaintiff has alleged it; and he claims several substantial errors, as other reasons for avoiding the assessment, and as justifying the restraint. These are the grounds of relief specified' in the act of 1858, as amended, and cover the case made by the plaintiff.

Under that act, the court is empowered to order an' assessment to be vacated and canceled, which is substantially the same relief as restraining a sale under it, and is founded upon the same or similar allegations of fraud, or of substantial error.

It is clear, therefore, that the plaintiff could obtain as adequate relief under the amended act of 1858 as he could by his action in this court. Fraud, which is one of his grounds of attack, can be fully investigated under that statute ; and if found to exist, will authorize a vacation and cancelment of the assessment; and the words “substantial error” are comprehensive, and include any objection which is not merely an irregularity, or of a merely technical nature. And the latter two objections would fare no better in a court of equity than they do under the statute.

The vacation and cancelment of an assessment is all the relief the owner of property can desire. It necessarily restrains a sale or other proceeding for its collection, and removes the cloud upon the title, and these are the only results which the plaintiff claims.

But it is insisted that the act of 1874 is in conflict with the provision of the constitution (art. 6, § 13) which continued the superior court, with its then powers and jurisdiction.

It will not be contended, I think, that the legislature can take from this court any of the jurisdiction which it possessed at the time of the adoption of the judiciary article of the constitution in 1870. The jurisdiction was then so firmly fixed, that the court is removed from any interference by the legislature.

By this I must be understood to mean, that the legislature is powerless, by any express enactment or by any indirection, to abolish or repeal any statute which expressly or impliedly confers a jurisdiction upon this court. Prior to the constitutional article, this court had been the creation of the legislature, and its jurisdiction and powers were conferred and regulated by the legislature. It had no general jurisdiction, and could exercise its functions as a court, only within the letter of some statute, in which its jurisdiction was defined.

But with such jurisdiction as the legislature- had from time to time given to it, and which existed on January 1, 1870, it was made-a constitutional court, with the “powers and jurisdiction ” it then had, which placed it beyond the power of legislative interference. And such I understand to be the view of the court of appeals in Landers v. Staten Island R. R. Co. (14 Abb. Pr. N. S. 346), where they say (p. 350): “Whatever jurisdiction those courts possessed, whether territorially or otherwise, is by the constitution put beyond legislative discretion, that is, the jurisdiction before statutory, is now exercised under the constitution.”

It is true that this court, at the adoption of the constitution, possessed sufficient equity jurisdiction, previously given it by statute, which would have brought the plaintiff’s case within its powers. And except for the act of 1874, this court could have entertained the action and granted the relief sought.

If, therefore, the construction could be given to the act, of depriving the court of a previously conferred jurisdiction, it would be open to the constitutional objection.

But I do not understand such to be a correct construction of the act.

It merely affects the remedy; and the legislature has always, and rightfully, assumed the power to change the forms of proceedings, and restricting them ' to prescribed tribunals. But merely affecting the remedy can not be claimed, except by the merest indirection, to be an interference with previously acquired jurisdictions.

It was not intended, in constitutionalizing this court, to so fix its jurisdiction that the legislature could not change the forms of procedure, or limit litigation to certain other tribunals. Hence, any general laws affecting the mode of obtaining a remedy, and which apply to all courts of similar or co-ordinate jurisdiction, can not, in the sense intended by the constitution, be construed into an infringement of a constitutional power. Therefore, any general amendments of the code of procedure, which changes the forms or methods of proceedings in actions, or special proceedings, and which are made applicable to all the courts named in it, are within the constitutional power of the legislature.

This court certainly can not claim any greater exemption from legislative interference than the supreme court. By the same article of the constitution, it is provided, that “there shall be the existing supreme court, with general jurisdiction in law and equity.” By that provision, that court is as firmly fixed in its law and equity jurisdiction as this or any of the other courts mentioned in the article; and the act in question as effectually deprives the supreme court of its jurisdiction in the plaintiff’s case, as, it is contended, it deprives this court.

It was not intended, by continuing the existing courts with such jurisdiction as they then had, to-destroy or curtail the power of the legislature over the forms of proceeding, or the remedies furnished to-parties; and any legislation, which has no other effect than to limit the remedy, is valid.

This question received an incidental affirmation by the court of appeals in Lennon v. Mayor, &c. (55 N. Y. 361). The objection was not presented in that case as-it is in this ; but the court had under examination the. act of 1872, which deprives any court of power to vacate an assessment for any of the causes therein enumerated; and the objection was, not that it deprived the court of any of its jurisdiction, but rather-that as its effect was to validate a past assessment, it. was taking private property within the constitutional inhibition. The court, however, without examining the objection as thus presented, say that the provision that no assessment shall be vacated, &c., “deprived the court of the power to grant that portion of the relief demanded in the complaint, which was refused. It was competent for the legislature to deprive the courts of the power to give this relief and the parties of the benefit, of this form of remedy. And although inconvenient to an owner to have an apparent lien upon his land, yet he has no such constitutional right to the aid of a court of equity to remove such cloud upon his title, that the legislature may not deprive him of that particular remedy.”

