text:
    John Crosby Brown and Others, Respondents, v. James Gray, John Stephens and Henry Mawson, Appellants, Impleaded with The United States and Brazil Mail Steamship Company and The Atlantic Trust Company.

      Maritime liens —jurisdiction of equitable actions relating to

    The State courts have not jurisdiction of an equitable action, brought to enforce a maritime lien, which seeks an adjudication as to the existence of a maritime lien and, if found to exist, a determination of its amount, such an action is within the exclusive jurisdiction conferred upon the United States courts in maritime causes.
    Appeals by the defendant James Gray, as owner of the steamship Kate, and by the defendants John Stevens and Henry Maw-son, as owners of the steamship Joshua Nicholson, from orders of the Supreme Court, made at the New York Special Term at Chambers, and entered in tbe office of tbe clerk of tbe city and county of New York on the 30th day of March, 1893, and the 6th day of April, 1893, respectively, directing the appellants to deposit with the Central Trust Company of New York, all moneys collected by them on account of freight, less certain charges for wharfage, lighterage and port charges upon their respective vessels.
    The United States and Brazil Steamship Company is a corporation organized under the laws of this State, and when the transactions occurred out of which this litigation arises, it was a common carrier of freight and passengers between the port of New York and various ports in South America. Among other steamers used in their business were the Kate and Joshua Kieholson, both British vessels. The Kate was owned by the defendant James Gray, and on the 15th of December, 1892, was hired to the corporation for two round trips from ports in the United States north of Cape Hatteras to ports in Brazil or in the Argentine Republic. ”
    The Joshua Kieholson was owned by the defendants Stephens and Mawson, and on the 16th of December, 1892, was hired to the corporation for two round trips from the port of New York to ports in Brazil or in the Argentine Republic. Each vessel made one round trip from the port of New York and about the time of the termination of their trips the corporation became insolvent and a receiver of it was appointed.
    The owners of the vessels agreed to furnish sufficient officers, seamen and employees to navigate the steamers. The charterers agreed to pay a sum specified for each calendar month for the time which the steamers were employed. Both charter parties contained a provision that the owners should have a lien on all cargoes of freight for the amount due them on the contract. In 1892 and 1893, the plaintiffs issued to the corporation certain letters of credit under which the steamship company became indebted to the plaintiffs in large sums of money. When the letters were issued it was agreed that all freight moneys earned and to be earned by the corporation were “ pledged and hypothecated to the plaintiffs as collateral security for the payment” of all moneys advanced under the letters of credit. This action was brought originally against the corporation, as the §ole defendant, for the purpose of having the sums advanced by the plaintiffs under their letters, charged as a lien on the freight moneys earned and to be earned and to restrain the corporation from collecting these moneys. A temporary injunction was granted restraining the corporation from collecting the money due for freight.
    The Atlantic Trust Company is a trustee for holders of bonds secured by a mortgage, executed by the corporation July 1, 1889, upon its property as security for the bonds issued pursuant to the mortgage. The trust company claimed to b ave a lien upon the freight moneys and March 15, 1893, it was, by an order of the court, on its own petition, brought in as a party defendant in the action. On the same date an order was made that the steamship company deposit with the Central Trust Company to the credit of this action all freight moneys then in its possession and all which should thereafter be earned.
    . March 22, 1893, upon the motion of the plaintiffs, James Gray, the owner of the Kate, and John Stephens and Henry Mawson, the owners of the Joshua Nicholson, were ordered to be brought in as parties defendant. Pursuant to this order the summons and complaint were amended and these persons named as defendants in the action. By the amended complaint, it is alleged that James Gray was the owner of the Kate, and that Stephens and Mawson were the owners of the Joshua Nicholson, and chartered them to the steamship company. It is also alleged that said owners have or claim to have some interest in the freight moneys earned by those vessels “ on the voyages of said steamers now last terminated or about to be terminated, by reason of certain unpaid charter hire due or owing to them upon said steamers, and certain moneys advanced by them for disbursements of said steamers.”
    It is also alleged that the owners through their agents in the city of New York are collecting, the freight moneys and threaten to apply it to their own use, and have refused to deliver it to the plaintiffs, though requested so to do.
    The sums which the steamship company agreed to pay for the use of the vessels have not been paid and the owners were compelled to pay certain sums for port charges. The owners, through then-agents in the city of New York, have collected the freight moneys due at the port of New York and claim to hold them as security for the amount due under the charters, for disbursements in delivering the cargo, for a claim made for coal and for damages for refusing to load the vessels for the second agreed voyages.
    The appellants have not been served with process, nor have they appeared in the action except specially for the purpose of moving to vacate the injunction and for the purpose of this appeal.

      J. Pa/rher LLi/rlvn, for the appellants.

      WilUard Pa/rher Butler, for the respondents.
   Follett, J.:

Under the charter parties the owners of the vessels had' liens on the freight moneys for the sums due them for the use of their ships. (Bags of Linseed, 1 Black, 108; The Bird of Paradise, 5 Wall. 545.) By the terms of the charter parties the vessels were to be navigated by officers and crews furnished by the owners and at their expense and at the time when the owners enforced their liens upon the freight, they had legal possession of the ships.

In Clarkson v. Edes (4 Cow. 470), it was held, that when by the terms of a charter party a vessel is to be navigated at the expense of the owners, they must be deemed to be the owners in possession.

Whether the owners have a lien on the freight moneys for all the items which they claim is not necessary to be determined, for we are of the opinion that this court has not jurisdiction to adjudicate upon the conflicting claims of these litigants.

Section 2 of article 3 of the Constitution of the United States provides that the judicial power of the courts of the United States shall extend to all cases of admiralty and maritime jurisdiction. Pursuant to this provision section 711 of the Bevised Statutes of the United States was passed, which provides: “ The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states. * * *

Thvrd. 'Of all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it.”

The same statutory provision is contained in subdivision 8 of section 563 of the Bevised Statutes of the United States.

Under this statute it has been repeatedly held that controversies arising out of maritime contracts must be enforced in tbe United States courts, unless tbe remedy sought is one which can be obtained in a common-law court. (The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 id. 625; Town of Pelham v. The Schooner B. F. Woolsey, 3 Fed. Rep. 457.)

The learned counsel for the respondent cites many cases and many more might be added, holding that actions for the recovery of damages — common-law actions — for breach of maritime contracts may be maintained in the courts of the several States, but he cites no authority holding that an equitable action brought to enforce a maritime lien can be prosecuted in such courts. Of such actions the Federal courts have exclusive jurisdiction.

The case at bar is an equitable action brought in the first instance to enforce a maritime lien in favor of the plaintiff, and by the amendment to the complaint it is sought to adjudicate as to the existence of the maritime liens claimed by the appellants, and if found to exist to determine their amount. This, under the decisions, we think cannot be done.

The orders appealed from should be reversed, with ten dollars costs and printing disbursements, and the motion to vacate the injunctions granted, with ten dollars costs.

Yan Brunt, P. J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and the motion to vacate the injunctions granted, with ten dollars costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    James P. Foster, Appellant, v. Morris Mayer, Respondent.

      Mortgage — unaccepted tender of the a/mount due — right to its cancellation of record — bringing money into court a condition precedent.

