author: By the Court.—Sedgwick, J.

text:
    LOUIS CHAMBOVET and ELIZA CHAMBOVET, Plaintiffs and Respondents, v. JAMES CAGNEY, Defendant and Appellant.
    I. Parties to Action.
    1. Plaintiffs, two or more—motion to dismiss as to all, on the ground that one only has an interest properly denied.

    1. Application. a. Husband and Wife.
    On the trial of an action brought by husband and wife for the unlawful taking by the defendant of certain personal property, it being proved that the property had been bought with money earned by the wife’s labor, and money contributed by the husband, defendant moved for a dismislal of the complaint as to both, on the ground that the wife had no interest in the property or the cause of action, Held that the motion was properly denied.
    II. Opinion of Witnesses as to Value.—Evidence.
    1. Before a witness can be allowed to testify to an opinion as to the value of an article, a foundation must be laid by showing him to be competent to form an opinion from a peculiar knowledge of the article and its value.
    1. To allow a witness under objection to testify to his opinion before such foundation has been laid (if the defect is not subsequently cured) is error. a. Sufficiency of proof.

    1. Where the only evidence to lay the foundation was that the witness had purchased some of the articles in question, held on appeal to be insufficient.

      HX Instrument pleaded in Defence, or read in Evidence on the
    Trial, under a General Denial, as the Foundation of or in Support of a Defence in an Action at Law.—Plaintiffs’ Bight as
    to attacking it.—Evidence.
    1. Plaintiff "may show that the instrument was not made by him, or was obtained from him by fraud, or that the particular clause contained therein relied on was inserted fraudulently.

      It is not necessary that he should bring am, action for its reformation or cancellation.

    IV. Husband and Wife.
    1. Tenants in common in personal property.

    1. Semble—They may be tenants in common in such property.
    2. Pa/rtners.

    Semble—They cannot be partners.
    Before Barbourb, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 7, 1873.
    Appeal from judgment and order denying motion for a new trial.
    The complaint among other things alleged that the plaintiffs were engaged in the business of keeping a boarding and lodging house, in which business they used certain personal property belonging to them ; that the defendant wrongfully took, carried away, and converted to his own use the said personal property.
    The answer put in issue these allegations of the complaint and the value of the property. It further said that the plaintiffs had been the lessees and the defendant the lessor of a certain house, at a monthly rent, payable in advance, from the middle of July, 1868, to May 1st, 1889 ; that to secure the due payment of the rent, the plaintiff gave to the defendant a mortgage upon personal property, which they in the mortgage covenanted should be placed in the house rented, “and should not be removed therefrom without the consent of said defendant, and should the plaintiff remove the same or any part thereof, without such consent, that then in that case the whole of the rent of said West Houston Street premises up to May 1st, 1869, should at once be and become due and payable ” by the plaintiff to the defendant ; that about September 29th, 1868, the plaintiff did remove from the house referred to the mortgaged property ; that thereupon the defendant took under the mortgage, as he was entitled to, the property and sold the same for the rent, up to May 1st, 1869, which had by the removal fallen due and payable, and that such acts formed the conversion complained of.
    On the trial it appeared that the plaintiffs were man and wife ; that the latter had earned money by her labor, that with such money and other money contributed by him, household furniture was bought, which they used in the business of keeping a boarding-house, conducted together by them. It did not appear whether any part of the property set out in the complaint had been bought with the earnings of the business.
    On the trial, Louis Chambovet, one of the plaintiffs, was sworn and testified on behalf of plaintiff. On his. direct examination the following questions were put, answers returned, objections raised, rulings made, and exceptions taken.
    Q. Did you purchase any of the furniture for the purpose of beginning your business?
    A. Yes.
    Q. Did you buy any other furniture to put into the house in Houston Street ?
    A. After I moved in Houston Street I bought some more furniture, which I put in the house in Houston Street.
    Q. What was the value—or what was the amount you paid for the furniture you had in Wooster Street ?
    (Question objected to, on the ground that the witness was not shown to be an expert, or that he had any knowledge of the value. The court overruled the objection, and the defendant excepted.)
    A. I could not buy them for less than $3,000.

      (Defendant’s counsel objected to the answer. The court allowed the answer to stand, and the defendant excepted.)
    Q. How much did you pay for the furniture you bought in Houston Street %

    A. There are the bills for it; I don’t remember the amount I paid.
    Q. (Bills shown.) Look at those bills and then tell me, if you can, how much you paid for the furniture you bought when in Houston Street ?
    (Defendant’s counsel objects to the bills being shown. Overruled, and exception by defendant.)
    A. Pretty near $300, I think ; I didn’t count exactly.
    At the conclusion of the testimony on both sides, defendant’s counsel moved to dismiss the complaint for the following reasons among others, to wit:

      First. Because a partnership cannot exist between husband and wife, they being one person in law, and cannot contract with each other.

      Second. Because all the personal property of the wife at common law belonged to the husband, and the enabling statutes have not changed that law, in so far as regards property acquired in the manner set forth in the pleadings.

      Third. Because a married woman, having no legal existence apart from her husband, cannot hold personal property jointly with her husband.

      Fourth. Because the statutes of 1845,1848,1849,1860, ■or 1862 do not confer such right.

      Fifth. Because, even if husband and wife are capable of holding property, in a sense, jointly, they hold by entireties, and not as joint tenants or as tenants in common. And there is no such thing as tenancy by entire-ties in personal property.
    The court denied the motion, and defendant’s counsel •excepted.
    The jury rendered a verdict for plaintiffs, and assessed their damages at $2,030. Defendant then moved for a new trial on the judge’s minutes, which motion was denied.
    Judgment was thereafter entered on the verdict, and also an order denying the motions for a new trial.
    From the judgment and order, defendant appeals.

      Elias J. Beach, attorney, and of counsel for appellant,
    urged:
    It is a well-known principle of the common law that “husband and wife” are regarded as one person (Co. Litt. 112a 187b; Litt. secs. 168-291; 1 Blackst.Com. 441; 2 Kent. Com (11th ed., Comstock's), 113 Bright on Husband and Wife, 2).
    In consequence of this unity, neither could make a contract with or a grant to the other (Shepherd v. Shepherd, 7 Johns. Ch. 90; Voorhees v. Pres. Church, 17 Barb. 104-105; White v. Wager, 25 N. Y. 329; McQueen on Husband and Wife, 18).

    All the personal property of the wife—such as money, goods and chattels, and movables—belong absolutely to the husband at common law, and he can dispose of them at pleasure ; and on his death they go to his representative, as being entirely his property (2 Kent, 11th ed. 129).
    Married women are, by the common law, incapable of forming a partnership (2 Kent Com., sec. 28, pp. 54 to 64; Story on Partnership, ch. 2, § 10, p. 13; Collyer on Partnership, § 15, p. 11).
    The enabling statutes have not changed the principle of the common law, as stated in the foregoing point (Laws, 1845, chap. 11, p. 11; Laws, 1848; Laws, 1849; Laws, 1868, chap. 200, p. 307; Laws, 1860; Laws, 1862).
    The titles of these acts state that they were intended “ more effectually to protect the property of married “women

      The intention, was to prevent the husband from dissipating or squandering the same, either by disposing of it or by contracting debts for the payment of which the wife’s property would be liable.

