author: Dykman, J.: Brown, P. J.:

text:
    Dina Sulz, as Administratrix, etc., of Charles H. Sulz, Deceased, Respondent, v. Mutual Reserve Fund Life Association, Appellant.

      Debts, obligations, bonds and specialties — a/re assets in what jw'isdiction —policy of life insurance — action brought by widow as administratrix on a policy of life insurance owned by her as an individual.

    In the case of all debts and obligations except bonds and other specialties the rule has been that they constitute assets in the jurisdiction of the debtor’s residence, and the technical rule as to bonds and other specialties has been that they are assets in and belong to the jurisdiction where they happen to be at the time of the death of the owner thereof. The fact that a policy of life insurance has a corporate seal upon it does not make it a specialty within the meaning of such rules.
    Hpon the trial of an action brought by the widow as administratrix of an assured, to recover the amount of a life insurance policy, which by its terms was payable to the “ legal representatives ” of the assured, it appeared that the by-laws of the insurance company stated its object to be “to promote the well-being of all its members and to furnish substantial aid to their families or assigns in the event of a member’s death; ” that the plaintiff was dependent upon her deceased husband for support and that they had no children; that the plaintiff’s intestate died in the State of Washington, but was at the time of his death a resident of the city of Brooklyn, N. Y., and that before taking out letters of administration upon his estate in the State of New York the widow had renounced any right she had to be appointed administratrix of such estate in the State of Washington, and another person had been appointed there and had brought suit upon the policy of insurance in question.

      Held, that the policy should be so construed as that the amount due thereupon would go to the widow individually, and not to the general estate of the deceased.
    In the application by the assured for the policy of insurance, the question “ State full name, age and relationship of person for whose benefit the policy applied for is to be issued,” was answered “ My estate.”

      Held, that inasmuch as the plaintiff could have recovered individually, the fact that she sued as administratrix was immaterial.
    Brown, P. J., dissenting.
    Appeal by the defendant, the Mutual Reserve Fund Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of February, 1894, upon the .verdict of a jury, rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 2d day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes, and also a motion by the defendant, the Mutual Reserve Fund Life Association, 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 rendered after a trial at the Kings County Circuit on the 12th day of February, 1894.
    The action was brought to recover the amount due upon a life insurance policy, by the widow of the assured.
    The opinion of the Special Term upon the motion for a new trial was as follows:
    Gaynor, J.:
    The learned argument of the counsel who appeared for the defendant on the motion leads into what have always been intricacies in the law. But the disposition of this case does not seem to lead that way. The deceased, the plaintiff’s husband, was a resident of Brooklyn. He went away with the design of settling elsewhere, it may be, if he was able to locate himself favorably, and to bring his wife on when he had so changed his residence. He finally reached the State of Washington and died there. He had not established a new residence there, but it was still in Brooklyn, and his wife resided there. She took out letters of administration upon his estate, and brought this action to recover upon the policy. Before doing so, however, she had renounced any right she had to be appointed administratrix in the State of Washington, and another, being thereupon appointed there, had brought an action to recover upon the policy, it being found there among the effects of the deceased. Her renunciation can be held to relate only to assets which had to be administered upon in Washington. The policy was dated and issued in the city of New York, and the defendant is a New York corporation, with its principal office in the city of New York. I think the plaintiff may recover on the policy here.
    In the case of all debts and obligations, save bonds and other specialties, the rule always was that they constituted assets in the jurisdiction of the debtor’s residence. (Holyolse v. Union Mutual Ins. Go., 22 Hun, 75; Beers v. SKa/nnon, 73 N. Y. 299; Attorney-General v. Bouwens, 4 Mees. & Weis. 190, 191.) The technical rule as to bonds and other specialties was that they were assets in, and belonged to, the jurisdiction where they happened to be at the time of the decedent’s death. (Supra.) I do not deem this policy a specialty in such a sense. Its having the corporate seal upon it does not make it such. Besides, these technical rules and niceties arose out of conditions which never existed in this country. (4 Mees. & Weis. 190, 191, supra.)

    But the plaintiff may recover in another aspect.
    The policy is by its terms payable to the “ legal representatives ” of the insured. The by-laws of the defendant state its object to* be “ to promote the well-being of all' its members and to furnish substantial aid to their families or assigns in the event of a member’s death.” This means the immediate families, or, in other words, the dependents of the members, and not remote relatives and immediate relatives and dependents indiscriminately. This provision, coupled with the proof of the dependence of the plaintiff upon her husband, and that they had no children, makes the true construction of the policy to be-that the amount due upon it belongs, not .to the general estate of the deceased, but to his widow. (Griswold v. Sawyer, 125 N. Y. 411.)
    In that view the plaintiff could have sued individually to recover on the policy, and the fact that she has sued as "'administratrix does not matter. (Bishop v. Grand Lodge, 112 N. Y. 636.) If some one other than the widow had been appointed administrator here I do not see why the widow could not have maintained an action to recover upon the policy, inasmuch as the money due upon it belongs to her and not to the general estate of the deceased. The administrator in Washington can stand in no better position unless the mere possession by him of the duplicate policy delivered to the deceased so places him, but I do not see on what principle that could be the case.
    Attention is now called for the first time to the fact that to the question in the application for tire policy, “ State full name, age and relationship of person for whose benefit the policy applied for is to be issued,” the decedent answered, “ My estate,” and upon this it. is argued that the policy belongs to the administrator, and that the proceeds must go to creditors of the deceased, and then to his next of kin, according to the Statute of Distribution.
    I do not think this follows as a matter of law in view of the by-laws, the general object of the defendant association and the terms of the policy.

      The applicant may well have had in view the possibility or probability of having children, and for that reason refrained from designating his wife as the sole beneficiary. The actual designation, so viewed, still contemplated what was in the minds of both parties, fresh from reading and considering the by-laws, namely, the securing of a fund to aid the immediate family, the dependents of the decedent at the time of his death.
    The motion,for a new trial is denied.

      Raphael J. Moses and F. A. .Burnham, for the appellant.

      Charles J. Patterson and Ernest P. Brook, for the respondent,
   Dykman, J.:

Upon the questions of law involved, the judgment- and order should be affirmed upon the opinion of the trial judge upon the motion for a new trial.

Upon the questions of fact there is no cause for interference. The questions were all submitted to the jury by a charge of which the defendant has no reason to complain, and the jury has deduced inferences favorable to the plaintiff from all the facts and circumstances of the case. It was the peculiar province of the jury to draw such inferences, and we cannot say they are unnatural or erroneous.

The judgment and order should be affirmed, with costs.

Cullen, J., concurred.

Brown, P. J.:

I dissent upon the ground that, upon the facts, an action cannot be maintained on the policy in this State.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    In the Matter of the Petition of The Seaside and Brooklyn Bridge Elevated Railroad Company, Respondent, Relative to Acquiring Title to Certain Real Property of The South Reformed Dutch Church of the City of Brooklyn, Appellant.

      Awa/rds of commissioners — review of questions of damage — condemnation proceedings to acquire title to certain easements in a city street — the element of noise does not enter into the awa/rd — measure of the right of a property owner to compensation— limitation of the liability for damages for trespass resulting from the noise — easements of abutting property owners in streets.

    Appellate courts are reluctant to interfere with the awards of commissioners in condemnation proceedings upon mere questions of damage.
    Noise is incidental to all public streets and is not a diversion of them from the purposes for which they are opened, and although the noise and confusion produced by the passing of trains on an elevated railroad interferes seriously with religious services in a church abutting upon the street on which the elevated railroad is operated and maintained, such inconvenience cannot be taken into account in fixing the amount of the award to be made to the church in condemnation proceedings instituted by such railroad to acquire title to the easements in the street taken by it.
    A property owner is entitled to be paid for what is taken from him by the operation of an elevated railroad on the street upon which his property abuts, and to remuneration for incidental damages. The measure of such right is compensation for the property actually taken, and for the reduction in value of the residue by reason of the appropriation; the depreciation of the property by the construction of the road is to be included, but not the disturbance from noise.
    The rule that elevated railroad companies are liable for the noise of their trains in actions for the recovery of damages only, upon the ground that they are trespassers and responsible for all the injuries resulting from their wrongful act, has no application in condemnation proceedings where no wrong is involved, and the sole inquiry is as to the compensation to be awarded to an owner whose property is to be lawfully appropriated under the right of eminent domain.
    An owner of premises abutting on a street has easements of light, air and access therein, but he has no easements of privacy or quiet, ór other easements for which compensation can be claimed. In ascertaining the past damages caused by the construction and operation of an elevated railroad, the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street for railroad uses.
    The owner of a lot, abutting on a street, by reason of the location of his lot, has an easement for the purposes of air, light and access from such street, and such rights are property rights within the meaning of the Constitution; they are independent of any ownership in the street, and they exist to the same extent whether the title of the owner extends to the center or the side of the street. The abutting owner whose title terminates at the side of a street has a right to tlie use and enjoyment of all tbe light and air supplied by the street, and the owner whose title extends to the center thereof has no greater rights. Both owners are entitled to all the air and light which comes to their premises over the street, and there is no difference between the two lands of owners in respect to their rights of access.
    Appeal by the defendant, The South Reformed Dutch Church of the City of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of April, 1894, confirming the award and report of commissioners of appraisal.