These remarks were made in a case arising in the court of common pleas of this city, a court possessing the same powers and jurisdiction as this court; and although the question does not seem to have been very fully examined, it must be regarded by us as a strong and decisive annunciation of the views of the court upon the subject of legislative power over remedies and modes of procedure.

As there is nothing in the act which deprives this court of any of its secured jurisdiction, but its effect being merely upon the remedy of the plaintiff, it must be declared to be a valid law. And the court below was correct in holding that the plaintiffs’ suit can not be maintained.

The order appealed from must be affirmed, with costs.

Van Vorst, J., concurred.


text:
    THE AMERICAN CORRUGATED IRON COMPANY, Plaintiff, v. HENRY EISNER, Defendant and Appellant, and ELIZABETH PHELAN, Executrix, &c., and JOHN J. O’BRIEN, Defendants and Respondents.
    BUILDING CONTRACTS. • MECHANIC’S LIEN.
    Any or all of the several provisions of a written contract can be waived by parol.
    A party may always surrender the benefit or advantage of a provision in his favor, and parties may by a new and independent agreement contract for work or materials, other and different from such as may be specified in the original contract, and this may be done by parol. Where the original contract provided for certain certificates from the architect, &c., as to the work being done and the materials being furnished, &c., &c., agreeably to the contract, such provisions will not apply to or affect, extra work done in accordance with a subsequent parol agreement, unless such extra work is made subject thereto by an express agreement.
    The findings of a referee upon conflicting evidence should not be disturbed, and especially so, when the contradictions are irreconcilable, and one side or the other must be disregarded.
    His findings of fact, like the verdict of a jury, will not be disturbed by an appellate court, unless unsupported by, or very clearly against, the weight of evidence.
    Before Monell, Ch. J., and Freedman, J.

      Decided March 1, 1875.
    Appeal from a judgment entered upon the report of a referee.
    The action was to foreclose a mechanic’s lien on real property in this city.
    Henry Eisner, the appellant, was the owner of the premises, and the defendants Phelan, Foley, and O’Brien were lienors of the same property, between which lienors and the owner, the contest arose.
    The action being at issue between the owner and lienors, it was referred to a referee to hear and determine.
    The referee found as facts :—
    That Eisner was the owner of the property.
    That in pursuance of contracts, or directions made or given by Eisner, O’Brien, performed certain work, and furnished materials therefor, in the construction of a building on the premises.
    That the work and materials “ so performed and furnished, the same being all extra work, was of the value,” &c.
    That in due time O’Brien duly filed a mechanic’s lien on said property.
    That William Phelan (now represented by his executrix) furnished stone to said O’Brien, which he used in the construction of said building, and for which said Phelan duly filed a mechanic’s lien.
    That there remained due from Eisner to O’Brien under their contracts, the sum of two thousand eight hundred and nineteen dollars and forty-four cents.
    And as conclusions of law :—
    That for the sum aforesaid, O’Brien was entitled to judgment against Eisner; and that out of that sum the executrix of Phelan, was entitled to be paid the amount of his lien.
    The judgment directed a sale of the premises, and the payment out of the proceeds of the amounts due to O’Brien and Phelan respectively.
    From the judgment Eisner appealed.
    The contract between Eisner and O’Brien, provided for the payments to be made by the former, as follows :—
    “ $1,500, when foundation was laid; $1,500, when stable was built; $2,000, when completely finished ; provided that in each of the said cases a certificate be obtained by the party of the second part (O’Brien) and signed by the said architect, and also a certificate of the county clerk that there are no liens, attachments or other incumbrance on said premises under the above agreement.”
    It was further provided that “should any dispute arise respecting the true value of the extra work, or works omitted, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor, and those two shall have power to name an umpire whose decision shall be binding on all parties.”
    The contract also contained the following:
    “ Should the owner at any time during the progress of the said building request any alteration, deviation, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way effect or make void the contract, but will be added" or deducted from the amount of the contract as the case may be, by a fair and reasonable valuation, but nothing shall be allowed or considered as extra but such as shall be ordered by the owner, in writing, with the price to be paid therefor thereon written.”
    The referee upon the settlement of the case made the following additional findings of fact:
    That there has been no demand proved for any arbitration.
    That when the defendant Eisner ordered the extra, or additional work mentioned in the referee’s report herein, he promised to O’Brién to pay the value of it, and did not tender any written order for it, or offer to make such an order, and that all such extra or additional work was done by Eisner’s direction and consent, and under his own supervision, and that he has not proved any demand for any arbitration in relation thereto.