    Although at the commencement of an action brought to procure an adjudication discharging of record the lien of a mortgage by force of an unaccepted tender made of the amount due thereon, the plaintiff was not entitled to relief because of his failure to bring the money into court, still if he subsequently brings the amount due into court and the defendant insists upon taking it, and is permitted by the court so to do, the plaintiff will then become entitled to the relief asked for, of having the bond and mortgage canceled upon terms

      Appeal by the plaintiff, James P. Foster, from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of the city and county of New York on the llth day of January, 1893, upon a decision of the court after a trial at the New York Special Term.

      JE. Sohenok, for the appellant.

      Sol Kohn, for the respondent.
   Van Brunt, P. J.:

This action undoubtedly was brought upon an erroneous theory, it being supposed that, under the rules laid down in Kortright v. Cady (21 N. Y. 343) and subsequent cases in the same line, where a tender had been made of the amount due upon a bond and mortgage, which tender had not been accepted, the lien of the mortgage being lost, the mortgagor had a right to come into a court of equity and have the lien discharged of record.

This position upon the part of the plaintiff, unless, at the time of commencing the action, he brought the money into court, was entirely untenable, as a court of equity will not, by its decree, grant equitable relief, unless the plaintiff does equity. But it appears that subsequently, in order to obtain equitable relief in this action, the plaintiff brought the money into court, being the amount of principal and interest upon the bond and mortgage, and the defendant insisted upon taking it, and, under the decision of this General Term, was permitted to receive it. By such action, the defendant accepted the tender, and consequently the plaintiff was entitled to have the bond and mortgage canceled. If the defendant had desired to insist upon the invalidity of the tender, and that the money was not brought into court in time, and that, therefore, he should be permitted to go on with the foreclosure of the mortgage, he certainly should not have insisted upon the receipt of the money deposited in this action pursuant to the order of the court. As has already been stated, the acceptance of such money, after it had been paid into court, was an acceptance of the tender; and then the only question which remained was upon what terms the plaintiff was entitled to the relief of having the bond and mortgage canceled.

If any other rule obtained, the result of these proceedings would be that the defendant would have tbe money represented by the bond and mortgage in bis pocket, and still bold tbe ben represented by tbe mortgage against tbe property of tbe plaintiff, wbicb is certainly not equitable nor proper.

Tbe court, therefore, erred in dismissing tbe complaint, although at tbe time of tbe commencement of tbe action tbe plaintiff, probably, was not entitled to any relief. Tbe subsequent proceedings, however, -acquiesced in by the defendant, gave him tbe right to have this bond and mortgage canceled upon terms to be fixed.

We think, therefore, that tbe judgment should be reversed and a new trial ordered, with costs to tbe appellant to abide tbe final event.

Eollett and Parker, JJ., concurred.

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


text:
    Thomas A. Maitland, as Executor, etc., of Sarah Parish Dillon, Deceased, Plaintiff, v. Townsend B. Baldwin, as Executor, etc., of Robert James Dillon, Deceased, Defendant.

      Teata/menta/ry power of appointment — express trust — suspension of the power of alienation.

    In considering the validity oí appointments under powers contained in wills, the appointment is to be read as though it had been incorporated in the original will,
    A will contained the following provision -• “At the death of my wife I give fifty thousand dollars in such manner and form and to such person or persons as she by her last will and testament may direct, limit and appoint.” The wife survived the testator, and at her death left a will in which she directed and appointed her executor to receive the sum referred to in the above provision of her late husband’s will and to invest the same and to pay one-fifth of the income to each of five several persons named, during their respective lives; and after the death of certain of such beneficiaries, she appointed other persons to receive their respective shares of incomij for life.

      Held, that the power of appointment was not limited to a direct and absolute gift, but permitted the wife, in exercising it in her will, to place limitations upon the absoluteness of the enjoyment within the restrictions prescribed by law;
    That the provision in the wife’s will created an express trust and clothed the trustee with the legal title to the fund;

      That if the appointment was invalid in respect to the secondary beneficiaries named therein because it suspended the power of alienation for more than two lives in being (which is not decided) the limitation to the first takers was not subject to that criticism;
    That the infirmity in respect to the suspension of the power of alienation, if it existed, did not pervade the whole trust; and as the first takers under the appointment, for life, were not subject to the infirmity, the trust seemed to be good as far as the appointment to them was concerned, even if it might be invalid as to the others.

      JZwynes v. Sherman (117 N. Y. 433), distinguished.
    Under the statutes of the State of New York (1 R. S. 737, § 128), it is allowable to suspend the power of alienation in reference to a trust estate by an instrument in execution of a power.
    Motion by the plaintiff, Thomas A. Maitland, as executor of the last will and testament of Sarah Parish Dillon, deceased, for judgment upon a verdict rendered in Iiis favor, subject to the opinion of the General Term, by direction of the court at the New York Circuit on the 20th day of March, 1893.

      J. E. Aelcley, for the motion.

      B. P. Wash, opposed.
   Van Brunt, P. J.:

This action was brought to recover a legacy. The facts of the case are as follows : One Robert J. Dillon died in November, 1872, leaving a last will and testament which contained the following provision: “At the death of my wife I give $50,000 in such manner and form and to such person or persons as she by her last will and testament may direct, limit and appoint.” lie named as one of his executors Townsend B. Baldwin who is now the sole surviving executor and trustee of said will. His wife, Sarah Parish Dillon, died on the 31st of October, 1891, leaving a last will and testament in which she named the plaintiff as one of her executors who alone qualified. Mrs. Dillon by her said will, after giving some specific legacies, provided as follows :

“Item. As to the sum of fifty thousand dollars (50,000), over which I have a power of disposition given me by my late husband, Robert James Dillon, in and by his last will and testament in the words following, to wit:

“ ‘ Fourthly. At the death of my wife I give fifty thousand dollars ip such manner and form and to such person or persons as she by her last will and testament may direct, limit and appoint,’ I direct, limit and appoint as follows :
“ I direct and appoint my executors hereinafter named to receive the said sum of fifty thousand dollars, and to invest the same in any securities in which trustees are authorized to invest trust funds by law, and to pay one-fiftli of the income thereof to Helen McLean, daughter of George W. McLean, of New York city, for and during the term of her natural life ; and another one-fifth of said income to Frances Ouddon, known as Sister Mary Stanislaus, óf St. Edward’s Convent, of London, for and during the term of her natural life; and I direct and appoint Mrs. Susan O’Sullivan, wife of John O’Sullivan, of New York city, to receive the income of one-fifth of said principal sum of fifty thousand dollars for and during the term of her natural life1; and I direct and appoint Mrs. Charles Beattie, wife of Bev. Charles Beattie, of Middletown, New York, to receive one-fifth of said income for and during the term of her natural life, and upon her death, I appoint her husband to receive said income during his life, and upon his death, or upon the death of Mrs. Charles Beattie, whichever shall last occur, I appoint her children to receive one-fifth of the principal sum of fifty thousand dollars, to be divided equally between them as they severally attain the age of twenty-one years, the eldest child of any deceased child dying in the lifetime of Mrs. Charles Beattie to take such part of said sum as its parent would have taken, if living; and I direct and appoint Miss Bachel Cecilia Clark, of New York city, to receive the income of one-fifth part for and during her natural life, and upon her death I appoint her mother, Margaret Cecilia Clark, to receive said income for and dui'ing her natural life should she survive her said daughter.”

The defendant having refused to pay over to the plaintiff the said $50,000, this action was brought to recover the same. Upon the trial a verdict was directed for the plaintiff subject to the opinion of the court.

Yarious grounds are urged against the right of the plaintiff to recover.

