author: Mayi-iam, P. J.:

text:
    AUGUSTA BOGARDUS, Respondent, v. EDWIN YOUNG, as Executor of THOMAS CORNELL, Deceased, Appellant.

      Statute of limitations —consideration for a promise by a son to Ms father to provide for the children of a second marriage — when a right of action acm’ues— Code of Oivil Procedure, sec. 410.
    Peter Cornell married twice. By his first marriage he had a son, Thomas, and by the second five children. In 1840 Peter received from his former partner certain notes which he handed to his son Thomas in 1860, saying that he had some information that they could be collected.
    Peter, who resided with his second wife on a farm which belonged to her, about the time of his death, in 1860, had a conversation with Thomas, at which the second wife was present, when it was said that all her money was in the farm, and Peter said he thought the children of his second wife should he provided for. Thomas thereupon said : “Father, don’t worry, they will he provided for, I will give each of them five thousand dollars and set Joseph (the only son) up in business.”
    During the last illness of the second wife, in 1879, she had a conversation with Thomas, in which she said : “You know you had all my money in the business. I am on my death bed now and I think the girls should he paid the money agreed upon long ago.” He replied: “They shall he paid that money, and more, too.”
    Thomas Cornell died in 1890, and in the same year a claim was presented against his estate for $5,000, with interest thereon from October, 1860, by one of the children of the second marriage, who was present at the conversation between Thomas and her mother in 1879, and was then of full age.
    This claim was referred, under the statute, and the plaintiff recovered.

      Held, that the claim could not he sustained.

      That the promise of Thomas Cornell, made in 1860, was without consideration.
    That, so far as the stale notes were concerned, it did not appear that they had any value or that Peter Cornell transferred the title to them to Thomas Cornell.
    That no consideration arose out of the farm of the second wife, since it did not appear that Thomas Cornell had any interest whatever in it.
    That no consideration could be established by the conversation, in 1879, which concerned past transactions.
    That, assuming, however, that a consideration was made out, it could not uphold a promise by Thomas Cornell to pay money to his step-sister Augusta Bogardus.
    The cases relative to a promise made for the benefit of a third person, reviewed.
    That, whether or not the relationship existing between Augusta Bogardus and her parents might be deemed to create such a privity, in the nature of a duty or obligation from her parents to her, as would satisfy that branch of the rule in such cases, there was not, in any event, a present consideration moving from Peter Cornell to Thomas.
    That if it be assumed that the promise was a valid one, there was nothing in it postponing its performance or preventing Augusta Bogardus from at once suing upon it when it was made in 1879.
    That the evidence did not show that Thomas Cornell received the alleged moneys either from his father or his step-mother as a deposit or in trust, and that, therefore, no demand was necessary or proper before the statute of limitations would begin to run.
    That, therefore, Augusta Bogardus was in a position to sue in 1879.
    That, even assuming such a demand to be necessary, the time within which an action must be commenced must, under section 410 of the Code of Civil Procedure, be computed from the time when the right to make the demand was complete.
    That that time would be six years from the conversation in 1879, and that, even in this view, the action was barred by the statute of limitations.
    Appeal by tbe defendant Edwin Young, as executor of Thomas Cornell, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Ulster on the 11th day of February, 1892, upon a recovery by the plaintiff of $5,387.50 and costs, after a trial before a referee, with notice of an intention to bring up for review upon the 'appeal an order of said court, entered in said clerk’s office on the 9th day of February, 1892, confirming the report of a referee directing judgment for the plaintiff and denying defendant’s motion to set aside the report and for a new trial.

      John J. Linson, for the appellant.

      William Lounsbery and J. Newton Fiero, for the respondent.
   Mayi-iam, P. J.:

Thomas Cornell, the testator, was a son of Peter Cornell. After the death of testator’s mother, Peter Cornell married a Mrs. "Woodmansee. The issue of this second marriage was five children, one son and four daughters, of whom this plaintiff is one. In 1840 Peter Cornell received from a former partner, with whom he at that time dissolved his business relations, certain promissory notes. Nothing appears to have been paid on these notes, and in 1860 Peter Cornell handed them down to his son Thomas, stating at the time that he had some information that they could be collected.

From the time of Peter’s second marriage until the time of his death he resided with his wife on a farm on which she had resided during her widowhood. Peter Cornell died November 11, 1860, and shortly before his death he and his son Thomas had a conversation which the witness gives as follows: “ Mr. Cornell was very restless and wanted Tommy sent for; Tommy was sent for and had a talk with him. lie said he felt as if he could not die unless some provision was made for those younger children.” His wife was very much dissatisfied with regard to her money; it was all in that property. He said to Thomas Cornell “that he felt that these younger children ought to be provided for; that he felt as if his time was short.” He says: “Father, don’t worry; they will be provided for; I will give each of them five thousand dollars, and set Joseph up in business.” In answer to a question as to what was said by Peter about his wife’s money, the witness said: “ There was nothing particular spoken of, only that all her money she got from her father was in that property — the property where they lived.’’

The case shows that Peter’s wife was present at this conversation and that all Peter’s girls were children at that time. The mother of the plaintiff and step-mother of testator died May 7, 1879, and during her last sickness, in 1878 or 1879, the following conversation occurred between her and testator — she said: “Major, you know you had all my money in the business; I am on my death-bed now, and I think the girls should be paid the money agreed upon long ago.” He said: “Are any of them in need % ” She said “ No, not for bread.” He replied: “ They shall be paid that money, and more, too.” At this conversation plaintiff and one of her sisters were present.

There is some evidence in the case tending to show that the testator expressed himself under obligations to do something for his half-sisters, and the plaintiff proved, under the defendant’s objection, that he had given one of them property valued at about ten thousand dollars.

The claim presented by the plaintiff, and rejected by the executor, is in the following form:

“ Estate oe Thomas Cornell to Augusta Bogardus, Dr.

“Eorfive thousand dollars, with interest thereon from October, 1860. At the date last mentioned the said Thomas Cornell acknowledged himself indebted in the sum mentioned, and agreed to pay the sum, with interest, on demand, as a part payment of his indebtedness to Peter Cornell and Mary C. Cornell.”

On the trial the defendant insisted that no cause of action was made out by the plaintiff, and that the alleged claim was barred by the statute of limitations. The referee found for the plaintiff $5,000, with interest from September 2, 1890.

The appellant insists that this evidence does not establish the existence of a binding contract on the part of the testator, and creates no liability against his estate. It is not disputed but that the testator told his father, in the conversation in 1860, that he would give each of the girls $5,000 and set the son Joseph up in business, but it is claimed that that promise was wholly without consideration, and was, at most, only a promised gratuity made to quiet the anxiety of his father, and was a nudum, pactum. The only evidence in the case of any business transaction between testator and his father, Peter Cornell, was the delivery of the stale notes received by him from his father in 1840, and by him delivered to testator in 1860, and it does not appear from that transaction that testator acquired any title to the notes, or that they were at the time of any value; and there is nothing in that transaction from which it can be legally inferred that those notes formed the consideration for the promise made to pay the plaintiff and her sisters $5,000 each. No mention of these notes was made at the time of making such promise. But it is said that at this time he spoke of his wife’s dissatisfaction in regard to her money, and that all of her money was in the place or-farm on which Peter lived; but it nowhere appears that the testator had any interest in that farm, derived either from Peter or his wife, that could form a basis or consideration for the promise made Peter to pay money.to the plaintiff. But it is sought to find a consideration for this promise in the conversation which occurred between testator and his stepmother, mother of this plaintiff, in 1879, eighteen years after Peter’s death. In that conversation she said that testator had all her money in his business, and thought the girls should be paid the money agreed upon long ago, and testator said: “ They shall be paid that money, and more, too.”

The testimony of Mrs. Overbaugh, it is claimed by the respondent, strengthens this theory of a consideration for the promise by the testator to his father to pay money to the plaintiff. She makes her father say, in that conversation narrated by the other witnesses: I have a family of small children and nothing to leave them ; mother is very much dissatisfied and says you have had her money.” He said: “ Don’t worry; to cancel that debt I will give each of the girls five thousand dollars and put J. in business.”