      That the total value of the said extra work was the price of two thousand nine hundred and seventy dollars and forty-nine cents, and that no part of said sum has been paid to said O’Briem
    And as matter of law:
    That the architect’s and clerk’s certificates and arbitration did not apply to the extra work mentioned in the foregoing finding.
    That the provisions in the contract as to extra work were provisions in favor of Eisner, and might be waived by him by parol at any time, and that the actions and directions of Eisner, as to said additional or extra work and materials, constituted a perfect waiver of all said provisions.
    The defendant Eisner duly excepted.
    The referee refused to find, that a portion of the work allowed for in the report was work done under the contract between O’Brien and Eisner, or that there was no waiver of the contract on the part of Eisner.
    But he did find, that at the time of the commencement of the action there were prior lienv upon the premises for work or materials upon said building which were valid and subsisting liens; nnit. that no certificate from the county clerk that there were no liens, was procured by O’Brien, before the commencement of the action.
    The defendant Eisner also excepted to tire refusals of the referee.

      J. M. Smith, for appellant.

      F. H. Man, for respondents.
   By the Court.—Monell, Ch. J.

Without examining at any length the other questions discussed by the appellant’s counsel, the decision of the referee may be sustained, if his finding of fact that the work in question was extra or additional work, and that the provisions in the contract in respect to it was waived, • is supported by the evidence.

It is quite clear that the provisions in regard to the architect’s and clerk’s certificates, relate only to the payments to be made upon the contract as therein specified, and have no relation whatever to any extra or additional work, outside of the contract, which might be ordered by the owner. For the protection and satisfaction of the owner, he had a right to insist that his contractor, as a condition precedent to payment, should procure the certificate of the architect, that the work had been done in conformity with the contract and specifications ; and also the certificate of the county clerk, that there were no liens upon the premises under the contract. But the parties did not, in terms, require any such certificates in respect to any extra or additional work that might be done ; and such certificates would, probably, be wholly inapplicable to that class of work. Nevertheless, the owner might have made it a part of his contract- that, as a condition precedent to payment for extra work, similar certificates should be furnished. But he did not do so, and merely required that the order for extra work should be in writing.

The referee was correct in his conclusion of law, that any or all of these provisions could be waived by parol. The parties were not bound absolutely, and a party may always surrender the benefit or advantage of a provision in his favor, if it is voluntarily done, and there is neither mistake nor fraud. So parties may, by a new and independent agreement, contract for work or materials, other or different from such as is specified i n their contract, and, ordinarily, such extra work will not be affected by the covenants or stipulations in the contract. It, of course, can be made to be subject to such covenants, by an express agreement to that effect, but the obligation can not be implied.

The referee has found that the work which was the subject of the lien was extra or additional work ; that the owner did not tender or offer to make a written order for it, but that it was done by his direction and consent, and under his supervision ; and that he did not demand an arbitration in respect to the value of it.

Those findings, if correct, are conclusive of the right of the lienors to recover.

The right of the owner to give a written order for the extra or additional work, and to insist at all times, that without it he should not be liable, was a provision in his favor. The builder had no interest in or right over it, and it is doubtful if he could have insisted upon it. But being wholly within the power of the owner, he could, and as the referee has found,, did waive it; and therefore he can not now insist that the extra or additional work was not ordered in the manner prescribed by the contract.

The provision in the contract in respect to the mode of ascertaining the value of any extra or additional work, was for the benefit of both parties, and either could, probably, have insisted upon resorting to it, to settle these differences. But the referee has found, and it is not disputed, that neither party demanded the arbitration, so that neither can now claim any advantage of objection from it.

The evidence before the referee upon the several questions,—of the character of the work, the manner in which it was ordered, and the waiver under the contract which upon his finding justify his judgment, was contradictory and disputed. On the one, side the testimony of the contractor supported and corroborated by two witnesses; and upon the other side, the testimony of the appellant Eisner, also supported and corroborated by two witnesses. There was a direct antagonism in their evidence, and it became a question which the referee would believe. He had the witnesses

before him, he saw them and heard them testify, and had such other opportunities as the trial afforded, of judging of the credit which should be given to the one or the other. And being satisfied in his own judgment, he accepted the evidence of the contracts and discredited that of the owner.

It is very clear that a judge would not have been authorized to have taken the case from a jury, if it had been before one, and it follows, as equally clear, that their verdict could not properly have been disturbed.

And the same effect must be given to the findings of a referee upon conflicting evidence, and especially is this so, whén the contradictions are irreconcilable, and one side or the other must be discredited.

A referee is bettet able to decide upon the credit of witnesses, than a court sitting in banc can be ; and it is for that reason, that upon appeal his findings of fact, like the verdict of a jury, will not be disturbed, except it be unsupported by, or very clearly against, the weight of the evidence.

But I am not aware of any case where its determination rested solely upon the credit of witnesses, that the appellate court has interfered with the result.

The judgment should be affirmed with costs.

Freedman, J., concurred.