It is claimed that the appointment made by Mrs. Dillon’s will is not authorized by the power, it being contended that the language of Mr. Dillon’s will implies a gift directly to some person or persons, and not a trust for the benefit of indefinite beneficiaries. The familiar rule in reference to the validity of appointments under powers contained in wills, seems to be that the appointment is to be read as though it had been incorporated in the original will. And applying this rule of construction to the will and the appointment in the case at bar, it would seem that the language is not susceptible of the construction claimed on the part of the defendants. The gift is not to such person or persons as she may appoint simply, but it is a gift “ in such manner and form and to such person or persons as she by her last will and testament may direct, limit and appoint; ” thus giving the appointee, within the limits of the law, the right to designate the manner and form in which the appointment shall be made, and necessarily the manner and form of the enjoyment under the appointment.

It would seem, therefore, that ■ under such a general power conferred by the will, it cannot be said that the power of appointment is limited to a direct and absolute gift, but the person exercising the power may place limitations upon the absoluteness of the enjoyment within the restrictions prescribed by the law.

It is further urged that the provisions of Mrs. Dillon’s will did not vest her executors with the legal title to the $50,000, but simply authorized the executors to receive the sum of $50,000, and invest the same, paying over the income as in the will provided; and that this was a power in trust, and did not confer the legal title to the fund upon the executors.

Upon a reference to section 55, page 728, volume 1 of the Revised Statutes, we find express trusts defined. The language of the statute is : “ Express trusts may be created for any or either of' the following purposes * * * (3) To receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first Article of this Title.” And by section 2, page 773, volume 1 of the Revised Statutes, the provisions in regard to real estate are made applicable to personal property.

It would, therefore, appear that a devise to trustees of this $50,000 to invest the same and pay over the income as in the will provided, created an express trust, and the trustee was clothed with the legal title.

It is further urged that the appointment is invalid, as it suspends the power of alienation for more than two lives, as to a part of the $50,000.

As to this point, it seems to us sufficient to say that it is not necessary at present to decide the proposition. The hmitation to the first takers under the will is not subject to this criticism; because even if these limitations had been incorporated in the will of Mr. Dillon, they would have been within the protection of the statute and valid.

But it is urged that the trust cannot be sustained upon the theory that the provision for the life of some of the appointees may be good, as there is but one trust for several objects, and the donor’s scheme would be subverted by only partially enforcing it. And we are cited to the case of Haynes v. Sherman (117 N. Y. 433). But upon an examination of that case, it appears that it is not at all applicable to the case at bar, in view of the fact that there the infirmity in reference to the trust pervaded the whole trust, and it was not an invalid direction to take effect upon the termination of a valid provision as in the case at bar. If the subsequent provisions of the appointment of Mrs. Dillon are subject to the criticisms claimed upon the part of the defendant, it will undoubtedly prevent those appointees from profiting by the appointment. But as the first takers under the appointment, for life, are not subject to this infirmity, the trust seems to be good as far as such appointment to them is concerned, even if it may be invalid as to the others, which latter point, however, we do not pr.etend to decide, as it is not necessary in the disposition of this case.

It is further urged that it is not allowable to suspend the power of alienation in reference to a trust estate by an instrument in execution of a power. And we are referred to 1 R. S. 737, § 128, and to Dana v. Murray (122 N. Y. 604), as authorities for this proposition. But an examination of the statute and the ease cited, seems not to support this contention. In fact the statute expressly recognizes the right to suspend the power of alienation, by an instrument in execution of a power. ' It is to the following effect: “ The period during which the absolute right of alienation may be suspended by any instrument in execution of a power, shall be computed, not from the date of such instrument, but from the time of the creation of the power.”

This is entirely in harmony with the principle which has already been enunciated, that the question of the validity of an appointment is to be determined by reading it as though contained in the original instrument conferring the power of appointment; in the ease at bar, by reading the appointment of Mrs. Dillon into the will of Mr. Dillon we must determine whether had the appointment been therein contained, it would have been valid. To the same effect is the case cited. Indeed there seems to be no doubt as to this proposition.

Applying this rule of construction to the will of Mr. Dillon, and the appointment of Mrs. Dillon thereunder, it would seem, as already suggested, certainly as to the first lives contained in the appointment, that it was good, no matter what may be the determination as to the subsequent estates attempted to be created. As to the point that the proper parties are not before .the court, it seems to be sufficient to say that this being an action at law and no such objection having been taken either by answer or demurrer, the same was waived.

We are of opinion, therefore, that the motion for judgment upon the verdict should be granted, with costs .of this application and costs in the court below.

Follett and Parker, JJ., concurred.

Motion for judgment upon the verdict granted, with costs of this application, and costs in the court below.


text:
    In the Matter of the Judicial Settlement of the Accounts of William Collins, as Sole Surviving Executor and Trustee under the Will of John G. Collins, Deceased. Emma L. Collins, Objector, Appellant; William Collins, Executor, etc., Respondent.

      Vested remainder— acceleration of the execution of a power of sale — conversion of realty into personalty.

      A testator devised a house and lot to his wife to have and hold during her life, with a direction that at her death the property should be sold by the executor, and the proceeds, with all the testator’s other estate, be divided between his “descendants,” according to law. The testator left at his death, his widow and three children.

      Held, that on the death of the testator, his three children took a vested remainder in the property devised to the widow for life.
    The execution of the above power of sale in respect to the house and lot was accelerated by a sale thereof by the executor prior to the widow’s death, with the consent and joinder of all the persons interested therein, namely, the testator’s widow and children; the proceeds were invested by the executor in his name and the income applied to the use of the widow.

      Held, that these proceeds were to be treated as though realized upon a sale within the strict terms of the will;
    That as the direction to sell upon the death of the wife was peremptory and left no discretion in the executor, such proceeds were to be deemed personal property; and that the executor was bound to account, as such, for the same.

      A son of the testator, who had survived his father, died before the executor’s accounting, which took place after the death of the testator’s widow, as to the proceeds of sale of said house and lot.

      Held, that the personal representative of such deceased child, as well as his heirs and next of kin, were necessary parties to the accounting.
    Appeal by Emma L. Collins, objector, from a decree of the Surrogate’s Court of New York county, entered in the office of the surrogate on the 14th day of October, 1892, confirming the report of a referee upon an accounting of William Collins, as executor, etc., of John G-. Collins, deceased.
    The following facts appear from the opinion of the referee (Robert E. Deyo, Esq.), together with his reasons, referred to in the opinion of the court, why the executor was not required to account as such for the $1,000 provided by the testator’s children to pay the annuity of fifty dollars to the testator’s widow:
    “ John G. Collins died in 1858. His estate consisted of personal property, a piece of real estate, No. 41 Wooster street, and another piece in 84th street (Yorkville).
    “ His will was admitted to probate September 20th, 1858.
    “ It provided that, during her widowhood, his wife should have the net income of his property in Wooster street for the support of herself and their children. He also gave her certain personal property absolutely and ‘ the interest and income, use and benefit of all the residue of my estate during her widowhood.’ If she remarried, she was restricted to the use ‘ during her life ’ of the house and lot in 84th street, sometimes called the house in Yorkville, and an annuity of fifty dollars. In the event of her remarriage, the income of his estate, except the annuity and 84th street (Yorkville) house, was to be divided between his children until his son George W., who was his youngest child, arrived at age. At that time, if his widow had remarried, all his estate, except the 84th street house and the amount set apart to raise her annuity of fifty dollars, was to be divided between his children. At the death of his widow, the 84th street (Yorkville) house was to be sold by the executoi’s and the proceeds thereof ‘and of all my other estate’ divided ‘ between my descendants.’
    “ The testator left him surviving his widow and three children, William, John W. and George W. Collins, the two latter then being infants.
    “ In 1860 the widow married Daniel Saunders.
    “In 1861 William Collins and John Pindley, the only executors who qualified, rendered an account in this court. The usual proceedings were had, and a decree was entered June 1st, 1861, showing a balance in their hands of five hundred and twenty-three T876T dollars ($523-5^) which they were directed to distribute.
    “The rents of the Wooster street property were received by William Collins, as executor, from the time of his mother’s remarriage in 1860, until the property was sold to him as hereinafter stated.
    “ George W. Collins, the youngest son, became of age in August, 1866.