      It will be observed that the legislature has been very careful, in all of the enabling acts, to declare that the husband shall have no control whatever over his wife’ s property. But once permit a partnership in personal property between husband and wife, and the whole object and intention of the legislature is defeated.
    Aside from this, however, nowhere, in any of those acts, has the principle of the common law, as stated in the first point, been changed. That principle remains unchanged, and is still the law of this State.
    The decisions all recognize the existence of this principle of the common law. A few of those decisions are cited below (By the court, Hogeboom, J., in Longendyke v. Longendyke, 44 Barb. 366; Perkins v. Perkins, 62 Barb. 531; Draper v. Stouvenel, 35 N. Y. 507-512; Goelet v. Gori, 31 Barb. 314; Farmers and Mechanics Bank v. Gregory, 49 Barb. 162).
    The law of Mew Jersey as to the property of married women (N. J. Digest, 466) is substantially the same as that of this State. In Mew Jersey it has been decided that where a business is carried on by husband and wife in co-operation, the fruits of the wife’s labor and skill belong to the husband alone, and are not her separate property within the terms of the act for the better securing the property of married women (1869, National Bank of the Metropolis v. Sprague, N. J. (Eq. C. E. Gr.), 13.
    It has been shown, beyond the shade of a doubt, that husband and wife can only hold property by entirety and not jointly, or as tenants in common.1 And as there is no entirety in personal property, it is very clear that the plaintiffs did not, and could not, own the property, either jointly or as tenants in common, or by entirety.
      Neither could they as partners. Who ever heard of husband and wife being partners ?
    At common law she could not even become the partner of a third party, far less that of her husband (Collyer on Partnership, § 15, p. 11, and authorities cited under sub. div. 3 of the first point).
    In Indiana it has been expressly decided that a wife cannot be partner of her husband, and that she cannot bind herself as a partner (1869, Montgomery v. Sprankle, 31 Ind. 113).
    1 ‘ Husband and wife' cannot be partners. The “law of 1860 does not relate to earnings and profits “made by a woman in a business in which she is united with her husband” (The Accounting in Terrence Boyle’s Estate, 1 Tucker's Reps.).
    It is only by express words, or a necessary implication, that a legislative enactment can operate as a repeal or alteration of the common law (Bowen v. Lease, 5 Hill, 221; Berly v. Rampacher, 5 Duer, 183).
    As to the Exceptions.
    The exception to this question put to Louis Chambovet, one of the plaintiffs: Q. “ What was the value, or “ what was the amount you paid for the furniture you “ had in Wooster Street? ” was well taken.
    This alternative question was allowed to be answered, although not one scintilla of evidence had been given to show that the witness knew anything about the value of furniture.
    The exception to the ruling of the court, permitting evidence to be given of the conversations and negotiations which resulted in the execution of the lease, ivas well taken.
    It is a well-settled rule of law, that all verbal negotiations which culminate in a written agreement, are presumed to be merged and embraced in the written document, and that neither party to the agreement can insist

      that the contract is other than what the writing expresses.

    Parol evidence of what took place previous to the execution and delivery of the lease in question was, therefore, improperly allowed by the Judge (Rowley v. The Empire Ins. Co., 36 N. Y. 550; Benedict v. The Ocean Ins. Co. 31 N. Y. 389; Buckley v. Benson, 48 Barb. 283; Plumb v. The Cattaraugus Ins. Co., 18 N. Y. 392; Brown v. The same, 18 N. Y. 385; Sarsfield v. Metropolitan Ins. Co., 42 Stow. 101).
    In this last case, Johnson, J., in delivering the opinions of the court, said that the cases of Plumb and Brown, above cited, “ distinctly hold that parol evi- “ dence of what was said between the agent and the as- “ sur ed, at the time the contract was entered into, could 11 not be given by the insured on the trial to change the “contract, even when he had been misled by representations on the other side, unintentionally, into making “ a warrantee which was not true.”

      Gray & Davenport, attorneys, and of counsel for respondents,
    urged:—1. The husband and wife were properly joined as plaintiffs in this action; and defendant’ s motion for a dismissal of the complaint, and for a nonsuit, on the grounds stated, were properly denied.

      (a.) The Code provides in § 117, that “all persons having an interest in the subject-matter of the action, and in obtaining- the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title,’’ i.e., Title III. of Part I. And it is “provided in said title,” in § 114, that “where a married y ornan is a party, her husband must be joined with her, except that when the action concerns her separate property she may sue alone.”
    This latter provision (§ 114) considered in the light of the laws of 1860 and 1862, concerning married women, is interpreted by the Court of Appeals to mean that the husband is not a proper 'party Jure mariti, in an action by the wife concerning her separate property alone (Palmer v. Davis, 28 N. Y. 242).
    Bnt if a married woman’s separate property consists of an undivided share in property, of which another, not her husband, owns the other undivided share, that other part-owner, whether tenant in common or joint-tenant, must be joined with the married woman, as co-plaintiff in order to fulfil the requisitions of § 117.
    And if it appear that the statutes of 1860 and 1862 permit a wife’s separate property to consist of an undivided share in chattels of which her husband owns the remaining undivided share, and if it further appear that the evidence in this case supports such a relation between the present husband and wife, then they were necessarily joined as plaintiffs, to fulfil the requisitions of § 117, and are not prevented from being so joined by the words of § 114.
    (5.) If husband and wife can be tenants of undivided share's of the same personal property, these plaintiffs appear by the evidence to have been such tenants of the property converted, and to have been tenants in common, and in an action for such conversion they must have been joined as co-plaintiffs (2 Black. Com. 399; Rice v. Hollenbeck, 19 Barb. 664; Putnam v. Wise, 1 Hill, 234; Hill v. Gibbs, 5 Hill, 56).
    The joint purchase of the chattels in question by the plaintiffs, with their separate earnings, did not result either in a joint tenancy or a partnership as to those chattels, but, as before claimed, in a tenancy in common (2 Kent’s Com. *350; Jackson v. Robinson, 3 Mason’s Rep. 138 at p. 141; Collyer on Partnership, ed. 1839, § 8, note a, §§ 10, 11, 12; Story on Partnership, § 80).
    But whether the ownership was that of joint tenants, or tenants in common, is immaterial. In either case plaintiffs are tenants of undivided shares of the same property, and must be joined as co-plaintiffs in a suit for the conversion of the property.
    (c.) Husband and wife may be either tenants in common or joint tenants of personal property, under the enabling statutes of our State, concerning married women (Laws of 1848 and 1849, III., Rev. Stat, 5th ed., 239 to 241; Law of 1860 and 1862, IV., Id. 696 to 698; Law of 1867, vol. ii. p. 1927, chap. 782; Sheldon v. Clancy, 61 Barb. 475; Savage v. O’Neil, 44 N. Y. 298).
    As to tenants in common, Blackstone says :
    “Tenants in common are such as hold by several and distinct titles, but by unity of possession” (2 Black. Com. 191); and as to joint tenants, Lord Coke, after quoting the language of Bracton, that joint tenants hold per my et per tout, says, “And albeit, they are so seized, yet to divers purposes each of them hath but a right to a moiety, as to enfeoff, give or demise, or to forfeit” (Co. Litt. 186, a).

