author: BRADLEY, J.:

text:
    Harvey A. Sweetland, Plaintiff, v. Franklin S. Buell, Individually and as Executor, etc., of Jonathan S. Buell, Deceased, and Others, Defendants.

      Sale under an execution on a judgment in 1819 — not essential that the judgment he docketed— a tenant in common not permitted to purchase an outstanding title for his benefit alone — possession of one tenant in common is the possession of all — when tenants in common are ousted by the act of their co-tenant.

    By the statute of the State of New York in force in 1819 (1 B. L. 500, 501) the docketing of a judgment was not essential to the validity of a sale of the land of a judgment' debtor by virtue of an execution issued thereon, but no judgment which had not been docketed could “affect any lands or tenements as to purchasers or mortgagees.” The undocketed judgment, however, was a lien upon the land of the judgment debtor and in equity had priority as against a purchaser or mortgagee having notice of such lien when he made the purchase or took his mortgage.
    The expression of a consideration in a' deed is within the Becording Act pi'ima facie evidence that the purchase was for a valuable consideration.
    A tenant in common of real, estate will not be permitted to purchase an outstanding title to such real estate exclusively for himself, but as between himself and his co-tenants such purchase inures also to the benefit of his co-tenants, and they will be chargeable with their proportionate share of the expense of such purchase.
    The possession of one tenant in common is in a legal sense the possession of all of them, until such tenant in common assumes a possession and control notoriously hostile to such relation to his co-tenants, and assumes to have the exclusive right to the premises.
    Where one tenant in common with others assumes to sell and convey the entire estate in the premises so owned, and apparently does so by warranty deed, and his grantee takes such conveyance as such and goes into possession claiming title to the whole, the possession thus taken "by the grantee and held hy him may be treated as an ouster of the co-tenants and constitutes an adverse possession, which by its continuance for the requisite time will ripen into a title against the other tenants in common.
    MotioN by the defendants, Franklin S. Buell, individually and .as executor, etc., of Jonathan S. Buell, deceased, and others, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Erie Circuit on the 4th day of January, 1895.
    The action was originally commenced against Jonathan S. Buell, who died during its pendency, and the action was continued against the present defendants, the executors of his will and his heirs and devisees.

      Clark H. Timerman, for the plaintiff.

      George Wadsworth, for the defendants Franklin S. Buell and others.
   BRADLEY, J.:

The plaintiff seeks to compel the determination of a claim made by Jonathan S. Buell, the original defendant, to certain real property in the city of Buffalo to which the plaintiff alleges title in himself.

The lot in question is part of a tract of land of which Elijah Holt became the owner prior to 1819. On the fifth day of February of that year one Heacock recovered in the Niagara Court of Common Pleas a judgment against Holt for $310, upon which judgment a fieri facias was issued to the sheriff, tested June 5, 1819. In the sheriff’s deed of date April 12,1820, it is recited that by virtue of that execution and another issued on a judgment against Holt and one Cotton, and tested February 12, 1820, he seized the land and sold it to Asa Nice and Joseph Clary, ‘‘'said Asa and Joseph being executors of John .Dill of Otsego county, deceased, for the sum of $320.” Such recitation is followed by a grant to Nice and Clary of all the estate, title and interest which Elijah Holt had in the premises on the 5th day of February, 1819. At the time of the sheriff’s sale Nice and Clary were partners in business in the village of Buffalo, and, although they were executors of the will of Dill, it may be assumed that by the purchase they became tenants in common of whatever estate in the premises was conveyed by the-sheriff’s deed. Asa Nice died in 1823, leaving three children, John. D., aged eleven years, Norman C., aged live years, and Henry, aged, three years.

A warranty deed of date February 5,1819, expressing a consideration of $1,887.50, and recorded February 6, 1819, was made of the premises by Elijah Holt to Williams Holt, who, by warranty deed of date of October 17, 1829, expressing a consideration of $200, and recorded same day, conveyed premises, including those in question,, to Joseph Clary.

By the statute as it then was the docketing of a judgment was’* not essential to the validity of a sale of land by virtue of an' execution issued upon it, but it provided that no judgment which had not been docketed should “ affect any lands or tenements as to purchasers or mortgagees.” (1 R. L. of 1813, chap. 50, pp. 500, 501, §§ 1, 3.) The undocketed judgment, however, was then a lien, and in equity had priority as against a purchaser or mortgagee having; notice of it when he made the purchase or took liis mortgage. (Buchan v. Sumner, 2 Barb. Ch. 165.)

The Heacock judgment against Elijah Holt was not docketed.. Aud, assuming that the judgment was entered prior to the delivery of the deed by the latter to Williams Holt, it did not affect the. latter if he was a purchaser without notice of the judgment. The expression of consideration in the deed is, within the Recording Act, prima facie evidence that the purchase was for a valuable.consideration. (Hendy v. Smith, 49 Hun, 510; Wood v. Chapin, 13 N. Y. 509.)

And, as there is no evidence that Williams Holt had any notice of' the judgment when he took the conveyance, it cannot be assumed, that he then had notice of it. (Jackson ex dem. Bristol v. Elston, 12 Johns. 452; Dey v. Dunham, 2 Johns. Ch. 182; Brown v. Volkening, 64 N. Y. 76.)

The apparent situation, as represented by the record of the deed of Elijah Holt to Williams Holt, was such as to give apprehension that the title might have been conveyed by such deed to the latter. Such was the effect if it was made and taken in good faith for a, valuable consideration. And, therefore, it was desirable to obtain a conveyance from that grantee in support of the title derived from the sheriff’s deed. In view of his relation as tenant in common with the heirs of Asa Nice, Clary was not permitted to purchase the outstanding title exclusively for himself; but, as between him and them, such purchase inured to their benefit also, and they were chargeable witli their proportionate share of the expense of it. (Van Horne v. Fonda, 5 Johns. Ch. 388; Burhans v. Van Zandt, 7 N. Y. 523; Carpenter v. Carpenter, 131 id. 101.)

But Clary evidently did not contemplate any benefit to the heirs •of Asa Nice by his purchase from Holt, as he had before then by warranty deed of date September 13, 1828, recorded November 5, 1828, and expressing a consideration of $1,340, conveyed the premises covered .by the sheriff’s deed, to Martin Koebel and Adam Pforter. Pforter conveyed to Martin Koebel an undivided half of the premises by warranty deed of date December 31,1828, recorded March 14, 1868, expressing a consideration of $1,600. Martin Koebel conveyed the premises to Philip Koebel by warranty deed of date August 1, 1864, recorded February 27, 1868, expressing a -consideration of $2,500.

The land conveyed by all those deeds was a tract of many acres, and in it was included the premises in question. As early as 1829 the grantees in the deeds had actual possession of the land ; occupied and worked it for farming purposes, raising crops upon it annually until it was conveyed by Philip Koebel to Elam N. J ewett by warranty deed of date 'September 7, 1868, and recorded September 10, 1868, expressing a consideration of $6,000 ; and after such conveyance the land was occupied and worked for agricultural proposes under and by Jewett until after his conveyance of it to the Parkside Land Improvement Company, which was made by deed of date November. 1,1885, recorded March 16, 1886, expressing a consideration of $44,148.. This company having possession of the land, after-wards, in 1888, divided it up into lots, laid out streets, graded it and put the lots on the market. And in May, 1892, the- company conveyed to the plaintiff one of the lots, which is the land.in question, by deed recorded May 24, 1892. ITe, thereupon, went into possession of the lot. It is true, as assorted on the part of the defendants, that the possession of one tenant in common is, in the legal sense, the possession of all of them, until he assumes a possession and control notoriously hostile to such relation to his co-tenants, and assumes to have the exclusive right to the premises; and it is also true that he cannot convey their interest in the property.

But when one tenant in common assumes to sell and convey the entire estate in the premises and apparently does so by warranty deed, and his grantee takes it as such and goes into possession claiming title to the whole, the possession thus taken by the grantee and held by him, may be treated as an ouster of the co-tenants and it constitutes an adverse possession, and by its continuance for the requisite time will ripen into a title as against them. (Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 3 id. 545; Florence v. Hopkins, 46 N. Y. 186; Baker v. Oakwood, 123 id. 16.)

The conclusion was warranted by the evidence that the premises, including the lot in question, were in the actual possession of the grantees under the deeds purporting to convey the entire estate, and that they took the conveyances, and, treating the grants as of that effect, held the possession, claiming title to the whole continuously for more than fifty years, and for more than forty years since the youngest heir of Asa Nice arrived at the- age of twenty-one years. By this state of facts the survivors of those heirs were concluded from effectually asserting a claim to any estate in the premises, and their deed of conveyance made in 1892 to Jonathans. Buell was ineffectual to support any claim thereto in behalf of him or of the defendants who succeeded him in-title to his estate. And it is not necessary to inquire whether there was any question of fact arising upon the evidence as to the adverse possession, since the questions presented at the trial were there treated by counsel as those of law only. (Kirtz v. Peck, 113 N. Y. 222; Winchell v. Hicks, 18 id. 558.) Although Franklin S. Buell and Kate M. Buell, as executors of Jonathan S. Buell, deceased, were not devisees in trust of any estate, they were, by the will of their testator, given power of sale. It seems that they by default permitted the granting of the order bringing them in as defendants for the purpose of the continuance of the action after the death of the original defendant.