      “ In May, 1867, "William Collins purchased from his two brothers their interest in the Wooster street property, and thus became its sole owner.
    “ In April, 1874, the 84th street (Yorkville) property was sold to Abbie M. W. Peffers. Two conveyances were made, one by William Collins as executor, the other by Mary Saunders, the widow, William and John W. Collins and their wives, and George Collins. The total consideration was eight thousand five hundred dollars ($8,500.00), made up as follows: Four thousand dollars secured by a mortgage on the 84th street property, four thousand dollars by a mortgage on property in 83d street, Harlem Bank stock, par value two hundred dollars, and cash, three hundred dollars.
    “ The mortgage on the 84th street property has been paid. The mortgage on the 83d street property was foreclosed and the property bought in by William Collins, he taking the title as executor.
    “ From the time of her remarriage until her death, Mrs. Saunders was not called upon to bear any portion of the expenses of the 84th street house, such as taxes, repairs, etc., and after the 84th street house was sold, and the mortgage on the 83d street house taken in part payment thereof had been foreclosed and bought in, she received the gross rents of that house up to the time of her death, all the expenses being paid by William Collins, and charged nominally against the estate.
    “John W. Collins died January 7th, 1877, leaving a widow, also one child named Emma L. Collins.
    “ Mrs. Saunders died in October, 1886.
    “ William Collins collected the rents on the 83d street house from the widow’s death down to May 4th, 1888, when the property was sold for fifteen thousand seven hundred and fifty dollars; part of the purchase money was secured by a mortgage on the property, but on the 4th day of January, 1889, the whole amount had been paid up.
    “ Emma L. Collins is the general guardian of Emma L. Collins, who is an infant over the age of fourteen years, the said infant being the only surviving child of John W. Collins.
    “ On January 13th, 1890, the said guardian filed her petition setting forth among other things that William Collins was the sole surviving executor of John G. Collins, that by reason of the death of John W. Collins, her father, said infant was entitled to a distributive share in the undistributed proceeds of the estate, that various payments had been made to the general guardian on account of such distributive share, and that the petitioner believed that other funds had not been accounted for or distributed.
    “ The prayer was that the executor be required to account. On January 13th, 1890, the said executor filed a petition that all parties in interest be cited to attend upon such accounting, and thereafter,, and on March 3d, 1890, an account was filed.
    “Objections having been filed on behalf of the said Emma L., Collins, an order was entered referring the matter.
    “ As appeals by the decree on the accounting in 1861, the estate consisted of five hundred and twenty-three dollars in money, and there were besides, the premises in Wooster street, and the house and lot in 81th street (Yorkville).
    “To the income of all of this the widow was entitled if she remained unmarried, but as at the time of the accounting in 1861, she had already remarried, she was only entitled thereafter to the annuity of fifty dollars, and the use of the 81th street (Yorkville) house during life, and because of such remarriage, the remainder of the estate, viz.,- the five hundred and twenty-three dollars of money, and the Wooster street property, became the absolute property of the testator’s three sons, both being subject to the payment of the annuity of fifty dollars.
    “ It is evident that the five hundred and twenty-three rgfo dollars alone was not sufficient to raise the annuity of fifty dollars, consequently that annuity could not be paid without a resort, for a part at least, to the Wooster street property.
    “ These difficulties were surmounted when John W. and George W. sold their shares in the Wooster street property to William,, which was May 8th, 1867, in the following manner.
    “‘They made an agreement in writing that a fund of one thousand dollars should he set apart to raise the annuity, to which fund each should contribute one-third; that this fund should be left in the. hands of William and that the shares of John W. and George W. should be contributed out of their shares of the purchase money due from William on the Wooster street property.

      “It does not appear that Mrs. Saunders objected to this arrangement.
    “ It is claimed on behalf of Emma L. Collins, that this fund, or at least so much of it as was contributed thereto by John W. and George W., together with any interest realized thereon in excess of fifty dollars, the amount of the annuity, shall be accounted for as assets of this estate.
    “ It is attempted to support this claim on the theory that the annuity was a charge upon the Wooster street property, and as such, ■enforcible by the executors; that the fund of one thousand dollars was substituted in place of the Wooster street property, and that thereby the same became an asset of this estate by operation of law.
    “ Conceding that the annuity was a charge in whole or in part upon the Wooster street property, still the direction to the executors to make the necessary provisions for its payment did not impress upon the charge any characteristic of a trust. The annuity was simply a legacy, and as such, it was alienable or releasable by the annuitant. (Leung v. Fofke, 5 Sandf. 363, 3Y0 ; Hawley v. James, 16 Wend. 61; Griff en v. Ford, 1 Bosw. 123, 143, 144; Maurioe v. Grahann, 8 Paige, 483, 487; Hunter v. Hwrvter, 17 Barb. 25, 90; Mason v. Jones, 2 id. 229, 247.)
    “ Having the power to release the property absolutely from the charge, and also to release the estate from any claim for the annuity itself, a fortiori she had the right to consent to, or acquiesce in, an arrangement by which the annuity was raised from a sum of money contributed as a fund by her sons or anybody else, and it is immaterial whether it was contributed out of the proceeds of the sale of the property subject to the charge, or from some other source. If the sons had continued to hold the property jointly until their mother’s death, they would then have it free from the ' charge or liability to account, and in the same way, they and their representatives now have the substituted fund. If William has not accounted and settled properly for it, those aggrieved have a remedy, but not in this court.
    “ The said agreement also provided that from the purchase money there was to be reserved three hundred and thirty-three dollars, from the amount due from William to each of his brothers, to cover the expense of paving 84th street and other disbursements, subject to approval.

      “ It is claimed that so much of the share of this fund as was contributed by John W. Collins, deceased, is to be accounted for in this proceeding. I overrule this claim on the ground that the agreement shows that the three hundred and thirty-three dollars belonged to John W. Collins individually, and that the disposition of it did not concern the estate of John G. Collins.”
    In reference to the 84th street (or Yorkville) house and lot devised to the testator’s widow for life, the will further provided as follows: “ At the death of my wife, the house and lot in Yorkville to be sold by my executors, and the proceeds thereof, and of all my other estate, to be divided between my descendants according to law.” The referee decided that by “ my descendants,” the testator meant his descendants living at his death, who were his three children; that the words “ my descendants ” were to be read as though they were “ my children,” and that if so read, the authorities were uniform that at the testator’s death, his three sons took a vested remainder in fee in the Yorkville house, subject to the life estate of their mother and subject also to the execution of the power of sale, citing Post v. Homing (6 N. Y. St. Repr. 716); Williams v. Freeman (98 N. Y. 577); Hedger’s Estate (6 N. Y. Supp. 769; aifd., 9 id. 347); Livingston v. Greene (52 N. Y. 118); Matter of Mahan (98 id. 372); Warner v. Pvrant (76 id. 133).

