text:
    Patrick H. Duffy and Others, Respondents, v. The Durant Land Improvement Company, Appellant.

      Application by a trustee for leasie to sell real estate — notice to all persons in interest — “ beneficiaries " embraces every possible interest — presumption as to all the proper pa/rties being in court.

    In proceedings for the sale of real property brought by the trustee named in a decedent’s will, it is imperative, in order that the Supreme Court may have authority to order a sale, that every beneficiary of the trust shall have notice of the application, and when no notice is given to the remainderman of the sale of such real estate, the purchaser thereat does not acquire a marketable title to the same.
    All parties who may be ultimately interested in the estate by reason of the provision of the trust must have notice of the proceedings, in order to effect a conveyance of the interest which they may subsequently have, and by the use of the word “ beneficiaries ” the Legislature intended to embrace every possible interest.
    In proceedings brought by a trustee for leave to sell real estate, where the order granting a reference in the matter recited the reading of the petition and proof of the due service thereof on “ Estelle Durant Bowers, the sole beneficiary of the said trust,” there is no presumption that the other beneficiaries of such trust were brought into court.

      Appeal by the defendant, The Durant Land Improvement Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of November, 1893, upon the decision of the court rendered after a trial at the New York Special Term.

      O. J. Hardy, for the appellant.

      JE. 8. Babcock, for the respondents,
   Van Brunt, P. J.:

This action was brought to recover $1,000 which was paid upon a contract to sell certain lands in the city of New York, made by the defendant with one Patrick H.' Duffy representing the plaintiffs, upon the allegation that the title offered by the defendant in fulfillment of that contract was not such as the plaintiffs were bound to accept and pay for.

Various objections were raised to the title, but in the détermination of this appeal it is not necessary to consider them all. The premises in question belonged to one Charles ~W. Durant, who died on the 6th of April, 1885, a widower, leaving a last will and testament and a codicil thereto. He left him surviving his sons, Frederick C. Durant, Chas. "W". Durant, Jr., and Howard M. Durant, his daughter, Estelle D. Bowers, wife of Henry C. Bowers, and his grandchildren, Adele Durant and Victor Durant, children of his son Thomas E. Durant, who predeceased his father, all of whom were living at the time of the trial of this action. Estelle D. Bowers then had issue living, a son, John M. Bowers, second. By the said will a power of saie was given to the executors therein mentioned during the lifetime of the testator’s wife. By the codicil this limitation, upon the power of sale was eliminated. Such will, after making various devises and provisions for his sons, by the ninth clause gave, devised and bequeathed a fifth part of the rest, residue and remainder of his estate unto his son Frederick C. Durant, in trust, to safely invest the same in securities therein named and to apply the income thereof to the sole and separate use of his daughter Estelle during her natural life, and upon the death of said daughter leaving issue her surviving, then to pay over to such issue the principal of such share so devised in trust, to be equally divided among them, and in case his said daughter should die leaving no issue her surviving, then upon her death he gave the principal of such share to his sons (naming them), to be equally divided among them.

By his will the testator gave, devised and bequeathed a remaining one-fifth of the residuum of his estate to the Union Trust Company of New York, in trust for the benefit of his son Thomas F. Durant. The will further provided that upon the death of his son he gave and bequeathed to Adele, daughter of his said son, the sum of $60,000, and to Victor the sum of $40,000, and the remainder of said share he gave to his other children living at the death of said Thomas, equally to be divided among them. By his will he appointed his wife, who predeceased him, executrix, and his sons Charles W. Durant, Jr., and Frederick C. Durant, executors.

Objections were filed to the probate of both will and codicii, which were withdrawn in pursuance of an agreement made in June, 1885, between Mrs. Bowers and her three surviving brothers, which, in substance, provided that Charles should renounce his position as executor; that Frederick should resign as trustee under the clause above referred to respecting the interests of Mrs. Bowers in favor of the Farmers’ Loan and Trust Company; that the division of the testator’s realty should be made among the parties if they could agree u.pon one, and that Mrs. Bowers, as the owner of an Uxxdivided one-twentieth (being a part of the one-fifth devised in trust to Thomas F. for life and then over as above mentioned), should have the right to bring partition .within a specified period. Frederick C. Durant resigned as such trustee, and on the 17th of July, 1885, the Farmers’ Loan and Trust Company was appointed in his stead by order of the surrogate. Thereafter, on the 18th of July, 1885, Frederick C. Durant, as executor of Charles W. Durant (the elder), deceased, Charles W. Durant (the younger), the said Frederick C. Durant individually, and Howard M. Durant executed for a nominal consideration a deed to the Farmers’ Loan and Trust Company, as trustee for Estelle D. Bowers, purporting to convey an undivided fifth in two lots embraced in the plaintiffs’ contract upon the trust created in the will of Charles W. Durant in favor of his daughter, Estelle D. Bowers. Upon the same day the same grantors executed to Estelle D. Bowers a deed conveying in fee simple an undivided one-tiventieth part of the other two lots mentioned in plaintiffs’ contract, and upon the same day the same grantors executed to said Mrs. Bowers a deed purporting to convey in fee an undivided twentieth part of the two lots first above mentioned. On the 27th of May, 1887, there was presented to the Supreme Court a petition of the Farmers’ Loan and Trust Company reciting the facts above mentioned ; also reciting the bringing of a partition suit by Mrs. Bowers to partition the New York and Western lands, and the litigation connected therewith, the proceedings by the executor to account in the Surrogate’s Court and the filing of objections thereto; that the said Estelle D. Bowers was the sole beneficiary of the trust of which the petitioner was trustee; that the expenses of the litigation threatened great injury to the estate of the petitioner; and that the entire estate was practically unproductive; that said Mrs. Bowers in the preceding April agreed with her brothers to settle all matters in dispute between them upon terms which to the petitioner seemed particularly to the advantage of the beneficiary of the trust; that, among other matters so agreed upon and as part of said settlement, was that all the lands situated in the city of New York left by the said Chas. W. Durant, deceased, and forming part of the lands described in the partition suit, should be purchased by Frederick C., Chas. W. and Howard M. Durant, at .a value of $280,000, paying to said Mrs. Bowers and the petitioner for their interest the one-fourtli part thereof, namely, $70,000 ; that of said sum Mrs. Bowers was entitled to $14,000 and the petitioner to $56,000, and that in order to carry out such settlement it was necessary that the petitioner should be granted authority by this court to ■ sell its share or interest in said premises for .the aforesaid sum of $56,000. The petition further states that all the other parties interested, who are adults and capable of the disposing of the same,1 were agreed that it would be advantageous, and that the three' Durant brothers had appointed Richard W. G. Welling to receive as grantee the said lands for them at the consideration aforesaid, and-' concludes by praying the order of the court authorizing the petitioner to make the sale to Welling.

Upon this petition and proof of service on Mrs. Bowers only, an'order of reference to take proof and report with opinion was' granted. The referee made his report with an opinion that the order to sell the lands described in the petition to Welling for $56,000 should be granted, and on the eighteenth of June the order prayed for was made. The Farmers’ Loan and Trust Company on the 20th of June, 1887, made a deed to Richard W. G. Welling of the trust interest. . Mrs. Bowers conveyed her undivided interest; Frederick 0. Durant, as executor of Chas. W. Durant, deceased, also executed a conveyance to Welling, and Frederick C. Durant and wife, as individuals, also executed a quit-claim deed of the same property, and Charles W. Durant and wife, and Howard M. Durant and wife also executed such deeds, 'and thereupon Welling conveyed the same premises by the same description to Frederick C., Howard M. and Charles W. Durant. In these conveyances Welling paid no consideration and acted only as the means of transfer of the title to the Durant brothers. Subsequently the three Durant brothers on the 9th of January, 1888, conveyed the premises in question to the defendant, and the title offered to the plaintiffs in pursuance of the contract of sale above mentioned was the deed of the defendant.

As has already been stated, there were various objections made to the title; but, in order to dispose of this appeal, it seems only necessary to consider one, and that is, were the proceedings taken by the petitioner in the Supreme Court such a compliance with the statute as authorized the trustee of Mrs. Bowers to convey ?