They have not alleged any disclaimer by answer, and individually were necessary parties defendant.

There is no occasion furnished on this review to consider any question bearing upon their relation as such personal representatives to the action.

The motion for a new trial should be denied.

Ward and Lewis, JJ., concurred.

Motion for new trial denied and judgment directed for the plaintiff on the verdict, with costs payable out of the estate of Jonathan S. Buell, deceased.


source: Caselaw Access Project

author: Beadley, J. :

license: Public Domain

text:
    Lyman M. Otis, Respondent, v. George W. Crouch and Frank P. Crouch, Appellants.

      Assignee for creditors — overpayment to a preferred creditor — decree of a Oounty Court on an accounting, when not a bar to a recovery of the overpayment — jurisdiction of County Court — equity.

    In a proceeding for an accounting instituted in a County Court by an assignee for the "benefit of creditors, it appeared that the assignee had made advances to a firm (one of the preferred creditors under the assignment) exceeding its pro rata share, and the decree made in such proceeding directed the assignee to pay the amount of such excess to another creditor preferred under the assignment.
    In an action subsequently brought in the County Court by the assignee in his own name to recover from such preferred creditors who had been paid in excess of their pro rata share the amount so overpaid, the complaint alleged that after the entry of the decree of the County Court the assignee had paid to the creditor named in such decree the sum directed to be paid by such decree, and demanded restitution from the defendants of the amount overpaid to their firm, which was refused. The jury found that the plaintiff, as assignee, had made advances to the defendants, and that the last advance made by him was made with the express understanding that if such sum overpaid' the amount to which they were entitled it should be adjusted on the final settlement.

      Held, that the decree of the County Court on the accounting was consistent with the claim made by the plaintiff in the subsequent action, and was not a bar to his recovery in such action;
    That the subsequent action was, in its nature, for money had and received, and, although it might be equitable in its purpose and effect, the question to be determined was to which party the money belonged; that such action was a common-law action, and that the County Court had jurisdiction of the subject-matter thereof.
    Appeal by the defendants, George "W. Crouch and another, from a judgment of the Monroe County Court in favor of the plaintiff, entered in the office of the clerk of tbe county of Monroe on the 22d day of April, 1895, upon the verdict of a jury rendered after a trial at the Monroe County Court, and also from an order entered in said clerk’s office on the 22d day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought by the plaintiff as assignee for the benefit of the individual and firm creditors of Yan Roe & Spitz to recover a sum of money paid by the plaintiff to the defendants, as creditors of such firm, in excess of their jpro rata share in the assigned estate.

      H. G. Pierce, for the appellants.

      F. E. Drake, for the respondent.
   Beadley, J. :

The plaintiff was the assignee for the benefit of the creditors of Yan Roe & Spitz as a firm and of the individual members thereof. The firm of Chase & Otis, of which the plaintiff was a member, and the defendants’ firm were preferred creditors, the former to the amount of $2,102.84 and the latter firm .in the sum of $3,198.09, and they were entitled to participate in the assigned estate applicable to them as preferred creditors in that ratio.

It turned out that the estate was not sufficient to pay them in full, and that the advances made by the assignee to the defendants exceeded by $278.77 the amount to which they were entitled. This was determined by the decree of the County Court in an accounting of the assignee duly had upon notice to all parties interested in it; and by the decree of the court made on that accounting the assignee was directed to pay that sum to Chase & Otis, or the survivor of them. Chase had died and the plaintiff was the survivor. He alleges that he thereupon so paid that sum and demanded restitution of the defendants, which was refused. By this action he seeks to recover the amount so overpaid to them. He gave evidence to the effect that he, as assignee, made advances to the defendants; that the last advance he made to them was of $1,000 ; and that when he was called upon by one of the defendants and requested to do so, he did it with the express understanding, then had between them, that if such sum overpaid the amount to which they were entitled it should be adj usted on the final settlement. There was a conflict in the evidence of the pai'ties as to such agreement. But that question of fact was submitted to the jury and determined adversely to the defendants.

The main grounds of defense urged by the defendants are:

(1) That the decree in the proceeding for settlement cf the accounts of the assignee is a bar to any recovery.
(2) That the relief sought by the action is available only in equity, and that, therefore, the County Court is without jurisdiction to grant it.

The first objection is founded upon the fact that in proceedings relating to assigned estates for the benefit of creditors the County Court has general jurisdiction, and can exercise the powers of a court of equity in dealing with the subject of the trust. (Laws 1877, chap. 466, § 25.)

And it is urged that the forvm% was there and in that proceeding for the plaintiff to obtain directions, for restitution if he was entitled to it from the defendants. No such pro\ ision was made in the decree, although it was within the power of the County Court to direct by it the repayment of the sum before mentioned by the defendants to the plaintiff if the question was there presented for determination. (Matter of Morgan, 99 N. Y. 145.)

In relation to the sum in question the decree determined that the defendants had received from the assignee such amount in excess of that to which they were entitled; that the assignee was chargeable with that sum as if it still remained in his hands and he was directed to pay it to the survivor of the firm of Chase & Otis. Thus far the rights of the jiarties were determined by the decree of the County Court. The question is whether beyond that, as relates to the right of the plaintiff to enforce restitution to him, the decree is res adyudioata within the general rule that the judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, but as to all matters which the parties might there have litigated and had determined. The application of that proposition has relation to the case or issues presented for trial or determination. (Stowell v. Chamberlain, 60 N. Y. 272; Bell v. Merrifield, 109 id. 202; Hymes v. Estey, 116 id. 501.) Although the decree contained no direction in that respect, the facts presented by it were substantially to the effect that the defendants were not, and that the plaintiff was, entitled to the money. (Lupton v. Lupton, 2 Johns. Ch. 614; Walker v. Hill, 17 Mass. 380; Matter, etc., Morgan, 99 N. Y. 147.) The decree is, therefore, consistent with the claim made by the plaintiff in this action, and no reason is seen iii the omission from the decree of a direction to do so for relieving the defendants from liability to make restitution to the plaintiff.

In the proceeding instituted by him for an accounting as assignee the plaintiff was not required to include his claim against the defendants for determination, nor does it appear by the petition upon which the proceeding was founded that he did so. Although he might have done it and did not, he had the right of action for such relief on the refusal of the defendants to pay the money. This was held in the Morgan case. As his election of remedy by action is not inconsistent with the matters determined by the decree of the County Court, the adjudication there had is no bar to the action.

Nor is there any want of jurisdiction in the County Court for the purposes of the remedy. The action in its nature is for money had and received, and it may be equitable in its purpose and effect. The question to be determined in such case is to which party, according to equity and good conscience, the money in question belongs. And while such an action may in some sense be deemed a substitute for an equitable one, it is nevertheless a common-law action. (Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 id. 488; Buel v. Boughton, 2 Den. 91; Cope v. Wheeler, 41 N. Y. 303; Hathaway v. Town of Cincinnatus, 62 id. 434, 447.)

The action is not here treated as one to modify the decree of the County Court, or for relief contrary to it. It could not be maintained if the relief sought were inconsistent with any determination duly made by that decree. But as the recovery by the plaintiff of' the defendants of the money by way of restitution was collateral to the main purpose of the accounting proceeding, it was not, so far as appears, necessarily in legal contemplation within the operation of the decree, since the jurisdiction of the County Court, in respect to the matter in controversy in the action, was not exclusive.

In the Morgan case the matter in question was taken into the County Court for the specific purpose of having a determination upon it and a direction made accordingly. (34 Hun, 217.)

The views here taken lead to the conclusion that the judgment and order should be affirmed.

Lewis and Ward, JJ., concurred.

.Judgment and order affirmed.


author: Bradley, J.:

text:
    Edward C. Burns, Individually and as Executor, etc., of Charlotte O. Black, Deceased, and Walter S. Harsha, as Executor, etc., of Charlotte O. Black, Deceased, Respondents, v. Augustus F. Allen and Alfred D. Allen, Infants, by Virginia M. Allen, their General Guardian, Appellants; Melita Black and Another, Respondents, Impleaded with Others.
    Will— when legacies ewe not changeable upon real estate — dependent and independent clauses ■— suspension of the power of alienation.

    'The general rule of construction is that an estate in remainder is vested rather than contingent unless something appears in the instrument to indicate that the ■ intent of the donor was otherwise.
    The will of a testatrix contained the following provisions:

      “ Mrst. After all my lawful debts are paid and discharged, I give and bequeath to my nephews, Augustus F. Allen and Alfred D. Allen, the sum of one thousand dollars each. * ® *”

      “Fourth. I give and bequeath to Edward 0. Burns, for the term of his natural life, and in case of his death to Mary G. Burns, as long- as she shall remain a widow, the use of my house and lot, on the corner of Fifth and Spring streets in the city of Jamestown, New York, together with the use of my household furniture. On the completion of the life tenancy as above, I direct the aforesaid house and lot and household furniture to be held in trust for my adopted daughter, Melita Black, and Isabella S. Burns, or the survivor of them.”