      J. 8. Wyoh, for the appellant.

      R. H. Magrath, Jr., for the respondent.
   Van Brunt, P. J.:

In view of the correct statement of facts contained in the referee’s report which formed the basis of the surrogate’s action, it is not necessary to restate the same in this opinion.

We also concur in the conclusions arrived at by the referee that the children of John G. Collins took a vested remainder in the property situated in Eighty-fourth street, devised to the widow of said John G. Collins for and during her natural life; and that the executor was not required to account as such for the $1,000 which had been provided by such, children to pay the annuity of fifty dollars to the widow of the testator, for the reasons stated in his opinion.

But we do not concur in the referee’s conclusion that there are no assets of the estate of John O. Collins in the hands of 'William Collins as executor. The theory upon which the referee arrived at this conclusion, is that the proceeds of the sale of the premises in Eighty-fourth street made under the circumstances stated by him, did not remain assets of the estate, but belonged to the'persons in whom the fee was vested, and that the holding of the same by the respondent as executor was done by virtue of an agreement between the grantors that he should do so, and not by virtue of any authority derived from the will.

It will be seen upon an examination of the will, that this property in Eighty-fourth street was bequeathed to the widow of the testator during her life, whether she married again or not; and there was also a provision that in case she remained unmarried after his youngest child attained lawful age, his estate was to remain unsold during her widowhood unless she and his children should think it best to sell the same, in which case they were authorized with her concurrence to sell the same and give the purchaser or purchasers good and sufficient deeds for the same, and in such case the proceeds should be invested upon bond and mortgage or other approved securities, ’and the net income thereof applied to the use of his wife during her widowhood. The wife having remarried, this provision of the will did not 'apply. The will then further provides that at the death of his wife the house and lot in question were to be sold by the executors, and the proceeds with all his other estate, to be divided between his descendants according to law. But prior to the death of the wife, the executor sold this property in Eighty-fourth street, received the proceeds and invested them in his name as executor, and applied the income to the use of the wife. And in order to give efficacy to-the title, the wife and the children executed conveyances for nominal consideration. This they had the power to do, as is expressly held in the case of Kilpatrick v. Barron (125 N. Y. 751), in which it is held that the rule is, that where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, provided the persons interested and who join in the conveyance are sui juris, and such conveyance is not in contravention of any trust, and is consistent with the substantial purpose of the testator in creating the power.

Applying this rule to the case at bar, by the consent of all the parties interested, the executor was permitted to sell prior to the death of the wife instead of awaiting the happening of that event, thereby accelerating the execution of the power, and nothing else. This was the understanding of the parties at the time of the execution of the conveyance, because the executor received the consideration, precisely as he would have done had he sold under the power of sale after the death of the wife and invested the proceeds in his own name as executor. This being the case, these proceeds are to be treated precisely the same as though they had been realized upon a sale had within the strict terms of the will. Such proceeds were to be deemed personal estate and to be treated by the executor as such, because the direction to sell this house and lot upon the death of the wife is peremptory, and leaves no discretion in the executor, and the real estate, therefore, became converted from that time.

It would seem, therefore, that the executor in this proceeding was bound to account for the proceeds realized from the sale of the house and lot, and that the personal representatives of the deceased child as well as his heirs and next of kin were necessary parties to such accounting.

The decree of the surrogate should be reversed and this proceeding remitted to the surrogate, so that the proper proceedings may be had for an accounting of the executor in reference to the proceeds of the house and lot in question, with costs to abide event.

O’Brien and Follett, JJ., concurred.

Decree of surrogate reversed and this proceeding remitted to the surrogate, so that the proper proceedings may be had for an accounting of the executor in reference to the proceeds of the house and lot in question, with costs to abide event.


text:
    Jacob Lawson, Plaintiff, v. Terminal Warehouse Company, Respondent. The Central National Bank, Appellant.

      Interpleader — action brought against a warehouse company — different claims to warehoused goods.

    An interpleader is not to be granted, on the application of a -warehouse company-in an action brought against it to recover the possession of goods claimed by it to be held as bailee, subject to a lien for storage, when it appears that the defendant does not propose to deliver the entire property to the party sought to be interpleaded as the holder of the warehouse receipt (which covers the goods sued for, together with many others), and the defendant’s lien for storage is disputed by such party, and it appears that the defendant does not stand indifferent between the parties, because of the claims of various parties arising out of the manner in which it has dealt with the goods and its manner of issuing warehouse receipts.
    Appeal by tbe Central National Bank from an order of tbe 'Supreme Court, made at tbe New York Special Term at Chambers and entered in tbe office of the clerk of tbe city and county of New York on tbe 3d day of April, 1893, substituting tbe appellant, as defendant, in tbe place and stead of tbe Terminal Warehouse Company.

      A. P. Whitehead, for tbe appellant.

      J. M. Powers, for tbe respondent.
   Van Brunt, P. J.:

This action was brought to recover possession of five bales or packages of burlaps, which tbe defendant, tbe Terminal Warehouse Company,'claimed to bold as a bailee in its warehouse in tbe city of New York, upon tbe ground that tbe defendant wrongfully withheld and detained said burlaps from tbe plaintiff.

Tbe defendant thereupon made an application for an order of interpleader, alleging that tbe same property was claimed by tbe Central National Bank, and that tbe same was received and stored by tbe firm of Lipman & Co., to whom tbe defendant bad issued its warehouse receipts and that said receipts were now held by tbe Central National Bank, and tliat the defendant had no interest in the property except that of a bailee and warehouseman and for its fees for storage of the same, and that it could not safely determine to which of said claimants the property should be delivered, and was ready and willing to deliver the same as the court might direct, upon payment of its fees for storage, and upon being discharged from further liability; that the storage fees amounted to twenty-two dollars and fifty cents, and that there was no collusion between the defendant and the plaintiff or the Central National Bank.

The Central National Bank, in answer to this application, alleged that it held a warehouse receipt issued by the above-named defendant to it, which specified, among many others, the bales of burlaps mentioned in the complaint, and that these burlaps were a part of a large number which were in dispute between the bank and various persons, each of whom claims less than the entire number claimed by the bank. The affidavit then further states the controversy which had arisen in regard to the title to these burlaps and asserts a claim upon the part of the bank, that if the course of business of the defendant should be subject to the criticism made upon it by the plaintiff, it would claim a liability against the defendant, the Terminal "Warehouse Company, to make good any loss which might be suffered by the bank. It also alleges a claim for the conversion of these bales by the defendant, and a forfeiture of all right to storage.

The court granted the motion for the interpleader, and from the order thereupon entered, this appeal is taken.

We do not see how, under the circumstances disclosed by the papers upon which this order was granted, the defendant had a right to the relief which it obtained upon the motion. " The defendant does not propose to deliver the entire property to the person directed by the court. It claims its lien for storage, which is denied by the party sought to be made defendant.

It further appears that the defendant does not stand indifferent between the parties, because the claims of the various parties arise apparently out of the manner in which the Terminal Warehouse Company has dealt with the projterty in question, and its manner of issuing its warehouse receipts. It is apparent for these reasons that no substitution could be made.

The order should be reversed, with ten dollars costs and disbursements, and the order for interpleader denied, with ten dollars costs.

Follett and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the order for interpleader denied, with ten dollars costs.


text:
    William S. Carman and Louis E. Carman, Respondents, v. The Farmers’ Loan and Trust Company, Appellant.