There is some evidence in the case of a declaration of the testator, that he intended to give to his sisters something, or make some provision for them in his will, which, it is claimed by respondent, tends to prove that testator recognized some obligation or liability to his ¡sisters ; but the whole evidence bearing upon the question of a valid •consideration for his promise, is at best, but very slight and unsatisfactory. But it is urged that as these acts and statements of the testator may admit of more than one interpretation, and the effect to be given to them may, to some extent, depend upon the inten-. tion of the testator and the manner in which he intended them to be understood by the persons to whom they were made, the meaning of his language becomes a mixed question of law and fact, proper to be passed upon as a question of fact by the referee, and that his determination upon such facts ought not to be disturbed •on appeal. (White v. Hoyt, 73 N. Y., 505.) But the defendant Insists that even if there was an antecedent obligation existing against the testator and in favor of Peter Cornell or his wife, that of itself would not be a good consideration to uphold a promise by the testator to pay the plaintiff, a third person, between whom and Peter Cornell, the promisee, there was no privity; and we are referred, by tbe learned counsel for the appellant, to the cases of Fairchild v. Feltman (32 Hun, 398); Kelly v. Roberts (40 N. Y., 432); Vroman v. Turner (69 id., 284), and Gates v. Hames (28 N. Y. St. Rep., 313), in support of that proposition.

In Fairchild v. Feltman (supra), one C. was indebted to plaintiff, and, at the same time, defendant was indebted to C., and while so indebted promised plaintiff to pay plaintiff the amount of his indebtedness to O. O. did not release the defendant from his liability, but gave him credit for the sum agreed to be paid on his books. Upon this state of facts plaintiff sued the defendant on his promise, and the court held that the defendant’s promise to pay plaintiff was a nudum pactum. It was nothing more than a parol executory promise, without consideration, to discharge C.’s obligation to the plaintiff.

In Vroman v. Turner (69 N. Y., 280), the court says: “To give to a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an intent by the promisee to secure some benefit to the third party; and second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”

In Gates v. Hames (28 N. Y. St. Rep., 313), the defendant, in consideration of the discharge of a mortgage held against her by her mother, promised to pay the amount thereof by boarding the latter if she chose to live with her, and if not, to pay the same at her mother’s death to five of her next of kin, of whom the plaintiff was one. The mother failed to board out the amount, and the plaintiff after the mother’s death brought an action to recover one-fifth of the amount on such promise, and it was held that she could not recover, as the promisee, who was the grandmother of the plaintiff, was under no obligation to the plaintiff and the benefit she sought to obtain for her grandchild was a mere gratuity.

In Todd v. Weber (95 N. Y., 188) the putative father of a bastard child acknowledged his paternity, and requested the mother and grandmother to take good care of the child and bring her up right, and he would see that it was all right; some twelve years later, and after the mother and grandmother had supported and- cared for the child, as requested by the father, the mother asked him if -he remembered what he had promised to do for the child and he answered, “ Yes, and I will do well by her, and if she outlives me will remember her in my will.” He frequently told the plaintiff’s mother and grandmother, in substance, to spare no pains-' and expense in educating her, and on being told that it was expensive he said, “You will get that all back,” and similar expressions.

The court held that these promises, followed by the rendering of the services and incurring the expense, constituted a valid contract; and that as the plaintiff had the sole beneficial interest in the contract she could recover. In that case, however, it will be noticed' that there was a present consideration, and the services were rendered and expense incurred upon the strength or faith of the promise that they should be paid for or compensated for in the testator’s will.

This case, therefore, differs from the case at bar in this, that there was no present or immediate consideration moving from the promisor to the promisee; and that seems to be the distinguishing feature between the case of Todd v. Weber and cases followed in it, and that of Gates v. Hames (supra), and the cases cited by Dwight, J., in his opinion in the latter case.

The rule to be deduced' from 'these and other cases seems'to be that when there is a present consideration moving from the promisee to the promisor upon which the promisor agrees to pay money tó a third person, to whom the promisee owes some debt, duty or obligation, such promise may be enforced by the third person. Two things must concur: First. The passing of a present consideration from the promisee to the promisor. Second. The existence of some debt, duty or obligation from the promisee to the third person before a recovery in such case can be upheld. We do not think in this case that both of these conditions have been proven to have concurred. Clearly there was no present .consideration for the promise passing from Peter Cornell or his widow to the testator at the time of his making the promise, nor was there any debt, obligation or duty due to Peter Cornell or his widow from the plaintiff which she could enforce against them or either of them, but we are not prepared to say that the relationship existing between the plaintiff and'her parents was not such as to create a privity between her and them, which might meet the last condition above referred to. (Gates v. Hames, 28 N. Y. St. Rep., 313; Vroman v. Turner, 69 N. Y., 280; Kelly v. Roberts, 40 id., 432; Fairchild v. Feltman, 32 Hun, 398.)

Rut the first condition is nowhere met by the evidence; and there was, therefore, no valid agreement enuring to the benefit of the plaintiff which she can enforce by action.

But if it should be held that the agreement of the testator to pay this money to plaintiff was valid, then there was nothing in that promise which in anyway postponed its performance or prevented the plaintiff from enforcing it as soon as it was made. There seems to be no evidence to support the finding of the referee that this money was payable on demand. The promise, as proved, was, that “ I will give each of them five thousand dollars.” This was said to the father. To the mother the promise was: “ They shall have that, -and more, too.”

There was nothing in either of these statements that indicated the; postponement of the payment until a demand was made for it. If this promise created a valid arid binding agreement on the part of the testator to pay this money to the plaintiff, that payment could have been enforced at once; and if that were so, an action was maintainable upon it as soon as it was made; and unless the plaintiff was under some disability the statute of limitations would commence to run from that time The conversation between the testator and plaintiff’s mother, in which testator is claimed .to have last promised to pay the plaintiff, was in 1819, and in the presence of the plaintiff, when, from the evidence, it appears that she must have been about thirty years of age. No disability of infancy existed at that time on the part of the plaintiff; and if-the plaintiff liad a valid cause of .action on that promise, the statute of limitations ran from that time; and this claim appears to have been presented on the 20th of Febxuary, 1890, twelve years after the alleged promise of the testator to plaintiff’s mother, and thirty years after the alleged promise to Peter Cornell. But it is insisted that money was received by the testator from his father or step-mother as a deposit or trust, and did not, therefore, become due or payable until demanded by the cestui que trust, or some one in her behalf. We see nothing in the evidence to justify that contention. Neither Peter Cornell or his wife, in terms, imposed any trust on the testator for money due them, or either of them; nor did they, or either of them, direct the testator to hold such money for the benefit of the plaintiff.

Unless, therefore, the agreement of testator to pay money to the plaintiff at the request of his father or step-mother created that relation, no trust was created. The case does not show that the testator held money of his father or step-mother as a deposit with him, but? on the contrary, the account on which this claim is prosecuted shows upon its face the testator bore the relation of debtor to them at the time of making the agreement to pay plaintiff, as appears by the claim which we have above set out in full.

"Whatever money the testator owed, either his father or step-mother cannot, therefore, on this evidence, be claimed-to be money deposited with him, by them, and held as a deposit, for which a demand was necessary, but rather under the ordinary relation of debtor and creditor.

There is nothing in this case to show, or from which it can be reasonably inferred, that a demand would have been necessary to enable Peter or Mary Cornell to recover any money due from Thomas in the lifetime-of all the parties. The debt, if any existed, was not, as between them, impressed- with any trust; nor was it a deposit.

In Payne v. Gardiner (29 N. Y., 146) it was held that an action could not be maintained against a depository until after a demand-

In Matter of Waldron (28 Hun, 481), the writing given by defendant acknowledged the possession of a certain sum of money, and that it was held in trust and a demand was necessary to set the statute in operation. • ■

' In Boughton v. Flint (74 N. Y., 476), the husband, in his lifetime, had collected money on a mortgage belonging to his wife, which she allowed and requested him to retain; the transaction was a deposit, and not a loan, and a demand was necessary to set the statute in motion.