      Seventh. I give to my executor or executors hereafter named all my interest in the wheat farm of the Brown Bros, (and other real property) subject to the conditions of the preceding clause. All of said enumerated property, together with the rest, residue and remainder of my estate of every kind whatsoever, to be held in trust for my adopted daughter, Melita Black (with power of sale). The income arising from said trust estate, or so much thereof as may be necessary, to be used in the education and support of Melita. Directing and authorizing my said executor or executors, however, from said trust estate, to provide a sufficient sum to afford Isabella S. Burns like educational advantages as •are afforded to Melita. Should the income of said trust estate be insufficient to -carry out this provision of this clause, then so inuch of the principal may be used as may be necessary for that purpose. Should Melita marry without the fall consent of Edward 0. and Mary G-. Burns, then only so much of the income arising from said trust estate be paid her as shall be absolutely necessary for her support.

      “Eighth. Should Melita die without leaving issue, I direct that the aforesaid trust estate be divided equally between my nephews, Augustus E. Allen and Alfred D. Allen, and Isabella S. Burns, or the survivors of them.
    ‘ Ninth. Should Melita leave children surviving her, I direct that the said estate be held in trust for said child or children until the youngest of said children reaches the age of twenty-one years. The estate then to be divided equally between such children, and, in case none of said children reaches the age of twenty-one years, the remainder of said estate to be divided as provided in the preceding clause.”
    In an action brought to obtain a judicial construction of said will the only evidence relating to the personal estate of the testatrix was the testimony of one of the executors of the will, who testified that at the death of the testatrix “there was not enough personal property of the testatrix to pay her debts, to the best of my belief; ” there was no evidence given of the nature of her personal estate at the time the will was made, nor of the extent or value of it other than such inference as was derivable from the testimony of such executor; the will was made in September, 1886, and the testatrix died the following January.

      Held, that it did not appear to have been the intention of the testatrix to make the legacies bequeathed in the first clause of her will a charge upon her real estate;
    That the disposition of the property by the provisions of the fourth clause of the will, so far as it related to the beneficiaries therein mentioned, was independent of the other provisions of the will; that the suspension of alienation of the estate therein referred to terminated with the tenancies of Burns and his wife, and that the power of alienation of the real estate and the absolute ownership of the personal property therein mentioned was not unlawfully suspended thereby;
    That by the provisions of the seventh clause a valid trust was created, and for the purpose of its execution, as in said clause provided, they were complete and independent of the provisions of the will which follow;
    That while the devolution of the estate in the events mentioned in the eighth and ninth clauses of the will was within the scheme which the testatrix had in view, the seventh and ninth clauses were not so united as to render the execution of the trust contained in the seventh clause in any sense dependent upon the validity of the trust created by the ninth clause.
    Appeal by the defendants, Yirginia NX. Allen, as general guardian, ete., of Augustus F. Allen and another, and Augustus F. Allen an! another, by their guardian, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 30th day of Januai-y, 1895, upon the decision of the court rendered after a trial at the Chautauqua Special Term.
    The purpose of the action was to obtain a judicial construction of the will of the plaintiffs’ testatrix. And the controversy had relation to the first, fourth, seventh, eighth and ninth clauses of the will, which were as follows:

      “First. After all my lawful debts are paid and discharged, I give and bequeath to iny nephews, Augustus F. Allen and Alfred D. Allen, the sum of one thousand dollars each ($1,000), said sums to be expended upon their education, and for no other purpose whatever. In case either or both of said nephews should die before the above-mentioned sum or sums are expended as directed above, I direct that the sum or sums be given to Isabella S. Burns, daughter of Edward C. Burns.”

      “Fourth. I give and bequeath to Edward C. Burns, for the term of his natural life, and in case of his death to Mary Gr. Burns, as long as she shall remain a widow, the use of my house and lot, on the corner of Eifth and Spring streets in the city of Jamestown, New York, together with the use of my household furniture. On the completion of the life tenancy as above, I direct the aforesaid house and lot and household furniture to be held in trust for my adopted daughter, Melita Black, and Isabella S. Bums,, or the survivor of them.”

      “ Seventh. I give to my executor or executors hereafter named all my interest in the wheat farm of the Brown Bros. & Preston Company, Blanchard, Trail county, Dakota; my land in Lansing, Michigan ; fifty-five (55) and one-half acres of land in Dexterville or East Jamestown; the £ homestead,’ subject to the conditions of the preceding clause. All of said enumerated property, together with the rest, residue and remainder of my estate of every kind whatsoever to bo held in trust for my adopted daughter, Melita Black, giving to my said executor or executors full power to sell any or all of said real estate or corporate interest at public or private sale at such time and upon such terms as they may deem best in the peaceful execution of their trust, and to give good and sufficient deeds for the same. The income arising from said trust estate, or so much thereof as may be necessary, to be used in the education and support of Melita. Directing and authorizing my said executor or executors, however, from said trust estate, to provide a sufficient sum to afford Isabella S. Burns like educational advantages as are afforded to Melita. Should the income of said trust estate be insufficient to carry out this provision of this clause, then so much of the principal may be used as may be necessary for that purpose. Should Melita marry without the full consent of Edward C. and Mary G-. Burns, then only so much of the income arising from said trust estate be paid 'her as shall be absolutely necessary for her support.

      “ Eighth. Should Melita die without leaving issue, I direct that the aforesaid trust estate be divided equally between my nephews, Augustus F. Allen and Alfred D. Allen, and Isabella S. Burns, or the survivors of them.
    “ Ninth. Should Melita leave children surviving her, I direct that the said estate be held in trust for said child or children until the youngest of said children reaches the age of twenty-one years. The estate then to be divided equally between such children, and, in case none of said children reaches the age of twenty-one years, the remainder of said estate to be divided as provided in the preceding clause.”
    The trial court determined that the legacies mentioned in the first clause were not a charge upon any of the real estate left by the testatrix; that by the fourth clause . an estate in remainder was devised to Melita Black and Isabella S. Burns as tenants in common, or to the survivor of them; that by the provisions of the seventh clause a valid trust was created, and that in the event mentioned in the eighth clause the persons there mentioned, or the survivors or survivor of them, would take the estate there referred to.

      A. C. Wade and Noah Davis, for the appellants.

      Robert G. Shaw and George Barker, for respondents Melita Black and Isabella S. Burns.

      Stillman F. Kneeland, for plaintiffs, respondents.
   Bradley, J.:

The legacies bequeathed to the appellants are not expressly charged upon the real estate of which the testatrix died seized by any provision of the will, nor does it furnish any indication of her intent to that effect. (Matter of City of Rochester, 110 N. Y. 159; Brill v. Wright, 112 id. 129; Morris v. Sickly, 133 id. 456.)

But it is urged that extrinsic circumstances appeasing by the evidence required the conclusion that the intention of the testatrix was that those legacies should be a charge upon the realty. If that contention is supported they are entitled to that advantage. (McCorn v. McCorn, 100 N. Y. 511; Briggs v. Carroll, 117 id. 288.)

The appellants were nephews of the testatrix, and at the time of her death they were her only heirs and next of kin. Her will was made in September, 1886, and she died in January following.

The intention in that respect, so far as it is to be ascertained by extrinsic facts, is dependent upon the circumstances as they existed and appeared at the time her will was made, and to thus establish the charge of the legacies upon the real estate it must clearly appear that the intent of the testatrix to make them so was manifested. Such intention may be inferred where it appears that the personal estate of the testator, at the date of his will, is largely and clearly insufficient to pay the legacies, and that the testator must have then known and understood that their payment could not be made without the aid of the real estate.

In Briggs v. Carroll (supra) it was said, in the opinion of the court delivered by Judge Finch, that “ the deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or ‘that he may have expected and intended before his death to remove the difficulty.”

In the present case the only evidence relating to the personal estate of the testatrix is in the testimony of the person who is an executor of the will, that “ there was not enough personal property of the testatrix to pay her debts to the best of my belief.” This statement was made in reference to the personal estate after the death of the testatrix and in view of the debts as they then existed. There is no evidence of the nature of her personal estate at the time the will was made, nor of the extent or value of it other than such inference as is derivable from that before mentioned. This is not sufficient to fairly require the conclusion that, four months before her death, there was an obvious deficiency of personal property to pay the legacies in view of her debts as they then existed. It, therefore, does not appear to have been the intention of the testatrix to make those legacies a charge upon the real estate.

In the view taken of the fourth clause of the will the contention, that, by its provisions, the power of alienation of the real estate and the absolute ownership of the personal property therein mentioned are unlawfully suspended, is not sustained.