      Railroad reorganization — deposit of stock and bonds — sale to pay costs, and return of surplus, dec/reed — defective complaint.

    The complaint in an action brought against a trust company alleged that, in pursuance of a railroad reorganization agreement, stocks and bonds of certain railroads were deposited with the defendant as trustee, for which it issued certificates; that the plan of reorganization having failed, an action was brought against the defendant by a construction company which was then the holder of certain of the certificates, in which a decree was obtained terminating the trust and directing the defendant, among other things, to sell the bonds of the Connecticut Western railroad and the stock of the New York and New England railroad, which had been deposited with it, to create a fund for the costs of the action, and to distribute the surplus after paying such costs among the actual holders of the certificates for such bonds and stock. The complaint also alleged that the said bonds and stock had been sold under the decree; that the amount realized was sufficient to pay the costs, and that the plaintiffs were 'now the holders of the certificates issued for New York and New England stock; and demanded judgment for the value of said stock at the time of its sale.

      Held, that the complaint was demurrable in that the holders of the certificates of the Connecticut Western bonds were not joined as parties, and in that it contained no allegation showing the amount of the costs payable under the decree, or what amount was chargeable to the proceeds of the Connecticut Western bonds and what to the New York and New England stock.

      Query, whether the action was maintainable at all, and whether the application for the relief sought should not have been made at the foot of the decree in pursuance of which the securities were sold.
    Appeal by the defendant, the Farmers’ Loan and Trust.Com-' pany, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 6th day of January, 1893, in favor of the' plaintiffs, upon a decision of the New York Special Term, overruling the defendant’s demurrer to the complaint.

      II. B. Turner, for the appellant.

      I. M. Miller, for the respondents.
   Van Brunt, P. J.:

In coining to a conclusion as to the correctness of the judgment rendered upon the demurrer, it will be necessary to bear in mind the peculiar allegations of the complaint, which may be briefly stated as follows:

“ That prior to and on the 2d day of July, 1880, one Edward Crane was the holder of certain stock of the New York, Boston, Albany and Schenectady Railroad Company, and of the New York and New England Railroad Company and of certain first mortgage bonds of the Connecticut Western Railroad Company, and of the Lebanon Springs Railroad Company, and was the owner and holder of two hundred and thirty-five shares of the capital stock of the New York and New England Railroad Company.”

And that, at the time aforesaid, said Crane with one Carpenter and others, owners and holders of bonds and stocks of said railroad companies, united upon a plan to consolidate said railroads, and to that end and purpose a trust deed was executed appointing the defendant as trustee, in and by which it was recited that the parties of the first part (viz., Carpenter, for himself and his associates) are the owners of certain securities, viz.:

The first mortgage bonds of the “ Boston, Hartford and Erie Railroad Company.”

The stock of the “New York and New England Railroad Company.”

The first mortgage bonds of the “ Connecticut Western Railroad Company.”

The stock of the “New York, Boston, Albany and Schenectady Railroad Company,” and,

The first mortgage bonds of the “Lebanon Springs Railroad Company,” and that for the purposes of consolidation said party of the first part agrees to assign and transfer to the party of the second part (the defendant), the various securities owned by them in said companies, to be held, voted upon and used as in said agreement thereafter provided, and the defendant agreed to issue to the owners of said securities, certificates in lieu thereof in the form prescribed by said agreement. The agreement then provides for the taking of the steps necessary for the consolidation, and that when the consolidation shall have been effected the defendant shall exchange the various bonds and stocks for stock of the proposed consolidated railroad company, and that in case said consolidation shall not have been effected within three .years from the date of the agreement the trust should cease and “ degenerate ” and the stocks and bonds aforesaid be divided jpro rata amongst the shareholders in the trust upon the presentation of the trust certificates. The complaint further alleges that the defendant entered upon said trust and received from the parties of the first part to said agreement the bonds and stocks before mentioned for the uses and upon the trusts therein specified, and that amongst the bonds and stocks so delivered to said defendant were the said 235 shares of the capital stock of the New York and New England Railroad Company, the same being the property of said Crane; that thereafter the defendant issued certificates for said bonds and stocks thus received in the form and in accordance with the provisions of said deed of trust, and included therein were certificates issued to Crane for said 235 shares of New York and New England stock, and that said Crane duly assigned and transferred said certificates to the New Jersey Construction Company.

The complaint further alleged that such project of consolidation having failed, an action was commenced in this court in December, 1889, by the New Jersey Construction Company against the Farmers’ Loan and Trust Company and others to terminate the trust,, and such proceedings were thereupon had that a judgment was recovered and entered terminating the said trust and directing the defendant, the Farmers’ Loan and Trust Company, to deliver certain bonds and stocks, in said judgment specified, to the parties therein named, and, among other things, to sell at public sale the first mortgage bonds of the Connecticut Railroad Company and the said shares of the New York and New England Railroad Company, delivered to the said defendants in trust as aforesaid, to create a fund for the costs and expenses of the action, and the surplus, ^fter paying such costs, was thereby directed to be distributed among the actual holders of the trust certificates issued therefor as aforesaid,” and that a sale was had under said decree and sufficient was realized from the sale of the said Connecticut Western railroad first mortgage bonds and of the stock of said New York and New England Railroad Company to pay in full the costs and expenses of the action, and that all said costs and expenses were thereby fully paid, and that the market value of the stock of said New York and New England Railway Company was, at the time of said sale, forty-five and seven-eighths per cent, for which sum per share said 235 shares of stock of said railroad company were on said day sold at said sale.

The complaint further alleged that the plaintiffs were the holders of the trust certificates above set forth, issued in exchange for said 235 shares of said capital stock, and that they were the owners of all the rights, interests, claims and demands of said Crane and the New Jersey Construction Company, and that by reason of the premises the defendants are indebted to the plaintiffs for their interest in the value of said 235 shares of stock of said New York and New England Railroad Company, as originally intrusted to it, namely, the sum of $10,780.62, and that the plaintiffs demanded of the defendant payment of said sum, and duly tendered said certificates, and the defendant refused and still refuses to pay the same; wherefore the plaintiffs demanded judgment for the sum of $14,000, with interest and costs.

The theory upon which this complaint is based seems to be that the plaintiffs in this action were adjudged entitled to receive the proceeds of the sale of said 235 shares of stock, which it is alleged that Crane deposited under this trust agreement. Upon an examination of the complaint, however, it will be seen that the allegations do not bear out any such construction.

Whatever the rights of the parties who deposited these stocks and bonds were, they were fixed by the adjudication in respect to all the parties thereto in the action brought by the New Jersey Construction Company, which was then the holder of the certificates, against the defendant, the Fanners’ Loan and Trust Company, for the termination of the trust. As already seen, by -that judgment, certain stocks and bonds were to be returned to certain parties specified in said judgment, and certain first mortgage bonds of the Connecticut Western Railroad Company (deposited by whom, tbe complaint does not allege), and the said shares of the New York and New England Railroad Company, viz., those deposited by Crane, were to be sold to create a fund for the costs and expenses of the action, and the surplus, after paying such costs, was to be divided amongst the actual holders of the trust certificates issued therefor as aforesaid.

Now, it nowhere appears in this complaint as to who deposited the first mortgage bonds of the Connecticut Western Railroad Company, or to whom certificates for such deposit were issued. The complaint alleges that a sale took place of the bonds of the Connecticut Western Railroad Company, and the stock of the New York and New England Railroad Company, and that from such sale sufficient was realized to pay in full all costs and expenses, and that all said costs and expenses were thereby and are fully paid. It, therefore, appears that the proceeds of the sale of the first mortgage bonds of the Connecticut Western Railroad Company and of the shares of the New York and New England Railroad Company, were to form the fund from which these expenses were to be paid, and that after these expenses were paid the surplus was to be divided amongst the holders of the trust certificates issued therefor.