These cases are cited by the plaintiff as authority that the debt-due from executor to his father and step-mother was a deposit, and that a demand was necessary to set the statute in operation. I fail to see their analogy to the case at. bar. In each case they were, in effect, but deposits, and in their very nature required a demand before an action could be maintained on them, or the statute would commence to run.

In the case at bar, as we have seen, the claim was that testator owed his father and step-mother, and at their request agreed to pay the same to the plaintiff, and, if valid, was but the transfer of that debt, with whatever right of action existed against the testator to the plaintiff, who became clothed with all of the powers of a creditor of the defendant, and could, as such, maintain an action at law upon such claim. No trust was, therefore, created in favor of the plaintiff by the testator’s agreement to pay her any sum due from testator to her parents.

But if it could be held in this case that a demaud were necessary, it would seem that the plaintiff has slept upon her rights, and that the statute of limitations had attached before this claim was presented to the executor. The Code, section 410, requires that: “ When a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the fight to make the demand is complete, except in the following cases: ” The first exception relates to the detention of money held by an agent, trustee, attorney or other person acting in a fiduciary capacity, and then the time must he computed from the time the person having the right has actual knowledge of the facts upon which the right depends.

The second is when a deposit is made, not to be paid at a fixed time, but only on special demand.

Tested by these rules, the plaintiff should, under the above section, have commenced her action within six years after the conversation which she heard between her mother and testator, in 1879. Subdivisions 1 and 2 of this section cannot be made to apply in this case; the money was not held by testator as agent, attorney or in any fiduciary capacity, as required in subdivision 1, nor was it a deposit to be paid only on a special demand, as required by subdivision 2 of that section.

It seems, therefore, that the claim, if valid in its inception, was, at the time of the presentation to the executor, barred by the statute of limitations, and he was not only justified in rejecting it and refusing to pay it, but was bound, in the discharge of his duty as executor, to treat it as a stale demand and interpose the statute of limitations as a defense.

The judgment must be reversed, the referee discharged and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide the event; referee discharged.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN W. WOOSTER, Respondent, v. EDWARD A. MAHER, Mayor of the City of Albany, Appellant.

      Municipal corporations — mandamus requiring a mayor to remove a porch projecting into a street — expiration of the term of office of the mayor proceeded against— Xaww o/T883, chap, 298; 1888, chap. 398.
    An ordinance of tlie city of Albany contained the following section: ‘.‘If any building now erected, or hereafter to be erected, shall stand upon or project beyond the range of the street, the city engineer shall, upon receipt of written directions from the mayor, send written notice thereof to the owner or person erecting or maintaining the same, who shall within ten days remove said building,” etc.
    The porch of an academy upon a street in said city, having been found to project • unlawfully into the street, the common council of the city of Albany, made, by the city charter commissioners of highways, with power to prevent and remove encroachments upon the public streets, in 1889 passed a resolution, which became a law, requesting the mayor to direct the city engineer to send a written notice to the owners of the academy requiring them to remove the porch, and, in case of their neglect or refusal to do so, to cause its removal according to the charter.
    The mayor, who was required by the charter to be vigilant and active in requiring -ordinances to be enforced, refused to act under this resolution. An alternative mandamus, thereupon issued at the suit of an adjacent landowner injured by the existence of the porch, and upon the return thereto a final order, requiring the xemoval of the porch, was made against the mayor’s successor in office, the original defendant having gone out of office;

      Meld, that after the common council had passed the resolution it was no longer discretionary with the mayor whether or not he would act in the matter, and that a mandamus was a proper 'means to compel him to send the written directions to the city engineer, contemplated by the statute.
    That as it appeared from the charter that the functions of the mayor were continuous and did not end with an official term, and as the writ was sought to secure a public improvement and the performance of a public duty, the writ would be regarded as having issued against the mayor of the city of Albany, and not simply, against the person who was the incumbent of that office when the proceeding was commenced.
    That, consequently, the mayor of Albany would be deemed to be still before the court, and the writ would operate upon the office, and consequently upon the person who held it.
    Appeal by Edward A. Maher, Mayor of the City of Albany, from an order of the Supreme Court, entered, after a trial by the court at the Albany Circuit, in the clerk’s office of Albany county on the 25th day of November, 1891, commanding him, upon receipt of a peremptory writ of mandamus, to send written directions to the city engineer of the city of Albany to send written notice to the owners of the Albany Female Academy to remove a certain porch of said academy which projected into North Pearl street, in the city of Albany, with notice of an intention of bringing up for review upon the appeal the order for an alternative writ of mandamus, said writ, the verdict, report and decision, the final order directing a peremptory writ to issue, and the judgment for costs.

      Matthew Hale, for the appellant.

      Franklin M. Danaher, for the respondent.
   Mayham, P. J.:

On the petition of the relator a writ of alternative mandamus was issued, reciting that the defendant being mayor of the city of. Albany, and having the power and duty in the premises, has unjustly refused, after due demand made upon him, to cause a ■certain obstruction in North Pearl street to be removed pursuant to section 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, and requiring the defendant, on the receipt of the writ, to send written directions to the city engineer of the city of Albany to send written notice to the owner or person who erected, or who is now maintaining the porch or buildmg in question, within ten days to remove said porch or building under and pursuant to the provisions of the acts above referred to, or show cause why the command of said writ ought not to be obeyed.

The defendant answered such alternative writ and admits that the Albany Female Academy, a domestic corporation, has erected and now maintains a building, porch or portico, which stands upon and projects thirteen feet easterly from the front of the building of the store adjoining thereto occupied by the relator, but as to whether such erection and maintenance by the said Albany Female Academy is unlawful, and as to whether the said porch or portico projects thirteen feet beyond the range of the west side of North Pearl street as laid out, and whether the same is a public nuisance, or whether the same causes loss, inconvenience or damage to the relator in his business, the defendant denies any knowledge sufficient to form a belief.

The answer also alleges that the Female Academy has maintained this building and portico, as described in the alternative writ of mandamus, for more than forty years in its present condition, and has, as against the city of Albany, acquired by prescription and long user a right to maintain such building and portico in its present location.

The defendant, by his answer, admits that he is mayor of the city of Albany, but denies that he has the power and duty of giving directions to the city engineer as stated in the alternative writ of mandamus. The issue, joined by the alternative writ and answer, was tried by the court, a jury having been waived by the parties, and the court ordered a peremptory writ of mandamus to issue, and from the judgment and order the defendant appeals. The case discloses that before the trial the official term of Edward A. Maher, as mayor of the city of Albany, had expired by its own limitation and his successor had been chosen and qualified, but had not, by any order of court, been substituted as defendant in this action. The appellant insists that the statute under which the relator prosecuted this action does not justify the court in granting a writ of mandamus against the mayor to compel him to give a written notice to the city engineer, under section 10 of title 13 of chapter 398 of the Laws of 1888. That section is as follows: “ If any building now erected or hereafter to be erected shall stand upon or project beyond ÍPthe range of the street, the city engineer shall, upon receipt of written directions from the mayor, send written notice thereof to the owner or person erecting or maintaining the same, who shall within ten days remove said building,” etc. ■

It is insisted that this statute imposes no absolute duty upon the mayor, and that it is a matter resting in the discretion of that officer whether or not he will require, by written direction from him, the engineer to give the written notice to the owner or person erecting or maintaining an encroachment beyond the line of the street, and that there is no power in the court to compel the mayor to give such direction or to set in motion the exercise of that discretion on the part of the mayor, and that the mandatory power of the court cannot be invoked to compel the performance of a discretionary act; and that proposition seems in the abstract to be sound, both upon principle and authority.

If the court can control the exercise of a purely discretionary power vested in an executive or administrative officer, then such power would cease to be discretionary in the officer and would vest in the court. The boundary line of discretion must be passed, and the domain of clear, legal, official duty of such officer must be reached before the court can exercise its coercive power to compel a ministerial, executive or administrative-officer to act.