The purpose of the testatrix evidently was, that Edward 0. Burns,, during his life, and Mary G-. Burns, if she survived him, so long as-she remained his widow, should have the use of the property, and the limitation over was to the use of JVIelita Black and Isabella S. Burns, without the creation of any trust by that clause of the will. If the use were restricted to the income it may be that the executors, although not named in that connection, might be treated as the trustees without the expression of any devise to them, and a trust deemed created within the statute. (1 R. S. 729, § 55.) But the provision in that clause giving Melita and Isabella the beneficial, enjoyment of the remainder of the estate in that property without, the intervention of any recognized trust in another, gave to them the estate in remainder, not cut down by the declaration of a mere-passive or náked trust. (1 R. S. 727, 728, §§ 47, 49.) And such must be deemed the legal effect of the devise to them unless there is elsewhere in the will some qualification of the provisions of the fourth clause in that respect. (Rawson v. Lampman, 5 N. Y. 456; Syracuse Savings Bank v. Holden, 105 id. 415; Greene v. Greene, 125 id. 506.)

The disposition of this property, by the provisions of the fourth clause, so far as relates to the beneficiaries there mentioned, seems to be independent of the other provisions of the will, and, therefore, the suspension of alienation of the estate therein referred to terminates with the tenancies of Burns and his wife.

The trial court determined that the devise of the remainder to Melita Black and Isabella S. Bums, or to the survivor of them, is to take effect as of the time of the termination of the prior estates. If it were necessarily here, the question whether or not the estate in remainder vested in the persons last named at the time of the death of the testatrix would be worthy of some consideration. The general rule of construction is that an estate in remainder is vested. rather than contingent unless something appears in the instrument to indicate that the intent of the donor was otherwise. (Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118; Kelly v. Kelly, 61 id. 47; Matter of Mahan, 98 id. 372; Nelson v. Russell, 135 id. 137; Jennings v. Barry, 5 Dem. 531.)

By the seventh clause the executors take the property there referred to in trust for IVIelita Black, and in execution of such trust are to apply the income of that estate, or so much of it as may be necessary, to her education and support. They are also directed to use sufficient of the income to give Isabella S. Burns like educational advantages, and if the income is not sufficient, they are to appropriate so much of the corpus of the fund to these objects as may be necessary for such purposes. To this, standing alone, there can be no objection going to its validity. The eighth clause follows, giving directions for the ultimate disposition of this trust estate in the event that IVIelita Black dies without issue. Thus far there is no illegal suspension of alienation or ownership of the estate.

But it is urged that the seventh and eighth clauses are rendered invalid by the provisions of the ninth clause, which is to the effect that if Melita leaves children surviving her the estate is to be held in trust until the youngest of them arrives at the age "of twenty-one years, when it is to be divided between them. There might be some force in this contention if the provisions of the seventh clause were dependent upon those of the ninth clause. (Rice v. Barrett, 102 N. Y. 161.)

But they are not. The provisions of the seventh clause created the trust, and for the purpose of its execution as there provided they are complete and independent of those which follow. While the devolution of the estate in the events mentioned was within the scheme which the testatrix. had in view, when she made the several provisions of her will, those of the seventh and ninth clauses are not so united as to render the execution of the former in any sense dependent upon the validity of the latter. (Savage v. Burnham, 17 N. Y. 561; Kennedy v. Hoy, 105 id. 134.)

The question of the validity of the ninth clause had no consideration by the trial court, and none is necessary to the result on this review.

The judgment should be affirmed, with costs of this appeal to the respondents payable out of the estate.

Davy, Ward and Lewis, JJ., concurred.

Judgment affirmed, with costs to the respondents payable out of the estate.


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    William N. Goodall, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Contributory negligence — an employee remaining unnecessarily on railroad tracks.

    Upon the trial of an action brought to recover damages for injuries resulting from alleged negligence, it appeared that the plaintiff was in the service of the Grand Trunk railway in the defendant’s switch yard; that a track in such yard was used exclusively by the Grand Trunk railway for making up its trains, and that for such purpose cars were switched on to that track by the engines of the defendant, and the trains thus made up were drawn away by the engines of the Grand Trunk railway; that before the trains were taken out of the yard it was the business of the plaintiff to take notes of the seals, numbers and initials of the cars so to be taken away, and a card was put on each car by another man who accompanied him.
    The direction of the track was east and west, and on the occasion of the accident the plaintiff commenced on the north side of the west end of a train to which no engine was then attached and proceeded east to the end of the train, checking as he went, and then went back on the south side. When he approached the west end of the train he noticed that an engine and two cars had been attached to the train at that end; taking a note of the numbers and initials on the south side of these cars he passed around the engine to the north side, where he observed the seals and moved back north to look at the numbers and initials of the two cars, in doing which he stepped upon another track and was struck by a switch engine of the defendant moving westerly.
    The plaintiff testified that he did not hear the engine as it approached, and there was evidence tending to prove that while it was the custom in the yard to ring the bells of the engines when they proceeded to move in any direction, the bell upon the engine which struck the plaintiff was not rung on that occasion, and that the engineer was not looking in the direction in which his engine was moving. The distance between the track occupied by the Grand Trunk train and the track north of it was seven and a half feet, and the projection of that train over the line of the rail was two feet; the evidence of the plaintiff was to the effect that he was required to step back from the train to get the numbers and initials on the cars, and that before he did so he looked east and saw the engine standing at a place 366 feet from where he was. The man who was with the plaintiff when he went, around to the north side of the train at the west end left him to get cards to put on these cars, and when he had gone easterly aboi.t 180 feet he met the engine which was slowly moving west, and he then shouted, with no apparent effect upon the plaintiff. The time that the plaintiff occupied in taking note of the numbers and initials of the two cars appeared to have been longer than was necessary.

      Held, that if the performance of his duties required the plaintiff to step upon the track north of the train his doing so did not charge him with negligence if there was then no apparent danger to be apprehended, but that the track was not a place at which he should remain after he had accomplished what his position there fairly required of him;
    That the evidence did not fairly permit the conclusion that he had used the reasonable care required of him under the circumstances, and that he was guilty of contributory negligence.
    MotioN by the plaintiff, William N. Goodall, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint directed by the court after a trial at the Niagara Circuit before the court and a j™y-
    The action was brought to recover damages for personal injuries resulting from the alleged negligence of the defendant by reason of which the plaintiff was struck by one of defendant’s engines.

      W. E. Willey, for the plaintiff.

      Charles A. Pooley, for the defendant.
   Bradley, J.:

The plaintiff was in the service of the Grand Trunk Railway Company in the defendant’s switch yard in the city of Niagara Falls. A track in the yard was used exclusively by the Grand Trunk Company for making up its trains, on to which track for that purpose cars were switched by the engines of the defendant, and the trains thus made up on that track were drawn out and across the river by the engines of the Grand Trunk Company, but, before taking the trains out of the yayd, notes of the seals, numbers and initials of the cars were taken. It was the business of the plaintiff to do this. He was termed the car-checker, and a card was put bn each car by another man who accompanied him in the service.

On March 22, 1894, while engaged in doing this, the plaintiff was struck by an engine of the defendant and injured.

The direction of the track is east and west. On the occasion in question the plaintiff commenced on the north side at the west end of the train (no engine being then attached to it), and proceeded east to that end of it, checking as he went, and then went back on the south side. "When he approached the west end he observed that an engine and two cars had been attached to the train at that end; he took a note of the numbers and initials on the south side of those cars and passed around the engine to the north side. He observed the seals and moved back north to look at the numbers and initials, of the said two cars, and, in doing so, he stepped upon another track, where he was struck by a switch engine moving westerly. It is very’ likely that he was not observed by the engineer. His evidence is that he did not hear the engine as it approached. There is evidence tending to prove that it was the custom in the yard to ring the bells of the engines when they proceeded to move in any direction; that none was rung on this occasion upon the engine which struck the plaintiff, and that the engineer was not looking in the direction his engine was moving. The evidence was, therefore, sufficient to impute negligence to the engineer of the defendant. The plaintiff was nonsuited upon the ground that it did not appear that the accident was not attributable to his contributory negligence.

The distance between the track occupied by the Grand Trunk train and the track north of it was seven and a half feet. The projection of that train over the line of the rail was two feet. The evidence of the plaintiff is to the effect that he was required to step back from the train to get the numbers and initial letters on the cars, and that before he did so he looked east and saw the engine standing at a place 366 feet from where he was. The man who was with the plaintiff when he went around to the north side of the train at the west end, started to go to the shanty after cards to put on those two cars. This shanty was some distance easterly, and when he had gone about 180 feet he met the engine going west, which was moving slowly. He then saw the perilous position in which the plaintiff was, unless his attention was called to the approaching engine, and hallooed with no apparent effect upon either the engineer or the plaintiff. The view of the learned trial justice was that the plaintiff was negligent in remaining so long as he did in the place which turned out to be one of danger. The time he occupied in taking note of the numbers and initials of those two cars appears to have been longer than was necessary. He was on the north side of the train for that purpose when his associate, “ the carder,” left him, and when his associate had walked more than ten rods and the engine bad thereafter moved the like distance the plaintiff was still in the place to receive his injury.