      (d.) In relation to property acquired by the wife, as in the case at bar, the husband and wife are no longer one in law, but the wife has a separate existence, apart from her husband. This does away with the theory on which depended the common-law rule, that the husband and wife could not own chattels jointly, and that their joint ownership in real estate was by entireties.
    Blackstone says: “ A sixth method of acquiring property in goods and chattels is by marriage. * * * This depends entirely on the notion of a unity of person between the husband and wife, it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband” (2 Black. Com. 433). And of real property he says: “If an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife, being considered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout, et non per my” (Id. 182).
    This unity of the husband and wife, on which the common-law rule “depends entirely,” has been abrogated by statute and by decisions (Laws of 1848, 1849, 1860, 1862, and 1867). Surely, all this amounts to a complete severance of the unity of husband and wife as to property.
    And by the decisions, it is settled that a married woman can hold an undivided share in real estate as her sole and separate property as co-tenant with her husband and that she can maintain an action for its partition in the same manner as if she were a feme sole, and against her husband (Moore v. Moore, 47 New York Rep. 467, Feb. 1872).
    And the wife’s unity with her husband is equally severed in regard to personal property (Knapp v. Smith, 27 New York Rep. 277; Ainsley v. Mead, 3 Lansing Rep. 116; Sheldon v. Clancy, 61 Barb. 475; Savage v. O’Neill, 44 New York Rep. 298; Minier v. Minier, 4 Lansing, 421. See also Foster v. Conger, 61 Barb. 145; Young v. Gori, 13 Abb. Pr. 13, note; Lockwood v. Cullin, 4 Robertson, 129).
    It appearing, then, both by statute and decision, that the husband and wife are no longer “one in law,” the rule that they cannot be joint owners of chattels, is without reason or foundation, and is abrogated.
    (e.) In questions of property, the wife can occupy the same relation toward her husband as she can toward any one else (Buckley v. Wells, 33 New York, 518).
    II. Joinder of a party plaintiff who has not a cause of action, with a party plaintiff who has, is no ground of nonsuit as against the proper and necessary party; and a motion to dismiss, or for a nonsuit, as against both, will be denied. If the goods converted in this action were the property of the husband alone, defendant’s proper motion was to dismiss as to the wife. jNo such motion was made, and the motion that was made was properly overruled (Palmer v. Davis, 28 New York, 242).
    Or if the wife was an unnecessary party, the court could have stricken her name from the proceedings in the action, under section 173 of the Code. This can be done before or after judgment, and can be now done, and the judgment allowed to stand in favor of Louis Chambovet (Ackley v. Tarbox, 31 New York, 564).
    III. The testimony of the plaintiff, Louis Chambovet, as to the value of the property wrongfully converted by the defendant, was admissible.
    He was the purchaser and owner, and acquainted with the condition of the chattels seized, and his was some evidence of value, and with any other on the subject of value, went properly to the jury to be weighed by them.
    IV. “The ordinary, and in general the only legal, course is to lay such facts before the jury as have a bearing on the question of damages, and leave them to fix the amount. They are the only proper judges. * * *” (Opinion of the court by Cowew, J., in Norman v. Wells, 17 Wend. 136, 161; see Harper v. Leal, 10 How. Pr. 276; Smith v. Hill, 22 Barb. 656; Merrill v. Grinnell, 30 N. Y. 594, 613).
   By the Court.—Sedgwick, J.

The question ably argued for the appellant, as to whether a man and wife can be partners in business, comes up only incidentally on this appeal. The plaintiff’s position is that they were so severally interested in the personal property alleged to have been converted, that they had a right to sue jointly for its conversion. The defendant maintains that because the plaintiffs were husband and wife the law does not permit them to make a partnership for business purposes. Upon that, in connection with the facts of the case, it is further maintained that upon the wife putting into the'business, done jointly by herself and her husband, her own earnings, which were used with her husband’s money to buy furniture for the purposes of the business, such furniture became the sole property of the husband, and that a right of action for the conversion of that belonged to him only, and not to him and her jointly.

It would not, however, follow from the invalidity of an attempt of a man and wife to form a business co-partnership, that both or either should lose their rights of property in what they contributed. The money used by each was solely his or hers, and when money owned by both was turned into other property, they held the same interests in that property that they had had in the money. There is nothing to forbid the sole and separate property of each being an undivided interest. If the undivided interest of one subsists in a chattel in Which the other has an undivided interest, there does not seem to be any reason for thinking that their inter- • ests coalesced. If they did, it might be a puzzling matter to decide to whom the whole belonged. Equity, at the suit of either, will set apart the respective interests in case there should be any necessity of resorting to the courts (Moore v. Moore, 47 N. Y. R. p. 467).

I do not think that the counsel for appellant is right in his position, that if personal property is sold to a man and his wife together, that they may not hold the relation of tenants in common of it. Personal property may be held jointly or in common, like real estate (Williams’ Personal Property, 3d Am. ed. p. 379 and p. 387). There is nothing to prevent such rights being created, if such be the convention of the parties. In equity, husband and wife are not one in such sense that they may not make a binding agreement between themselves as to the separate property of each. In Livingston v. Livingston, 2 J. Ch. p. 539, it was held that a husband and wife may in equity contract for a boná-fide and valuable consideration for a transfer of property from him to her. If they can agree at all, it will not make any difference whether the agreement relates to real property or to personal property, or whether it is an express or an implied agreement.

It is not a consequence of this that a husband and wife have capacity to make the legal contract of a business copartnership. The law has made such rules in respect of the relations of man and wife, that it would be inconsistent with those that they should become partners in business.

There is no doubt that the various acts for the protection of a married woman’s property have left her, in many respects, as the common law placed her, under the control and in the power of her husband. Judge Andrews said in Rowe v. Smith, 45 N. Y. p. 233, that these acts left unaffected the liability of the husband for the strictly personal torts of the wife, and that this liability proceeded upon the theory that the marriage subjected the wife to the dominion and control of the husband (Baum v. Mullen, 47 N. Y. R. p. 579). Such a dominion and control cannot be exercised by one partner in business over another, without a change of those legal relations which have formed the important characteristic of a partnership. In case a wife has a separate property, although domestic circumstances may keep her home, or she may be kept there by the lawful exercise of a husband’s power over her in a proper contingency, he will not have power to dispose of that property. If they were business partners he might legally keep her home and legally dispose of the partnership property at the place of business. I do not believe that the legislature contemplated such an incongruity of rights and duties which accompany the formation of business partnerships between husband and wife.