In People ex rel. Demarest v. Fairchild, Attorney-General (67 N. Y., 336) the relator sought by .mandamus to compel the Attorney-General to bring an action in the nature of a quo warrantoto test the title to an office. Allen, J., in delivering the opinion of the court says: “ The control over the action and the right to bring it is with the Attorney-General, and the courts cannot sit in judgment upon the exercise of his discretion or coerce his action.”' So, also, in People ex rel. Hammond v. Leonard, Overseer (74 N. Y., 443) Church, Ch. J., says; “ While a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion.”

But the respondent, in answer to this contention of the appellant, insists that the duty of the mayor was not discretionary, but peremptory — a duty imposed upon him as the chief executive officer of the city by statute ; and that by not giving the direction to the engineer referred to in section 10 of title 13 of chapter 398 of the Laws of 1888 above referred to, he failed in the performance of this statutory requirement and duty, and thereby subjected himself to the coercive mandate of this court. The statute relied upon by the relator in support of this contention is section 9 of title 4 of chapter 298 of the Laws of 1883, which in part defines the powers and duties of the mayor of the city of Albany. In defining the powers and duties of the mayor that section provides that he shall “be vigilant and active in causing the ordinances of the city and laws of the State to be executed and enforced, and the affairs of the city to be well and economically administered.”

This section also gives the mayor right to exercise a sort of supervision over other and subordinate officers, and to suspend them for non-performance of official duties. Section 17 of the same title provides that “ He shall perform all such duties as may be prescribed for him by city ordinances and the laws of the State, and be responsible for the good and efficient government of the city.”

Section 14 of the same title makes the common council commissioners of highways, with powers to prevent and remove encroachments upon the public streets; and by section 9 of title 3 of the same act, an ordinance of the common council, passed in pursuance of the charter, becomes binding in ten days after its passage without the signature of the mayor. On the 21st of January, 1889, the common council of the city of Albany referred to the law department of that body a resolution as follows :

“Resolved, That the mayor be, and he is hereby, requested to direct the City Engineer to send a written notice to the Trustees of the Albany Female Academy to remove the porch to the building owned by them which projects beyond the range of North Pearl street on the west side thereof, between Maiden Lane and Steuben street, and. in case of their neglect or refusal to remove the same, to cause such removal to be made pursuant to section 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888.”

The law committee of the board of common council reported favorably on such resolution and recommended its passage, and the 15th day of April, 1889, the common council duly adopted such resolution.

While it is true that section 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, does not, in terms, make the action of the mayor in giving the written direction to the city engineer to depend upon the action of the common council of the city, yet when the common council of the city, under their authority as commissioners of highways, coupled with their legislative authority to pass a city ordinance, do give such direction which, by the lapse of ten days, is permitted to become an ordinance, it would seem to follow that the mayor, under the provisions of section 17 of title 4 of chapter 298 of the Laws of 1883, which provides “ that he shall perform all such duties as may be prescribed for him by city ordinances and the laws of the State,” would be bound to give such order to the engineer. The ordinance having been adopted, it was no longer a discretionary power to be exercised or not -according to the volition of the mayor, but became a positive, legal executive duty which may be compelled by mandamus.

The appellant aiso insists that the peremptory writ should not have been granted for the reason that, at the time of granting the same, the official term of Edward A. Maher, as mayor, had expired and his successor had assumed the duties of the office, and that the appellant, as mayor, was functus officio and powerless to obey the mandate of the writ. Unless this writ runs against the office of mayor, and not the individual disconnected from the office, this objection is sound and fatal to these proceedings. Clearly, a peremptory mandamus could not compel Edward A. Maher, after the expiration of his official term as mayor, to do an act that could by law be done only by the mayor, and direction from him to the engineer would be unofficial and wholly impotent to put the engineer in’ motion and compel him to serve the written notice on the owner required by the statute. No order of this court could galvanize into life the official functions of mayor in the defendant Maher; once out of office he is powerless to resume his official functions or perform official duties, and the court has no power to rehabilitate him in office or reinvest him with official power. This must be so upon principle, and has been frequently so held upon authority.

In People ex rel. Gaige v. Reardon (49 Hun, 426), the court held: The board of inspectors (of election), upon making and filing its certificate, had fully discharged its official duty, and, therefore, became functus officio as a board. A writ directed to them would be of no effect, since they could not legally again convene as a body and undo the acts done at a prior time and when in the proper discharge of official duty.”

In People ex rel. Bailey v. Supervisors of Greene County (12 Barb., 222), Harris, J., in discussing the power of the court to compel by mandamus the performance of an official act when the body or officer sought to be compelled to act is out of office, uses this language: “ But when the board having performed the office for which it was constituted, whether legally or not, has been dissolved) it is incapable of being reanimated. Any act it should attempt to perform, even though it be done in obedience to the mandate of this court, would be'extra official and nugatory.” In People ex rel. Stevens v. Hayt (66 N. Y., 607), the Court of Appeals, in discussing the power of the court to grant a writ of mandamus and its effect upon the board or officer sought to be commanded, uses this language and adopts this rule: “ First, that to entitle a relator to the writ, he must show himself legally and equitably entitled to some right properly the subject of the writ, and that it is legally demandable from the person to whom the writ must be directed; also that such person still has it in his power to perform the duty required.”

Further citations of authority upon this subject are unnecessary, and it remains for us to examine whether this writ can be held to have been directed to the Mayor of Albany, or to Edward A. Maher. If to the latter, then, as we have seen, the writ cannot be upheld. If to the former, then change of the incumbency of the office would leave its mandate to operate on the incumbent as mayor, whoever he may be, and the writ, so far as the question now under consideration is concerned, can be upheld.

By section 1 of title 4 of chapter 298 of the Laws of 1883, the mayor is made the chief executive officer of the city of Albany, and sections 6, 7 and 8 of that title provides for the succession of the executive functions, in case of death, removal from office or the expiration of the term of the incumbent of that office.

From these provisions it appears that official functions vested in the mayor are continuous, and do not terminate with the end of the official term of any incumbent.

If, therefore, this action can be held to have been prosecuted against the mayor, a change in the incumbency of that office would not terminate the action or the effect of the writ, but the same would continue to operate upon the office, and the duties and obligations imposed by it would attach to the in-coming incumbent and acting mayor.

In determining whether the writ operates upon the office through the incumbent, or only on the incumbent, it is important to consider whether the duty enjoined would be incumbent on the successor in office. If it would, then it would seem that it is the performance of the official duty that is commanded to be performed without regard to the name of the incumbent, and in such case the writ may proceed against the office by name without the name of the incumbent appearing in the proceedings.

In the case of the People ex rel. Shaut v. Champion and Others, Commissioners of Highways (16 Johns., 61) Spencer, J., in delivering the opinion of the court, says: “ It has been urged, that, non constat, the commissioners to whom the alternative mandamus was directed are now in office; and that if they are not, the peremptory mandamus will be unavailing. It was not necessary, in the first instance, to issue the writ to any persons by name, for this is not a proceeding against any individual until an attachment issues. The relator might omit the names and proceed against the commissioners of the town, whoever they may be, and if, as commissioners, they disobeyed our mandate they would incur a personal responsibility.”

In the case of the People ex rel. Case v. Collins and Others, Commissioners of Highways (19 Wend., 56), it was held that a mandamus to the defendant’s commissioners of highways to open and work a road will be granted without regard to the near approach of the expiration of their offices. When the terms of office expire their successors must obey the command of the writ, and the court says: “ The obligation sought to be enforced devolves on no particular set of commissioners, and no right is in question which will expire within, the year. The duty is perpetual • upon the present commissioners of Smyrna and their successors, and the peremptory writ may be directed to, and enforced upon the commissioners of the town generally.' To say otherwise would be a sacrifice of substance to mere form.” These cases seem to have been approved and followed not only in this State, but in many of the sister States and in the Federal courts.