If the performance of his duties required the plaintiff to step upon the track north of the train his doing so did not charge him with negligence if there was then no apparent danger to be apprehended. Rut the track was not a place for him to remain after he had accomplished what his position there fairly required of him. lie knew that this track, as well as other tracks in the yard, was subject to use by moving engines, and that it was for him to keep out of the way. He would not be justified in listlessly standing on the track. After he saw the engine standing 366 feet away he gave it no further attention. The question might well be asked, why did he occupy so much time to ascertain what were the numbers and initial letters indicating the ownership of the two cars ? His record had been made of them in that respect from the south side of the train, and his view on the north side was taken to see that his car check as made was correct and such comparison necessitated no further entry. The plaintiff says that he was in the act of taking the numbers and initials of the cars when he was struck. As he made no entry of them, his observation of the numbers .and initials of those two cars required but a, very brief space of time. And in view of the uncontradicted evidence the conclusion is fairly required that the plaintiff must have delayed stepping back or in taking the numbers and initials without looking easterly immediately before doing so, elée he would have seen the approaching engine, which came 180 feet from the place where it was met by his comrade who had in the meantime walked that distance from the plaintiff In like manner is indicated the length of time intervening between the time when he saw the engine 366 feet away and the time of the accident.

The learned counsel for the plaintiff urges with much force that the question of contributory negligence was on the evidence one of fact for the jury, and he cites many cases on the subject. Those more especially relied upon by him are cases where the defendants owed some duty to the persons injured by reason of the situation in which they properly were in relation to the railroads or the tracks at the time the injuries were received. Such were Noonan v. N. Y. C. & H. R. R. R. Co. (16 N. Y. Supp. 680; 42 N. Y. St. Repr. 41); Barton v. Same (1 T. & C. 297); Murphy v. Same (118 N. Y. 527); Sullivan v. Tioga R. R. Co. (44 Hun, 304); Dempsey v. N. Y. C. & H. R. R. R. Co. (81 id. 156); Newson v. N. Y. C. R. R. Co. (29 N. Y. 383); Goodfellow v. Boston, H. & E. R. R. Co. (106 Mass. 461).

They are distinguishable from the present case by the fact that in the latter, so far as appears, the defendant was not required to assume that in the inspection or examination of the cars in the train upon the Grand Trunk Company’s track, any use would be made of the adjacent track of the defendant or that there was any occasion to do so.

It was, therefore, the duty of the plaintiff to keep out of the way of engines moving upon the latter track, rather than the duty of the defendant to move them upon it in expectation that to' do so might be perilous to the Grank Trunk Company’s employees in the situation required by the service in which they were engaged.

The plaintiff, therefore, was not permitted to rely for his safety upon being warned by the defendant of the approach of its engine on the tracks at the place where he received his injury.

The evidence does not fairly permit the conclusion that the plaintiff used the reasonable care required of him under the circumstances. (Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 500; Cullen v. D. & H. C. Co., 113 id. 667.)

The motion for a new trial should be denied.

Lewis and Ward, JJ., concurred.

Motion for new trial denied, and judgment directed for the defendant on the nonsuit.


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    Angela Emma Moosbrugger, Respondent, v. Anna Walsh and Maggie L. Walsh, Appellants.

      Action against stockholders — assignment of claim — valid though made, after the dissolution of the corporation■ — certificate of paid-up stock — •absence of proof of filing a certificate of increase of stock —failure to object thereto — stock subsm'iption obtained by fraud — no defense as against creditors of the corporation — excuse for not suing the corporation.

    Upon the trial of an action brought under section 7 of chapter 567 of the Laws of . 1890 by the assignee of a creditor of a corporation to recover from certain stockholders thereof the amount of the claim of such creditor, on the ground that the whole amount of the capital stock had not been paid in and a certificate thereof filed, it appeared that the corporation was incorporated in July, 1891, pursuant to chapter 567 of the Laws of 1890, with a capital stock of 512,000; that in March, 1892, the capital stock was increased to §35,000; that the company continued business from the time of its incorporation until September, 1892, when proceedings were commenced for its voluntary dissolution, which was accomplished by a final order made in January, 1893; that neither the original nor the increased capital stock was fully paid in, nor was any certificate thereof filed; that on March 14, 1892, the defendants subscribed for two shares of the stock of the corporation, and that on April 4, 1892, their names were entered in the stock book of the company as stockholders. It further appeared that on April 4, 1892, a promissory note, payable on or before October 1, 1892, was delivered to the company, and that on May 13, 1892, another promissory note, payable on or before November 1, 1892, was delivered to said company; that both of these notes before maturity were indorsed by the company and transferred to one Hallock; that when the notes became due they were presented for payment, which was refused and notice of protest was given to the .company; that on February 21, 1893, Hallock assigned to the plaintiff his claims and causes of action, and that the action was commenced on February 23, 1893.

      Held, that Hallock having become a creditor of the company upon the indorsement and transfer of the notes to him, although the liability of the company was then contingent, his assignee, notwithstanding the fact that the corporation had been dissolved before the assignment was made, took the same rights that Hallock had, and became a creditor of the corporation.
    The certificate for the increase of the capital stock of the corporation contained a statement that “the whole of the said capital stock .of §12,000 has been sold, and all but §-paid in.”

      Held, that the import of such statement was that the entire amount of the capital had been paid in, and that the certificate was, in such respect, in compliance with the statute.
    It appeared that the certificate of the increase of the capital stock of the corporation was filed in the office of the clerk of the county where the business of tlie company was conducted; no objection was taken that proof had not been given of the filing thereof in the Secretary of State’s office.

      Held, that if such objection had been made at the trial the omission might have been supplied, and that it could not be effectually taken for the first time on appeal.
    Evidence was offered on the part of the defendants, and excluded, to prove that they were induced by fraud to subscribe for and take the stock of the company.

      Held, that Hallock and his successor in interest could not be legally prejudiced by the transaction between the company and the stockholders, which led to the subscription to the stock and the taking of a certificate therefor by the latter;
    That the remedy of the stockholders was by an action for relief, by way of rescission, a'gainst the company or some party representing it, or succeeding to its rights and liabilities, and that such defense was not available as -against its creditors in actions brought by them to enforce the stockholders’ liabilities;
    That the creditor having been prevented by injunction, followed by the dissolution ■ of the corporation, from so doing, was relieved from the statutory requirement that he should prosecute his claim to judgment and execution against the company, which otherwise would have been a condition precedent to the action against the defendants.
    Appeal by tbe defendants, Anna Walsb and another, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Steuben on tbe 23d day of August, 1894, upon tbe report of a referee.

      M. J. Sunderlin, for the appellants.

      J. O. Sebring, for the respondent.
   Bradley, J.:

Tbe action is founded' upon tbe alleged fact that tbe plaintiff was a creditor of tbe Pleasant Yalley Yintage Company, and that the defendants, as stockholders of said corporation, were liable to her as such creditor, because tbe whole amount of tbe capital stock bad not been paid in and a certificate thereof filed.

The referee found that tbe company was duly incorporated in July, 1891, pursuant to tbe Laws of 1890 (Chap. 561), with a capital stock of $12,000; that in March, 1892, tbe capital stock was increased to $35,000; that the company continued business from the time of its incorporation until September, 1892, when proceedings were commenced for its voluntary dissolution, which was accomplished by final order made in January, 1893 ; that neither the original nor increased capital stock was fully paid in, nor any certificate thereof filed; that on March 14,1892, the defendants subscribed for two shares of the stock of $100 each; that on April 4,1892, their names were entered in the stock book of the company as stockholders.

He further found that Edward H. Newman, by his promissory note then made and delivered to the company, promised to pay to the order of II. B. Longwell, secretary of the company, $240, with interest, on or before October 1, 1892; that on May 13, 1892, D. J. Sunderlin, by his promissory note made and delivered to said company, promised to pay to the order of the company $100, oil or before November 1, 1892 ; that both of these notes before maturity were indorsed by the company and transferred for value to George W. Iiallock; that when they became due the notes were presented for payment, which was refused, and notice of protest for non.-payment duly given to the company, which was charged with liability as such indorser; that on February 21, 1893, Hallock assigned to the plaintiff his claims and causes of action against the defendants by reason of such notes, and arising out of the liability of the company as such indorser; and that this action was commenced February 23, 1893. The facts thus found have the support of the evidence.

The statute provides that the stockholders “of the corporation shall be severally, individually, liable to its creditors * * * for all debts and contracts made by the corporation until the whole amount • of its capital stock has been paid in, and until a certificate thereof has been made and filed.” (Laws 1890, chap. 561, § 7.)

Inasmuch as the corporation was dissolved before the plaintiff became assignee of the claims in question, it is urged that she is not a creditor of the company within the meaning of the statute. Hal-lock became a creditor of the company upon the indorsement and transfer by it of the notes to him, although the liability of the company was then contingent. (Van Wyck v. Seward, 18 Wend. 375.) This liability became absolute in October and November, 1892. The dissolution was perfected in January, 1893. By the transfer afterwards made to the plaintiff by Hallock, who was a creditor of the company, she took the relation he had as such, and in legal contemplation was a creditor of the corporation. (Code Civ. Proc. §§ 1909, 1910.)