In the disposition of this question we do not propose to discuss the point as to the authority of the court to grant such an order as was made, because it does not seem to be necessary in view of the fatal defects which are presented by the proceedings themselves. It is to be observed that the only person who had notice of these proceedings was the life tenant, Mrs. Bowers; and in the petition she is represented as being the sole beneficiary of the trust, the remainderman being absolutely ignored. By the provisions of the statute under which these proceedings were taken, it is provided that no order directing a trustee to mortgage or sell lands shall be be granted unless it shall appear to the satisfaction of the court or judge that a notice in writing, stating the time and place of making the application therefor, has been served upon the beneficiary or beneficiaries of said trust at least eight days before making such application, if said beneficiary or beneficiaries are within this State, and adult. In case said beneficiary or beneficiaries are infants, lunatics, persons of unsound mind, habitual drunkards, or absentees, said court or judge shall not direct the trustee to mortgage or sell said lands until such beneficiary or beneficiaries are brought into court by such notice as said court or judge may prescribe.

It is, therefore, imperative, in order that the court shall proceed and make an order for a sale under these proceedings, that every beneficiary of the trust shall have notice that its interests are to be affected by the order made by the court. It is claimed that the child of Mrs. Bowers was a beneficiary, and no notice of these proceedings was given to it. In answer to this objection it is urged that there was no proof offered to show that this child was not properly before the court; and that as the statute says that such infant shall be brought into court by such notice as the court or judge may prescribe, it is left entirely within the discretion of the court or judge; and, in the absence of any proof to the contrary, it will be presumed that the court did its entire duty under the statute when the petition for leave to sell was before it; and that in the absence of direct and positive proof that this infant was not properly brought into court on that proceeding, it will be assumed that the court before which the application was made did give such notice as in its opinion was deemed sufficient to protect whatever interests in the matter the infant had. This seems to be carrying the doctrine of presumption very much further than has been done in any case to which our attention has been called. The papers before the court are recited in the order, and it reads: “ On reading the petition in this matter and on proof of due service thereof on Estelle Durant Bowers, the sole beneficiary of the said trust,” the reference is ordered. With such a recital, the court adjudging that Mrs. Bowers was the sole beneficiary of the trust, and that she had notice, where is there any presumption that the court directed notice to be given of this application to the child of Mrs. Bowers, of whose existence it was absolutely ignorant ? Legal proceedings cannot be supported by any such violent assumptions, which are contrary to the express statements in the record.

But it is sáid that it was not necessary to give notice of the application to any one other than Mrs. Bowers; that it was a trust of a specific portion of the estate To the trustee named, to be invested in securities, the income to be paid over to Mrs. Bowers during her life, and upon lier death leaving issue the trust to be divided among such issue; and by another clause of the decedent’s will it was provided that if she should die leaving no issue her surviving then the trust fund to be divided amongst her brothers specifically named; and that, therefore, whatever interests this infant son had in the trust fund were entirely contingent upon his surviving his mother, and he was not and could not be a beneficiary under the trust. And we are referred to the case of The U. S. Trust Company v. Roche (116 N. Y. 120) as decisive upon this point. That case, however, has no application whatever to the one at bar. In that case it appears that proceedings of a character such as were taken in the case at bar were had, and the children of the life tenant were made ? party, out of which originated the mortgage which that action was brought to foreclose. The only surviving son of the life tenant, ño we ver. in that foreclosure action was not made a party, and this objection was taken ; but the court held that because he had no legal estate in remainder, vested or contingent, his interest being contingent upon his surviving his mother, and the parties before the court representing the whole vested estate, he was not a necessary party. But it did not decide that he had no interest whatever in the trust estate and could not come under the head of a beneficiary.

We think it was the clear intention of the statute that all parties who might be ultimately interested in the estate by reason of the provisions of the trust should have notice of the proceedings to affect the interest which they might subsequently have; and that in the use of the word “beneficiaries” the Legislature intended to embrace every possible interest. Under these circumstances, therefore, it would appear that the proceedings in question were defective because of want of notice to parties in existence who might ultimately be interested; and that the title offered was not such as the plaintiffs were bound to take.

The judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Henry Keteltas, Trustee Gardner Estate, Respondent, v. Ashbel P. Fitch, Comptroller of the City of New York, Appellant.

      Writ of mandamus — when it lies — an award of commissioners of estimate and assessment cannot he attacked collaterally — section 992 of chapter 410 of 1882 repealed hy chapter 173 of 1885.
    A writ of mandamus will not lie when the applicant therefor has an adequate and certain remedy at law.
    The fact that the commissioners of estimate and assessment, in making awards, did not proceed according to the provisions of law, is not jurisdictional, and though it may be taken advantage of upon an appeal from the order of confirmation, it does not render the award liable to attack in a collateral proceeding.
    Under the provisions of chapter 173 of the Laws of 1885, which repeals section 992 of the Consolidation Act, a person entitled to an award may require the officers of the city of New York to raise, as therein provided, the money necessary to enable the comptroller to pay such award, and when the board of estimate and apportionment has done its duty in respect to the same, if the comp-» troller refuses to issue the bonds, such person has a right to the aid of the court in compelling the comptroller to fulfill the duty which has been imposed upon him.
    Appeal by the defendant, Ashbel P. Fitch, comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1894, directing that a peremptory writ of mandamus issue directed to him, requiring him to issue bonds to provide moneys for the payment of the expenses of acquiring title to lands for park purposes, and that he pay to the relator the amount of the award made to said relator.

      Demid J. Deem, for the appellant.

      George G. De Witt, for the respondent.
   Van Brunt, P. J.:

Pursuant to an act of 1884, proceedings were initiated to acquire title to lands for a public park in the seventh ward, and such proceeding was thereupon had that the report of commissioners was confirmed on tlie 17th of July, 1893.' Certain awards having been made to the respondent for land taken for said improvement, payment thereof was duly demanded on the 18th of November, 1893, and it not having been made and no bonds issued and no money provided to pay the award, notwithstanding the fact that the board of estimate and apportionment had authorized the comptroller to issue said bonds, the respondent brought these proceedings against the comptroller to compel such issue.

' It is urged by the appellant that the writ of mandamus will not lie because there is an adequate and certain remedy at law. If such were the fact, undoubtedly the objection would be well taken. But we do not see how any remedy at law can exist, unless chapter 173 of the Laws of 1885 is unconstitutional in so far as it provides that the person in whose favor awards, costs and expenses may be made and allowed in proceedings to open any street, road, avenue, boulevard, public square or place, park or parkway, shall not have an action at law against the city of New York, but may require the officers of said city to raise as therein provided the money necessary to enable the comptroller to pay such award, costs and expenses 5 such provision seemingly repealing the right to bring an action conferred by section 992 of the Consolidation Act.

It seems also to be attempted to review the action of the commissioners of estimate and assessment, it being claimed that their awards were improper, they not having proceeded in making the same according to the provisions of law. But it is perfectly clear that the point attempted to be raised is not jurisdictional; and though it might have been availed of upon appeal from the order of confirmation, the award cannot be attacked in this collateral proceeding.

It is further urged that under the act in question the duty of the comptroller is due to the mayor, etc.; that he owes no duty to the ' relator, and, therefore, no mandamus will issue at the suit of the relator to compel his action. The express provisions of the Laws of 1885, above referred to, are that the person entitled to the award may require the officers of the city to raise, as therein provided, the money necessary to enable the comptroller to pay the award. The board of estimate and apportionment has done its duty, the comptroller has refused to issue the bonds, and the relator has a right to the aid of the court in compelling the comptroller to fulfill the duty which has been imposed upon him. Unless this right exists, the relator is absolutely without remedy to recover the amount which has been awarded to him in lieu of his property which the city is now enjoying,

We think that the order appealed from should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Michael J. O’Connell, Appellant.

      Trial for manslaughter — manner, demeanor and speech of the accused may be shown — previous intercourse of the prisoner and the person hilled- — error in admitting evidence, how cured — a sufficient cause, when presumed to be the cause — charge to the jury.