      John P. Pray, for the appellant.

      Geo. W. Wingate, for the respondent.
   Dykman, J.:

This is an appeal from an order confirming an award of commissioners to appraise the compensation to be paid to the South Reformed Dutch Church for the property and easements taken from it.

The commissioners awarded the sum of $1,500 as the compensation which ought justly to be made to the church for the privileges, easements and property in Third avenue, in front of and adjacent to the property of the church, or which are appurtenant thereto, which will be taken and affected by the construction and operation of the elevated railroad in Third avenue.

In making such award the commissioners recognized the right of the church in Third avenue to the center thereof, but made no allowance on account of the noise produced by the operation of the elevated railroad.

The church raises serious objections to the award on account of its size, but it is by no means so palpably insufficient as to justify our interference upon that ground.

The reluctance of appellate courts to interfere with the awards of commissioners upon mere questions of damage has been so often stated, and the reasons for such hesitation have been so fully explained that a repetition of them' has ceased to be profitable or necessary. Our views are expressed in The Matter of the Staten Island R. T. Co. (41 Hun, 396).

The commissioners have violated no legal principle in making their award, unless their failure to make an allowance for the noise was erroneous, and we must, therefore, proceed to the examination of that question.

It is unquestionably true that the noise and confusion produced by the passing trains on the elevated railroad interferes seriously with the preaching and other religious services in the church, but the difficulty seems to be radical and without remedy. Noise is incident to all public streets and is not a diversion of them from the purposes for which they are opened.

This church had an easement in Third avenue of light, air and access, but had no easement for quietude. Such an easement would be inconsistent with the rights of the public in the street. The constitutional right to compensation extends only to property or proprietary rights taken for public use, and does not include compensation for disturbance by noise or annoyance of any kind which is incidental to the construction and operation of the railroad. A property owner is entitled to compensation for what is taken from him, and to remuneration for incidental damages. (Matter of N. Y. Elevated R. R. Co., 36 Hun, 434, and cases there cited.)

The measure of the right is this : Compensation for the property actually taken and for the reduction in value of the residue by reason of such appropriation. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423.)

Depreciation of the property by the construction of the road is to be included of course, but not the disturbance from noise. (Briesen v. L. I. R. R. Co., 31 Hun, 112; Albany & S. R. R. Co. v. Dayton, 10 Abb. Pr. [N. S.] 183; Matter of N. Y. El. R. R. Co.,supra.)

The case of Matter of Utica R. R. Co. (56 Barb. 456), which laid down a rule somewhat different from the current authorities, is now. disapproved. (Matter of N. Y. El. R. R. Co., supra.)

This view of the rule of damages gives cogency to the conclusion we reached in the examination of the question upon principle.

It has been said that the elevated railroad companies are liable for the noise of their trains in actions for the recovery of damages only, upon the ground that they are trespassers and responsible for all the injuries resulting from their wrongful act.

That rule, however, has no application in condemnation proceedings where no wrong is involved and the sole inquiry has respect to the compensation tó be awarded to an owner whose property is to be rightfully appropriated under the right of eminent domain. (Bischoff v. N. Y. El. R. R. Co., 138 N. Y. 262; Am. Bank Note Co. v. N. Y. Elevated R. R. Co., 129 id. 258.)

The rule is well stated by Judge Andrews in the opinion in Bisohoff’s case as follows: “ The principles governing the award of damages in cases like this have come to be quite well understood. 'The property rights of an abutting owner consist of easements of light, air and access. There are no easements of privacy or quiet, ■or other easements than those mentioned, for which compensation ■can be claimed. In ascertaining past damages the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street ior railroad uses.”

It is contended by the appellant that this case is beyond the control of these authorities, because the title of the church extends to the center of the avenue, but we have found no authority for any such distinction.

It has been steadily held, since the decision of the Story case, that an abutting owner, by reason of his location, has an easement ■for the purposes of air, light and access from such street, and that ■such rights are property within the meaning of the Constitution. Such rights are independent of any ownership in the street, and they ■exist to the same extent whether the title of the owner extends to the center or the side of the street.

The abutting owner whose title terminates at the side of a street has a right to the use and ■ enjoyment of all the light and air supplied by the street; and the owner whose title extends to the center can have no more, because there is no more to be had. Both sorts of owners are entitled to all the air and light which comes to their 'premises over the street, and neither can receive any more from that quarter.

Neither is there any difference between the two kinds of owners In respect to their rights of access. The abutting owner is entitled to the use of the street where his title extends only to the side of the street in as full and ample a manner as he would be if he owned to the middle.

The right of access and the right to light and air from public streets and thoroughfares are rights which pertain to real property, and they can be neither enlarged nor diminished by any legal rights in the soil of the streets, or by the want of such rights.

Light and air come from the heavens above, and they are both free. There can be no property rights in either except in connection with real property, and such rights are independent of any rights in the land over which they are received.

Riparian proprietors on the banks of navigable waters ■ have a right of access to the water, and yet they have no ownership in the land under water.

In our view the order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Cullen, J., concurred.

Einal order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Estate of Junius B. Alexander, Deceased. Maria Louisa Richards, Appellant; Lawrence D. Alexander and Another, as Administrators, etc., of Junius B. Alexander, Deceased, Respondents.

      Order denying an application for the payment of the claim of one of the newt of kin against a decedent’s estate — when only it is justified.

    In order to justify an order denying a petitioner’s application to be paid her claim as a next of kin of a decedent by Ms administrators, if such application be made after the expiration of one year from the time that letters of administration were issued upon the estate of the deceased, the written answer filed by such administrators must set forth facts which show that it is doubtful whether the petitioner’s claim is valid or legal, and must deny the validity and legality of the claim, or it must be proved to the satisfaction of the surrogate that there is no money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction out of the estate.
    Appeal by tlie petitioner, Maria Louisa Richards, from an order of the Surrogate’s Court of the county of Richmond, entered in the Richmond County Surrogate’s Court on the 6th day of August, 1894, denying tlie prayer of the petitioner for a decree directing the payment of her claim as distributee, and dismissing-her petition.

      Edward M. Shepard and Otto O. Wiervm, Jr., for Maria Louisa Richards, petitioner, appellant.

      W. W. MacFarland, for Lawrence D. Alexander, administrator, respondent. .
   Dykman, J.:

This is an appeal by Maria Louisa Richards. She presented a petition to the surrogate of Richmond county, in which she stated’ that she was a daughter of Junius B. Alexander, the decedent above named, and as such was entitled to a distributive share of his estate; that he died intestate on the 9th day of January, 1893, and was at the time of his death a resident of the county of Richmond and was the owner of personal property within that county ; that on the 17th day of May, 1893, letters of administration upon the estate of the decedent were duly granted by the surrogate of Richmond county to Eliza H. Alexander and Lawrence D. Alexander, and that more than one year had elapsed since said letters were granted; that the said administrators had filed an inventory of the estate of their decedent, showing personal property in their hands of the value of $1,021,673; that, as the petitioner was informed and believed, the administrators had duly advertised for creditors of their decedent to present their claims against his estate, and that the time limited by such advertisement had expired, and claims not exceeding in the aggregate the sum of $2,000 had been presented in response thereto; that the decedent left him surviving his widow, Eliza H. Alexander, and the following children, and none other, and no issue of any deceased child, and that such children were all of full age and sound mind, viz., Ellen L. Mayo, Lawrence D. Alexander, "Welcome T. Alexander, Anita M. McFee, Frank D. Alexander, Junius B. Alexander and Maria Louisa Richards, the petitioner, and that her share in such estate, after all debts and expenses shall have been paid; is not less than the sum of $90,000 ; that, as she was informed and believed, there is in the hands of such administrators money or other personal property of the estate applicable to the payment of her claims which might be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction; that no part of the distributive share has been paid; wherefore she prayed that a decree might be made directing the said administrators to pay her claim; that they might be cited to show cause why such a decree should not be made and why she should not have such other and further relief in the premises as justice required.