Married women have been clothed with many power,s which are ordinarily used by persons in becoming co-partners. The power to enter into business with the husband is not expressly given, nor is it necessarily implied in the power to enjoy to the fullest extent the rights that are given. The eighth section of the act of March 20, 1860, says “ that no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, under any statute of this State, shall be binding upon her husband, or render him or his property in any way liable therefor.” There may be no doubt that this would not absolve the husband from the obligation of a contract he helped to make, or in any way authorized to be made ; but it seems almost impossible that such a provision should not suggest some enactment as to the consequences of a partnership between man and wife, if the statute makers had meant to allow them to form one.

It is not necessary to definitely decide this here. We have seen that the plaintiffs’ claim was that they were so interested as owners in the property that they had a right to sue jointly. If the argument of the appellant’ s counsel is correct, the husband was sole owner. The motion to dismiss the complaint was made as tó both plaintiffs, not as to each. Under Palmer v. Davis, 28 N. Y. R. p. 242, and Ackley v. Tarbox, 31 N. Y. R. p. 564, an objection might have been taken on demurrer or by answer that no cause of action existed in favor of either of the plaintiffs severally, or on the trial that it so appeared by the evidence, and in such case the action might have been dismissed as to such one. Judgment is to be given in favor of that one of the several plaintiffs (Code, § 274) in whom there appears to be a cause of action (Calkins v. Smith, 48 N. Y. R. p. 614). The position cannot be maintained on the facts here, that neither of the plaintiffs had any cause of action. The objection must be taken in the right form at the right time. After judgment it is immaterial to the defendant that one more plaintiff appears as owner than the facts warranted. The defendant is not harmed by that.

The next exception was to the admission of a question in respect of the value of the property. One of the plaintiffs, Louis Chambovet, was asked, when he was a witness in his own behalf, “ What was the value or what was the amount you paid for the furniture you had in Wooster Street?” An objection was taken “thatthe witness was not shown to be an expert, or that he had any knowledge of the value. ’ ’ The court overruling the objection, the witness answered “thathe could not buy them for less than $3,000.” The answer was also objected to, but allowed to stand, and exceptions were made. Here the opinion of the witness was asked for by the question and given by the answer. The answer did not speak to the fact of what the witness had paid, or had known to be paid, for the property. The rule is, that a witness, to be permitted to testify to an opinion as to value, must be shown affirmatively to be competent to form an opinion from a peculiar knowledge of the article and its value (Turpenning v. The Corn Exchange Ins. Co., 43 N. Y. R. p. 282; Clark v. Baird, 8 N. Y. R. p. 183). In this case there was no fact tending to show that the witness was competent to express his opinion as to value. I think there was error in allowing the question to be asked and the answer to it to stand.

Against the objection of the defendant, the plaintiffs were allowed to give evidence as to what was said and done between them, and the defendant as to the chattel mortgage before it was made. The objection was that all the negotiations and dealings between the parties in reference to the mortgage were merged in it when it was executed and delivered, and that as long as it had not been cancelled or reformed in a competent legal proceeding, it stood as the only evidence of the contract. The admissibility of the evidence was supported on the ground that it would appear from it, that the real agreement of the parties did not provide that there should be a covenant in the mortgage, that in case of a removal of the mortgaged property, the rent for the unpaid term should then become due and payable, and that the plaintiffs being illiterate and ignorant, were fraudulently induced by the defendant to sign the mortgage with such a provision, they not knowing that it had been inserted.

I think there could be no hesitation as to what the rule is, if this case were such that the mortgagee had brought an action at law on the mortgage, he setting it out in his complaint with the disputed clause, and the mortgagors had answered that they had never made said mortgage. In such case (1 Chitty Pl., 12th Am. ed. p. 483; 1 Smith's Lead. C., pp. 629 and 635; Van Valkenburgh v. Rouk, 13 Johns, p. 337; Dale v. Roosevelt, 9 Cow. p. 310), the evidence could be given that the particular averment had been fraudulently inserted by the mortgagor : “ that a different instrument was substituted instead of the one the defendant supposed he was executing.” í£If a deed be misread or misrepresented to an unlettered man, this may be shown on non est factum, because he had never assented to the contract. So if a man be imposed upon and signs one paper while he believes he is signing another, he cannot be said to have assented, and may show this on non est factum."

The rule is applicable here. The defendant had set up the mortgage in a part of his answer, which averred a counter-claim, and referred to it in other parts of his answer, as set out in the counter-claim. The counterclaim as such was overruled on demurrer. There is a doubt, and yet probably enough was left of the answer to show that the defendant meant to plead affirmatively a justification in taking the property under the mortgage. If this was so, as the plaintiff could not voluntarily put in a reply (§ 153), he must be supposed without pleading to put in issue all that was issuable in the answer, or if the defendant gave the mortgage in ey idence under the mere general issue made "by the answer, the plaintiff clearly had the same right to contest the validity of the mortgage, that they would have had if it were the subject of a formal issue. I think the evidence was properly admitted.

There were other exceptions taken as to admissions of testimony and the charge of the learned judge. There can be so little contest as to the correctness of his views, that it is not worth while to justify them here.

The testimony given by the plaintiffs themselves was the greater part of all that was given on the subject of the value of the property. That given by the husband has been stated. The wife’s testimony as to value, although admissible, because no objection was taken to her competency to speak on that subject, was not of a satisfactory kind. The jury found a verdict of §3,030. From the charge of the judge I am convinced that the jury gave a weight to the plaintiffs’ testimony that he did not expect. As the testimony as to value given by Louis Ghambovet was material, there should be a new trial, with costs to appellant to abide event.


source: Caselaw Access Project

license: Public Domain

text:
    FREDERICK REINECKE, Plaintiff, v. CHRISTOPHER FLECKE and Another, Defendants.
    I. Exemption Laws.—Laws op 1866, Chap. 782.
    1. Proof required from plaintiff as to his property, other them articles specifically exempted, not being over $250 in value.

    1. If it does not appear in evidence that he has property other than that levied on, he need only prove that that property is not worth more than $250. He need not show by proof that he does not own any other property  (Wilcox v. Hawley, 31 Jff. T. p. 658, is not in conflict; Smith®. Slade, 57Barb. B. 641, approved).

      Before Barbour, Ch. J.. Curtis and Sedgwick, JJ.

      Decided April 7, 1873.
    Exceptions ordered to "be heard at General Term in the first instance.
    The action was for the recovery of personal property. The defence was that the defendants were justified because the taking complained of was under an execution against the plaintiff. On the trial the plaintiff claimed that this property was exempt from levy of execution. To support this, he proved that he was married, and had five children with whom he lived ; that the property taken was all the tools he had, that they were used by him in his trade of carpenter, that he could not work without them, and that they were worth $240. The defendants presented in due form the objection, that not enough testimony had been given to take the case to the jury on the question of exemption. This was the only point argued before the General Term.
    The exemption" is claimed under the act of April 24, 1866, which provided that in addition to the articles at that time exempt, there should be exempt, “necessary “household furniture and working tools, and team, “professional instruments, furniture, and library, owned ‘1 by any person being a householder, or having a family “for which he provides, to the value of not exceeding $250,” etc., etc.
    On the trial the case was submitted to the jury, who rendered a verdict for the plaintiff, assessing the value of the whole property at $240, and the value of the property not returned at $50; and to special questions submitted to them they answered as follows:

      First. Were the tools taken by the defendants necessary for the plaintiff in his trade % Yes.