    *
    Upon the trial of an alleged criminal his manner, demeanor and speech upon being charged with the crime have always been received as competent evidence on the question of his guilt or innocence.
    Where one of the ingredients of a crime is the willfulness of an assault, the condition of the mind of the prisoner towards the person assaulted is an element in the case which the jury has a right to consider, and their previous intercourse necessarily throws light upon such question, and proof in regard thereto is admissible in evidence upon the trial.
    An erroneous admission of evidence on the trial of a person charged with a crime is cured by the granting of a motion to strike out the objectionable testimony.
    When upon a trial on a charge of manslaughter a cause sufficient to produce the death is proven, and no other cause is shown to have existed, there is a sufficient basis for the conclusion that the death arose from the known cause rather than from some cause, the existence of which there is not the slightest evidence to establish.
    Upon the trial of a person for the crime of manslaughter, the judge in his charge to the jury stated: “Now, gentlemen, to convict a person of homicide, two things must be shown. There must first be direct evidence that there was a person killed. That evidence has been introduced here. This woman is dead.”

      Held, that the judge intended to charge, and his charge only imported, that the person alleged to have been killed was dead.
    Appeal by the defendant, Michael J. O’Connell, from a judgment of the Supreme Court, rendered at tbe New York Oyer and Terminer on the 25th day of May, 1892, convicting the defendant of the crime of manslaughter in the second degree.

      Chas. W. Brooke, for the appellant.

      JoJm I). Lindsay, for the respondent.
   Van Brunt, P. J.:

The defendant in this action was convicted upon an indictment charging him with manslaughter, in having on the 11th of May, 1890, willfully and maliciously caused the death of one Julia Ward, otherwise known as Julia O’Connell. The testimony was that the defendant and the deceased were living together apparently as man and wife at No. 301 East Thirty-third street in the city of New York, occupying a bedroom in apartments rented from James King and wife, from sometime in April, 1890, until May of the same year, when he killed her.

In considering the points which have been raised upon this appeal it is not necessary to recite in detail the testimony which was offered.^ It will be sufficient to say that evidence was introduced showing that a scuffle had taken place in defendant’s bedroom between the defendant and a brother-in-law of James King to which attention was directed by the calling of the deceased for help, which scuffle was ended by the intervention of James King, who took his brother-in-law out- of the room. The defendant remained in his bedroom and the deceased and some other persons were sitting in the kitchen — which was a room near the bedroom — and the deceased was telling the others what had occurred. The defendant during the recital came in and made a grab for the hair of the deceased, caught her by the back of the neck and dragged her into her room, where he gave her a kick on the left side in the region of the stomach, she falling between the bedstead and a dressing case. The deceased was helped from the floor and shortly after went to bed, and subsequently died from a miscarriage on the Thursday following the assault, which had occurred on a Sunday.

It is urged that the court erred in permitting a witness to testify to what she heard the deceased say to the defendant upon the Tuesday preceding her death. This evidence is as follows: “ Q. Did you hear Mrs. O’Connell say anything to him on-that Tuesday? A.. I heard her say he was the cause of her death; that she knew she would never get over it. That was in his presence. Q. What were the exact words? [This was objected to. Objection overruled, and exception taken, and the question substantially repeated.] A. I heard her say he was the cause of her death. Q. Use her exact language ? A. ‘ Mike, you are the cause of my death.’ Q. Anything else ? A. No, sir; not that I remember.”

She further stated that this was all she heard her say. When asked “ What did he say to that ? ” she answered, he said he was sorry for what he done. If he had not been intoxicated he would not have done it.

This evidence seems to have been clearly competent. The charging of a defendant with a crime and his manner, demeanor and speech, have always been received as competent evidence on the question of his guilt or innocence.

It is further urged that the court erred in permitting the witness Ellen Eiordan to testify to a conversation which occurred six months prior to the death of the deceased, and which did not in any manner relate to any threat upon the part of the deceased or to any matter which could be the subject of the charge contained in the indictment or have any relation thereto.

This evidence was admitted entirely without objection, and, in any event/ we do not see but that it was competent, as it showed the circumstances under which the parties were living together and the disposition which this defendant had exhibited towards the deceased upon previous occasions, by his own confession. One of the ingredients of the crime depended upon is the willfulness of the assault, and the condition of mind of the defendant towards the deceased was certainly an element which the jury had a right to consider, and their previous intercourse necessarily threw light upon such questions.

It is further urged that the court erred in permitting the witness to testify to the occurrence on the Tuesday preceding the death of the deceased, and to statements alleged to have been made by the witness to the defendant at that time. The question which was objected to was entirely competent. The witness and the defendant met on this Tuesday after the assault, and she was asked: “ What talk did you have there ? ” An objection to this question was overruled, and the witness went on and answered. Another question was put and answered; and then a motion was made to' strike it all out, which motion was granted. Thus, if any of the testimony was incompetent, which the answer to the question first objected to does not appear to be, it was cured by the granting of the motion to strike it out.

It is further urged that the court erred in overruling the motion to advise the acquittal of the defendant at the close of the People’s case, upon the ground that there was no evidence tending to show that the kicks or blows administered to the deceased by the defendant occasioned the miscarriage which was the immediate cause of her death. And attention is called to the provisions of section 181 of the Penal Code which provides that “No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of killing by the defendant, as alleged, are each established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt.”

It appears that the deceased was examined by two physicians prior to her death, and that one physician found bruises on the, abdomen and some on the limb, and that another physician who saw the body immediately after death observed marks on some parts of the abdomen. The physician who performed the autopsy testified to having found bruises on the right leg and thigh, but found no evidence of any blow on the stomach. He further testified that a light blow on the abdomen would probably have disappeared in a day or two, and he did not think a severe blow on the abdomen would be as apt to leave a mark as upon the limbs, because the tissues would be so soft that they would not show any mark. He further testified that the violence testified to by the witness would have been sufficient to cause the miscarriage in the absence of any other attributable cause. Another jfiiysician concurred as to the probable effect of the violence used by the defendant in bringing about the miscarriage. This evidence was uncontradicted except as to the possibility suggested by the counsel for the defendant on cross-examination, of the miscarriage being brought on by some cause other than that shown by the evidence.

It is clear that a cause sufficient to produce a result being proven, and no other cause being shown to have existed, there is a sufficient basis for tlie conclusion tliat the result arose from the known cause rather than from some cause the existence of which there is not the slightest evidence to establish. If, when a sufficient cause to produce a given result is proven, it is necessary to m^ative every other possible contingency which might produce the same result, conviction for crimes of violence would certainly he a rarity. There was not only evidence which justified the jury in finding that this assault was the cause of the miscarriage, but the evidence absolutely compelled such a conclusion, and no man could arrive at any different result who was guided by ordinary experience.

It is further urged that the learned judge who presided'at the trial erred in charging the jury as follows: “ Now, gentlemen, to convict a person of homicide two things must be shown. There must first he direct evidence that there was a person killed. That evidence has been introduced here. This woman is dead.”

The use of the language quoted in the paragraph, “ There must be direct evidence that there‘was a person killed,” undoubtedly was a la/psus Ivnguai upon the part of the learned judge to which his attention was in no manner called; if it had been it would have undoubtedly have been corrected, and is nothing like as formidable a mistake as that which is contained in the citation of the section to which the learned judge had reference in the points of the counsel for the appellant. The provision of the section is: “No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of killing by the defendant, as alleged, are each established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt.” The evident intention of the court was to quote the language of the section, namely, that there must be direct evidence of the death of the person alleged to have been killed, and not that there must be direct evidence that there was a person killed, because he then goes on and quotes the second subdivision, which is to the effect that the jury must be satisfied beyond a reasonable doubt that the defendant was guilty of causing the death. As has been observed, all that the court had intended to charge the jury was that the first proposition had heen established, namely, that the person alleged to have been killed was dead, and that is all that his language imported.

Upon an examination of the whole case it appears that this defendant was guilty of a most brutal and unprovoked assault; that such had been his conduct towards this woman on previous occasions that the penalty which he received for his brutality not only did not expeed that which it merited but by no means equalled it.

The conviction should be affirmed.

Follett and Parker, JJ., concurred.

Conviction and judgment affirmed.


author: Yan Brunt, P. J.:

text:
    The United States Illuminating Company, Appellant, v. Henry G. Fisk and Others, Respondents.

      Contract to supply electric light — right to cease to use the light.