The answer denied no material allegation of the petition, and sets forth no facts which show that it is doubtful whether the petitioner’s claim is valid and legal; neither does it deny the validity or legality of her claim. The statute under which the proceedings are instituted is as follows: In either of the following cases a petition may be presented to the Surrogate’s Court praying for a decree directing an executor or administrator to pay the petitioner’s claim, and that he be cited to show cause why such a decree should not be made; * * * second^, by a person entitled to a legacy, or any other pecuniary provision under the will or a distributive share, for the payment or satisfaction thereof, or of its just proportionate part, at any time after one year has expired since letters were granted. On the presentation of such a petition the surrogate must issue a citation accordingly, and, on the return thereof, he must make such a decree in the premises as justice requires. But in either of the folloAving cases the decree must dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner:

“ First. Where' the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying the validity or legality absolutely, or on information and belief.

“ Second. Where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.”

The prayer of the petitioner was denied, and the petition was dismissed by the surrogate. The petitioner has appealed from the order, and we think it is erroneous.

The general provision of the statute is that the surrogate, on the return of a citation which he is required to issue upon the presentation of the petition, must make such a decree in the premises as justice requires. He is authorized to dismiss the petition where an executor or administrator files a written answer setting forth certain specific facts, and where certain facts are not proved. Neither of these conditions are presented in this case. The answer does not attempt to set forth any facts which show it is doubtful whether the petitioner’s claim is valid or legal, nor does it deny the validity or legality in any form. In the case of Lambert v. Craft (98 N. Y. 342) Judge Danforth, who prepared the opinion of the court, said: “ The citation (Code, § 2516) brings in the executor, not to plead or respond to the petition, but by a verified written answer to set forth affirmatively facts, if he has any, which show that it is doubtful whether the petitioner’s claim is valid and legal, and also denying its. validity or legality absolutely or upon information and belief. Both conditions must concur.”

The claim of the petitioner in this case was that she was one of the seven children of Junius B. Alexander, the decedent, and as such entitled to a portion of his estate. There is no pretense of any dispute as to the validity or legality of this claim; the only allegations of fact in the answer relate to the question of the amount of the petitioner’s share, but even that does not make it doubtful that the petitioner is entitled to at least $90,000. In The Matter of the Estate of McKiernan (4 N. Y. Civ. Proc. Rep. 218) it was said as follows : “ In this case, the petitioners alleging assets, and no written answer being filed, as required by said section, I am compelled to grant a decree for the payment of their claim.”

In The Matter of Miller (70 Hun, 61) it was said as follows: “ In order to have justified a dismissal of the petition, the answer should not only have denied the validity or legality of the plaintiff’s claim, but it should have set forth .facts which showed that it was doubtful whether the petitioner’s claim was valid and legal.”

Our conclusion, therefore, is that the order should be reversed, with costs to be paid from the estate, and the proceedings remitted to the Surrogate’s Court.

Brown, P. J., and Cullen, J., concurred.

Order reversed, with costs to be paid from the estate, and proceedings remitted to Surrogate’s Court.


author: Cullen, J.:

text:
    Cornelius F. Kingsland, Respondent, v. The Kings County Elevated Railway Company, Appellant.

      Judgment reversed, upon questions of fact — consent to the erection of an elevated railroad— reservation therein as to damages — equity jurisdiction, not created hy an assignment of past damages to the party entitled to equitable relief for injury to the fee.

    To justify the reversal of a judgment on questions of fact, it is not sufficient that the appellate court might have arrived at a conclusion different from the determination of the trial court, hut in order to justify such a reversal, the proof must so clearly preponderate in favor of the party against whom the judgment was rendered, that it may he said with a reasonable degree-of certainty that the trial court erred in its conclusion.
    The condition contained in a consent given by the owner of premises abutting on a street for the erection of an elevated railway thereon, that the execution thereof should not in anywise affect the abutter’s claim to damages, but that the right to and the extent of compensation should be left entirely unaffected, to be dealt with according to law, reserves to the owner of the premises the right to equitable remedies to enforce compensation against the elevated railroad company, as well as the right to remedies at law.
    Equity takes cognizance of the subject of past damages to real estate, by reason of the construction and operation of an elevated railroad, only as incident to the administration of equitable relief for injury to the fee, and if past damages are severed from the property by its conveyance, the fact that they have been assigned to one who has an equitable cause of action for injuries to the fee of such premises does not give equity jurisdiction of the question of past damages.
    Appeal by tbe defendant, The Kings County Elevated Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings-on the 2'Tth day of April, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term, awarding the plaintiff $500 for rental damages, and restraining the defendant from maintaining-and operating its elevated railroad in front of the plaintiff’s premises unless it shall pay to the plaintiff the sum of $2,000, ■ the amount fixed as the fee damages to the plaintiff’s premises.
    The court found among other facts:
    That in and by the deed conveying said premises to the plaintiff his grantor assigned and transferred to the plaintiff all his right to damages and compensation against the defendant corporation for damage sustained by plaintiff’s grantor.

      And among 'other conclusions of law:
    That plaintiff is entitled to judgment against the defendant corporation for the sum of $250, being the amount of damages to the rental value of said premises from the 31st day of May, 1890, to the 6th day of March, 1894; and in the further sum of $250 as damages to the rental value of said premises from the 1st day of May, 1888, to the 31st day of May, 1890, amounting in all to the sum of $500.

      W. A. Poste, for the appellant.

      Theodore B. Gates, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the Special Term in favor of the plaintiff. The action, save in one particular, is the usual one by an abutter for injury to the fee and for past damages.

The most earnest contention of the appellant is, that the trial court erred in the question of fact as to the amount of damages, both to the fee and to the rental value. It does seem to us as if the evidence of the witnesses to the depreciation in the value of the property was more speculative than based on actual facts. But to^ justify us in reversing the judgment below on this ground it is not sufficient that we might have arrived at a different conclusion. The proof must so clearly preponderate that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusion. (Aldridge v. Aldridge, 120 N. Y. 614; Barnard v. Gantz, 140 id. 249.) "We do not think the evidence so clear as to justify ns in such a finding.

The appellant put in evidence a consent to the construction of the road executed by one Henry Mangles. ¥e assume from the record before us, though the will is not set out in it, that the title to the property at the time was in Anna Mangles and Claus D, Doscheras trustees under the will of Henry Mangles, deceased. Assuming that authority from Anna Mangles for the execution of the consent was proved, still the consent was inoperative, as the other trustee did not join in it. Besides this, the consent provided that its execution should not in anywise affect the abutter’s claim to damages, but the right to and the extent of compensation should be left entirely unaffected, to be dealt with according to law. This condition, we think, reserved to the owners the right to equitable remedies to enforce compensation as well as the right to remedies at law.

The plaintiff was allowed $250 as damages to the rental value, while the property was owned by his predecessor in title, the right to which was assigned to him by a special provision in big deed. Equity takes cognizance of the subject of past damages only as incident to the administration of equitable relief for injury to the fee. The damage was severed from the property by its conveyance. These damages, unless assigned, would have been retained by the plaintiff’s grantor, who could bring only an action at law for their recovery. The fact that they have been assigned to one who has an equitable cause of action does not give equity jurisdiction over them. (Sommers v. N. Y. El. R. R. Co., 60 Hun, 148 ; Siefke v. Manhattan El. R. R. Co., 14 N. Y. Supp. 763.)

The judgment appealed from should be reversed, unless plaintiff consents to reduce the same by $250 and interest, in which case the judgment, as modified, is affirmed, without costs to either party.

Brown, P. J., and Dykman, J., concurred.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates, within twenty days, to reduce the judgment by $250 and interest, in which case judgment so rendered is affirmed, without costs.


text:
    Robert H. Sherwood, Respondent, v. Maitland E. Graves, Appellant.

      Entire contract, recovery under, for services rendered — proof of full performance, waiver of defeat, or fault of employer necessa/ry.

    'Where one person, renders services to another in negotiating the purchase and acquisition of the securities of, and the liens upon, a bankrupt railroad, if the contract under which he acts is an entire one, the employee, in order to justify a recovery for the services rendered, must prove a full performance of the contract, or a waiver by the employer as to any deficiency, or that such deficiency was due to the fault of the employer.
    Appeal by the defendant, Maitland E. Graves, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Kings oil the 19th day of January,, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 19th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Frederic A. Ward, for the appellant.

      Henry B. Twombly, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury. The action is to recover for services rendered by the plaintiff in procuring for the defendant the purchase and acquisition of the securities of and the liens upon a bankrupt-railroad on Staten Island.