The defendants must be deemed subscribers to the increased capital stock, and their alleged liability is dependent upon their relation as stockholders resulting from such subscription. It is insisted that in the proceedings to increase the capital stock the provisions of the statute were not observed, and, therefore, there was no valid increase of the capital stock to support the alleged relation of the defendants as stockholders. In the method of procedure to increase the capital stock of a corporation prescribed by the statute is the provision that a certificate must be made showing, amongst other things, “ the amount of capital actually paid in.” (Laws 1848, chap; 40, § 22.) It is suggested that the certificate in the present case was defective in that respect in the statement that “ the whole of the said capital stock of $12,000 has been sold, and all but $-paid in.” The import of this is that the entire amount of the capital had been paid in. The certificate in that respect is in compliance with the statute. It is true that the filing of the certificate is requisite to the increase of the capital stock. (Id.) It appears that on March 17, 1892, the certificate was filed in the office of the clerk of Steuben county, where the business of the company was conducted. Although the question of the validity of the certificate was raised on the trial, no objection appears to have been there taken on the ground of want of proof that it had been filed in the office of the Secretary of State.

That question requires no consideration, as the objection cannot be effectually taken for the first time on this review. If it had been made at the trial, it may be that the omission would have been supplied by evidence.

It must here be assumed upon the facts as they appear that the capital stock was increased pursuant to the statute, and that the defendants became stockholders of such increased capital. It may be that, notwithstanding the original capital stock had not been fully paid in and a certificate thereof filed, the liability of the defendants as such stockholders is confined to the debts of the company incurred since such increase of capital was accomplished. (Veeder v. Mudgett, 93 N. Y. 295; Griffeth v. Green, 129 id. 517.)

But that question does not arise in the present case. The notes of Newman and Sunderlin were made and the liability of the company as indorser was incurred after the increase of the capital stock. The assumption of the defendants’ counsel to the contrary is not supported by the record.

The evidence offered on the part of the defendants to prove that they were induced by fraud to subscribe for and take the stock of the company was properly excluded. Their remedy on that ground was for relief by way of rescission as against the company or some party representing it or succeeding to its rights and liabilities. Such defense is not available as against its creditors in actions by them. (McDermott v. Harrison, 30 N. Y. St. Repr. 324; 9 N. Y. Supp. 184; Bosley v. N. M. Co., 123 N. Y. 550.)

The only relation of Hallock to the corporation, was that of its creditor, and the plaintiff succeeded to his rights and relation as such. Tie and his successor in interest cannot legally be prejudiced by the transaction between the company or its representatives and the defendants which led to the subscription to the stock and the taking of a certificate therefor by the latter.

The creditor having been prevented by injunction, followed by dissolution of the corporation, from so doing, was relieved from the statutory requirement of prosecuting the claim to judgment and execution against the company, which otherwise would have been a condition precedent to the action against the defendants. (Kincaid v. Dwinelle, 59 N. Y. 548.)

The judgment should be affirmed.

Lewis, Ward and Davy, JJ., concurred.

Judgment affirmed, with costs.


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    Thomas Smith, Plaintiff, v. Margaret W. Slosson, Defendant.

      Tender — waiver of payment into court — Statute of M'auds — -not mailable as a defense unless pleaded — contract of hiring — variance between pleading and proof.

    When a tender is made before an action is commenced it may be treated as a nullity unless the money is paid into court and notice to that effect is served •with the answer alleging the tender as a defense; this, however, is a matter of practice, and if the answer is received and retained without raising an objection to the omission the plaintiff will be deemed to have taken issue upon the the plea of tender and waived the irregularity.
    To render the Statute of Frauds available as a defense in an action it must be pleaded.

      The complaint in an action, brought to recover damages resulting from an alleged breach of contract of hiring, alleged that on or about the 26th day of March, 1894, the plaintiff made with the defendant an agreement to perform services for her “for and during the period of one year from and including said date ” for a stated compensation; that the plaintiff entered upon the performance of the contract and continued in the service of the defendant until October 81, 1894, when the defendant refused to permit him to proceed further with the performance of the contract, although he was, and has since been, ready to do so; that the defendant had paid him only a portion of the compensation for the services performed, and he demanded judgment for damages sustained by reason of the breach of the agreement.
    The answer admitted the making of a contract with the plaintiff, but denied that the terms thereof were as stated in the complaint; it further alleged that by the terms of the contract the plaintiff was employed to render services so long only as the defendant should choose to employ him; that the plaintiff had failed to satisfactorily perform the services for which he was employed and was discharged on October 29, 1894; that the plaintiff had been tendered the balance due him upon the contract; that he had refused to receive the same, and “ that the defendant has ever since remained and still is ready and willing to pay to the plaintiff said sum, but the plaintiff has hitherto refused to receive the same; that this defendant now brings said sum of sixty-seven dollars into court ready to be paid to the plaintiff if he will accept the same.”
    Upon the trial of the action it appeared that the agreement was not in writing, and the evidence upon the part of the plaintiff was to the effect that on or about March 26, 1894, the contract was made by him with the defendant for one year’s service, to commence on or about April first, when he should be requested by the defendant to do so, and that pursuant to the request of the defendant he entered upon the performance of the contract on March 29, 1894.
    The trial court directed a nonsuit upon the ground that the contract was void by the Statute of Frauds in that the contract was not in writing, and by its terms was not to be performed within one year from the time it was made.

      JBM, that as the defendant had omitted to plead the defense of the Statute of Frauds, such direction was erroneous;
    That the fact that the plaintiff did not allege in the complaint a contract which by its terms was not to be performed within one year did not constitute such a variance between the plaintiff’s pleading and proofs as to mislead the defendant to her prejudice within the meaning of section 539 of the Code of Civil Procedure.
    MotioN bj tlie plaintiff, Thomas Smith, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance, upon a nonsuit granted after a trial at the Ontario Circuit before the court and a jury on the 25th. day of January, 1895.

      Tbe plaintiff, by bis complaint, alleges tbat on or about tbe 26th day of March, 1894, lie made with the defendant an agreement to perform services (therein mentioned) for her “ for and during the period of one year from and including said date” fpr the compensation of twenty-two dollars per month and board; that he entered upon the performance of the contract and continued in the service of the defendant until on or about October 31, 1894, when the defendant refused to permit him to proceed further with the performance of the contract, although he was, and has since been, ready to do so; that the defendant paid him a portion only of the compensation for the services which he had performed, and that the plaintiff sustained damages by reason of the breach of the agreement.
    The defendant, by her answer, admits that on or about the 29th day of March, T894, she made a contract with the plaintiff for his services, but denies that the terms of the contract were as stated in the complaint. And she alleges that by the terms of the contract she employed the plaintiff to render services so long only as she should choose to employ him; that the plaintiff failed to satisfactorily perform the services for which he was employed, and that on or about the 29th day of October, 1894, she discharged him from her service. And she further alleges that she then tendered to the plaintiff sixty-seven dollars in payment of the balance due him upon the contract; that he refused to receive it, and “ that the defendant has ever since remained and still is ready and willing to pay to the plaintiff said sum, but the plaintiff has hitherto refused to receive the same. That this defendant now brings said sum of sixty-seven dollars into court ready to be paid to the plaintiff if he will accept the same,”
    The plaintiff was nonsuited at the trial.

      Wm. S. Moore, for the plaintiff.

      Charles A. Hawley, for the defendant.
   Bradley, J.:

The alleged agreement was not in writing, and the evidence on the part of the plaintiff to prove it was to the effect that on or about the 26th day of March, 1894, the agreement was made for one year’s service to commence on or about April first, when he should be requested by the defendant to do so; that'pursuant to her request, afterwards made, he entered tipon the performance of the-contract on the 29th day of March, 1894. There was a conflict in the evidence of the parties relating to the terms of the contract, and as to the manner of the performance of the service by the plaintiff.

The nonsuit of the plaintiff was directed upon the ground that the contract was void by the Statute of Frauds, as it was not in writing, and by its terms was not to be performed within one year from the time it was made.

This was not alleged as a defense. There has been some conflict of authority on the subject, but the doctrine of the later cases is that, to render the Statute of Frauds available as a defense, it must be pleaded, (Hamer v. Sidway, 124 N. Y. 539; Wells v. Monihan, 129 id. 161; Crane v. Powell, 139 id. 379, affg. 46 N. Y. St. Repr. 668; Barrett v. Johnson, 77 Hun, 527; Bannatyne v. Florence Milling Co., Id. 289.)

It is urged by the learned counsel for the defendant that, the plaintiff failed to prove the contract alleged in the complaint, and for that reason the direction of the nonsuit was supported by the denial alleged in the answer, inasmuch as the contract proved was within' the statute. The variance thus referred to is in the fact that the plaintiff did not allege in the complaint a contract which by its terms was not to be performed within one year. The counsel for the defendant cites several of the earlier cases in which this question did not arise, but where it was said obiter that if the agreement were denied it was incumbent upon the plaintiff to establish a contract valid within the statute by evidence competent to prove it. The distinction Urged, to the effect that the denial by answer of the making of the alleged contract is effectual, when as alleged in the complaint it does not appear that the contract would be void if not in writing, although otherwise it would be necessary to plead the statute, is not observed by the cases cited. In those cases in which it was said that the denial would put the plaintiff to the necessity of giving such evidence as would establish an agreement having the formality required by the statute to render it valid, the contracts as alleged were-invalid within the Statute of Frauds, unless in writing. (Cozine v. Graham, 2 Paige, 177; Ontario Bank v. Root, 3 id. 478; Marston v. Swett, 66 N. Y. 206.) Nor is sucli distinction observed in any of the cases to which our attention has been called. It is suggested that it was in the mind of the court in Crane v. Powell, but nothing appears in that case to require such conclusion. It was not deemed essential in the Common Pleas to make specific reference to the complaint (46 N. Y. St. Repr. 668), nor was it in the rejiort of the case in the review which followed.