      Second. What was the value of the tools taken ? $240.

      Third. Were any of the tools not returned to the plaintiff? Yes.

      Fourth. If not returned, what was the value of it? $50.
    The court ordered a suspension of judgment, and directed the exceptions to be heard in the first instance at General Term.
    D. M. Porter, attorney, and of counsel for plaintiff,
    urged:
    •I. The plaintiff was a householder, and the tools in question were all the property the plaintiff had ; he was a carpenter, and used these tools; and they were necessary, as he could not work without them; he was poor, and wanted them, and they were therefore exempt from levy under the execution (Laws, 1866, page 1686; 1860, ch. 152; 159, ch. 1834; Smith Slade, 57 Barbour, 637; Wilcox v. Hawley, 31 N. Y. 648, 658).
    II. It is sufficient that the plaintiff shows facts that prove or tend to prove, the exemption (Smith v. Slade, supra).

    It is not necessary to show that he had no other articles exempted by statute; he may elect (Smith v. Slade, supra; Wheeler v. Cropsey, 5 How. Pr. 288; Hawley v. Wilcox, supra; Seaman v. Luce, 23 Barb, 242, 252; Lockwood v. Younglove, 27 Barb. 506, 508; Wilcox v. Hawley, supra).

    The defendants’ exceptions should be overruled and judgment ordered on the verdict with costs.

      Henry Wehte, attorney, and of counsel for defendants,
    urged:
    I. To entitle the plaintiff to recover, plaintiff had to show:
    1. That he is a householder.
    2. That the tools were necessary for the carrying on of his trade.

      3. That all his tools ($25 worth, specifically exempt), his necessary household furniture (besides the articles specifically exempt,) his library and instruments, and his team did not exceed in value in the aggregate the sum of $250.
    If he failed to establish any one of these facts, his action must fail.
    1. The seizure of the plaintiff’s property by the'defendant, a public officer, acting under a lawful process in the line of his duty, will be presumed by the court to be a valid and lawful seizure unless, and until proved otherwise by affirmative testimony on behalf of plaintiff.
    2. The property is subject to execution unless it is clearly established to be property exempt from execution by the provisions of the exemption laws (Rev. Statutes, part 3, chap. 6, title 5, article 2; Laws of 1842, chap. 157; Laws of 1860, chap. 782).
    3. The design of the legislature in passing the acts of 1842 and 1866, was evidently to protect the various classes of the people in the possession of the instruments necessary for earning the support of a family, together with such household furniture as may be essential for the proper housing, keeping, clothing of and cooking for the family; the implements of the farmer-, the tools of the mechanic, the instruments and the library of the professional man, together with reasonable household furniture, are exempt, subject however to the condition that the aggregate of the exempt property (besides the property exempted by the Revised Statutes) must not exceed two hundred and fifty dollars (Wilcox v. Hawley, 31 N. Y. 648).
    4. To interpret the statutes differently would exempt, in addition to the articles exempted by the Revised Statutes, property of the value of twelve hundred and fifty dollars.
    II. The exceptions should be sustained, and judgment rendered for the defendant.

       Suppose it is shown in the evidence given on behalf of defendant that the plaintiff owned property other than that taken, on whom does the .burthen of proving the value of that other property rest?

   By the Court.—Sedgwick, J.

The defendants’ counsel claims that there was not enough to go to the jury as to the exemption, because the plaintiff gave no testimony tending to show (1) that he was a householder, (2) that the tools were necessary for the carrying on of his trade, and (3) that all the tools (besides $25 worth specifically exempt), his necessary household furniture (besides the articles specifically exempt), his library and instruments, and his team, did not exceed in value in the aggregate the sum of $250.

As to the first two points, I think the learned counsel for the defendants has misapprehended the testimony given. It fully makes out all that on these points the statute particularizes.

The third point is supported by the counsel on the proposition that the plaintiff must show every fact necessary to constitute an exemption, having the presumption against him that the action of the officer under the execution was valid.

The plaintiff could not be called on to do more tha.n to give facts in evidence, that tended to prove the exemption under established rules of testimony. If there was a presumption in his favor, he might rely on it without going into testimony to reinforce it. If the absence csr testimony on a given point would benefit him, on the ground that things not shown by proof to exist, are as if they did not exist, he may rely on that absence of testimony. There was no presumption that he had any property of any kind, until there was evidence given as to it. There was no presumption that he owned the tools in question. If the pleadings had not admitted that fact, the law would not have recognized it without proof. When he proved he had the tools, the rule of law that would govern the jury’s action would be, that there was no question in the case as to other property than the tools. He could not be called on to prove that the value of the tools, with the value of something which was not shown to exist, was $250 or less. Nor was he called upon to say that he had no furniture, no library, no team, etc.

We are entirely satisfied with the rule stated in Smith v. Slade, 57 Barb. S. C. R. p. 641, that it is sufficient for a plaintiff to show, that the articles levied on and claimed to be exempt, are those specified by the statute, are necessary, are within the value of $250, etc., without going into proof of what else he may own.

In Wilcox v. Hawley, 31 N. Y. R. p. 658, Judge Davies said that the testimony given by plaintiff, that the household furniture owned by him (which was not taken under execution), with the team (which was taken and claimed to be exempt), together was not of a greater value than $250, with the other facts the plaintiff • showed, were sufficient to make his case under the statute. He did not, however, decide that proof as to the household furniture was necessary to the plaintiff’s case.

The defendants presented no other point for consideration. The defendants’ exceptions should be overruled; judgment on the verdict for plaintiff entered, with costs.


author: By the Court.—Monell, J.

text:
    VERNON K. STEVENSON, Plaintiff and Respondent v. JAMES K. SPRATT and Others, Defendants; SPRATT, Appellant.
    I. SPECIFIC PERFORMANCE: ACTION BY VENDEE.
    1. Damages, Judgment fob.
    1. When improper.

      a. When it does not appear on the trial that the vendor is unable to perform. v
    1. Evidence, what not sufficient to sTww inability at that time.

      a. Proof that vendor said, if he had a certain sum of money, he thought he could perform, and a month or two afterwards (but some months before suit brought) reported himself unable to perform, saying he thought there was so much more lien against his property that he could not perform, that he would be ruined, held insufficient.
    Semble—Such proof is insufficient to establish inability at the time of the declarations.
    2. When proper.

    When it appears on the trial that the vendor is unable to perform.
    3. What items can be declared a lien on the land. Advances made by the vendor on the purchase-money can be so declared to the extent of the vendor’s interest. But general, damages, such as counsel fees for examination of the title, cannot.
    II. Trial by the Cohrj?.—Findings of Law, Judgment varying prom.
    1. Irregular, if the.judgment is not in conformity with the findings of law.
    Semble—Substantial error for which the judgment will be reversed.
    2. Irregularity or Brror, when disregarded, on Appeal.