There is no question that the contract was an entire one, and that the plaintiff was bound to prove a full performance of the contract, or a waiver by the defendant as to any deficiency, or that such deficiency was due to the fault of the defendant. So the trial judge charged. It was not error to submit the question of the terms of’ the contract to the jury; at least by the submission no harm was done to the defendant. It may be conceded that the letters of February twenty-ninth constituted the original contract between the' parties, and such contract being in writing was to be construed by the court and not by the jury. But this was not the contract under which the services were rendered. The defendant himself testifies-that after the original proposition on the $65,000 basis (that is, the one contained in the letters) the plaintiff told him he could not get the road on that basis, and that then he told the plaintiff to go ahead and do the best he could. Thus there was a new contract between the parties resting in parol, and from that time it was not necessary that the plaintiff should obtain the securities of the road at a gross price of $65,000. It was sufficient that he should obtain them at a price satisfactory to the defendant. There .was evidence showing that the defendant took up the great mass of these securities under negotiations made by the plaintiff with their holders. This was sufficient to show an acceptance by the defendant of the plaintiff’s, services and his approval of the price. The case was, therefore,. properly for the jury, and we find no error in the charge by which it was submitted to the jury.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.

Brown, P. J., and Dykman, J.,- concurred.

Judgment and.order affirmed with costs.


author: Cullen, J. :

text:
    Milton T. Woolley, Respondent, v. Charles Lowenstein and Another, Appellants.

      Broker’s commission upon an exchange of real estate — proof required of him.

    To entitle a real estate broker to his compensation he must produce a customer not only willing but able to purchase the principal’s property, and to sustain a recovery in an action brought by a broker to recover his commissions upon a proposed exchange of real estate, it is necessary for him to show that the customer produced bjr him was the owner of the property which he offered to exchange, and that after the agreement to exchange was made the defendant refused to carry out the same.
    •Appeal by the defendants, Charles Lowenstein and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of January, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 18th day of January, 1894, denying the defend-, ants’ motion for a new trial made upon the minutes.

      F. F. Dama, for the appellants.

      M. F. MeGoldriok and Geo. H. Sa/rmcm, for the respondent.
   Cullen, J. :

This is an appeal from a judgment entered upon a verdict at Circuit, and an order denying defendants’ motion for a new trial.

The action is brought by the plaintiff to recover for services rendered as a real estate broker. His testimony was to the effect that he was employed by the defendants to effect an exchange of certain vacant lots in New York city; that in pursuance of such employment he entered into negotiations with one Wronkow for an exchange of the lots for a building on State street; that the defendants made an offer of the terms on which they would trade with Wronlcow; that finally he induced Wronkow to accept such terms, and notified the defendants of the accejffance of their offer, and that thereupon the defendants retracted their offer, and refused to execute a contract or proceed further in the exchange. These facts, if proved, and the jury have so found by their verdict, would entitle the plaintiff to recover, provided Wronkow was at the time able and willing to make the exchange. The statement of Wronkow accepting the proposed terms of exchange was properly admitted in evidence, and we do not think that the plaintiff was limited to proving such willingness solely by the testimony of Wronkow, or that he was concluded by Wronkow’s testimony on that point given on the trial.

But to entitle the bi’oker to his compensation he must j>roduce a customer not only willing but able to purchase his principal’s property. (Condict v. Cowdrey, 139 N. Y. 273; Gerding v. Haskin, 141 id. 514.) The point was distinctly raised by the defendants on a motion to dismiss the complaint that there was no evidence to show that Wronkow was the owner of the State street building, or able to convey it. It was necessary for the plaintiff to prove this fact to entitle himself to a recovery. We have looked through the evidence, and find the case barren of proof on this point. We, therefore, feel constrained to reverse the judgment.

The judgment and order denying a new trial should be reversed, and-a new trial ordered, costs to abide event.

Brown, P. J., and Dykman, J., concurred.

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


author: Cullen, J.;

text:
    The People of the State of New York, Respondent, v. Frederick Maxwell, Appellant. Same v. Same. Same v. Same.

      Repeal of a statute creating a crime — exception as to past offenders — saving clause in chapter 401 of 1892- — trial for selling liquor without a license — burden of proof as to the existence of a license.

    The saving clause contained in chapter 401 of the Laws of 1892 in respect to the repeal of the Excise Law of 1857 is in no sense an ex post facto law, and i& constitutional ; its only effect is to limit the scope and operation oí the repealing provisions of such act.
    The principle that the repeal of a statute creating a crime or prescribing its punishment prevents prosecution for offenses committed while the law was in force, is merely a rule of statutory construction, and there is no question of natural right or principle of personal liberty involved.
    The Legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on the subject, nor give immunity to past offenders, and the same thing may be accomplished by a saving clause contained in á 'statute as to criminal offenses, repealing a prior statute in relation thereto.
    Upon the trial of a.person who is indicted for selling liquor without a license, the People, in order to make out a case, are not required to show that the defendant had no license; if he had a license it is incumbent upon him to show it.
    Appeal by tbe defendant, Frederick Maxwell, from three judgments of tbe Court of Sessions held in and for the county of Suffolk, rendered on tbe 5th day of June, 1894, convicting tbe defendant of three several violations of tbe Excise Law.

      Wm. G. Gox, for tbe appellant.

      Walter H. Jan/cox, District Attorney, for tbe respondent.
   Cullen, J.;

These are appeals from judgments of tbe Court of Sessions of Suffolk county upon convictions of tbe defendant on three separate indictments for violating the excise laws.

Tbe offenses are alleged to have been committed in the year 1890 and tbe indictments were found in 1891. Tbe trials were bad in 1891.

The principal point urged by the defendant on this appeal is that the repeal of the statute of 1857 by the enactment of the Excise Law of 1892 (Oliap. 401) rendered the further prosecution of the indictments against him impossible, the saving clause of that act as to past offenses to the contrary notwithstanding. We have no doubt as to the constitutionality and efficacy of the saving clause. It is in no sense an ex post facto law. The defendant is not punished under the saving clause of the act of 1892, but under the law as it existed at the time he committed the offense, the only effect of the saving clause being to limit the scope and operation of the repealing provisions of the statute. The principle that the repeal of a statute creating a crime or prescribing the punishment prevents prosecution for offenses committed while the law was in force is merely a rule of statutory construction. There is no question of natural right or principle of personal liberty involved. The Legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on the subject nor give immunity to past offenders. (Mongeon v. People, 55 N. Y. 613.)

The result sought to be obtained being entirely within the power of the Legislature, we cannot see why the Legislature is not equally the master of the means to be employed, and why it may not attain .the end desired by a saving clause as well as by a statute applicable to future offenses.

_ On the trial of the indictment for selling liquor without a license, objection was made that the prosecution had given no proof that the defendant had not a license. The objection is untenable, as such proof was not required to be given to make out the People’s case. If the defendant had a license, it was incumbent upon him to show it. (Schwab v. People, 4 Hun, 520; 1 Greenl. Ev. § 79.)

The judgments appealed from should be affirmed.

Brown, P. J., and Dykman, J., concurred.

Judgments affirmed.


text:
    Mortimer S. Brown, Appellant, v. James H. Symes, Respondent.

      Action to recover money loaned — accord and satisfaction.

    Upon the trial of an action, brought to recover money alleged to have been loaned by the plaintiff to the defendant, together with the interest thereon, it appeared that prior to the commencement of the action the defendant wrote to the plaintiff stating that he did not concede his claim to be a just one, but that he inclosed his check (which was for the face of the loan without interest), and would expect in return a receipt m full, which check was payable to the order of the plaintiff, “ as full settlement of claim against me; ” the plaintiff retained the check, and collected the money upon it.

      Held, that the complaint was properly dismissed, the acceptance of the check and the collection and retention of the money constituting an accord and satisfaction of the plaintiff’s claim.
    Appeal by tlie plaintiff, Mortimer S. Brown, from a judgment of tlie Supreme Court in favor of the defendant, entered in tlie office of tlie clerk of the county of Kings on the 12th day of February, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.
    The action was brought to recover $195.45 which represented the interest on a loan of $110, the defendant being credited by the complaint with the payment of the sum of $110.

      Theodore B. Gates, for the appellant.

      Alb ridge O. Smith, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon a dismissal of the complaint upon the trial at the Circuit.

It appeared from the testimony introduced by the plaintiff upon the trial that the plaintiff made a claim against the defendant for $110 for money loaned. The claim was disputed by the defendant, who insisted that he had paid the loan.

Finally the defendant wrote a letter to the plaintiff, in which he said, among other things : “ I do not concede, however, that this claim is a just one, but rather than devote my time (which I cannot spare at present) to tracing up the proofs, I have decided to send you inclosed check for $110, and will expect in return a receipt in full.”

The check read as follows :

“ Guttenberg, Hudson Co., N. J., July 6, 1893.
“First.National Bank of Hoboken, New Jersey, pay to order of M. S. Brown, as full settlement of claim against me, One Hundred and Ten Dollars.
“$110. - JAS. H. SYMES.”

The plaintiff retained the check, collected the money upon it, and then brought this suit.

The acceptance of the check under the circumstances stated, and the collection and retention of the money constituted an accord and satisfaction of the plaintiff’s claim. (Fuller v. Kemp, 138 N. Y. 231.)