    On July 33, 1889, a contract between an illuminating company and a firm was entered into, whereby the illuminating company agreed to furnish and such firm agreed to use, and pay at a certain rate for, electric lights upon the premises then occupied by such firm, and the illuminating company agreed to wire such premises, and to supply an electric current for a number of incandescent lamps, for a term of three years from the time at which the connection therefor was made.
    Thereafter, in September, 1889, March 31 and June 36, 1890, certain other contracts were entered into between the same parties of like purport. On February 1,1891, such firm removed from the premises in question, and refused to further use electric lights therein.
    The contracts were made on printed forms, which originally contained a provision that the lamps to be furnished by such illuminating company were to be used to the exclusion of other artificial illumination. This was changed in the contract in question to the words “to the exclusion of other electric illumination.”

      Held, that under such contract such firm had a right to use artificial illumination other than electrical, and were to pay for electric illumination only to the extent that it was used by them, and were permitted to discontinue the use of electric illumination if they so desired.
    Appeal by the plaintiff, The United States Illuminating Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of January, 1894, upon the verdict of a jury directed by the court after, a trial at the New York Circuit dismissing the plaintiff’s complaint.

      J. W. Houston, for the appellant.

      H. JB. King horn, for the respondents.
   Yan Brunt, P. J.:

This action was brought to recover damages for a breach of a contract entered into between the plaintiff and the defendants, by. which the plaintiff agreed to furnish and the defendants agreed to use electric light upon ■ the premises occupied by the defendants at the time of the making of the contract — No. 686 Broadway in the city of New York. On the 23d of July, 1889, said contract was entered into whereby the plaintiff agreed to wire the premises No. 686 Broadway, and to supply an electric current for a number of' incandescent lamps for a term of three years from the time at which the connection therefor was made, and the defendants agreed to pay for the light used each month a certain rate fixed by the contract. Subsequently, in September, 1889, the plaintiff and defendants entered into another contract for additional lamps, upon the same terms and conditions as the original contract; and on the 31st of March and the 26th of June, 1890, certain other contracts were entered into of like purport. On the 1st of February, 1891, the defendants removed from the premises 686 Broadway, and refused to use electric lights on said premises. It was claimed by the plaintiff that thereby the defendants broke their said contract to the damage of the plaintiff ; and the question presented is whether the discontinuance upon the part of the defendants of the use of electric light upon these premises was a breach of the contract. We think it was not. The forms upon which these contracts were made were printed, and they originally contained a provision that the lamps furnished by the plaintiff were to be used to the exclusion of other artificial illumination; and this was changed in the contract in question to the words “ to the exclusion of other electric illumination.” There is no claim that upon the premises in question any electric illumination except that of the plaintiff has been used by the ■defendants during the term in question. The defendants under the contract had the right to use other artificial illumination — to what extent there is no provision contained in the contract — and were to pay only for electric illumination to the extent to which such illumination was used. This being the nature of the contract, and the necessary construction which must be placed upon the provision for use which was agreed to by the defendants, it is difficult to see why they were not permitted to discontinue the use of electrical illumination if they so desired. As has already been observed, the prohibition was against other electrical illumination, and necessarily implied the right to use other artificial illumination.

It is urged that the defendants’ contention, that by reason of the phrase “ to the exclusion of other electrical illumination ” they are relieved from any promise to use the lamps at all, is contrary to the rule of construction which requires that a contract should not be made nugatory by a literal construction of an exception. But the difficulty with this claim is that under the construction claimed upon the part of the plaintiff the court is called upon to make a contract which the defendants have not agreed to. All that the defendants, have agreed to do is that they will not use other electrical illuminations on these premises, and as they have the right to use such other artificial illuminations as they please, it is difficult to see why any obligation is to be found in the contract which requires them to use any electrical illumination at all if they desire to use other artificial light.

It is further urged that as the word “ electrical ” was inserted for the benefit and presumably at the request of the defendants, their contention is contrary to the rule of construction which requires that in case of doubt language should be construed most strongly against the j>arty in whose fa^or it was used. It being conceded that the word “electrical” was inserted for the benefit and at the request of the defendants, it is perfectly apparent that they supposed that _ they were getting some privilege by reason of its insertion and of the change from the the word “ artificial ” to the word “ electric.” But under the theory advanced upon the part of the plaintiff, notwithstanding this alteration, the contract is to read the same as though no such change had been made.

It is evident that in the framing of these contracts the purpose of the plaintiff was to make them absolutely binding upon the party with whom the plaintiff contracted; but that the plaintiff should be under no obligations whatever, or, if any, they were to be of the most' uncertain and ephemeral character. The defendants, when requested to make a contract of this description, evidently refused, and demanded that they should have the right to use other artificial light if they pleased, and all that they would consent to contract for was that they would not use other electrical illumination, which there is no evidence that they have done.

¥e are of opinion, therefore, that there was no breach of the contract upon the part of the defendants, and consequently that no cause of action was made out by the plaintiff, and the complaint was properly dismissed. The judgment should, be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Eollett, J.:

text:
    Townsend Cox and Another, in Behalf of Themselves and all Others Similarly Situated, Appellants, v. Edward S. Stokes and Others, Respondents.

      Agreement for the purchase of property under a reoo'ganization scheme — notice of refusal to purchase — consequent modification of the agreement — rights of the pa/r-ties for whose benefit the agreement was made.

    In pursuance of a judgment of foreclosure and sale certain property was sold at public auction to one Stokes, between whom and a reorganization committee of the corporation, whose property was sold under such judgment, an agreement (signed by the persons for whose benefit it was made by the committee), had been made, whereby Stokes undertook to purchase such property on the foreclosure sale and to hold it as trustee for the benefit of those persons who had signed the reorganization agreement.
    After the agreement was entered into, and prior to the sale, the condition of the property sold greatly changed for the worse, and its value largely depreciated, and, twenty days prior to the day of sale, Stokes notified such reorganization committee that he could not carry out his oral agreement, and a modification thereof was thereafter arranged between such committee and Stokes, notwithstanding the fact that under the terms of the reorganization agreement the reorganization committee had not power to modify the terms of the agreement with Stokes, but only to act as the agent of the parties signing it to carry it into effect. In pursuance of this modification Stokes purchased such property on the sale.
    Held, that the notification by Stokes to the committee, that by reason of the changed condition of the property he would not carry into effect his oral agreement, was notice to the persons who had signed the reorganization agreement, if timely and made in good faith ;

      That the signers of such reorganization agreement were hound to accept either their pro raía share of the purchase price arising upon the sale of such property, or the terms of the new or modified reorganization agreement.
    Appeal by the plaintiffs, Townsend Cox and another, in behalf of themselves and all others similarly situated, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 26th day of May, 1890, upon the decision of the court x’endered after a trial at the New York Special Term.
    This action was brought by cei'tain bondlxoldei’s of the Bankers and Merchants’ Telegraph Company, for themselves and for the benefit of all other’s similarly situated, to declare fi’audulent the modification made of an agi’eement for the reorganization of such telegraph company, and to adjudge the property purchased by the defendant Stokes upon the sale under a judgment of foreclosure of the property of such telegraph company to have been purchased by him on behalf of the reorganization committee of the bondholders of such corporation; to procure the appointment of a receiver of all the securities and assets of the said corporation and for other relief.
    This agreement of reorganization referred to was entered into and signed by various bondholders of such corporation, and, among others, by the plaintiffs in this action,

      Oharles Steele, for the appellants.