    1. When the non-conformity is caused by an occurrence happening after the findings of law, and it is conceded on appeal to have happened, and the judgment is in conformity with what the findings ought to have been if the Occurrence had happened before the trial, the irregularity or error will he disregarded. a. Application cf principle. Where, in an action for specific performance by vendee, the court found, as matter of fact, that the vendor (the defendant) was unable specifically to perform, and then found, as matter of law, that the vendee (the plaintiff) was entitled to recover of the defendant a certain sum for damages, that the same be declared a lien on the premises, that the premises he sold and proceeds applied to the payment of said sum, and that plaintiff have judgment against defendant for any deficiency; and after these findings, but before judgment, the premises were sold under a prior mortgage lien, leaving certain surplus moneys (which fact was conceded on the appeal), a judgment reciting the sale under the mortgage, producing surplus moneys, and adjudging the sum mentioned in the findings to be a lien on the surplus, and in case of a deficiency in the amount of the surplus, that plaintiff recover from defendant the amount of the deficiency, was sustained, with such modifications as to the amount declared a lien on the surplus, as would have been made in the amount declared a lien on the land if the judgment had been entered in conformity with the findings.

      Before Monell, Freedman, and Curtis, JJ.

      Decided April 5th, 1874.
    Appeal from judgment.
    The action was, first, for the reformation of a written contract for 'the sale of land ; and, second, for the specific performance of the contract when reformed.
    The complaint alleged that in September, 1870, the plaintiff and the defendant Spratt entered into an agreement, wherein the defendant agreed to sell and convey to the plaintiff certain premises in the city of New York, and to perform certain work in and upon the premises.
    The mistake in the contract, as alleged, was in describing the premises.
    The plaintiff alleg’ed performance on his part and re fusal by Spratt.
    The relief demanded was that the mistake in the description be corrected, and that the defendant convey the premises to the plaintiff.
    The defendant Spratt, by answer, admitted the error in the description and consented to a reformation of the contract; and then avowed that he had been always willing to perform his contract with the plaintiff, and that the plaintiff well knew that the defendant was indebted to various parties who had liens on the house and lot, and agreed to furnish the money to pay off the same, to the amount of five thousand dollars mentioned in the contract. That he had only paid $1,000, and the defendant could not give a conveyance that would convey such title as required by the contract while such liens existed on the property.
    That the plaintiff then declined furnishing more money, and the defendant was and is anxious to fulfil the contract, and was only prevented by disappointments in obtaining money.

      And that the defendant is willing and consents to a decree or judgment for a specific performance of the said contract as prayed in the complaint, at such time as he can and shall be able to make a good title.
    The action was tried by the court, without a jury.
    The following are the facts and conclusions of law.
    That the plaintiff and defendant' entered into a contract, the defendant to sell and the plaintiff to purchase house and lot known as number 24 West Fifty-first Street. That said contract was in writing, and bore date September 2d, 1870. That there was an error and mutual mistake in the description of the premises in said contract, in that the point of beginning should have been stated as commencing at a point on the southerly side of Fifty-first Street, distant 378 feet west from the south, westerly corner of Fifth Avenue and Fifty-first Street, instead of 398 feet, as was in said contract stated.
    That at the time appointed, the plaintiff was ready and willing to fulfil on his part, but the defendant was not ready, and neglected and refused to fulfil the said contract, and was then and has ever since remained unable to perform the said contract on his part.
    That plaintiff on the 2d September, 1870, paid the defendant on said contract the sum of one thousand dollars, and incurred liabilities for examination of the title of defendant to said premises, to the amount of two hundred and thirty-five dollars and twenty-eight cents. That interest on said one thousand dollars from September 2d, 1870, to April 22d, 1872, the day of this trial, is one hundred and fourteen dollars and seventy-two cents.
    Conclusion of law.
    That the defendant being unable to specifically perform the contract, the plaintiff is entitled to recover of the defendant the sum of one thousand three hundred and fifty dollars, and that the same be declared a lien on the premises described in the complaint according to the corrected description thereof, and that the description thereof be corrected accordingly, and that said premises be sold, and the proceeds of sale applied to the payment of said sum, and that plaintiff have judgment against the defendant for any deficiency.
    The evidence of the defendant’s inability to perform the contract was contained in the plaintiff’s testimony, and was as follows:

      Question. Have you had any conversation with the defendant with respect to his ability to perform his contract?
    A. I have, twenty times.
    Q. What did he say with respect to his ability to perform his contract ?
    A. He came to get an additional amount of money, and said he thought with that he could perform. At first I gave him $500 and he paid a lot of liens he said were against the property, and said that had taken it all up, and if I could let him have $500 more he thought he could perform. I let him have $500. He was some time coming back—a month or two. When he did come he reported himself unable to perform. He thought there was so much more lien against his property that he could not perform, that he would be ruined; he didn’t know how it would be.
    Q. You paid him the $500 mentioned in the contract ?
    A. Yes, sir.
    Q. And in addition to that another $500 ?
    A. Yes, sir, more than I agreed to.
    The plaintiff was allowed to prove, against the defendant’s objection, that he had paid three hundred and fifty dollars for examination of the title.
    The action was tried in April, 1872, and the findings made and filed June 10th, 1872, on which latter day the following judgment was entered (after reciting the findings of fact):
    “ It is considered and adjudged—
    “ That the contract between the plaintiff and the defendant, James K. Spratt, mentioned in the complaint herein, be, and the same is hereby, reformed and corrected in respect to the description of the premises therein described, so that the said description shall read as follows, to wit: ■ All that certain lot, piece or parcel of land situate in the 19th ward of the city of New York, and which taken together is bounded and described as follows, to wit: Commencing at a point on the southerly side of Fifty-first Street, distant three hundred and seventy-eight feet west from the southwesterly corner of Fifth Avenue and Fifty-first Street (known as No. 24), thence running southerly and parallel with Fifth Avenue, one hundred feet and five inches ; thence running westerly and parallel with Fifty-first Street, twenty-seven (27) feet and six (6) inches ; thence running northerly and parallel with Fifth Avenue, one.hundred feet and five inches ; thence running easterly along the southerly side of Fifty-first Street, twenty-seven feet six inches, to the point of beginning.”
    And it appearing that the defendant, Spratt, is unable specifically to perform the said contract and to convey a title thereto, the said premises having been sold -under a prior mortgage lien, leaving certain surplus moneys : and it appearing that the defendant, Spratt, is indebted to the plaintiff for moneys paid on said contract and pursuant thereto, in the sum of thirteen hundred and fifty dollars and interest from April 22d, 1872, it is on the like motion considered and adjudged that the said sum of thirteen hundred and fifty dollars be and the same is hereby declared a lien on said surplus moneys arising from a sale of said premises under a prior mortgage lien, from and after the date of the filing of the lis pendens in this action, to wit, from and after the 29th day of April, 1871, and that in case of any deficiency in the amount of said surplus moneys to satisfy this decree, that the plaintiff recover of the defendant, Spratt, the amount of such deficiency, and have execution therefor.”

      It does not appear upon what evidence the fact was founded, as recited in the judgment, “that the premises having "been sold under a prior mortgage lien leaving certain surplus moneys.”
    The defendant, Spratt, excepted to the findings and appealed from the judgment.