As the judgment must be affirmed upon the ground stated, we do not examine the other questions presented by the appellant.

The judgment should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment affirmed, with costs.


text:
    Thomas F. Brown, Respondent, v. Anne Brown, Individually and as Executrix, etc., of Thomas Brown, Deceased, Appellant, Impleaded with Another.

      Waiver of a defect in an action brought under chapter 487 of 1889 — a conversion of a minors money by his father — it creates the relation of debtor and creditor and not of trustee and beneficiary — Statute of Limitations— application thereof to trustees and their cestuis que trust — constructive notice.

    If, in an action brought under-the provisions of chapter 487 of the Laws of 1889, the plaintiff fails to sue in behalf of himself and other creditors, such defect is waived by the failure of the defendant to raise the question by answer or demurrer.
    Upon the trial of an action brought by a son against the executrix of his father, it appeared that the father, without authority, had received money belonging to the plaintiff, then a minor, which was the proceeds-of a judgment recovered by the infant against a railroad company; that the son knew before his majority that his father had sued the railroad company for him and had recovered judgment (but he did not know the amount of the recovery), and that the money had been paid to his father.

      H'eld,, that the relation which the law created between the father and son in'such a case was that of debtor and creditor and not that of trustee and beneficiary;

      That a cause of action accrued to the son when his father received the money;
    That the six years’ Statute of Limitations, to be computed from the time that the infant became of age, was applicable.
    As long as there is a continuing and subsisting trust, acknowledged or acted upon by the parties, the Statute of Limitations does not apply, but if the trustee denies the right of his cestui que trust and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity; but other trusts, which afford ground for an action at law, are not exempt from the operation of the statute.
    Where a party has knowledge of such facts as would induce a man of ordinary prudence to make further inquiry, a failure to make inquiry is visited with all the consequences of notice.
    Cullen, L, dissenting.
    Appeal by the defendant, Anne Brown, individually and as executrix, etc., of Thomas Brown, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term, and, upon the coming in of a referee’s report, adjudging that a certain gift of $4,000 of Thomas Brown, deceased, to the defendant, was made with the intent to hinder, delay and defraud the plaintiff, and that such gift was void as to him, with notice of an intention to bring up for review upon such appeal the interlocutory judgment made at the Kings County Special Term and entered in said clerk’s office on the 29th day of March, 1894.

      John F. OlwrTce, for the appellant.

      Horace Secor, for the respondent.
   Dykman, J.:

The plaintiff in this action is the son of Thomas Brown, deceased, who died on the 28th day of February, 1893, leaving a last will and testament, which has been duly proved and admitted to probate.

The defendant, who was the second wife of the deceased and the stepmother of the plaintiff, was appointed the executrix of the will of her husband and duly qualified as such.

In the year 1876 the plaintiff was injured by the Brooklyn City railroad, and his father was appointed his guardian ad Utem for the purpose of commencing an action for the plaintiff to recover the damages lie sustained from sucli injuries. The plaintiff was then an infant about fourteen years old.

There was a recovery in favor of the plaintiff in that action of $1,500 on the 2d day of April, 1811, and his attorneys paid over to his father the sum of $1,262.50, the amount of the recovery, less the costs and expenses. That payment was so made to the guardian on the 15th day of May, 1811. The plaintiff became of full age March 25, 1884, and this action was commenced in July, 1893.

The father of the plaintiff did not give the security required by the law to authorize Mm to receive the money, and the trial judge has found that the plaintiff learned of the collection of said money about December, 1891.

On the 30th day of March, 1892, the father of the plaintiff sold and conveyed certain real property which he owned, and after making certain payments from the proceeds of such sales he gave the balance of $4,Q00 to his wife, Anne Brown, the defendant in this action. Sucli gift divested the deceased, Thomas Brown, substantially of all his property, and the trial judge has found, upon sufficient facts and circumstances, that the same was made with intent to defraud the plaintiff.

This action was commenced in July, 1893, to set aside and nullify the gift of $4,000 to the defendant and compel her to account for that sum, with interest, and for the recovery of a judgment against her for the sum of $1,111, with interest from May 20,1811, and for other relief.

The cause was tried before a judge without a jury, and he decided in favor of the plaintiff and found the facts recited above in this opinion.

A judgment has been entered upon the decision of the judge, in favor of the plaintiff against the defendant, declaring the gift of $4,000 to the defendant by the plaintiff’s father void, as having been made to hinder and defraud the plaintiff in his lawful demands against his father, and awarding a personal judgment against the defendant in favor of the plaintiff for $2,111.89.

The action was authorized by chapter 481 of the Laws of 1889, which provides that airy creditor of a deceased insolvent debtor having a claim or demand against the estate of such deceased debtor exceeding in amount the sum of $100, may, for the benefit of himself and other creditors interested in the estate of such deceased debtor, disaffirm and treat as void all acts done and conveyances made in fraud of the rights of any creditor by such deceased debtor, and for that purpose may maintain any necessary action to set aside such transfers or acts, and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may be proved and established upon the trial of such action.

The plaintiff did not sue in behalf of himself and other creditors, but that defect was waived by a'failure to raise the question by answer or demurrer.

It became necessary, however, for the purpose of administering the full relief contemplated by the statute to ascertain in some way the other creditors of the deceased if any there were.

For that purpose an interlocutory judgment was entered, appointing a referee to advertise for creditors, and, upon the coming in of fhat report, a final judgment was entered as stated above.

The defendant has appealed from both judgments. The serious and important question in the case is whether the claim of the plaintiff is barred by the Statute of Limitations.

It is the insistence of the defendant that the deceased received the money recovered from the railroad company without authority and under circumstances which rendered it his duty to pay it over to the plaintiff at once ; that an action for money had and received could have been maintained for its recovery without any demand, and, therefore, the Statute of Limitations commenced to run upon the receipt of the money.

On the other hand, the plaintiff contends that the deceased was the trustee of an express trust and received the money in question in that capacity, and, therefore, the statute did not begin to run against the plaintiff until the deceased openly renounced or repudiated the trust to the knowledge of the plaintiff. Upon that question of the Statute of Limitations our conclusion is in favor of the appellant.

The father of the plaintiff received the money of the plaintiff, which was the proceeds of his recovery against the railroad company, without authority, and, as he had no right to receive it, he was destitute of authority to retain it.

The relation which the law created between them was that of debtor and creditor, and not that of trustee and beneficiary.

There was neither trustee, trust fund nor beneficiary within the legal meaning of those terms. It was neither the intention or contemplation of either party to create a trust, and the deceased was charged with no trust with respect to the money he received, either in its management or control. In the case of Kane v. Bloodgood (7 Johns. Ch. 90), Chancellor Kent said: “The word trust.is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to 'be applied to a particular purpose to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity as a trustee, for a breach of trust.” According to this jninciple, every lawyer who collects money for his client; in fact, every one who receives money for another, holds the same in trust.

But such persons are not trustees of a subsisting trust in the sense in which that term is legally and properly employed. They receive money belonging to another, which, according to equity and good conscience, they are bound to pay over and they become debtors for the same.

It is true that persons receiving money in a fiduciary capacity are sometimes denominated trustees ex malofficio and trustees de son tort, but when such terms are applied they are employed only to designate those implied trusts which the law sometimes raises for purposes of justice, and to such trusts the ordinary rules of limitation apply. The six years’ statute is applicable. (Mills v. Mills, 115 N. Y. 85.)

Mr. Perry, in his work on Trusts (§ 245), says: “ A person may become a trustee by construction by intermeddling with and assuming the management of property without authority,” but such persons are not trustees of an actual subsisting trust. Such trusts are continuous, and have well-defined characteristics which impart to them validity and vitality, and require administration in the interest of a beneficiary or fide commissary, a term which Judge Stoby deems a euphonious substitute for cestui que trust, which is an awkward, barbarous phrase. (Story’s Eq. Juris. § 321, and note.)

In such a trust the statute does not begin to run until the trustee has renounced the trust to the knowledge of his beneficiary or fide commissary. (Lammer v. Stoddard, 103 N. Y. 673.)

The whole doctrine is tersely stated in the head note to the case of Kane v. Bloodgood (supra), as follows : “ As long as there is a continuing and subsisting trust acknowledged or acted on by the parties, the statute does not apply; but if the trustee denies the right of his eestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity, but other trusts which are the ground of an action at law are not exempted from the operation of the statute.” This case falls into the last category mentioned, and a cause of action accrued to the plaintiff when his father received his money.

The case of Park v. Satterthwait (132 Ind. 411) is quite similar to this, and is very instructive upon the questions here involved.