      Robert G. Ingersoll, for the respondents.
   Eollett, J.:

On the 5th of June, 1885, a judgment of foreclosure and sale was entered in this action which has not been appealed from or in any manner assailed, and it is binding on these litigants. Pursuant to this judgment, the property was sold July 31, 1885, at public auction, to Edward S. Stokes for $500,000. Afterwards a motion was made to set aside the sale on the ground that Stokes had refused to perform an oral contract made by him with the reorganization committee to purchase the mortgaged property as trustee for the benefit of certain persons who had signed a reorganization agreement, dated in May, 1885. This motion was denied. (Farmers’ Loan & Trust Co. v. Bankers & Merchants’ Telegraph Co., 26 N. Y. St. Repr. 161; affd., 119 N. Y. 15.) Neither the judgment nor the sale can now be questioned. It was proved and found that Stokes orally assented to the terms of the reorganization agreement of May, 1885, and agreed with the committee thereby created to purchase the property and hold it as trustee for the benefit of those who had signed the agreement. But it is found by the trial court, on undisputed evidence, that, after the agreement was entered into and prior to the sale, the condition of the property had greatly changed for the worse and its value had largely depreciated. The trial court found that prior to the day of sale the defendant Stokes notified the reorganization committee that he could not carry out his aforesaid oral agreement, and a modification thereof was thereafter arranged between the committee and Stokes, pursuant to which Stokes purchased the property. The evidence is that Stokes notified the chairman of the reorganization committee on July 11, 1885, twenty days before the sale, that he would not carry out his agreement with the committee. This modified agreement was reduced to writing and executed on the Ith of August, 1885, by the reorganization committee and by Stokes. It is not asserted that Stokes has failed to carry out the last-mentioned agreement. It must be conceded that under the terms of the reorganization agreement of May, 1885, known as Exhibit H in this litigation, the committee had not power to modify the terms of that agreement, but the reorganization committee was made by the agreement the agent of the person who signed it for the purpose of carrying it into effect, and we think that the notification by Stokes to the committee that, by reason of the changed condition of the affairs of the corporation, he would not carry into effect the oral agreement previously made by him in respect to purchasing the property, was notice to the persons who had signed the agreement. In other words, the notice having been timely given, and in good faith, it was as effectual as though it had been given to every signer of the reorganization agreement. Had the notification given by Stokes been made under circumstances which indicated bad faith on his part, or on the part of the committee, a different question would be presented. Stokes having refused to purchase the property under his oral agreement, founded on the reorganization agreement of May, 1885, but having purchased under a subsequent agreement, the plaintiffs are bound to accept one of two alternatives, either their pro rata share of the purchase price upon the sale, or the terms of the new or modified reorganization agreement. The opinion- of the learned trial judge states with great clearness the facts involved in this litigation, and in the result reached we concur. The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. John Miller, Appellant, v. The Justices of the Court of General Sessions of the Peace for the City and County of New York, Respondents.

      Motion for a peremptory mandamus — denied for laches — Statute of limitations as to writ of eertim'a/ri.

    Where a person discharged from the office of court attendant waited eight months before making an application for a mandamus to compel his reinstatement on the ground that he was an honorably discharged Union soldier, his motion is properly denied on the ground of laches.

    The Statute of Limitations in respect to writs of certiorari is four months.
    Appeal by the relator, John Miller, from *an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1894, denying his motion that a peremptory writ of mandamus issue directed to the justices of the Court of General Sessions of the Peace for the City and County of New York, requiring them to reinstate the relator as court attendant in said court.

      Wm. Doll, for the appellant.

      Theo. Oonnol/y, for the respondents.
   Yan Brunt, P. J.:

The relator, who claims to be a veteran, was formerly a court attendant in the Court of General Sessions, and on the 31st of March, 1893, he was removed from his position by the judges of the court without charges and without a hearing had, which the relator claims to have been in violation of law. In the December following the appellant made a motion for a mandamus directing the Court of General Sessions to reinstate him as a court attendant. In his affidavit he alleges, in addition to the facts hereinbefore stated, that he has since been prevented from discharging the duties of the office to which he was appointed by the said judges; that upon his removal he demanded his retention in said position on the ground that he was an honorably dischaiged Union soldier, and offered proof of such fact and demanded his reinstatement on that ground, but such judges have since neglected and refused to so reinstate him. "'In answer to the application, all the judges of the Court of General Sessions made affidavit that the appellant had not at any time demanded his retention in his position upon the ground that he was an honorably dischaiged Union soldier, or offered any proof of the fact, or ever demanded his reinstatement on such grounds, and denying that he had ever been prevented from performing his duties, except by his discharge.

Upon this state of facts the motion was denied, and from the order thereupon entered this appeal is taken.

Without considering any of the questions which are attempted to be presented on this appeal, we think the motion was rightly denied upon the ground of laches. The relator was discharged on the 31st of March, 1893, and waited eight months before making any application for reinstatement. In respect to writs of certiorari the Statute of Limitations is four months; and we see no reason why a party claiming the offices of the court by way of mandamus to reinstate him into a position from which he claims to have been unjustly discharged, should be allowed to wait an indefinite time before asking for the enforcements of his rights by this summary procedure. If the relator claimed to have been unjustly removed, it was his duty to proceed with diligence, in order that the respondents might have been apprised of the claim advanced. But the appellant waited eight months before making any move whatever; and we do not think that this summary writ should issue at this late day.

The order should be affirmed, with ten dollars costs and disbursements.

Follett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    Charles T. Barney, as Administrator, etc., of Ashbel H. Barney, Deceased, Plaintiff, v. The Mayor, Aldermen, and Commonalty of the City of New York, Defendant.
    No. 1.

      Recovery of cm illegal tax — ignorance of the illegality thereof at the time of payment— when it need not he proved.

    In an action brought by an administrator to recover the amount of a tax, alleged to have been involuntarily paid by his intestate. It is unnecessary to show lack of knowledge on the part of such decedent at the time of the payment of such tax of the transactions alleged to have made the tax illegal, when it is shown that at the time of the imposition of such tax the intestate was in infirm health, and attended to little if any of his business of which his son had the entire charge.
    Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance upon the verdict of a jury directed by the court after a trial at the New York Circuit.
    This action was brought to recover the amount of a tax alleged to have been illegally assessed and involuntarily paid.

      Geo. L. Sterling, for the motion.

      J. A. Flannery, opposed.
   Van Brunt, P. J.:

This case in its main features is substantially the same as that of Barrney v. The Mayor, herewith decided. The taxes in this case were for the years 1885 and 1886, and were paid while Ashbel H. Barney was living, this action being brought by his administrator.

It is urged' that there is no evidence to show whether Mr. Barney, Sr., had any knowledge of the facts which it is alleged rendered the assessment illegal, and that, therefore, there is a failure on the part of the plaintiff to show ignorance of the fact and involuntary payment on his part, which it is incumbent upon him to show affirmatively.

The evidence shows that Mr. Barney, Sr., was in infirm health at the time of the imposition of the tax in question; that he attended to but little, if any, of his business, and that his son, the plaintiff, had entire charge of the same. It seems to us that under these eircumstances it would be carrying tlie inference of knowledge too far to hold that there was a failure of proof because the dead man was not examined as to what his knowledge in respect to these transactions was.

For the reasons, however, stated in the opinion in the case cited we think that the exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Parker and Follett, J'J., concurred.

Exceptions sustained, new trial ordered, costs to defendant to abide the event.


text:
    Charles T. Barney and Another, Plaintiffs, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.
    No. 2.

      Department of public parks of the city of New York —power to lay out a park, determined by the Consolidation Act — “public places,” in section 670 thereof, not synonymous with “ public parks."

    The power of t.he department, of public parks of the city of New York to lay out a park is determined by the provisions of the Oonsolidation Act (Chap. 410 of 1882), by which the other provisions of law conferring power upon such department in that respect have been repealed.
    The term “public places,” as used in section 670 of the Oonsolidation Act, is not synonymous with the term “ public parks,” as used in other sections of such act, nor is the latter term included therein.
    Motion by the defendant,.The Mayor, Aldermen and Commonalty of the City of New York, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury directed by the court after a trial at the New York Circuit.

      Q. L. Sterling, for the motion.

      J. A. Flcmnery, opposed.
   Yan Brunt, P. J.:

This action was brought to recover from the city of New York a sum of money paid as taxes for the year 1887 upon certain real estate between Twelfth avenue and tlie Harlem river at about One Hundred and Ninetieth street. It is claimed upon the part of the plaintiffs that the tax imposed' was illegal and was paid by them involuntarily, and that they are entitled to recover the amount. The plaintiffs’ land is within the lines of a so-called park shown on a map filed by the commissioners of the department of public parks in the city of New York on the 17th of April, 1884, they claiming to act in pursuance of authority conferred upon them by chapter 410 of the Laws of 1882. It is urged that by- chapter 530 of the Laws of 1885, amending section 072 of the Consolidation Act, such lands were exempt from taxation, and that they were taxed and the tax paid in ignorance of the exemption, and that such payment was involuntary.

In view of the decision of the court of last resort in respect to involuntary payments of taxes and assessments, we think that the plaintiffs brought themselves within the rule authorizing a recovery.