      Mr. H. Brewster, for appellant.

      Mr. W. H. Peckham, for respondent.
   By the Court.—Monell, J.

Upon the pleadings in this action, and without regard to any of the evidence, the plaintiff1 was entitled to judgment for the specific performance of the contract. But the court found as a fact, that at the time appointed for the performance of ■ the contract, the defendant neglected and refused to perform, and has ever since remained 11 unable to perform.”

The evidence to support the finding of inability to perform was very slight, and were it now material to the result, I should be unable to regard it as sufficient. The only evidence was to the effect that when the last payment was made to the defendant, he said that if he could have the money, he thought he could perform. A month or two afterwards, he reported himself as unable to perform. “He thought there was so much more lien against his property that he could not perform, that he would be ruined.”

The inadequacy of the evidence, however, is not of importance, as at most it relates to a supposed inability to perform at some time before suit brought, and there was nothing to show that such inability continued down to the time when judgment was entered.

If, therefore, at the time performance was decreed, the defendant could convey a title free from encumbrances, a specific performance of the contract should have been required (Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 Id. 235). , These cases proceed upon the principle that it is not necessary for the vendor to have title when he contracts to sell, but may acquire the title at any time afterwards, or may otherwise put himself in condition to comply with his contract (Fry on Specific Perf. p. 390, § 660).

Upon these principles, and under the proofs in the case, the appropriate judgment would have been for the specific performance of the contract.

Treating it, however, as if it had been shown that the defendant could not perform, the court held as its conclusion of law, that the plaintiff should recover the money he had paid towards the purchase price of the property, and also a sum for damages, making the amount a lien upon the premises contracted to be sold, and directing their sale, and payment out of the proceeds.

It was undoubtedly competent for the court, having ascertained the defendant’s inability to perform, to retain the action, and to ascertain and award damages for non-performance (Morss v. Elmendorf, 11 Paige, 277; Clark v. Rochester, &c., R. R. Co., 18 Barb. 350, 356; Barlow v. Scott, 24 N. Y. R. 40); and if such inability to perform, at the time of the judgment, had been made to appear at the trial, the award of damages would have been entirely proper.

For the advances made by the plaintiff, he acquired a lien upon the land, to the extent of the defendant’s interest (Wythes v. Lee, 3 Brew, 396; Blore v. Sutton, 3 Mer. 237; Fry on Spec. Per. 495, § 939).

Such lien, however, does not exist in respect tó general damages, and it was erroneous to declare the lien of such damages in this case.

Had the judgment been entered in conformity to the decision of the court, as contained in the conclusion of law, it would, for the reasons already assigned, be difficult to sustain it. But the judgment does not follow the decision. After reciting that “it appearing that the premises having been sold under a prior mortgage lien, leaving certain surplus moneys,” the judgment declares the lien for the advances and damages to be wpon such surplus moneys.

The evidence does not show any sale under the prior mortgage, nor is there any finding of fact to support the statement, and it is left wholly to inference and conjecture how the court, when it pronounced judgment, came in possession of the fact.

It is clear that this nonconformity of the judgment to the decision was an irregularity, if not indeed a substantial error, which should lead to a removal of the judgment. In Loeschigk v. Addison, 3 Robt. 331, this court reversed a judgment because it contained provisions not authorized by the decision. In that.case, however, it appeared that all the issues had not been disposed of by the decision. And in Chamberlain v. Demsey, 9 Bosw. 212, a judgment was reversed for a similar reason, and the power to do so was fully recognized.

But upon the argument of this appeal, it was conceded by the appellant’s counsel that after the trial, and before the entry of judgment, the defendant’s title had been divested, and his power to convey taken from him, by a foreclosure sale under an outstanding mortgage, and that the recital of such fact in the judgment was correct.

Under these circumstances the appellant could not be benefited by a new trial, and a reversal of the judgment would necessarily require a re-trial, when the result would be the same as now.

The judgment, however, should be modified by restricting the specific lien upon the surplus moneys to the advances only, and to the extent only of the defendant’s interest therein; leaving the general damages a general lien only.

As so modified, the judgment is affirmed, hut without costs of the appeal.


author: By the Court.—Barbour, Ch. J.

text:
    DANIEL S. DUVALL, as Executor of and Trustee under the Last Will and Testament of BENJAMIN OGDEN, Deceased, Plaintiff, v. THE ENGLISH EVANGELICAL LUTHERAN CHURCH OF ST. JAMES, IN THE CITY OF NEW YORK.
    I. Succession Tax.—Chargeable on and Payable by Trustee named in Will, when.
    1. Where a testator devises his real estate to a trustee upon trust, to take possession and management of the same, and out of the rents arising therefrom to pay the taxes, insurance, and necessary repairs thereon until the same is sold ; to sell the same as soon as could conveniently be done, and execute unto the purchaser or purchasers thereof a good and sufficient conveyance or conveyances therefor, and pay the net proceeds over to A.; the trustee is chargeable with the succession tax, and it is payable by him, though perhaps he might sell and convey subject to the tax, and thus, as between himself and his grantee, shift the liability.
    Held, that A. having conveyed all his interest under the will to B., and the trustee having thereafter, under the power in the will, sold the real estate to 0., and having paid the succession tax to make good title, the trustee could not recover the amount so paid from A.
    Held Further, the trustee might have deducted'the amount paid by him out of the proceeds of sale before paying over to B. a. This, although the law imposing the tax was not in existence during the life of the testator.
    Before Barbour, C. J., Curtis and Sedgwick, JJ.

      Decided April 5, 1873.
    Verdict for plaintiff, subject to the opinion of the court at General Term.

      The plaintiff in this ease sues, as sole executor and trustee, under the will of Benjamin Ogden, who died in June, 1867, to recover from the defendants, as "beneficiaries named in the trust created by the will, the amount of a succession tax upon the fund devised to the defendants, which tax the plaintiff paid to the United States. The case shows that the testator devised to the plaintiff all his real estate in the city of Kew York, upon trust, to hold, receive rents, pay taxes, etc., manage, and sell and convey the same, and invest certain portions of the proceeds in the manner directed; and the testator then gave and bequeathed to the defendants all the residue and remainder of the net proceeds of the said real estate, and directed his trustee to pay over the same to their treasurer. In March, 1869, the defendants, in consideration of the sum of $25,000, executed their deed to nine certain persons, who were in fact heirs at law of the decedent, whereby the former sold, released, and conveyed tg the latter ‘ ‘ all their right, title, interest, claim and demand, legal and equitable, as devisee or legatee under the last will and testament of Benjamin Ogden, deceased, of, in, and to” the real estate in question (describing it by metes and bounds). After the execution of that deed the plaintiff, as trustee under the will, sold the lands for such a price that the net proceeds, after deducting sundry expenses, mortgages, etc., amounted to $93,239.-18, and paid to the U. S. Collector the succession tax thereupon, amounting to the sum of $2,916.06, being the sum to "recover which, with interest, this suit is brought.
    A verdict was directed for the plaintiff, subject to the opinion of the court at General Term.