In the People ex rel. Scott v. The Supervisors of Chenango County (4 Seld., 317), it was held that when the supervisors neglected to perform the duty of levying the military tax required by statute, a mandamus would lie to compel them to reconvene and perform that duty; and Willard, J., in pronouncing the opinion of the court, uses this language: “ Their neglect to perform their duty at the time required cannot nullify the statute. They or their successors are bound to do what was required, and on failure to perform it may be compelled by mandamus.”

In Thompson v. United States (103 U. S., 108), the court says : “ But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of the term of office of the defendant, where, as in this case, there is a continuing duty irrespective of the incumbent and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held by very high authority,” citing 16 Johnson, 61, and 19 Wendell, 56 (supra).

But it is urged that in the cases above cited some public or municipal duty was involved, and not one personal to the officer, and that in that particular those eases are distinguishable from the one at bar. In the leading cases to which reference has been made, the commissioners of highways refused to carry out an order made by commissioners on appeal directing them to cause the highway to be opened and worked.

Without obedience to that order by the commissioners the alleged public improvement could not be completed.-

In the case at bar the common council by an ordinance requested the mayor to direct the engineer to notify the owners to remove the alleged encroaching portico. Without the giving of such notice the commissioners or common council were under the law powerless to make the alleged public improvement in removing this portico. Both are claimed to be public duties which cannot be accomplished but by the active operation of the public officers charged with the performance of the alleged duty. The alleged duties in both cases were continuous, and could be performed by the then incumbents of the office or by their successors in office.

Nor do I see how the present incumbent can be injured or damaged by these proceedings being continued against him as the present incumbent of the office into which he has been inducted as the successor of Mayor Maher, or how he can claim immunity from the operation of this writ by reason of any assertion of want of notice or knowledge of these proceedings. The new incumbent of an office assumes the duties charged with knowledge of the official acts of his predecessor, and must take up and complete the unfinished business of his predecessor, whether they be official, financial obligations of the municipality or official legal controversies in which it may be involved.

We are, therefore, inclined to the opinion that, under the authorities, the mayor of Albany may be regarded as before the court in these proceedings, and that the peremptory mandamus must be regarded as operating upon the office in the possession of the present incumbent. We have examined the various questions raised by the appellant upon the admission and rejection of evidence on the trial, and the exceptions taken by the defendant to findings and refusals to find by the learned court, and find no error for which this writ should be quashed or judgment reversed.

Order and writ of mandamus confirmed, but without costs to either party as against the other of this appeal.

Putnam, J., concurred; Herrick, J., not acting.

Order for writ of peremptory mandamus affirmed, without costs to either party as against the other.


author: Putnam, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AMERICAN SURETY COMPANY OF NEW YORK, Plaintiff, v. FRANK CAMPBELL, Comptroller of the State of New York, Defendant.

      Taxes — on corporate franchise or business — after the comptroller has made one revision of an account stated by him against a corporation, his power is spent — appeal from Ms decision.

    The Comptroller of the State of New York settled and stated the taxes, upon the franchise or business of a corporation, due to the State, under chapter 542, Laws of 1880, on April 6, 1891. The corporation made an application, under section 19 of the act, as amended by chapter 463, Laws of 1889, to review and. correct his decision, which application the comptroller denied on June 9, 1891. Thereafter the corporation made a second application, which was denied on February 3, 1892. Under section 20 of the act of 1880, as amended by the act of 1889, the decision of the comptroller can be reviewed by the Supreme Court both on the law and the facts.
    In a proceeding taken by the corporation to review by c&rtiorcm'i the decision of the comptroller refusing the last application:

      Held, that section 19 contemplated but one revision by the comptroller, and that after it was made his power was spent.
    That, even if the comptroller had the power to open the matter after his first revision, he was not bound to do so where the facts were substantially the same, and that his refusal to do so could not be reviewed by certiorari.

    That his subsequent refusal to alter the first decision as to a revision, left that decision controlling.
    Certiorari to review the determination or decision of Frank Campbell, Comptroller of the State of New York, whereby he, on February 3, 1892, declined to make any revision or readjustment of an account theretofore settled by him, as such comptroller, against the relator, the American Surety Company of New York, for taxes due the State for the year ending November 1, 1890.

      John J. Crawford, for the plaintiff.

      Simon W. JRosendale, Attorney-General, for the defendant.
   Putnam, J.:

I think the writ of certiorated herein was improvidently granted. The relator seeks to review the decision of the Comptroller settling the tax on its capital for the year ending November 1, 1890, under chapter 542 of the Laws of 1880, as amended. These taxes were settled and stated by the Comptroller on the 6th day of April, 1891, at $1,500. The relator thereafter made an application to the Comptroller under section 19 of the act of 1880, as amended in 1889, to review and correct said assessment. Said application was made on affidavits and was entertained and considered by the Comptroller, and -on June 9, 1891, he rendered his decision denying said application.

Under section 20 of the act of 1880, as amended by chapter 463 of the Laws of 1889, the decision of the Comptroller can be reviewed by the Supreme Court upon certiorari, on the law and facts. By section 1-7 of the Laws of 1880, added by chapter 501 of the Laws of 1885, no such writ of certiorari shall be granted, except application therefor shall be made within thirty days after service upon such corporation of a notice of such decision. N or shall such writ be granted unless the papers upon which the motion therefor was made, including notice of motion, shall have been served upon the Comptroller at least eight days before such notice. Nor unless the corporation making such motion shall have filed with the Comptroller an undertaking, etc.

"Without considering the fact that no notice of motion or copy of the affidavits or undertaking required by section 11 {supra), has ever been served on the Comptroller, in my judgment, the application for a writ of certiorari was not made in time. The contention of the relator is, although the Comptroller had already heard and passed upon the application to revise and correct the taxes imposed April 6, 1891, and rendered his decision on such application June 9,1891, and although the time to review said decision by certiorari under section IT had passed by, yet, under said section 19, a new application may be made to the Comptroller to revise the decision of June 9, 1891, and from his order declining to revise, certiorari lies, under which the foi-mer ruling of the Comptroller may be reviewed.

In other words, that under section 19 the Comptroller may repeatedly revise and readjust taxes. It would follow that after the decision of the present motion the relator might make a new application to the Comptroller for a review, and from his decision declining to review certiorari would lie, under which could be reviewed all former orders.

I do not think that such construction can properly be given to section 19. It was intended by that section to give to the Comptroller the power to revise and readjust a tax by him previously imposed. But when any tax or account has been so revised and readjusted, and the Comptroller has rendered his decision thereon, the power conferred by the’ said section is spent. The decision rendered by the Comptroller on the application to revise and readjust a tax, I think, should have the force of a judgment rendered by a court. (See Osterhoudt v. Rigney, 98 N. Y., 236; People ex rel. Myers v. Barnes, 111 id., 326.) It is proper that parties should, at some time after the imposition of the license tax, have an opportunity to be heard by the Comptroller, but after such a hearing and a decision on the merits the judgment rendered by the Comptroller should not be again opened.

But if the Comptroller, under section 19 (supra), could, on February 3, 1892, properly entertain the application of relator and set aside his former decision, made on June 9, 1891, and re-open the matter for consideration, it does not appear that he ever exercised that power. He simply “ declined to make any revision or any readjustment.” He did not set aside the decree of June 9, 1891. That judgment stands. The relator moved, under section 19-(supra), to open the decree, and.open the judgment hereinbefore rendered by the Comptroller on the merits of the case The Comptroller heard the motion and denied it, leaving the former judgment in full force. If the Comptroller could have re-opened the case, once decided by him, he was not bound to do so. It cannot be held that he is compelled to hear and review on the merits, on substantially the same state of facts, a motion to revise the taxes which he had once heard and passed upon. I think, therefore, that even if the Comptroller had the power, under section 19 (supra), to entertain and consider on its merits a second application to revise the tax which he had already passed upon, that he was not bound to do so and that the writ will not lie to review his determination in this regard. No mistakes or error of sufficient grounds were stated to open the judgment. • It was an application on the merits, made upon substantially the same facts as presented on the application that had been already heard and passed upon. The Comptroller properly declined to set aside his former decision. If his determination can be reviewed, and on such review the propriety of the decision of June 9, 1891, can be considered by this court, the provisions of section 17 (supra), requiring certiorari to be applied for within thirty days, would have no force whatever.