There is, however, another question for solution. The plaintiff insists, further that the Statute of Limitations did not commence to run against him in respect to his claim against his father until March, 1892, because he had no knowledge of the receipt of his money by his father before that time, and that position is based upon the following provision of the statute:

“ Where 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 right to make the demand is complete, except in one of the following cases: Where the right grows out of the receipt or detention of money or property by an agent, trustee-, attorney, or other person acting in a fiduciary capacity, the time must be computed from the timé when the person having the right to make the demand has actual knowledge of the facts upon which that right depends.” (§ 410, Code Civ. Proc.)

The trial judge has found that the plaintiff learned of the- collection of the money by his father about December, 1891, but if that is to be construed as a finding that he had no knowledge of such payment previous to that time, then the finding is entirely destitute of evidence for its support. There is no such proof in the case, and there is no testimony from which any such inference can be naturally drawn.

On the contrary, the fair and natural inference from the testimony is the other way and adverse to the plea of ignorance set up by the plaintiff.

Let us examine. In the first place the trial judge has found as a fact that the plaintiff knew of the recovery in his favor against the railroad company before his majority, but not the amount.

In the next place the plaintiff stated in his verified complaint that he had almost lost all recollection of the fact that a suit had been brought for the recovery of damages for his injuries, and that his father had received any money for him as guardian ad litem • that these facts were brought to his mind from a conversation he had with his 'friends.

The language plainly implies that he had knowledge of the facts he states, but had almost lost all •recollection of them, and that they were brought again to his mind by a conversation with his friends.

The same inference is easily drawn from the circumstances which cluster round the transaction. The plaintiff was fourteen years old at the time of the trial, and testified in his own behalf. He recollects the incident and remembers stating to the jury the manner in which he was injured, and an event so disastrous to him would not fade from his memory as every step he took in walking reminded him of his injury.

He knew lie had not received" any money on account of the recovery, and at his age he would naturally inquire whether it had been paid or remained unpaid.

His knowledge of the payment of the money to his father at the time is the more readily inferred from his silence on the subject when giving his testimony in this action.

It was not only essential, but vital, to prove his ignorance, and it was a fact which he was required to establish, yet he did not swear to it.

His testimony is guarded. He says his attention was directed to the suit brought in his behalf in 1876, about two years ago, but that is far from saying he was ignorant of the fact, or did not, remember it. Besides that, he admitted in his testimony that he remembered the suit and remembered being a witness upon the trial.

The failure of the plaintiff to testify to his ignorance is very significant, and justifies a presumption that he could not do so because it was not true, and that he was in possession of such knowledge all along.

Besides all this, the plaintiff encounters this well-recognized principle of law, where a party has knowledge of such facts as would induce a man of ordinary prudence to make further inquiry, a failure to make inquiry is visited with all the consequences of notice. (Wade on Law of Notice, § 11.)

The rule is peculiarly applicable to the plaintiff. He knew his father had sued the railroad company for him and recovered; he knew the money had not been paid to him; he knew his father could furnish him all the information required; if his father refused to do so he could have learned all he required from the officers of the railroad company ; if he was ignorant, he was put upon inquiry, and such inquiry would have yielded all the knowledge he required. We are, therefore, on this ground alone justified in charging the plaintiff with full knowledge of the receipt of the money by his father.

A more general view leads to the same conclusion.

Here we have the case of a lad fourteen years of age, when the mind is quite mature, receiving an injury to his leg which necessitates amputation. His father, as his guardian, brings a suit to recover the damages he has sustained, and he is present at the trial and testifies in his own behalf. There is a verdict in his favor and his father receives the money. Thereafter he resides with his father for many years, even after he attains his majority.

It is inconceivable that, during all that time subsequent to the receipt of the money, its reception was never mentioned by either the plaintiff or his father, and that the plaintiff remained in ignorance of its collection until about two years ago.

We, therefore, reach the following conclusions :

First. The receipt of the money created the relation of creditor and debtor between the plaintiff and his father.

Second. That, although an action could have been commenced in the name of the plaintiff for the recovery immediately after it was received, yet, the Statute of Limitations did not commence to run against the plaintiff until he attained his majority.

Third. That the disability of the plaintiff resulting from his infancy was removed by the attainment of his majority more than six years previous to the commencement of this action, and that the six years’ Statute of Limitations is applicable to this action.

Fomth. That the plaintiff. must be deemed to have had knowledge of the receipt by his father of the money recovered from the railroad company immediately after its reception, and does not, therefore, come within the exception provided in subdivision 1 of section 410 of the Code of Civil Procedure.

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

Brown, P. J., concurred; Cullen, J\, dissented.

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


text:
    Elizabeth S. Edgecomb, Respondent, v. Sarah E. Buckhout, as Administratrix, etc., of Eckford Webb, Deceased, Appellant

      Master and servant — damages for a breach of contract — right to dischán'ge a servant, when a question of la/w — when marriage justifies a discJia/rge.

    Upon the trial of an action brought to recover the value of personal services agreed to be rendered, as damages for the alleged breach of such contract by the employer, the question respecting the right of the employer to discharge the employee is a question of law to be determined by the trial court, and the submission of the question to the jury for its determination upon the facts is erroneous if the testimony respecting the discharge is uncontradicted.
    It is a legal principle that for habitual negligence or unwarranted absence, or for any such conduct in fact as prevents a mutual agreement of employment from being carried out to the reasonable satisfaction of the employer, the person employed may be dismissed.
    It is a general rule that when a person fails to perform his part of a contract or disables or disqualifies himself from performing it, the other party may treat the contract as rescinded.
    Marriage is not only a contract but an institution, and it not only creates rights and imposes obligations but it confers a status.
    The marriage of a woman who has contracted to render personal services to a man until his death, for a specified compensation, brings about such a change in her as to disqualify her from the performance of her contract with her employer, who is thereby justified in considering her proposed marriage as a rescission of the contract on her part, and may discharge her for that cause.
    Cullen, J., dissenting.
    Appeal by tlie defendant, Sarah E. Buckhout, as administratrix, etc., of Eckford Webb, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of May, 1894, upon the verdict ■of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 4th day of June, 1894, denying the defendant’s motion for a new trial.

      Louis O. Van Doren, for the appellant.

      Daniel B. Thompson, for the respondent..
   Dykman, J.:

This is an action brought against the administratrix with the will annexed of Eckford Webb, deceased, to recover the value of personal services of the plaintiff to him.

The plaintiff entered the service of the decedent in August, 1880, under an agreement which fixed her compensation at sixty dollars a month. It was paid down to February 1, 1881, when a new agreement in relation to her compensation was made, by which the plaintiff was to render the same services for the decedent until his death, for which she should receive as compensation therefor by his will a life estate in the house and lot No. 78 Kush street, in the city of Brooklyn, $5,000 in cash and $3,000 in railroad bonds.

Under this agreement the plaintiff remained in the service of the ■deceased until about the middle of April, 1889, about-four years and •a half before the death of Mr. Webb, -when she left.

Three weeks before that time there was an interview between the plaintiff and the deceased, which was described by the plaintiff in her testimony upon the trial as follows: I said, £ Uncle Eck, Mr. Edgecomb called here yesterday morning, and, to my great surprise, asked me to marry him, and I want your advice.’ That was about three weeks before I left Mr. Webb. He said,£ Elizabeth, I haven’t any advice to give.’ He was very angry. Yery angry for a moment. Q. How soon after that did you accept Mr. Edgecomb’s offer ? A. About 10 days. Q. From the time he proposed, in 10 days you accepted that offer? A. I can’t say it was just exactly 10 days — about that time, after I talked with Mr. Webb, and we talked about my going away, if I- did marry, and so on. * * * Q. Did he say anything to you about your leaving before you spoke to him and told him that you contemplated marriage with Mr. Edgecomb ? A. No, sir. ”

When subsequently requested to state the whole of the conversation, she continued as follows : He said to me when I told him, £ Elizabeth, you promised to remain with me.’ I said, Uncle Eck, so I will remain with you just as long as I live,’ and he said, £,Mr. Edgecomb wouldn’t want you to wait upon me as you have always done.’ I said, £ I have spoken of the matter to Mr. Edgecomb, and without his consent to that, which he freely gives, I would never marry him.’ Then I made three proposals, and he said he would consider them. * * * I said, £ I will remain here with you — Mr. Edgecomb can remain at the Wall House, where he is. Another thing I will do is to take a house, furnish it, and get settled as soon as possible, give you the best rooms in the house and care for you always as I have done, or Mr. Edgecomb and I will come here and live with you and care for you,’ and I proposed that while I went on a short wedding trip, my stepmother * * would come and keep house for him. * * 'x' After considering he gave me three weeks to leave the house; he said he would give me three weeks to leave the house; that he would not accept any of these arrangements that I was willing to make.”