The plaintiffs in this action have nowhere shown what part of these expenses were properly chargeable against the 235 shares of the New York and New England stock. It certainly is not the purport of that decree that the bonds of the Connecticut Western Railroad Company shall bear all of such expenses. But the costs and expenses were to be deducted out of the proceeds of both classes of securities and the surplus to be distributed pro rata amongst the holders of the certificates issued upon the surrender of those particular securities. It is apparent that the plaintiffs are only the holders of the certificates issued for the 235 shares of New York and New England stock and that there are other persons interested in this litigation (namely, the holders of the certificates issued for the bonds of the Connecticut Western Railroad Company) who are necessary to a complete determination of the amount which the trust company as trustee is bound to pay.

And, furthermore, there is no allegation showing the amount of these costs and expenses, and what amount was chargeable to the proceeds of the bonds of the Connecticut Western Railroad Company and what amount to the stock of the New York and New England Railroad Company. Without these facts before the court, no judgment could possibly be given, and without the parties representing the certificates issued upon the surrender of the bonds of the Connecticut Western Railroad Company, no complete adjudication can be made.

There seems to be some question whether the action can be maintained at all and whether application should not have been made at the foot of the decree entered in the action in pursuance of which the securities were sold. But this question it is not necessary now to determine.

The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with leave to amend upon payment of the costs of the appeal and in the court below.

Follett and O’Brien, JJ., concurred.

Interlocutory judgment reversed, with costs, and the demurrer sustained, with leave to amend upon payment of the costs of the appeal and in the court below.


text:
    Gerard Beekman and James William Beekman, as Trustees of the Estate of James W. Beekman, Deceased, and as Individuals, Appellants, v. Susan Van Dolsen, as Executrix, etc., of Abraham Van Dolsen, Deceased, Respondent.

      Counterclaim — against the plaintiff in the same capacity in which Tie sues— guaranty against liability for costs and damages.

    Gerard Beekman and James W. Beekman brought an action as trustees and as individuals against Abraham Yan Dolsen, to recover rent under a lease made by the plaintiffs as trustees and as individuals to the defendant, and to recover the value of a dock on the leased premises alleged to have been negligently destroyed by the defendant, and to recover a sum of money due under a contract, and to recover damages. The defendant set up as a counterclaim the value of his personal time expended and costs and expenses incurred in legal proceedings against one Thompson, and damages incurred, for which he claimed indemnity under a guaranty executed by the plaintiffs.
    The plaintiffs insisted that the defendant’s claim under the guaranty was not the proper subject of a counterclaim, because the guaranty was made by the plaintiffs as individuals only, -whereas the causes of action set out in the complaint were in favor of the plaintiffs as trustees, as well as individuals.
    The guaranty began with the recital: “ Whereas * * * Gerard Beekman and James W. Beekman, * * * as trustees of the estate of James W. Beekman, deceased, and as individuals did grant,” etc.; followed by: “ And whereas * * * the said Van Dolsen at our request * * * did appoint said William O. O. Brainerd and George S. Thompson, * * * and whereas * * * we did revoke and annul the said guaranty * * * now, therefore, in consideration of the premises we jointly and severally request the said Van Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises, and in consideration of the premises and one dollar, we hold ourselves responsible for any cost or damages which may be incurred by the said Van Dolsen in treating according to law the said George S. Thompson asa trespasser,” etc.

      Held, that the word “ we” clearly referred to the recital describing the grantors as trustees and as individuals, and that it was apparent that the plaintiffs intended thereby to bind themselves by this guaranty in the same capacities in which they executed the lease.
    That the effect of the guaranty was that of an indemnity against liability incurred by the defendant in the shape of costs and damage, and was not simply an agreement to indemnify and save harmless from damage suffered; and hence covered costs and legal damages incurred, and was not limited to actual damage or loss proved' — but that it did not contemplate indemnity for loss of time or for personal services rendered.
    That the intention and scope of the guaranty seemed to be that the defendant should be indemnified in his attempts to eject Thompson as a trespasser; that it had no relation to monetary claims of the defendant against Thompson and his lessees for the use of the premises, and, hence, that expenses incurred by the defendant in suits to enforce such claims, were not legitimate items of damage under the guaranty.
    Appeal by tbe plaintiffs, Gerard Beekman and James W. Beekman, as trustees of tbe estate of James "W. Beekman, deceased, and as individuals, from a judgment of the Supreme Court in favor of defendant’s testator for the balance of a counterclaim over and above the amount recovered by the plaintiffs, entered in the office of the clerk of the city and county of New York as of the 22d day of June, 1892, upon a verdict rendered at the New York Circuit, by direction of the court, and also from an order denying the plaintiffs’ motion for new trial, and also from an order. granting the defendant an extra allowance, and also from an order denying the plaintiffs an extra allowance.

      William Mitchell, for the appellants.

      O. Norwood, for the respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiffs as trustees and as individuals, they being as such trustees and individuals lessors in a certain lease made by them to the defendant’s testator, Abraham Van Dolsen, to recover various sums of money on four causes of action. The first was to recover the value of the rent pursuant to the terms of the lease. The second was to recover the value of a certain retaining wall, bulkhead and dock which were on part of the demised premises at the beginning of the term, but which it was claimed were negligently suffered and permitted to be injured and destroyed by the lessee. The third cause of action was to recover a sum of money claimed to be due from the defendant’s testator pursuant to a written agreement made in reference to the erection of a small wharf or dock on the demised premises. The fourth cause of action was to recover damages occasioned by the failure of the defendant’s testator to deliver the demised premises in as good a state and condition as reasonable use and wear would permit.

The answer denied all liability upon the various causes of action set out in the complaint and alleged as a defense to each cause of action that immediately prior to and at the time of the execution of the lease mentioned in the complaint (December, 1880), one Brainerd and one Thompson were in possession of the premises described in the lease with the assent of the plaintiffs, and that cotemporaneously with its execution, at the express instance and request of the plaintiffs, there was executed and delivered between the defendant and said Brainerd and Thompson an instrument whereby the defendant appointed said Brainerd and Thompson his true and lawful attorneys in his name, place and stead, to collect wharfage, rents, issues and profits out of and to grow due to him under the said indenture of lease; that said Brainerd and Thompson, one or both of them, after the execution of the lease, continued in the actual and physical possession of the premises until about the 1st of June, 1882, and that cotemporaneously with the instruments above mentioned the plaintiffs executed and delivered to defendant an instrument which, after reciting said lease and power of attorney, proceeds as follows:

“Now these presents witness, that we, Gerard Beekman and James William Beekman, as individuals only, in consideration of the foregoing premises of one dollar to us in hand paid, do hereby agree to and with the said Abraham Van Dolsen to hold him, the said Abraham Van Dolsen, harmless as to the acts of the said William O. Brainerd and George S. Thompson, performed under the said power of attorney.
“Provided always that the said Abraham Van Dolsen revokes the said power of attorney upon the request made by us after reasonable notice that he make such revocations.”