The question as to whether the lands of the plaintiffs were exempt from taxation, and, therefore, the tax levied was illegal and void, presents a question of much' greater embarrassment. There is no question but that the department of public parks did file a map showing a park thereon, which included the premises of the plaintiffs, and if such department had the power to lay out such park under the authority given them by law, then the tax levy was illegal and void. This question of power, it seems to us, must be determined by the Consolidation Act, as by that act the other provisions of law conferring powers upon the department of public parks in this respect seem to have been repealed, because the Consolidation Act presents a complete and revised system for laying out and opening public places and providing for the proceedings in respect thereto.

By section 670 of the Consolidation Act it is provided that “ The department of public parks shall have and possess exclusive power to lay out, survey and monument all streets, roads, avenues, public squares and places within that part of the city of New York north and east of a line commencing at the termination of the southerly line of 155th street,” etc. — a description covering the territory in which the land of the plaintiffs was situated. And the question presented is whether a park is to be considered a public square or place within the provisions of this section. The history of legislation prior to tlie adoption of the Consolidation Act, which was in 1882, shows but little uniformity in legislative designation of public parks, public squares and public places. Many of the largest parks of the city were designated as public places, and spoken of as public places. But since the establishment of the department of public parks, in 1870, there has been seemingly a disposition on the part of the Legislature, in dealing with the question of public parks and public places, to make a distinction. And it is significant that in section 671 (the section following the one to which attention has been called), in treating of the territory embraced in the twenty-third and twenty-fourth wards and" in conferring power upon the department of public parks in respect thereto, it is provided that such department shall have the exclusive power to locate and lay out, construct and maintain all public parks, streets, roads and avenues, etc., apparently showing that the Legislature had in mind the question of public parks, as distinguished from anything that had been referred to in the preceding section, in which the department was given the power to lay out, survey and monument all streets, avenues, public squares and places within the territory described, but not to construct or maintain anything said to be public parks. Had legislation stopped here, we think there would have been no question in regard to the fact that the Legislature did not intend that the department of public parks should have the right to lay out, survey and.monument public parks within any district outside of the twenty-third and twenty-fourth wards. But when the Legislature came to confer the power to acquire the title of the land in the twenty-third and twenty-fourth wards, it uses this language:

“ Sec. 677. The department of public parks, for and in behalf of the mayor, aldermen and commonalty of the city of New York, is authorized to acquire title for the use of the public to all or any of the lands required for the streets, avenues and. roads, public squares and places laid out by them in the 23d and 24th wards of the said city of New York” • — public squares and public places not having been mentioned in section 671, which gave the department the power to lay out, construct and maintain; and public parks not being mentioned in section 677, which gave the department the right to acquire title.

By section 956 it is provided that the department of public works shall possess certain powers in relation to the opening of streets, avenues, roads and public places above Fifty-ninth street, except in the twenty-third and twenty-fourth wards and not embraced within the limits of or immediately adjacent to any park or public place, except as in this act otherwise provided.

Then by section 957 it is provided that the department of public parks shall have the exclusive power to locate and lay out all public parks, streets, roads, avenues, and to devise plans, etc., in the twenty-third and twenty-fourth wards. And section 958 seems to be an exact copy of section 677.

It will thus be seen that in many of the sections in which this subject is referred to, distinctions between public parks and public places seem to be maintained; and that it is only by giving the most enlarged significance to the language used by the Legislature, that it can be held that under section 670 the department of public parks had the right to lay out, survey and monument the park in question. It is true that in sections 677 and 958, in dealing with the question of the laying out of the twenty-third and twenty-fourth wards, the words public squares and places are mentioned in respect to the acquisition of title, when the Legislature, in dealing with the question of the power to locate and lay out, did not use sirch words, but the words public parks. It seems to us that the only result of this difference is that the Legislature perhaps intended to give authority to the department of public parks to lay out parks in the twenty-third and twenty-fourth wards, but did not intend that they should be able to consummate their design by the acquisition of title, so that they might construct and maintain.

Without being able to satisfy our minds entirely, in consequence of the confusion of language in the legislation respecting this matter, we do not think that such an extraordinary power 'should be deemed to have been conferred by the Legislature upon the department of public parks unless the acts to be construed show a reasonably clear intention so to do. We think that such intention is not by any means clear, but that a distinction seemingly having been recognized between public parks and public places as above mentioned, and no clearly defined power having been conferred upon the department to lay out public parks, and there being nothing to indicate any intention to confer such power, it should be held that such department did not possess the same.

The exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Parker and Follett, JJ., concurred.

Exceptions sustained, new trial ordered, costs to defendant to abide event.


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    Robert M. G. Walford, Respondent, v. Frank C. Harris, Individually and as Trustee, etc., Appellant, Impleaded with Harry B. Bailey.
    No. 1.

      Assets of a firm, withheld by one partner ■ — ■ not a conversion, nor recoverable by the co-partners — power of attorney to a co-paHner does not abridge his rights — accounting.

    A partner cannot convert the assets of a firm by simply keeping them in his possession, and although the other members of the firm have an equal right to the possession thereof, they should not be allowed, when it appears that the firm is largely indebted to such partner, to compel him to pay over the same, except so much thereof as on an accounting is determined to rightfully belong to them.
    Neither can individual items be taken from the partnership affairs and be made to form the subject of an independent proceeding, as, in order to determine the rights of the partners, one against another, it is necessary to examine the whole proceedings of the co-partnership and to determine whether this partner or that partner has overdrawn or is in debt.
    The fact that two of the partners in a firm gave to the third partner a power of attorney to settle up the affairs of such firm, does not in any way sacrifice or release or abridge the rights of the third partner, as such, to liquidate the affairs of the firm, and as such liquidator, if he is called upon to account for any one of his proceedings, he is entitled to have a general settlement if in his answer he demands an accounting.
    Appeal by the defendant, Frank 0. Harris, individually and as trustee, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of January, 1894, upon the report of a referee.

      JR. P. JBJarlow, for the appellant.

      JBJ. JHJ. Whitdnan, for the respondent.
   Yan Brunt, P. J.:

Tliis action was brought to conrpel an accounting by the defendant II. B. Bailey in reference to certain co-partnership transactions, and also for an accounting by the defendant Harris, as attorney in fact of the plaintiff and the said Bailey. The defendant Harris by his answer demanded a general accounting of all the transactions of the plaintiff, Bailey and himself. The referee in his report gave a judgment against the defendant Harris for money, decided that Harris was not entitled to certain rights claimed by him, and that a referee should be appointed to take and state the accounts of all dealings between the plaintiff and the defendants Bailey and Harris, and an account between the plaintiff and the defendant Bailey and the defendant Harris, as attorney in fact. A judgment was duly entered in accordance with this report, and from this judgment the present appeal is taken.

The facts upon which the rights of the parties depend, so far as they are affected by this appeal, seem to be undisputed, and they are as follows: Prior to the 31st of December, 1880, the plaintiff and the defendants Bailey and Harris had been co-partners composing the firm of II. B. Bailey & Co., which in this proceeding has been called No. 1. On that day the firm was dissolved by mutual consent, the defendant Harris retiring from the firm, retaining an interest, however, in certain assets belonging to the firm. At the time of the retirement of Harris from said firm of H. B. Bailey & Co., No. 1, an arrangement was made between the plaintiff and the defendants Harris and Bailey that the plaintiff and the defendant Bailey should liquidate the affairs of the firm No. 1; and a new firm -was formed between the plaintiff and the defendant Bailey, who continued the business under the same firm name, called No. 2, which firm proceeded to and did act as liquidators of the firm of II. B. Bailey & Co., No. 1, down to the 22d of March, 1890. At the time of the retirement of Harris it appeared that the concern owed him a considerable amount of money. On the 22d of March, 1890, the firm of H. B. Bailey & Co., No. 2, was dissolved by mutual consent, and upon the same day the plaintiff Walford and the defendant Bailey gave to the defendant Harris a power of attorney to collect the assets of the firm of H. B. Bailey & Co., No. 1, and on their receipt to apply and pay over the same to the persons wlio might be legally entitled thereto. Upon the same day the same persons gave another power of attorney to the defendant Harris authorizing him to talce any proceeding for the recovery or satisfaction of certain claims, debts, outstanding accounts and bills receivable particularly mentioned in said power of attorney, some of which belonged to the firm of II. B. Bailey & Co., No. 1, and others to the firm of H. B. Bailey & Co., No. 2. And said attorney was empowered by said instrument to apply and pay over the proceeds collected to the creditors of the firm of II. B. Bailey & Co., and to such persons as might be legally entitled thereto, before any distribution or disposition of said funds or moneys was made to said Bailey or Walford or to said Harris. On the same day a third paper was executed by all the above parties by which they mutually covenanted and agreed that they should each of them severally use their best endeavors to assist, help, advise and aid said Harris in the collection and realization of the claims mentioned and described in the last-mentioned power of attorney. Bills of sale were exchanged between Bailey and Walford, by which Bailey transferred the business of the 'said firm conducted in the city of New York to Walford, and Walford transferred to Bailey the business transacted atNewjwrt News, Yirginia. In the course of the liquidation of the affairs of firm No. 1, the defendant Harris, in August, 1891, collected from insurance companies the sum of §6,000 on account of the loss of a vessel named in the second power of attorney, which was an asset of firm No. 1. Out of this sum Harris paid a certain amount to creditors of firms Nos. 1 and 2, and retained the balance, claiming the right so to do because of an indebtedness of firm No. 1 to him.