A witness produced by the plaintiff upon the trial testified to a conversation with Mr. Webb in relation to the foregoing propositions, as follows : ££ Mr. Webb said to me that his objections to any of those three propositions were that he did not propose to have a married man around; he wanted the services of an unmarried woman. He also said to me that Mr. Edgecomb would not permit Ms wife to administer to him in the same manner that she had formerly done, and the manner in which it was necessary for him to be administered to.”

Mr. Webb made a will in April, 1883, more than two years after the new arrangement was made between him and the plaintiff, in which he provided for her according to Ms contract, but he revoked that will by another in August, 1891.

The plaintiff waited until the termination of the period for which she was hired, and now claims to recover as damages the wages she was to be paid under her contract with the deceased. The defendant, on the contrary, insists that the discharge was justifiable and that the reasons therefor were amply sufficient.

The case was tried at the Circuit before a jury. When the plaintiff rested, and again at the close of the testimony, the defendant moved to dismiss the complaint, and excepted to the denial of the motion. There was also an exception to the refusal of the court to direct a verdict for the defendant.

The trial-judge left it to the jury as a question of fact to determine whether or not the effect of the marriage of the plaintiff was to render it practically impossible for her to continue to render the same services as she had rendered before. His language was this: “ I leave it to you as á question of fact to determine whether or not the effect of the marriage was to render it practically impossible for the plaintiff to continue to render the same services as she had rendered before. As I have said, if you shall find that the effect of the marriage she was about to contract took it out of her power to perforin the contract, then she cannot recover at all; if such was not the effect of the marriage, and if you shall find that it was practicable for her to go on and do just what she did before, and that Mr. Edgecomb, her husband, was willing that she should go on and do just as she did before, then Mr. Webb was not in a position to break off the relations until something actually occurred which made it certain that she could not go on. Of course he was under no obligation to make any change in his household to accommodate the husband; he was under no obligation to admit him there, either as the spouse of this lady or as a visitor for any purpose whatever, or to sacrifice one moment of the time which the plaintiff engaged should be devoted to him, in order that she might devote it to her husband, but he was not justified in breaking off the relation if it were practicable that the relation should continue as it had continued, and as it was intended to continue by the contract if she did everything to render such a result possible.”

The jury rendered a verdict in favor of the plaintiff for $8,330.

The trial judge submitted six questions to the jury which, with the answers, are as follows:

First. Was it agreed, in or about February, 1881, between the plaintiff and Eckford Webb, that she should render services to him then as his housekeeper, and, as a compensation for such services, that he would, in and by his will, give her a life estate in 78 Hush street, Brooklyn, $5,000 in cash and $3,000 in railroad bonds ? Y es.

Second. Did Eckford Webb dismiss the plaintiff from suck service because she became engaged to marry Daniel W. Edgecomb, if that is the right name? I believe it is. Ans. Eckford Webb dismissed the plaintiff because she informed him that Daniel W. Edgecomb had proposed marriage to her.

Third. Did the marriage of the plaintiff to Daniel W. Edgecomb make it practically impossible for her to continue to perform such services as she agreed to perform as housekeeper for Eckford Webb?, No.

Fourth. Did the plaintiff voluntarily leave or abandon the service of Eckford Webb upon entering into her marriage engagement? No.

Fifth. Has the plaintiff been paid for such services as she rendered to Eckford Webb ? No.

Sixth. What was the fair, reasonable value per month of such services as the plaintiff rendered to Eckford Webb? Eighty-five dollars per month.

In relation to the second question, it is to be said that it did not present the question involved in the action. Webb did not dismiss the plaintiff from his service because she became engaged to Edge-comb, but because she intended to marry him. Both the question and answer are, therefore, immaterial.

The third question did not present a material point to the jury. The discharge may have been justifiable, even though it was practically possible for the plaintiff to continue to perform such services as she agreed to perform for Webb. The question was, assuming it to be one of fact, whether the contemplated marriage of the plaintiff furnished a sufficient reason for her discharge. If a servant steals his master’s property, we suppose the larceny would constitute a valid legal justification for his discharge, and yet the jury might find it practically possible for him to perform his duties ás he had done before.

We have, however, reached the conclusion that the question respecting the right of the deceased to discharge the plaintiff should have been decided as a question of law by the trial court, and that the submission'of'the question to the jury for determination as one of fact was erroneous. The testimony respecting the discharge was uncontradicted. It was all furnished by the plaintiff, and was not disputed. The cause of the dismissal is plainly stated. The evidence is free from conflict, and no question of fact was involved; therefore, assuming the question to be one of law, what is its true solution ?

The deceased man required the services of a single woman to take charge of his house and to give him her personal attention, and he hired the plaintiff to fill that position and perform those duties. She was a single woman, and he hired her because she was such.. The evidence shows that he was pleased with her, and made his will to insure the performance of his contract with her. Finally the plaintiff informed the decedent of her offer of marriage and sought his advice. Fie was displeased and had no advice to give her. Then she made him three proposals for a modification of their contract, all of which contemplated her marriage, and were based upon that event. He did not accept the propositions because he wanted the services of an unmarried woman, and he knew that Edgecomb would not permit his wife to administer to him as she had theretofore done, and it was necessary for him to have such administration.

Of course Webb was under no obligation to modify his contract with the plaintiff; he had bargained for a single woman to administer to his personal necessities and comforts, and he had a right to the benefit of his bargain. The case is peculiar. The plaintiff was about to change herself from a single woman to a married woman. The change would be radical, and, in the estimation of the deceased, .it would prevent the plaintiff from carrying out her contract with him as fully as he had a right to expect and require.

That seems to bring the case within-the rule of law stated by an elementary writer as follows: “Yet the legal principle is correct that for habitual negligence or unwarranted absence, or for any such conduct in fact as prevents a mutual agreement from being carried out to the reasonable satisfaction of the employer, the person employed may be dismissed.” (1 Schouler’s Dom. Bel. [4th ed.] § 462.)

Marriage is not only a contract but an institution; it not only creates rights and imposes obligations but it confers a status.

It may be stated as a general rule that when one fails to perform his part of a contract, or disables or disqualifies himself from performing it, the other party may treat the contract as rescinded.

After mature deliberation we think the marriage of the plaintiff wrought such a change in the plaintiff herself as to disqualify her from the performance of her contract with the decedent, and he was justified in considering her proposed marriage as a rescission of the contract on her part, and discharging her for that cause.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Brown, P. J., concurred; Cullen, J., dissented.

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


author: Ottllen, J.:

text:
    Mary Ann Durland, Appellant, v. Jesse Durland, as Executor, etc., of Thomas E. Durland, Deceased, Respondent.

      An assignment of bonds by a husbcmd. to his wife, to be delivered after his death, is not testamentary — delivery of the bonds to the husband by a banh in which they are deposited- — trust created.

    The fact that by the terms of an assignment of certain bonds by a husband to his wife, made without consideration, the bonds were to be delivered to the wife only after the husband’s decease, does not render .the instrument a testamentary disposition, as a husband may give to his wife a contingent remainder in personal property to become vested after his death.
    A husband, without consideration, executed an assignment of certain bonds to his wife in case she survived him, which bonds, the subject of such assignment, were on deposit at the time with a bank for safe-keeping. The assign- , ment expressly directed the bank, upon the husband’s death prior to that of his wife, to deliver the bonds to the wife; it reserved to the husband no right to the possession of the bonds or to their disposition, although the proper construction of the instrument would reserve to him the interest accruing thereon during his lifetime.

      Held, that the assignment was valid and that any delivery of the bonds by the . bank to the husband would be unauthorized, as it would put it out of the power of the bank to comply with the direction to deliver the bonds to the wife upon her husband’s death;
    That under such circumstances all the elements of a valid trust were present, for the creation of which no particular form of words was necessary.
    Appeal by the plaintiff, Mary Ann Durland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 9th day of March, 1894, upon the report of a referee.

      Joseph W. Gott and William Vanamee, for the appellant. ,

      Lewis E. Carr, for the respondent.
   Ottllen, J.:

This is an appeal from a judgment in favor of the defendant . entered upon the report of a referee. The plaintiff’s claim is to recover the amount of a promissory note executed by the testator of the defendant. The defensé is that the note was without consideration. "We are not prepared to hold with the learned referee that apart from an assignment hereafter to be discussed it was established that tlds note given by The husband to the wife was without consideration. The proof shows that the wife possessed property which eventually passed to the husband, and also shows a series of transactions between the parties out of which a debt from the husband to the wife might- well have accrued. The proof does not clearly show that any possible liability on such matters was discharged. The substantial evidence to prove that this note lacked consideration is the testimony of Judge Beattie, the counsel of the deceased, as to declarations made by the deceased in plaintiff’s presence and to admissions on her part that an assignment of certain bonds out of which the note in suit directly sprang was a gift by the husband and without consideration. Granting the greatest reliability to be given to the testimony of this witness, as it was undoubtedly entitled to, these admissions should not, considering the business transactions between the parties, outweigh the presumption of consideration which the note imports.