That subsequently, in January, 1882, the plaintiffs executed and delivered, to the defendant another instrument which, after reciting the lease and power of attorney and that they had revoked and annulled the guaranty of said Brainerd and Thompson, and that the defendant, in consequence thereof, had revoked said power of attorney, and that, as they were informed, said Thompson continued to enter upon said demised premises, notwithstanding such revocation and contrary to the wishes of said Van Dolsen, proceeds as follows:

“Now, therefore, in consideration of the premises, we‘jointly and severally request the said Van Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damages which may be incurred by the said Van Dolsen in treating according to law said George S. Thompson as a trespasser as aforesaid,” and that after the execution of said instrument the defendant proceeded against Thompson as a trespasser upon said premises, and expended a very large amount of his personal time in so doing prior to the 11th of November, 1882, of the value of $1,000, and incurred costs and expenses in legal proceedings and otherwise, and was damaged in the sum of $1,500, and the defendant demanded judgment for the sum of $2,500 and that the plaintiffs’ complaint be dismissed, with costs.

The plaintiffs replied to the counterclaim by alleging that the lease in question was executed by virtue of authority conferred upon them by the will of James W. Beekman, deceased, and that the premises demised in said lease formed paid of the undivided residuary estate of said testator, and denied that the various papers referred to in the answer formed part of said lease, and alleged that the possession of Brainerd and Thompson was the possession of the defendant. They also denied that the instruments mentioned were executed at their express instance and request, and admitted that they were executed at their suggestion, and said pleading contained various other allegations and denials which it is not necessary to mention here.

Upon the trial a verdict was found by the jury under the direction of the court in favor of the plaintiffs on the first cause of action and in favor of the defendant as to the second and fourth causes of action, and no proof having been ordered as to the third cause of action the court dismissed the same upon the motion of the defendant. A verdict was found for the defendant upon the counterclaim for the sum of $2,500, leaving a balance of some $884: in favor of the defendant over and above the amount of rent found to be due.

After 'the rendition of the «verdict and before judgment the defendant died and the action was revived in the name of the present defendant as his executrix, and a motion having been made for an extra allowance, an allowance of $500 was granted to the defendant, and a similar motion upon the part of the 'plaintiff was denied, and a motion having been made for a new trial, the same was denied, and from .said judgment and orders in respect to the extra allowance and denying the motion for new trial this appeal is taken.

Upon the trial the defendant offered proof under his cause of action to recover upon the guaranty mentioned in his answer, showing the commencement of various litigations in respect to the property mentioned in the lease, and also claimed to recover and did recover, by the verdict of the jury, compensation for the time spent by him in respect to these various litigations.

It was insisted upon the trial, and is now urged by the appellants, that the defendant’s claim for damages under the guaranty was not the proper subject of a counterclaim because the guaranty was made by the plaintiffs as individuals only, whereas the causes of action set out in the complaint were in favor of the plaintiffs as trustees as well as individuals*

"We ihink that an examination of the instruments in question will show that this contention is without foundation, and that in the guaranty of January 19, 1882, made after the revocation of the power of attorney, the plaintiffs bound themselves in both capacities in which they seek to maintain this action. The guaranty commenced with the recital “Whereas * * * Gerard Beekman and J ames W. Beekiaan * * * as trustees of the estate of J ames W. Beekman, deceased, and as individuals did grant, etc. And whereas * * * the said Yan Dolsen at our request *■ * * did appoint said William C. Brainerd and George S. Thompson, etc. And whereas * * * we did revoke and annul the said guaranty, etc. Now, therefore, in consideration of the premises we jointly and severally request the said Yan Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises and in consideration of the premises and one dollar, we hold ourselves responsible for any cost or damages which may be incurred by the said Yan Dolsen in treating according to law the said George S. Thompson as a trespasser,” etc.

It is clear that the grantors described in the recitals of the instrument were the plaintiffs as trustees and as individuals and the use of the words “ we ” and “ us ” throughout the instrument refer clearly to this recital. Such being the case, it would seem that there was an attempt upon the part of the plaintiffs to bind themselves in both capacities and that it was not intended to be simply an individual obligation, and that this was the intention and understanding of these plaintiffs is apparent when we read the guaranty of the 2d of December, 1880, given to Yan Dolsen as to the acts of Brainerd and Thompson performed under the power of attorney. That reads, “Whereas the said Abraham Yan Dolsen has at our request, as mdwiduals, by a duly, executed power of attorney appointed,” etc. “ Now these presents witness that we, * * * as widim-dmals only, in consideration of the foregoing premises, * * * do hereby agree,” etc.

The wording of this instrument clearly shows that when the plaintiffs intended to bind themselves only as individuals they were in no doubt as to what language to use. But in the subsequent instrument which forms the basis of the counterclaim, they referred to themselves as trustees and individuals, and without any attempt to separate their interests executed the instrument. We think that it was plain that there was an intention upon the part of these plaintiffs to bind themselves by this guaranty in the same capacities in which they had executed the lease.

It is further claimed that the defendant could counterclaim under the guaranty what would bé only the amount in which he was legally damnified, and not the amount for which he was legally liable, and that no proof of such damage was offered. It is urged that the law is settled in this State that where the guaranty is against any liability then the costs and legal damages which may have been incurred may be recovered, but where the contract is a guaranty against damage or a guaranty against loss, actual damage or actual loss must be shown before a recovery can be had.

But it seems to us that applying the rule above claimed, the point urged is not well taken. The guaranty is not against damage which may be suffered, but against cost and damage which may be incurred. Suffered means paid; incurred means become liable for.

The language is “ we hold ourselves responsible for any costs and damages which may be incurred by said Yan Dolsen; ” not, “ which he may suffer; ” and the purport of the language is the same as though it read “which he may become liable for;” because the incurring of a liability does not necessarily mean that such liability has been paid. This guaranty, therefore, seems to be an indemnity against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered.

We think, however, that the objection that the defendant was allowed to recover the value of personal services in these proceedings against Thompson was well taken. The guaranty did not contemplate indemnity for personal loss of time. It was against all costs and damage which might be incurred by him; and it seems to us that it is plain that these terms referred to liabilities and not to personal claims for services rendered. Costs and damage incurred do not seem to refer to claims for personal services, but rather to expenses and obligations incurred to others in carrying out the request of the guarantors.

The appellant also claims that the defendant was allowed to recover for counsel fees and disbursements incurred in treating Thompson as a trespasser in excess of the terms of the guaranty, and that the various litigations which were commenced against Thompson and his licensees or lessees, were not such as were contemplated by the guaranty! Various of these suits were brought to recover for the use of the premises by lessees of Thompson, and also against Thompson for the misappropriation of certain wharfages received prior to the date of the guaranty in question. These do not seem to be legitimate items of damage under the terms of the guaranty. It would seem to have been the intention and the scope of the guaranty that Van Eolsen should be indemnified in his attempts to eject Thompson as a trespasser from the premises; which is manifested by the recital that Thompson “continues to enter upon the said demised premises notwithstanding the said revocation and contrary to the wishes of said Van Eolsen.” It had no relation, therefore, to monetary claims of the defendant against Thompson and his lessees, whatever may have been the claim of the defendant under the instrument of Eecember 2, 1880, which was executed by the plaintiffs, as individuals only.

Several other exceptions have been called to our attention, some of which seem to be well taken, but in view of the fact that a new trial must be had, it is not necessary to discuss them.

Ve are of opinion that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event, and that the order in respect to an extra allowance should be affirmed, without costs.

Follett and O’Brien, JJ., concurred.

Judgment and order reversed and a new trial ordered, with costs to appellant to abide event, and the order in respect to an extra allowance affirmed, without costs.