No accountings have been had between the parties. This action was commenced, as far as it is against the defendant Harris, to procure an accounting from him of his proceedings as the attorney in fact of Bailey and Walford under the powers of attorney given by them. The defendant Harris, as has been heretofore stated, demanded in his answer a general accounting.

We are unable to see upon what theory the defendant Harris can be compelled to account specially in regard to any of the assets of the firm of II. B. Bailey & Co., No. 1. And we are at a loss to understand what additional authority was conferred upon the defendant Harris in respect to tlie liquidation of the affairs of that firm by the powers of attorney which he did not possess by virtue of his partnership relation. It appears to be admitted by the plaintiff in this action that at the time of the dissolution of the firm of H. B. Bailey & Co., No. 1, there was a large sum of money due to Harris for merchandise. It also ajjpears that Harris lias collected certain moneys belonging to this firm, and entirely independent of the question as to whether the other partners are indebted to him as the result of the joint adventure, he is decreed to pay over this money to a receiver. It undoubtedly was the theory under which this judgment was entered that some different relation was created by reason of the power of attorney which the plaintiff Walford and the defendant Bailey gave to Harris in respect to the affairs of firm No. 1. There is nothing in the case tending to show that by any valid agreement Harris had resigned any claim to liquidation. It is true there was an agreement that the new firm were to liquidate the affairs of the old firm; but that was a mere matter of agreement, apparently being without consideration, and, therefore, not obligatory. It was an amicable arrangement between these parties, and when that firm went out of existence then the whole question of the liquidation of both firms was transferred to Harris, the partner in the first.

Whatever might be the rights of the plaintiff and the defendant Bailey in respect to the affairs of firm No. 2, it is manifest that in respect to the assets of firm No. 1, it appearing that the firm was largely indebted to Harris, he should not be compelled to pay over any moneys until his claim against the firm has been adjusted, except perhaps so far as might be necessary to'liquidate the indebtedness of said firm. Therefore, before any judgment should be entered against the defendant Harris in regard to the moneys in his hands belonging to firm No. 1, he was entitled to a general accounting of the affairs of the firm. A partner cannot convert the assets of the firm by simply keeping them in his possession. It is true that the other members of the firm have an equal right to possession, but they should not be allowed to compel him to pay over such moneys where it appears that the firm is largely indebted to him, except such amount as on an accounting is determined to rightfully belong to them. Neither can individual items be taken from the partnership affairs and made to form the subject of an independent proceeding, for the simple reason that in order to determine the rights of the partners, one against the other, it is necessary to examine the whole proceedings of the co-partnership, and thus determine as to whether this partner or that partner has overdrawn or is in debt. But in the case at bar, it has been assumed, because of the existence of these powers of attorney, that some other or different rule should be applied; that some more strict relation existed between Harris and his co-partners in reference to the liquidation of the business of firm No. 1 than would have obtained had no such instruments been executed. As has been already observed, we fail to see how the rights of Harris as a partner were in any way sacrificed or released or abridged by reason of the existence of either of these powers of attorney. He had the right to liquidate the affairs of the firm, and, as such liquidator, if ho was called to account for any one of his proceedings, he was entitled to have a general settlement. In the ease at bar, his rights are adjudicated upon independent of what the general result may be, aud he is directed to pay over money, although it may ultimately appear that every cent of it belongs to him, and that he has not exercised any power as against his co-partners which he was not authorized to do.

It seems to us that the rights of the parties have been misconceived, and that the plaintiff wTas not authorized, because of the giving of these powers of attorney, to proceed against the defendant Harris— certainly so far as the affairs of firm No. 1 are concerned, which is the only matter in respect to which an affirmative judgment is granted against the defendant Harris — except as a partner for an accounting and settlement of the whole affairs of the co-partnership.

The judgment should be reversed and a new trial ordered before another referee, to be appointed upon the entry of the order herein, with costs to the appellant to abide the event.

Follett and Parker, JJ., concurred.

Judgment reversed, new trial ordered before another referee, to be appointed upon the entry of the order herein, with costs to appellant to abide the event.


text:
    Robert M. G. Walford, Respondent, v. Frank C. Harris, Individually and as Trustee, etc., Appellant, Impleaded with Harry B. Bailey.
    No. 2.

      Contempt — failure to obey a judgment — statement in a judgment that the liability a/rosefrom fiduciary relations — imprisonment of the judgment debtor.

    When the sole liability which is sought to be enforced by a judgment is that of a partner to his co-partners, and such liability arises out of the contractual relations existing between them, a fiduciary relation is not established such as will authorize the punishment of the 'defendant for contempt, under the provisions of section 1241 of the Code of Civil Procedure, upon his failure to comply with the provisions of the judgment.
    The fact that a judgment, directing the payment of a sum of money by the defendant in an action, declares that tiie liability of the defendant arose out of relations of a fiduciary character (when it appears upon the face of the judgment roil that such is not the fact), does not authorize the imprisonment of the defendant.
    Appeal by the defendant, Frank C. Harris, individually and as trustee, etc., from an order of the Supreme Court, made at the New .York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1894, adjudging the defendant Harris guilty of contempt.

      R. P. Harlow, for the appellant.

      p[. PC. Whitman, for the respoon dent.
   Yan Brunt, P. J.:

This action having been commenced amongst other things to obtain an accounting by the defendant Harris as the attorney in fact of the plaintiff and the defendant Bailey, in respoect to the liquidation of .certain claims belonging to a firm of whicli the defendant Harris, the defendant Bailey and the polaintiff were members, a judgment was entered declaring that the said Harris in liquidating the affairs of the firm acted in a fiduciary capacity, and that an application of a certain sum of money to his own use by said Harris was a -conversion of the same notwithstanding that there had been no settlement of the co-partnership accounts, and he was directed to pay oyer the same to a receiver. Not having done so, this application was made to commit him for contempt, which being granted, from the order thereupon entered this appeal is taken.

It is clear that prior to the present Code in a proceeding such as this no commitment could issue to enforce the collection of a money judgment, but the same must be by execution. It is undoubtedly true that by the Code (§ 1241) the old rule has been modified to some extent. By the 4th subdivision of that section it is provided that a judgment may be enforced against a party refusing or willfully neglecting to pay it, by punishing him for a contempt of court where the judgment requires the payment of money into court or to an officer of the court, except where the money is due upon a contract express or implied, or as damages for non-performance of a contract. Therefore, unless the liability sought to be enforced by this judgment comes within the exception, the court had the power to make the order appealed from.