But whatever may have been the state of the accounts between . the parties, and assuming that the assignment of the bonds was without consideration, still we think it was effective. In December, 1869, the deceased deposited five bonds in the Chester National Bank and took this receipt therefor

“ December 8th, 1S69.- — • Thomas E. Durland has left in the Chester National Bank for safe-keeping the following described bonds of the township of Pekin, Tazewell county, Illinois, coupons payable on the 1st day of July, each year, at the American Exchange National Bank, New York.” (Here follows the description of five bonds for $1,000 each.)

This receipt, though unsigned, is in the handwriting of the officer of the bank, and was given on the deposit of the bonds. In December, 1871, the deceased executed at the foot of the receipt the following assignment, and delivered the paper to‘the plaintiff:

“For value received I hereby assign, transfer and set over to my wife, Mary Ann Durland, the above-described bonds, and hereby request the Chester National Bank to deliver the same to my said wife, and her alone, in the event that she survives me and becomes my widow, but not until then. It is, however, my intention that this assignment is not to take effect unless my death should occur prior to that of my wife, and in that event my wife is to receive said bonds as and for her own in addition to the amount I have heretofore bequeathed her in my will.
“ In witness whereof I have hereunto set my hand and seal this 22d day of December, 1871.
“THOMAS E. DURLAND. [l. s.]
“ In the presence of John Burt.”

About the time of the maturity of the bonds the deceased took them from the bank and collected and appropriated the amount due on them. If this instrument operated to vest any title in the plaintiff to the bonds deposited, there can be no question that there was consideration for the note which is as follows;

Jcmum-y 1st, 1881.
“ On demand, I promise to pay to Mary Ann Durland the sum of four thousand dollars (the amount differing on account of depreciation) for investments used as set forth in a paper held by her bearing date of December 8th, 1869, and date of December 22d, 1871.
“THOMAS E. DURLAND.”

Assuming that there was no consideration for this assignment, the question then presented to us is whether it was effective and valid. That by its terms the bonds were to be delivered to the wife only after the husband’s decease does not render the instrument a testamentary disposition nor is it sought to uphold it as such. (Carnwright v. Gray, 127 N. Y. 93; Hegeman v. Moon, 131 id. 462; Van Cott v. Prentice, 104 id. 45.)

The instrument must be sustained if at all upon the ground that it constituted a valid gift or a trust for the wife. That a remainder of the character given the wife by this assignment can be created in personal property we assume to be clear. The difficulty in this case is not as to the nature of the interest created but as to the rule of law on the subject of gifts where the donor reserves an interest in the property given. This subject is so elaborately discussed in Young v. Young (80 N. Y. 423) that for the principles applicable to the matter in hand it is unnecessary to go outside of that case. There Judge Raparlo writes: “The first question which .arises * * * is whether it is practicable to make a valid gift m presentí of an instrument securing 'the payment of money reserving 'to1 the donor the accruing interests, and, if so, by what means this can be done. The purpose of such a gift may undoubtedly be accomplished by a proper transfer to a trustee and perhaps by a written transfer delivered to the donee.”

If the suggestion of that learned judge be good law there was certainly a valid deed of gift to the plaintiff. And we think it can equally be upheld as creating a valid trust under the rule which is stated by the judge as unquestionable. The bonds in this case were not in the possession of the donor, but deposited in the bank. The assignment not only transferred the property in the bonds to the wife in case she survived the husband, but also expressly directed the bank on such contingency to deliver them to the wife. The assignment reserved to the husband no right to the possession of the bonds or to their disposition, though the proper construction of the instrument would probably reserve to him the interest accruing during his life. Any delivery of the bonds to the husband- by the bank would be unauthorized, for it would put it out of the power of the bank to comply with the direction to deliver the bonds to the plaintiff on her husband’s death. "We think that there are here all the elements of a valid trust, for the creation of which as is often said no particular form of words is necessary.

The judgment appealed from should be reversed and a new trial had, costs to abide event.

Brown, P. J., and Dykman, J., concurred.

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


text:
    John Copcutt, Respondent, v. The City of Yonkers, Appellant.

      Opening of a city street — a failure to designate one of two maps renders the proceedings fatally defective — fusing of an assesonent district, necesswry — remedy in equity.

    A resolution adopted by the common council of a city, directing the laying out and opening of it street, is fatally defective if it fails to specify according to which, of two plans and descriptions, then on file in the city clerk’s office, the street is to be laid out, and such defect cannot be obviated by the action of the city clerk in thereafter attaching to the resolution a map not before the com- ■ mon council at the time of its action, nor by the parol evidence of the aldermen as to what map they had in mind.
    The fixing of an assessment district is as much a part of the assessment proceedings in the matter of the opening of a street in a city as the action of the assessors in apportioning the expense on the various pieces of land within the assessment district; and where the assessors adopt an erroneous rule in apportioning such expense, and fail to assess lands properly liable to assessment, the assessment is void. As such defect will not appear on the face of the proceeding, an action in equity will lie to restrain the creation of a cloud on the title of a person interested in land affected thereby.
    The same rule applies where the common council of a city, in making its determination as to the assessment district, does not proceed according to law.
    Appeal by the defendant, The City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of May, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term restraining the defendant from, taking •any action in laying out a street through certain land owned by ■the plaintiff, and adjudging void, and setting aside a certain act, ordinance, by-law, preamble and resolution and proceeding, passed, allowed and adopted by the common council of the city of Yonkers.

      James M. Hunt, for the appellant.

      R. E. <& A. J. Prvme <& Burns, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the Special Term enjoining the defendant from laying out and opening a street through a tract of land owned by the plaintiff, and from fixing a district of assessment for such improvement.

We agree with the Special Term that the resolution adopted by the common council directing the improvement is fatally defective in failing to specify according to which of the two plans and descriptions then on file in the city clerk’s office the street is to be laid out. This defect could not be obviated by the action of the city clerk in thereafter attaching to the resolution a map not before the common council at the time of its action, nor by the parol evidence of the aldermen as to what map they had in mind. The case in this respect wholly differs from that of Lyth v. City of Buffalo (48 Hun, 175). But granting this proposition, such defect did not justify the interference of a court of equity. (Mooers v. Smedley, 6 Johns. Ch. 28 ; Mayor v. Meserole, 26 Wend. 132; Guest v. City of Brooklyn, 69 N. Y. 506.) The remedy must be had at law, and the objection can be raised in any legal proceedings taken to open a street.

But the objection to the district of assessment presents a different question — a question not free from doubt. It appears that some time past the city constructed a sewer through plaintiff’s land, and that the easement for such purpose was obtained by condemnation, the plaintiff being paid $10,000. The new street is laid out over the line of the sewer. By defendant’s charter (Chap. 184, § 2, title 7, Laws of 1881) the expense of improvements of this character “ shall be assessed and be a lien upon the property benefited 'thereby in proportion to sucli benefit.” By section 4, same title, the .common council is required, at the time of ordering any improvement, to fix a district of assessment for the expense of the improvement. The district fixed in this instance is confined wholly to plaintiff’s land, excluding from it some land that under any practice that has come before us would form part of an assessment district. The improvement was ordered, not on the petition of the property owners, but by a unanimous vote of the aldermen under a provision of a charter authorizing such action. On the trial of this action it was proved by the evidence of the aldermen, and the trial court so found, that the fact of the previous award was stated at the meeting of the common council, and by the direct admission of some of the aldermen themselves that the action of the board in fixing the assessment district was based upon the ground that the plaintiff had already been paid enough for his land, and that, hence, the assessment should be wholly imposed upon him. That this action of the common council proceeded from improper considerations is unquestionable. "What award the plaintiff should receive for the additional easement was, under the Constitution, to be determined by commissioners or a jury. Under the statute the assessment was to be levied according to benefit. The fixing a district of assessment is as much a part of the assessment proceedings as the action of the assessors in apportioning the expense on the various lands within the assessment district. Where the assessors adopt an erroneous rule in apportioning such expense, and fail to assess lands properly liable to assessment, the assessment is void, and as such defect will not appear on the face of the proceeding an action in equity would lie to restrain the creation of a cloud on plaintiff’s title. (Clark v. Village of Dunkirk, 12 Hun, 181; affd., 15 N. Y. 612.)

We do not see why the same rule should not apply in the case at bar. We assert no power in the courts to review the discretion of the common council, or a determination made by it in good faith under the powers conferred upon it by statute. Rut the power granted by the statute was to fix an assessment district according to benefits. This the common council has failed to do. It is very rarely that the fact that a common council in making its determination has not proceeded according to law can be proved. But when the fact is proven we think redress against such action may be obtained.

The judgment appealed from should be affirmed, with costs.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.