¥e are, therefore, prevented from considering this case upon its merits; if we were permitted to do so, the question involved is an interesting one. I think the case differs from that of People ex rel. Edison Electric-Light Compamy v. Wemple, considered at the last term (63 Hun, 444). In that case we determined that a corporation located in this State, whose capital is invested in patent-rights extending over this and other countries, being engaged in the sale of such rights, although on such sale it received instead of money the stock of local corporations outside of the State of New York, nevertheless, employed its capital within this State.

But in this case the relator, a casualty insurance company doing business in other States, has deposited in Pennsylvania, in Canada and Illinois a certain portion of its capital in connection with its business in those places. The only way that the capital of relator is used is as security to those doing business with it, and its claim is that that part of its capital which it places outside of the State for the purpose of enabling it to do business in such places is, in fact, capital used outside of the State, and cannot be deemed used within the State. The position is plausible. On the other hand, it is suggested that the property placed by the relator in Pennsylvania, Illinois and Canada, although a part of its capital, in fact, is merely deposited in those places, and is not, in any just sense, employed outside of the State. But, for the reason above suggested, this question is not properly before us, the relator having neglected to make application to review the action of the Comptroller within thirty days from the date of his decision.

The writ of certiorari should be quashed and the proceedings of the comptroller affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Writ of certiorari quashed and proceedings of Comptroller confirmed, with costs.


text:
    ANNIE E. CRAWFORD, Administratrix, etc., of WILLIAM A. CRAWFORD, Deceased, Respondent, v. ANTOINETTE L. BROKAW, Appellant.

      Pleading — an order, made upon a motion for a new trial, which presents, by allowing an amendment of a reply, a new issue, and also decides it, is im/pi'oper.

    An action was brought by the administratrix of William A. Crawford upon a promissory note for $1,000, given by Antoinette L. Brokaw to said Crawford, to which Brokaw interposed a defense of the' payment of $350, and set up as a counterclaim a note for $775 given her by Crawford.
    'The administratrix replied denying both the payment and the counter-claim, and upon the trial of the action recovered the full amount claimed.
    Upon a motion for a new trial the court made an order determining that the verdict was against the evidence, but the judge, having decided from the evidence that there was no consideration for the $775 note, further ordered that if the plaintiff should stipulate to allow the $350 payment, and should also serve nunc pro tunc an amended reply, alleging that the $775 note was without consideration, she might have judgment for the $1,000 note, less the $850 payment. The plaintiff complied with the terms of the order and entered judgment accordingly.
    Upon an appeal from this judgment and order:

      Held, that the order was erroneous.
    That its effect was to raise an.issue, i. e., the question as to the consideration of the $775 note, which had never been passsed upon by the jury, and upon the court’s decision of that issue to allow a judgment to be entered against the defendant.
    Appeal by tbe defendant, Antoinette L. Brokaw, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 31st day of January, 1891, upon a recovery by the plaintiff of $797; a verdict for $1,254.16, rendered upon a trial had at the Saratoga Circuit before the court and a jury, having been reduced upon a motion for a new trial. The defendant also gave notice of her intention to bring up for review upon the appeal all that part of an order made upon her motion for a new trial which allowed the plaintiff to enter judgment on serving an amended reply to the $775 note set up in the answer as a counter-claim, stating in said amended reply that there was a failure of the consideration for which the note was given, and which allowed the plaintiff to enter judgment on serving the stipulation mentioned in said order.

      0.8. Lester, for the appellant.

      John Foley, for the respondent.
   Putnam, J.:

This action was brought on a note dated September 28, 1885, made by defendant to plaintiff’s intestate. The defendant did not dispute the genuineness of the note, but alleged in her answer a payment thereon of $350, and as a counter-claim set up a note made by the intestate to her dated October 19, 1885, for $775. The plaintiff served a reply denying the genuineness of the said note and said alleged payment.

The jury found in favor of the plaintiff for the full amount of her note, disallowing the alleged payment and the note set up by defendant as a counter-claim. The trial judge entertained and considered carefully a motion made by defendant for a new trial, and determined that the verdict of the jury was against the weight of evidence as to the genuineness of the note on which the defendant claimed, and of the receipt for the $350 payment produced by her upon the trial, and awarded defendant a new trial unless the plaintiff should stipulate to allow said payment, and also should serve an amended reply setting up a failure of consideration of the said note.

The judge held, under the issues as formed by the pleadings, that the verdict was not sustained by the evidence and that the defendant was entitled to a new trial. But that the evidence in the case indicated that there was a failure of consideration of the note set up as a counter-claim, and no such defense being alleged in the reply he allowed the plaintiff to serve an amended reply asserting, as to such note, the defense of want of consideration.

The plaintiff thereafter served a stipulation allowing the payment set up in the answer, and also an amended reply, and in pursuance of the order of the judge entered judgment for the sum of $808, being the amount demanded in the complaint, less the payment as claimed by defendant.

The question is not before us as to whether the trial judge, in holding that the verdict of the jury, against the genuineness of the receipt and note produced by defendant upon the trial, was against the weight of evidence, reached a correct conclusion or otherwise. The defendant moved for a new trial, which the court granted, unless the plaintiff would make a deduction from the amount of the verdict and serve an amended reply. The plaintiff acquiesced in the determination of the trial judge and has not appealed from his decision, but has taken the benefit of his order. The only question before us, therefore, is whether the court below was authorized to allow an amended reply to be served by the plaintiff, and the verdict to stand on such reply being interposed.

On the issues formed by the pleadings, existing at the time of the trial, the judge set aside a verdict of the jury. But he allowed a new issue to be made by an amended reply, and the verdict to stand as reduced by plaintiff’s stipulation as a verdict on that issue.

The objection to the order so made is that the jury, in fact, never passed upon the issue formed by the amended reply. No such case has ever been tried. On the issue so formed the defendant might wish, and be able, to offer other evidence. The jury heard and passed upon a different case. The court below set aside the verdict upon the case as tried’before the jury, and substituted a new issue and allowed'the modified verdict to stand as the finding of the jury on that issue. But the jury, in fact, did not render the verdict on the changed issue as allowed to stand. Upon the issues as formed by the amended reply, properly there is no verdict of the jury. It is a verdict made by the court.

I think the court below could not properly make such an order changing the issue on which the jury passed, and allow the verdict to stand as the determination of the jury on an issue not tried before them.

There should be a reversal of the order and judgment and a new trial, costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, new trial granted, cost to abide the event.


text:
    LOUISE F. MARS, as Administratrix of JOHN H. MARS Deceased, Respondent, v. ALBANY SAVINGS BANK, Appellant.

      Interpleader of rival claimants to a savings lank deposit — what the affidavit on a motion therefor should state.

    In an action brought against a savings bank by a depositor, an application was made by the bank for an order of interpleader under section 820 of the Code of Civil Procedure. The affidavit upon which the motion was made alleged that persons, other than the depositor suing, claimed the fund; that these persons were not in collusion with the bank; that they claimed hy reason of an alleged gift from a former owner of the fund, and that the bank was ignorant of the grounds and merits of the respective claims.

      Meld, that the affidavit was insufficient.
    That it should state facts showing that there was some foundation for the rival claim, or some plausibility in it, or such a state of facts as justified a reasonable doubt in respect thereto in the minds of the officials of the bank.

      Williams v. MStna Life Insurance Company (8 N. Y. St. Rep., 567) followed.
    Appeal by the defendant, the Albany Savings Bank, from an order of the Supreme Court, entered in the office of the clerk of Albany county on the 4th day of January, 1892, denying its motion that Helen Stanley and Kate A. Judge be substituted, in its place, as defendants in the above-entitled action upon its payment into court of the sum claimed in the complaint, and that it be thereupon discharged from all liability by reason of said fund to the plaintiff, or to said Stanley, or to said Judge, jointly or severally.