"We think, upon an examination of the judgment roll, that it appears that the sole liability which was to be enforced was that of a partner to his copartners, and such liability arises out of the contractual relations existing between them and is not of that.fiduciary character which was claimed to be established. It is true that by the judgment it was declared to be fiduciary; but when it appears upon the face of the judgment roll that such is not the fact, the mere calling the relation fiduciary cannot authorize the plaintiff to imprison the defendant. It is sought to liken the case at bar to that of Gildersleeve v. Lester (68 Hun, 535; affd. in the Court of Appeals, 139 N. Y. 608) where a commitment was issued to enforce a judgment compelling a trustee of a corporation to account for the property of the corporation wrongfully appropriated by him and to pay over the value thereof in money to a receiver of the corporation appointed by the court for that purpose. But that case is not in any respiect like the one at bar. The act of the trustee in that case was a grand larceny, and was so held by the court. It did not arise out of any contract; and, therefore, was not within the exception, and consequently the power to issue the commitment existed. But in the case at bar the defendant has not committed any crime by the retention of this money; he has not embezzled it; he has not committed grand larceny, and lie is only insisting upon his contractual rights. Such being the case, it seems to come within the exception, and the power to issue the commitment did not exist.

The order should be reversed, witli ten dollars costs and disbursements, and the motion for commitment denied, with ten dodars costs.

Eollett and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for commitment denied, with ten dollars costs.


author: Parker, J.:

text:
    Lackawanna Mills, Respondent, v. Samuel Weil and Others, Appellants.

      Action to recover da/mages for the breach of a contract — when prematurely brought.

    ■Upon the trial of an action brought to recover damages for an alleged breach of a contract whereby the defendants agreed to pay for sixty cases of goods on June 10, 1891, the plaintiff having stipulated to have the same ready for delivery on Juno first, it was shown that the plaintiff notified the defendants prior to June first that the goods were ready for delivery.
    The defendants did not make full payment on June tenth, but a little later, about June twenty-second, they ordered the plaintiff to deliver to them some of the goods. Thereafter, and before August 5, 1891, four cases thereof were delivered to them. The defendants insisted that the goods delivered were not In accordance with the contract, for the reason, among others, that the buttons on the garments delivered only had two holes, whereas it was agreed that they should have four, The plaintiff agreed to allow because of such error fifteen dollars a case on each oi the four cases delivered, and to substitute buttons with four limes on the remaining goods in their factory.
    Thereafter the plaintiff put buttons with four holes on the remaining garments in place of those then on, but prior to completing such work they brought this action against tlie defendants.

      Held, that the action was prematurely brought.
    Appeal by tlie defendants, Samuel Weil and others, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of tlie clerk of tlie county of New York on tlie 16tli day of December, 1893, upon tlie verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 14tli day of December, 1893, denying tbe ■defendants’ motion for a new trial made upon tlie minutes.

      B. F. F-'mstein, for the appellants.

      A. A. /Specor, for the respondent.
   Parker, J.:

We think the action was prematurely brought. By it the plaintiff sought to recover damages for an alleged breach of a contract by which the defendants agreed to pay for sixty cases of goods on June 10, 1891, the plaintiff on its part having stipulated to have them ready for delivery ten days earlier, or June first.

Plaintiff notified defendants prior to June first that the goods were ready for delivery. Defendants did not make full payment on June tenth, but a little later, about June twenty-second, they ordered the plaintiff to deliver to them some of the goods. Thereafter, and before August fifth, four cases were delivered to them. Defendants insisted that the goods were not in accordance with the contract in several respects, one being that the buttons on the garments delivered only had two holes, whereas it yras agreed that they should have four.

Plaintiff yielded to defendants’ contention regarding the buttons, and agreed to allow to the defendants, because of the error in such respect, fifteen dollars a case for each of the four cases delivered, and to substitute buttons with four holes in the place of those on the fifty-six cases of goods then in. plaintiff’s factory. In accordance therewith the plaintiff, by its representative, sent the defendants a check for sixty dollars inclosed in a letter, of which the following is a copy:

“New York, August 5, 1891.

“Messrs. Weil, Haskell & Co., New York:

“Gentlemen — Enclosed find check for $60, in settlement of claim °jc of wrong buttons on cases 1487, I486, 1474, and 1476 delivered by the Lackawanna Mills.

“ The balance of the order shall have buttons,as last year and as per samples from which order was taken. I am

“ Yery truly yours,

“A. S. HAIGHT.”

Thereafter the plaintiff put buttons with four holes on the remaining garments in place of those then on, but it had not completed the work when this action was brought.

Under its contract with the defendants full performance on its part was to precede payment by the defendants. Its promise to make a deduction on account of the goods already delivered, and to change the buttons on the rest, admitted the contention of the defendants in that respect to be true, and denied to it a right of recovery until after it should so change the goods as to make them comply with the • contract. The learned trial judge does not seem to have taken a different view of the law governing this contract than we have expressed, but his charge would seem to indicate that he had -in some way been lead to believe that the buttons had been changed before the commencement of the action.

The evidence is to the contrary. Edward Gr. Connor, plaintiff’s superintendent, testified with reference to a call made upon the plaintiff by a Mr. Lampman, representing the defendants, who presented a letter of introduction from his employers, bearing date August nineteenth, in which they requested for him the courtesy of {lie plaintiff.

The witness said that Lampman called the day following the date of the letter, which would be August twentieth. On his cross-examination he testified: “ Q. When were those buttons changed ? A. The girls were working on them at the time that the messenger -from Woil, ITaskell & Co. was there. Q. When did they finish them ? A. Oh, within a day or two after he was there. Q. Do you recollect that? A. Well, I couldn’t s^y for certain what day they were finished.

“ The Court. — He doesn’t ask for certain; he asked within what time.

“ Q. The letter was dated August 19th. It must have reached you about the 20th. Now, I want to know how long after August 20th was it before the buttons were changed ? A. Well, not over two days. Q. And then they were all completed? A. Tes, sir; didn’t take only about three days to do the whole thing.”

Lampman testified that he arrived at Scranton, where plaintiff’s mills were situated, early in the evening of the nineteenth, and •called at the mills on the twentieth, and had cases of the goods opened for his inspection. Replying to the question whether the buttons had been changed, he answered “ No, sir.” This action was commenced on the nineteenth day of August, necessarily, therefore, several clays before tlie goods were, according to tlie contract as construed by tlie parties to it, ready for delivery.

Tlie judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

"V an Brunt, P. J., and Foiilett, J., concurred.

Judgment reversed, new trial granted, with costs to appellants to abide the event.


text:
    In the Matter of the Application of Henry T. Bronson, as Receiver, etc., of Neil MacDonald, a Judgment Debtor, Respondent, for the Examination Before Trial of Charles B. Van Nostrand, a Proposed Defendant, Appellant.

      0ode of Givil Procedure, § 873 — application for an order of examination thereunder — when fatally defective.

    The authority to inquire into the private affairs of a person alleged to be interested in an action will not be granted by a court until it has such knowledge of the facts as convinces it that the examination is desired solely for the purposes authorized by the Code.
    The papers upon which an order of examination of a defendant to enable the plaintiff to prepare his complaint, made pursuant to section 873 of the Code of Civil Procedure, is based are fatally defective when they do not contain, in support of the allegations made therein upon information and belief, the affidavit of the deponent’s informant or a statement of the reason for the non ■ production thereof.
    Appeal by the proposed defendant, Challes B. Van Nostrand, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of March, 1894, denying his motion to vacate an order of examination made pursuant to section 813 of the Code of Civil Procedure, and directing him to submit to an examination pursuant to the terms of such order.

      Treadwell Cleveland, for the ap2iellant.

      William Mitchell, for the respondent.
   Parker, J.:

The affidavit upon which the order is based authorizing the examination of Van Nostrand for the alleged purpose of enabling the affiant to prepare his complaint in an action to be brought by him, is fatally defective in that it fails to support the allegations made upon information and belief by the affidavit of deponent’s infonnant or by assigning a reason for not producing such affidavit and presenting instead the statements made by him to the affiant. From the affidavit it appears that the information which persuaded the affiant to make it was obtained from one ¡VlacDonald, and an alleged copy of an agreement. The so-called agreement does not justify the belief expressed; and the remaining source of information is, therefore, MacDonald’s statement to him. But he has failed to furnish to the court any part of the conversation with MacDonald. Whether MacDonald said anything to justify the impression made upon the affiant’s mind the court cannot know; and the authority to inquire into the private affairs of a party alleged to be interested in an action will not be granted by it until it has such knowledge of the facts as persuades it that the examination is desired solely for the purposes authorized by the Code.

The order should be reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.