If the complaint had alleged that the contract was for service of the plaintiff to be performed for one year from a day subsequent to that on which the contract was made, the import of the pleading that the contract was valid would have been no less than was the implication in that respect furnished by the allegations as made in the complaint of the terms of the contract in question.

In either case, for the purposes of the pleading, it would be assumed that the alleged contract was made in such manner as to render it valid. (Marston v. Swett, 66 N. Y. 206.)

There is in the present case no variance between the plaintiff’s pleading and proofs of the character to mislead the defendant to her prejudice within the meaning of the rule applicable to the subject. (Code Civ. Proc. § 539.)

The plaintiff, by his complaint, alleged a contract for one year’s service. The defendant was advised by the complaint that he claimed damages for an alleged breach of such a contract. The plaintiff’s evidence tended to prove that there was an unwritten contract to that effect, and that he was not permitted to complete the performance of it. It must be assumed that the defendant knew that there was no written memorandum of the agreement between them, and that she knew as well as the plaintiff whether or not he, by the terms of the contract (whatever it may have been), was to enter upon its performance on the day it was made. And if not, she could have alleged that fact, and there was no difficulty in pleading the statute to the effect that there was no memorandum thereof in writing to support an agreement by its terms not to be performed within one year from the making thereof.

It may be observed that no general denial is set up in the answer. The defendant there admits that on or about the 29th day of March, 1894, she made a contract with the plaintiff for the performance of services by him, but denies that the contract was as stated in the complaint. The controversy, as alleged by tbe parties in respect to the terms of the contract, had relation only to the stipulated period of time for performance. And the time when it appeared that-the plaintiff commenced performance of the services corresponds substantially with the time when the defendant admits the contract alleged by her was made.

The view here taken is that by reason of the omission of the defendant to plead the Statute of Frauds the court erred in directing the nonsuit.

The plaintiff’s counsel urges as a further reason why the nonsuit should not have been directed that the tender was ineffectual as a defense because the amount was not paid into court. It is true that when a. tender is made before action commenced it may be treated as a nullity unless the money is paid into court and notice to that effect is served with the answer alleging the tender as a defense. But that is a matter of practice, and if the answer is received and retained without raising an objection to the omission,, the plaintiff may be deemed to have taken issue upon the plea of tender and waived the irregularity. (Sheridan v. Smith, 2 Hill, 538; Wilson v. Doran, 110 N. Y. 101.)

And if any objection to the alleged tender, or its effect as such, was available to the plaintiff at the trial, none was raised there by him. (Becker v. Boon, 61 N. Y. 317.)

For these reasons no question in relation to the tender is necessarily here for consideration.

The motion for a new trial should be granted, costs to abide the event.

Lewis, Ward and Davy, JJ., concurred.

Motion for new trial granted, costs to abide the event.


author: Bradley, J. :

text:
    Benjamin C. Miller, Respondent, v. Fidelia R. Morton and Jennie Morton Cary, Appellants, Impleaded with Another.

      Action in the Supreme Court under Code of Civ. Proc. § 1887 — failure to account in the Surrogate’s Court —no bar to it — excessive expenditures by an administra-trix— liability of the next of 1cm therefor.

    The fact tliat there has been no judicial settlement in the Surrogate’s Court of the accounts of an administratrix, furnishes no objection to the determination, •on the merits, of an action brought against the next of kin of the decedent, pursuant to section 1837 of the Code of Civil Procedure.
    It is within the equitable powers of the Supreme Court to require the personal representatives of deceased persons to render an account with a view to the relief sought, dependent upon such accounting. The jurisdiction o'f the surrogate in that respect is not exclusive, but concurrent with that of the Supremo Court.
    Upon the trial of an action brought by a creditor of a decedent’s estate, under .section 1837 of the Code of Civil Procedure to recover from the next of kin the amount remaining due upon certain judgments recovered against the decedent in his lifetime, it appeared that letters of administration had been issued upon the decedent’s estate in July,-1883; that in July, 1884, the administratrix published a notice to creditors to present their claims to her on or before January 5, 1885, and that no claim founded upon the judgments in question had been presented to her.
    It further appeared that in December, 1892, the plaintiff instituted a proceeding in the Surrogate’s Court to compel the administratrix to pay the judgments, which resulted in a determination that there remained unexpended, in her hands as such administratrix, after deducting her commissions and the expenses of the accounting and the sum allowed for costs, the sum of §335.04, which, by the decree of final settlement, she was directed to pay upon the plaintiffs claim.
    It appeared that the administratrix had paid for funeral expenses of her decedent, including burial lot and monument, $1,934.35, the expense of the monument being §1,400; that she had also paid for improvements upon real estate which descended to two daughters of the decedent, subject to her dower right, §315.37; that she had advanced to the daughter Helen $475.77, and that she had paid the plaintiff on account of his judgments the sum of money directed by the surrogate’s decree to be paid to him.
    The referee found that it was understood between the administratrix and her daughters that the amount paid to the daughter Helen should be applied towards her distributive share in her father’s estate; that the money was paid for such improvements and expenses of the funeral, including burial lot and monument, at the request of the two daughters; that the latter expenses were •excessive and that no more than §1,000 should be allowed for them. The referee also found that any part of tlie estate paid over, after the death of Helen M. Yick, for lier funeral expenses was the property of the defendants Fidelia E. Morton and Jennie M. Cary, as said Helen M. Yick in her lifetime had keen paid her distributive share.

      22eld, that in view of the limited amount of the estate of the decedent the conclusion of the referee in regard to the sum paid for funeral expenses, including the lot and monument, was justified;
    That at the expiration of six months after the completed publication of the notice to creditors, the administratrix had reason to suppose that no creditors existed whose claims had not been presented, and she was then at liberty to make distribution of the assets;
    That the expenditure §1,400 having been made by the administratrix with no knowledge or notice of the plaintiff’s claim, and with the .consent of the next of kin, it must be assumed that the parties acted in good faith, and that the plaintiff was estopped from charging the administratrix with liability for the moneys so expended, although such expenditure was excessive;
    That the sum of money expended in improvements and repairs upon the real estate and that expended in the funeral expenses of the daughter Helen were not appropriated to purposes within the scope of the authority of the administratrix;
    That as to creditors such daughter was alone responsible on account of the amount so received by her, as her distributive share of the estate and, she having died, her estate must be deemed' chargeable with such amount.
    Appeal by the defendants, Fidelia R. Morton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 15th day of April, 1895, upon the report of a referee, and also from the findings contained in said report.
    The action was brought to obtain judgment that the defendants,_ Fidelia R. Morton, Jennie M. Cary and Edward IT. Yick, as administrators of the estate of Helen M. Yick, deceased, may each be adjudged to pay to the plaintiff one-third of the sum remaining unpaid upon certain judgments against John Morton.
    The referee to whom the issues were referred to hear and determine, found, among other things :
    That John Morton died on or about the 23d day of March, 1883, intestate, leaving him szirviving his widow, the defendant Fidelia R. Morton, and as his only next of kin his two daughters, the defendant Jennie Morton Cary and Helen Morton Yick, now deceased.
    That said Helen M. Yick died on or about the 25th day of May, 1886, intestate, and the defendant Edward II. Yick was, on or about the 12th day of July, 1892, duly appointed administrator of her estate by the surrogate of the county of Monroe, N. Y., and is still such administrator.
    That the defendant Fidelia R. Morton was, by an order of the surrogate of Monroe county, N. Y., on the 12th day of July, 1883, duly appointed administrator of the estate of said John Morton, deceased.
    That said administrator received into her hands, as administrator of said John Morton, deceased, $3,540. Out of such sum she paid for funeral expenses, burial lot and monument, $1,934.35, paying for the monument $1,400; also, upon repairs and improvements on real estate, which descended to said daughters subject to her right of dower, $315.37, and she advanced and paid to Helen M. -Vick $475.77; she paid to the plaintiff in this action, to apply upon his judgments, $335.04, and she retained for commission and expenses of administration, $247.25, and the balance was paid out towards the funeral expenses of Helen M. Tick.
    That the amount so paid to Helen M. Tick was agreed by her, and by Fidelia R. Morton and Jennie Morton Cary, should be applied toward the distributive share of said Helen M. Tick in and to her father’s estate, and the money paid out for repairs and improvements and for the expenses of the monument, burial lot and funeral was paid by Fidelia R. Morton, at the instance and request of Jennie Morton Cary and Helen M. Vick.
    That the amount paid for funeral and burial expenses, and for monument was excessive in amount, and $1,000 is a liberal sum for such expenses, and this sum is allowed toward the same, and the defendants are chargeable with the excess, to wit, $934.35.
    That the sum of money which the administrator legally paid out of the estate is the sum of $1,582.29, made up of $1,000 for funeral and burial expenses and monument, $247.25 commission and expenses upon her accounting, and $335.04 paid upon the judgments mentioned in the complaint in this action, leaving the sum of $1,957.71 to be distributed to said Fidelia R. Morton and her two daughters.
    That the distributive share belonging to Fidelia R. Morton, Jennie Morton Cary and Helen M. Vick was one-third of said sum aforesaid, or $652.57.