      James Fenimore Cooper, for the appellant.

      Norton Chase, for the respondent.
   Putnam, J.:

Plaintiff, as administratrix of John H. Mars, brings this action to recover a balance of $773.72, claimed to be due from defendant, alleging that at the time of his death John H. Mars had on deposit with defendant $1,186.38. After his death the account was transferred to the credit of the plaintiff, as his administratrix. She afterwards deposited various sums to her credit, as administratrix, and drew out moneys, and at the time of the commencement of the action there was due her from defendant the sum of $773.72, which plaintiff had demanded of defendant and the latter had declined to pay.

The defendant, on the complaint and an affidavit, moved, under section 820 of the Civil Code, for an order substituting Helen Stanley and Kate E. ‘Judge, as defendants, and discharging defendant from liability to the plaintiff, or said Stanley and Judge, on paying into coui't the amount claimed in the complaint. The affidavit on which the‘defendant moved, as far as material, is as follows:

“That deponent further says that Helen Stanley and Kate A. Judge, who are not parties to said action, make a demand of said bank for the payment to them of said sum sought to be recovered in this áction, claiming to be entitled to the same, and to be the owners thereof; that said demand is made without collusion with the defendant herein ; that the nature of the claim of said claimants to said property, as far as shown to this deponent, is as follows, namely: That the plaintiff in this action claims the said sum, as administratrix of the late John H. Mars, deceased, and that the said Helen Stanley and Kate A. Judge claim the same by virtue of an alleged gift to them of said fund by the said John H. Mars, deceased, during his lifetime.

“And deponent further says that the defendant has no interest in the question to whom said debt or deposit belongs, and is ignorant of the grounds and merits of the respective claims made to said fund or debt, except as above set forth, and does not know to which of said claimants it may safely pay said fund or debt, and offers to pay the same into court, or to such person as this court may direct.”

This is an appeal from an order denying said motion.

It will be observed that the affidavit does not state any facts showing that the claim asserted by Stanley and Judge is well grounded, or that such claim is not frivolous, or that the officers of the defendant have doubts as to its validity. For all that appears in the affidavit the claim of the said parties may not only be frivolous, but the defendant’s officers may believe it invalid. It is true that the affidavit states that the treasurer of defendant is ignorant of the grounds or merits of the respective claims made to said fund and does not know to which of said claimants it may be safe to pay the same. But it is not stated in said affidavit that the claim of Stanley and Judge is plausible or that the treasurer believes it is well founded, nor are any facts set out from which it might be inferred that the claim is such as to create a well founded doubt as to its validity. In Bowery National Bank v. The Mayor, etc., of New York City (4 N. Y. St. Rep., 565), it was held that on a motion like this it was not necessary for an affidavit to show that the demand made on the fund would probably be successful, but only that there was a person not a party to the action who made a demand for the same debt without collusion with defendant. That case was followed in Dreyfus v. Casey (52 Hun, 95). Under these authorities, probably the affidavit in this case should be deemed sufficient. I judge, however, that in the cases cited the facts appearing indicated that the claim of the persons who were substituted as parties defendant were plausible, and not frivolous, and that said facts created a reasonable doubt as to the validity thereof. In that regard those authorities are not similar to this case.

• A different construction was placed upon the provisions of section 820 (supra) by the General Term of this district in Williams v. Ætna Life Insurance Company (8 N. Y. S. Rep., 561). In that case it was held that the court has a discretion to grant or refuse an order to substitute a third party making a claim to a fund. In that case Justice Learned, delivering the unanimous opinion of the court, remarked, “ There must always be a real doubt in the mind of the defendant, based upon facts, as to who has the just claim, before an interpleader should be permitted, or the provisions of the Code of Civil Procedure, section 820, enforced.” The affidavit on which the motion was made in that case seems like the affidavit here. The General Term reversed the order in that case made at Special Term, holding that there should be evidence given as to the validity of the claim asserted to the fund to recover which the plaintiff bought the action. (See, also, Pustet v. Flannelly (60 How., 67.)

I assume that the judge below felt bound to follow the rule laid down by the General Term of this district in the case cited. In the case we are considering the plaintiff seeks to recover a deposit standing in her name as administratrix in defendant’s bank. The defendant asks to substitute other parties as defendants, on the mere allegation that they claim the fund. No facts are stated from which we could infer that there are any grounds for the claim. In fact, the affidavit on which the motion is founded states that defendant’s 'treasurer is ignorant of the grounds and the merits of the respective claims. The affidavit does not state that the defendant’s officers have doubts as to whether the claim asserted by Stanley and Judge is invalid or otherwise, or that the claim is plausible, or that they believe it to be well founded. I think it is proper, when an application is made under the provisions of section 820 (supra), that the affidavits and papers on which said motion is founded should set out facts showing that there is some foundation for the claim asserted to the fund, or some plausibility in the claim, or such a state of facts as justifies a reasonable doubt in the mind of the moving party as to its validity. To that extent, at least, I think the case of Williams v. Ætna Life Insurance Company (supra) should be followed.

The order should be affirmed, with costs.

Herrick, J., concurred; Mayham, P. J., not acting.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    WILLIAM BRADLEY, Respondent, v. MARGARET SHAFER and ROBERT SHAFER, Appellants.

      Torts — action against a married woman for enticing away and seducing a child — an amendment of the complaint, after verdict, including the husband in the demand for judgment — measure of damages.

    An action was brought, in 1889, by the father of an infant against Margaret and Robert Shafer, who were husband and wife, for the damages resulting from the loss of the services of the plaintiff’s daughter, who had been seduced by the son of the defendants, in which the complaint alleged that Margaret Shafer enticed the girl to her house, was cognizant of the improper intercourse and wrongfully permitted it. It also alleged that the girl was seduced upon a promise by Margaret Shafer that her son should marry the girl, and demanded a money judgment against Margaret Shafer only.
    The plaintiff recovered a verdict, after which the court allowed the complaint to be amended so as to demand judgment against both the defendants, and judgment was so entered.

      Held, that this was improper.
    That the husband of Margaret Shafer was a necessary party to an action of this nature, brought in 1889, and before chapters 51 and 248 of the Laws of 1890, relative to the rights and liabilities of husband and wife, and to parties to actions, were passed.
    That it was error after verdict to create a judgment against Robert Shafer which was not demanded in the complaint.
    That as, in 1889, the husband was jointly liable for the wife’s torts he was a necessary party, and that the judgment must be wholly reversed since a judgment against the wife only was improper.

      Semble, that if the jury found, as they might have done from the evidence, that Margaret Shafer connived at the enticing away and seduction of the girl, such seduction was an element of the damages proper to be considered.
    Appeal by tlie defendants, Margaret Shafer and Robert Shafer, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 4th day of February, 1891, upon a verdict for the plaintiff for $2,500, after a trial at the Albany Circuit before the court and a jury; also from an order of the same' court, entered in the same clerk’s office on the same day, denying a motion made by the defendants for a new trial upon the minutes, on the grounds that the verdict was against the evidence, and that the damages were excessive; and also from an order of the same court, entered in the same clerk’s office on the same day, by which the prayer of the complaint was amended to conform to the facts proven, and so as to demand judgment against both the defendants.
    The complaint was as follows:
    The plaintiff, for a complaint in this action, respectfully shows to the court and alleges:

      First. That the defendant Margaret Shafer is the wife of the defendant Robert Shafer, and that the defendants live together as husband and wife in the city of Albany, N. Y., and have for many years.

      Second. That the plaintiff is the father of Mary A. Bradley, hereinafter named, who is under twenty-one years of age, and lives with the plaintiff at said city of Albany.

      Third. The plaintiff alleges, upon information and belief, that during the fall of 1888 and winter of 1888-89 the defendant Margaret Shafer often came to the plaintiff’s house and, without the plaintiff’s consent or knowledge, coaxed and enticed the plaintiff’s daughter, Mary A. Bradley, to go away from her home and parents and to go to the defendants’ home; and that the said Margaret Shafer promised and agreed to and with the said Mary A. Bradley that if she would remain at her house she would be a mother to her, and that she should be the wife of her son, George Shafer, who was then living at home and of marriageable age; that to further her design of getting control of plaintiff’s said child, and getting her away from her home and parents and at the home of the defendants, the defendant Margaret Shafer treated her as her child in many different ways; made her different promises, and wrongfully and maliciously persuaded the said child away from her home and her parents.

      Fourth. The plaintiff further alleges, upon information and belief, that by reason of the wrongful and malicious persuasions and inducements of the defendant Margaret Shafer, held out to the plaintiff’s said child by her, without the plaintiff’s knowledge or consent, and against the plaintiff’s wishes, rights and interests, the said Mary A. Bradley frequently left her home during the time aforesaid and went and stayed at the defendants’ home; and that while she was at the defendants’ home, living and sleeping in their house, the defendants’ son George cohabited with the plaintiff’s said child, and slept in the same bed with her, and carnally knew her as if they were man and wife, all of which the defendant Margaret Shafer well knew, and ought to have known, and wrongfully permitted and brought about in her own house.

      Fifth. The plaintiff further alleges, upon information and belief, that during the time aforesaid, and while the plaintiff’s said daughter was at the defendants’ home, and under the care of the defendant Margaret Shafer, she became, and still is, pregnant by the defendants’ said son George, and that the plaintiff’s said daughter was seduced by the promise of marriage to the defendants’ said son George, made to her by the defendant Margaret Shafer and her said son George, and for that reason cohabited with the said George Shafer; and that the said George Shafer has secretly gone away, assisted and secreted by the defendant Margaret Shafer; and that the plaintiff cannot ascertain his whereabouts; and the defendant Margaret Shafer has refused to allow her said son to marry the plaintiff’s said daughter since she became pregnant as aforesaid.
    Whereupon the plaintiff and his family have been brought into disrepute, distress and public shame, and the plaintiff has been put to large expense, and has been and will be for some time to come, deprived of the services of his said child to his damage, $5,000, for which amount the plaintiff demands judgment against the defendant Margaret Shafer, and costs.

      Frank Kampfer, for the appellants.

      Henry T. Samford and Eugene Burlingame, for the respondent,
   Putnam, J.:

This is an appeal from a judgment in favor of plaintiff, entered February 4, 1891, and from an order denying a motion made to set aside the verdict and grant a new trial because the verdict is against evidence and the damages excessive, and also from an order allow- . ing an amendment to the complaint after the verdict.

The action is for wrongfully and maliciously enticing plaintiff’s daughter from the home of her parents to defendants’ house, and there keeping her under the control of defendants against the wish and consent of plaintiff. She was seduced by defendants’ son in the house of defendants, while thus kept away from her own parents.

The complaint in this case, after stating the plaintiff’s alleged cause of action, contained the following prayer for judgment: “ Whereupon the plaintiff and his family have been brought into disrepute * * * to his damage $5,000, for which amount plaintiff demands judgment against the defendant Margaret Shafer and costs.” The trial judge in his instructions to the jury remarked, “ The defendant Margaret Shafer, who is the real defendant here, although her husband is joined with her, that is because, as the law was when this action was brought, a married woman could not be sued for a tort alone, * * * so that in this case the husband was made a party only because the law required, in order to maintain the action, that he should be joined with his wife, she being a person against whom the tort is alleged.”

The case states that the jury returned a verdict in favor of the plaintiff for $2,500 damages.” Afterwards, on motion of plaintiff, the court ordered that the prayer of the plaintiff’s complaint be and the same hereby is amended to conform to the facts proven, and so, as to demand judgment for damages against both defendants.”

I think that this order was inadvertently granted by the court. It was made after the rendition of the verdict. The jury in bringing a verdict for $2,500 for the plaintiff rendered it in pursuance of the prayer of the plaintiff’s complaint against • the defendant Margaret Shafer. They did not and could not render such a verdict against Robert Shafer for the reason that no such verdict was claimed in the complaint. Hence the order of the court has the effect of creating a verdict against the defendant Robert Shafer that was not, in fact, given by the jury. It is well settled that after a verdict the complaint cannot be amended so as to increase the amount claimed. (Bowman v. Earle, 3 Duer, 695; Decker v. Parsons, 11 Hun, 296; Dox v. Dey, 3 Wend., 356; Corning v. Corning, 2 Seld., 104; Pharis v. Gere, 31 Hun, 443.)

In this case no recovery was demanded of the defendant Robert in the complaint, but the demand for judgment was expressly made against the defendant Margaret Shafer alone, and the complaint so remained until after the rendition of the verdict. The effect of the order was to increase the amount claimed from the defendant Robert from a nominal sum to $5,000. Within the above authorities this order was unauthorized. This action was begun in 1889, hence, chapter 51 and chapter 248 of the Laws of 1890 did not apply. (Hill v. Duncan, 110 Mass., 238, 239.)

Therefore, the husband was a proper and necessary party defendant in the action and judgment should be collected from him. (Fitzgerald v. Quann, 33 Hun, 652-658; Fitzgerald v. Quann, 109 N. Y., 441; Mangam v. Peck, 111 id., 401; Bennett v. Bennett, 116 id., 597.)

The complaint in this case should have been amended before the verdict. Doubtless the court, under section 723 of the Civil Code, an motion, could have allowed such an amendment at any time before the submission of the case to the jury. After the verdict, as we have seen, the court possessed no such power. The effect of such an amendment and of the order in question was to make a verdict for the jury never, in fact, rendered. Therefore, as to the defendant Robert Shafer the order in question and the judgment must be reversed and a new trial granted. But, as we have seen, the husband is a necessary party defendant. He is liable to pay the judgment. (Fitzgerald v. Quann, 33 Hun, 656-658.)

He is jointly liable with his wife. It is not a case where a separate verdict against either would be proper. Hence the orders and judgment should be reversed and a new trial granted as to both defendants. (Pollock v. Webster, 16 Hun, 104, and kindred cases.)

It is urged by defendant that there should be a new trial, because the damages were excessive. That the seduction of plaintiff’s daughter by defendants’ son did not properly enter into the question of damages. That for that injury plaintiff has a cause,of action against George Shafer. The trial court instructed the jury that they had no right to give plaintiff a verdict, because defendants’ son seduced the girl, unless they found that the mother did connive, did aid or did assist in bringing about the seduction, and either originally enticed the daughter away from the father for that purpose or subsequently entered into some arrangement to bring it about.

No exception was taken to the charge of the judge. Had an exception been taken I am not prepared to say that if the jury believed all that the witness Mary Bradley testified to, that they might not properly consider her seduction on the question of damages. According to this witness, Margaret Shafer persuaded, and, in fact, almost coerced her to leave and to remain away from her parents at the house of said defendants. Margaret knew of the seduction of the witness by her son the day it first occurred. She knew that the witness and her son were having unlawful commerce in her house. She knew the bad character of her son. Yet she prevented the witness from returning to her parents, and knowingly kept her exposed to the solicitations of her son, making no effort to put a stop to the immoral intercourse going on. Margaret absented herself for days, leaving her son and the witness alone together. I am inclined to think that there was evidence in the case from which the jury might, if they believed the statements of the witness Mary Bradley, as they could, find that the witness, defendant Margaret Shafer, having induced this young girl to leave her parents and sojourn at her house under her care and charge, knowingly connived at the commerce between the girl and her son, which was carried on without objection on her part. I am, therefore, not prepared to say that the matter was not properly submitted to the jury by the learned trial judge, or that the jury,'believing the statements of the witness Mary Bradley, could not consider the seduction on the question of damages, and hence that the verdict should be set aside on the ground that the damages were excessive.

But, for the reasons above stated, the orders and judgment should be reversed and a new trial granted, costs to abide the event.

Herrick, J., concurred; Mayham, P. J., concurred upon the ground first stated in the written opinion.

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