      That said sum of $652.57 was paid to each of said persons to whom it belonged, such payment either being made directly to such persons, as in the case of Helen M. Vick, who received part in cash, or by being paid according to the directions of those to whom th.e same belonged.
    That any part of the estate paid after the death of Helen M. Vick, for her funeral expenses, was the property of the defendants Fidelia R. Morton and Jennie M. Cary, as said Helen M. Vick in her lifetime had been paid her distributive share.
    The referee found among other conclusions of law:
    That the direction, by either of the next of kin, as to any payment being made out of the estate in the bauds of the administrator, was the same in effect as though the same had been paid to those entitled to the same, and they in turn paid the money over in the manner to which it was paid, and that in making any payment for funeral and burial expenses or monument, or for repairs and improvements, Fidelia R. Morton, the administrator, acted as principal in paying out her share of the estate and as agent for the others in paying out their shares of the estate as they gave directions for the payment of the same.
    That whatever sum may have been paid to Helen M. Vick in her lifetime, either being paid to her or being paid by the administrator at her request and by her direction, which exceeds her distributive share, was in effect a gift to her from her mother or sister or both of them, and she in effect only received from the estate as her distributive share one-third thereof.
    That the plaintiff was entitled to recover from each of the defendants in this action one-third of the amount now due upon his two judgments, or the sum of $224.36, with costs to be apportioned and taxed as is provided by section 1839 of the Code of Civil Procedure.

      Louis H. Jack, for the appellants.

      W. E. Davis, for the respondent.
   Bradley, J. :

John Morton died intestate in March, 1883, leaving him surviving the defendant Fidelia R. Morton, his widow, the defendant Jennie M. Cary and Helen M. Tick, the intestate of the defendant administrator, bis children and next of kin. In August 1883, two judgments were entered against Morton, one for $219.01 and the other for $374.02, damages and costs upon verdicts rendered against him prior to his death in favor of one Northrup. Those judgments, through mesne transfers, were assigned to the plaintiff, who brought this action in May, 1894, against the defendants as the surviving wife and next of kin of Morton, to recover the amount remaining due upon those judgments pursuant to the statute. (Code Civ. Proc. § 1837.)

Letters of administration on the estate of Morton were duly 'issued to his widow in July, 1883, and the assets which came to her hands as such administratrix amounted to $3,540.

In July, 1884, she, by notice then and thereafter duly published for six months, gave notice to creditors to exhibit their claims to her on or before January 5, 1885. No claim founded upon the judgments before mentioned was presented to her.

In December, 1892, the plaintiff by petition instituted a proceeding in the Surrogate’s Court o'f Monroe county to require the administratrix to pay the judgments, and in February,' 1894, it resulted in the determination that there remained unexpended in her hands the sum of $626.85, which, after deducting her commissions, with the expenses of her accounting and the sum allowed for the costs of the petitioner, left $335.04, which the administratrix was by the decree directed to pay upon the plaintiff’s claim. The referee found that out of the money that came into her hands the administratrix paid for funeral expenses, including burial lot and monument, $1,934.35, the expense of the monument being $1,400; also, for improvements upon real estate which descended to the two daughters, subject to her right of dower, $315.37; that she advanced to the daughter Helen $475.77; that she paid the plaintiff $335.04; that she retained for commissions and expenses of administration $247.25, and paid out the balance toward the funeral expenses of the daughter Helen; that it was understood between Helen and her mother and sister that the amount so paid to her should be applied toward her distributive share in her father’s estate, and that the money was paid for such improvements and expenses of the funeral, including burial lot and monument, at the request of the two daughters; that tbe latter expenses were excessive in amount, and that no more than $1,000 should be allowed for them. The referee, therefore, concluded that the sum lawfully paid out by the administratrix, including the commissions and expenses upon her accounting and the payment made to plaintiff pursuant to the surrogate’s decree, was only $1,582.29, leaving for distribution between the widow and the two daughters $1,957.71.

The amount remaining due to the plaintiff upon the judgments was $675.09, for one-third of which the referee directed judgment against each of the defendants.

' The fact that there had been no judicial settlement of the accounts of the administratrix in the Surrogate’s Court furnishes no objection to the determination of this action on the merits. It is within the equitable powers of this court to require the personal representatives of deceased persons to render an account with a view to relief sought dependent upon such accounting. The jurisdiction of the surrogate in that respect is not exclusive but concurrent with that of this court. (Rogers v. King, 8 Paige, 210.)

In view of the limited amount of the estate of the decedent the conclusion of the referee was justified in that the amount paid for the monument was excessive, and that the sum reasonably applicable to the funeral expenses, including the burial lot and monument, did not exceed $1,000. (Wood v. Vandenburgh, 6 Paige, 277; Patterson v. Patterson, 59 N. Y. 574; Owens v. Bloomer, 14 Hun, 296; Allen v. Allen, 3 Dem. 524.)

The question arises whether by reason of that excessive expenditure any portion of the amount of it should in behalf of the plaintiff be treated as assets distributed or paid to the widow and next of kin. When six months after the completed publication of notice tq •creditors had expired, the administratrix had reason to suppose that no creditors existed whose claims had not been presented, and she was then at liberty to make distribution of the assets. Not having any “knowledge or notice of the claim of the plaintiff or his assignor,” she, with the consent of the next of kin, put $1,400 into a monument. It must.be assumed that in doing so they acted in good faith. Neither of them derived any pecuniary benefit from the expenditure, nor can the monument be deemed to have any commercial value. Under like circumstances it was held in O'Conner v. Gifford (117 N. Y. 275) that a creditor who had failed to present his claim was estopped from charging the executor with liability to the extent of the moneys which he liad expended for a purpose mentioned in the will and which was invalid as against the creditors of the testator.

So far as appears in the present case the attention of the' widow or next of kin was not called to the claim in question until several years had elapsed after the time for presentation of claims pursuant to the notice to creditors had expired. This would have been no objection if the assets had' been actually distributed or paid to the widow and next of kin, or had been invested in property in their behalf. By reason of laches of the owner or owners of the claim the administratrix was led to believe that none existed, and thereupon she, with the consent of the next of kin, who had the like understanding, expended the amount before mentioned for the monument. She was lawfully permitted to expend a reasonable sum for such purpose. The plaintiff is, therefore, estopped from effectually asserting that because such expense was excessive any of the money over and above the sum reasonably ajjplicable thereto, which was expended for the monument constituted assets distributed or paid to the widow and next of kin for the purpose of his remedy sought by this action.

There remains for consideration the item of $475.77 paid to Helen on account of her distributive share of the assets, the item of $315.37 expended in improvements and repairs upon the real estate, and the item of $254 appropriated to pay fune:al expenses of Helen, who died in 1886. Those sums were paid out by the widow with the consent of the defendant C uy, and that for the improvement of the realty by the consent of both her and Helen. Neither of the two sums last mentioned was appropriated to purposes within the purview of the authority of the administratrix, and, therefore, the widow and the defendant Cary, as one of the next of kin, may be treated as equally chargeable with having and disposing of those portions of the assets, and each equally with Helen chargeable for the amount so applied in making the improvements upon the real estate. As to creditors, Helen alone was responsible on account of the amount so received by her as her distributive share of the assets, including one-third of the amount so expended upon the real estate. It follows that as relates to the distribution of the assets which remain the subject of consideration the estate of Helen must be deemed chargeable with $580.90, the widow with $232.13, and the defendant Cary with $232.13. Their liability, respectively, is such that the sum which the plaintiff is entitled to recover against them must be apportioned amongst the defendants in proportion to the distributive share received by each of them. (Code Civ. Proc. § 1839.)

As the plaintiff has not appealed, the recovery against the personal representative of Helen M. Yiclc cannot be increased on this review.

On the basis before mentioned the proportionate share of the liability of each of the two defendants, Morton and Cary, to the plaintiff on his claim as of the time of the referee’s report was made is $150.21. • ' •

No other question requires consideration.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs, unless the plaintiff stipulates to reduce the recovery against each of the defendants Morton and Cary, exclusive of costs, to $150.21, and in that event the judgments as against tliose two defendants be so modified, and as modified affirmed, without costs of this appeal to any party, and thereupon the judgment against the other defendant should also be affirmed.

Lewis and Davy, JJ., concurred; "Wakd, J., not voting.

Judgment reversed and new trial g-ranted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery against each of the defendants Morton and Cary, exclusive of costs, to $150.21, and in that event the judgments against those two defendants be so modified, and as modified affirmed, without costs of this appeal to any party. The judgment against the other defendant affirmed.