      Weeks & Forster, attorneys, and of counsel for plaintiff, urged :
    I. The plaintiff, as trustee, having advanced funds to pay the succession tax, which by the law is chargeable on the defendant, was entitled to proceed directly against the party ultimately liable for the tax (3 Bk. Bl. Comm, bottom page 163; Chitiy on Contracts, ed. 1839, pp. 467-470; Hales v. Freeman, 1 B. & B. 391; S. C., 4 Moore, 21; Wright v. Butler, 6 Wend. 284, 289; Norton v. Coons, 3 Denio, 130, bottom p. 134, and cases there cited; St. Nicholas Ins. Co. v. Howe, 7 Bosw. 450, 460; Blunt v. Mott, 10 Abb. Pr. 222; Duffy v. Duncan, 32 Barb. 587, 600; Curtis v. Fiedler, 2 Black (U. S.) 461, 478; The Collector v. Hubbard, 12 Wallace, 1, 12; United States v. Russell, 13 Wallace, 623, 630).
    II. The defendant was the party ultimately liable for the succession tax (U. S. Statutes, ch. 173, §§ 126-151, passed June 30th, 1864,13 U. S. Statutes at Large, pp. 287-292; U. S. Statutes, ch. 78, § 1, passed March 3d, 1865; U. S. Statutes at Large, pp.469,481; U. S. Statutes, ch. 184, § 9, passed July 13th, 1866, U. S. Statutes at Large, pp. 146, 147).
    III. The defendant accepted the devise under the will, as is shown by its subsequent conveyance thereof for $25,000, and thereby became bound for the tax.
    IV: The conveyance by the church to some of the heirs of the testator did not charge those heirs with the tax, but they took the property by implication divested of the lien (Rogers v. Kneeland, 10 Wend. 252; In the matter of Washburn, 4 Johns. Ch. 106, 114; Morey v. Farmers’ Loan and Trust Co., 14 N. Y. 302, 306; Sill v. Village of Corning, 15 N. Y. 297, 305, 306; cf. Opinion of Acting Commissioner Douglass, fols. 132, 133).
    V. The law implies a promise by defendants to refund the payment made by plaintiff (see cases cited under II. supra).

    VI. The admissions of the answer conclude the defendant as to all the questions in the case except the assessment and amount of the tax. That is established by the stipulation, so that no question really remains.
    VII. Judgment should be ordered on the verdict for the plaintiff, with costs.

      Smith & Woodward, attorneys, and of counsel for defendant, urged:
    I. The trustee has no claim upon the church corporation for the repayment to him of this succession tax.
    If there is any such liability on the part of the church corporation, it must arise out of the provisions of the statutes of the United States creating this tax, and the duties imposed upon trustees and legatees by those provisions.
    1. 'No personal liability is imposed upon legatees for the payment of the legacy tax by those statutes.
    By chap. 173 of the acts of the 38th Congress, § 125 (act of July 30, 1864), every legacy tax or duty is made a 11 lien and charge upon the property of every person “ who may die,” and every trustee is required to pay to the collector of the district the amount of such tax ‘ ‘ before payment and distribution to the legatees or any parties entitled to beneficial interests therein.”
    By § 138 of the same act it is. provided “ that the interest of any successor in moneys to arise from the ‘1 sale of real estate, under any trust for the sale thereof, “ shall be deemed to be a succession chargeable with “duty under this act, and the said duty shall be paid “ by the trustee, executor, or other person having con- • “trol of the funds.”
    By the amendatory act of July 13, 1866, chap. 184, of the acts of the 39th Congress, § 9, page 140, it is provided that.“ any tax paid under the provisions of §§ 124 “ and 125, shall be deducted from the particular legacy “or distributive share on account of which the same is “ charged.”
    2. By these statutes the duty of paying the legacy tax and succession tax payable out of proceeds of real estate, is thrown upon the trustee, to be paid out of the proceeds of the sale of the real estate in his hands.
    3. The deed of the church corporation to the heirs at law of the testator, Benjamin Ogden, merely substituted the heirs at law for the corporation, and entitled them to receive from the trustee the proceeds of the sale of the real estate after deducting the amount of all liens and proper charges.
    The church corporation no more assumed the liability to discharge the lien of the legacy tax, or succession tax, upon this property than to pay the amount of existing mortgages, or to make good the charges created by the will.
    4. The property was sold by the trustee for a much larger amount than was paid or agreed to be paid for it by the heirs at law, and the amount of all pre-existing liens, by mortgage or otherwise, and the amount of the charges under the will.
    5. Under this state of the law and the facts it was clearly the duty of the trustee to deduct from the amount paid to the hems at law as persons succeeding to the rights of the church corporation by deed, the amount of said succession tax, and thus, after having made payment of that amount to the collector, to have satisfied all the requirements of the acts of Congress.
    Sections 130, 131, 132, 135 and 137 of the act of 1864, have reference to conveyances made by legatees before the legacy duty or succession tax becomes payable, and recognizes the substitution of other parties in place of the legatees or successors by deed or otherwise.
    II. It being clear that the trustee has no claim upon the church corporation for the amount of this succession tax, when he had ample funds in his hands out of which to pay the same, after discharging all other liens and charges upon the trust estate, the verdict entered for the plaintiff, subject to the opinion of the court at General Term, should be set aside, and judgment entered for the defendant, with .costs.
    III. In any event, if the plaintiff be entitled to recover at all, it can only be the amount of the tax assessed upon the amount of the legacy paid to the defendant which was separately assessed at $1,581.42, and the verdict should "be reduced.
   By the Court.—Barbour, Ch. J.

As the entire estate, legal and equitable, of which the testator died seized in the land was vested by the will in the trustee, for the purposes of the trust, no estate or interest in the land itself passed by the deed from the defendants to the grantors named therein (1 H. 8. 729, § 60). It seems clear, however, that the grantors designed and intended by that deed to grant and convey all the property, rights and interest to which they were entitled under the will, to the grantees named in such deed ; and the language employed in the instrument was probably sufficient to carry that design into effect. It appears, too, from a letter written by the legal adviser of the plaintiff, and on his behalf, to the commissioner of internal revenue, respecting the tax in February, 1870, and which was read in evidence by the plaintiff’s counsel upon the trial, that the defendants had then sold their interest under the bequest, to the nine persons named as grantees in the deed.

The interest in the bequest thus sold by the defendants was neither more nor less than the sum which they would have been entitled to receive from the trustee out of, and as the net proceeds of the sale of the lands, and keep to their own use, except for such sale.

The direction given in the will to the trustee to execute to the purchaser of the land a good and sufficient conveyance, therefore, probably of itself authorized him to convey the same subject to outstanding encumbrances, including the tax or duty, which was a lien by the statute, or to pay off such encumbrances so as to pass a clear and perfect title. If he had done the former, the interest of the defendants, in qase they had remained the owners of the bequest, would have been their pro rata share of the purchase price, less the expenses which had been incurred in managing, protecting, and selling the property.

The land, however, was in fact sold clear of encumbrances, and therefore, by the 188th section of the act of 1864, the moneys arising from the sale of the real estate were chargeable with the tax, and it was the duty of the trustee having control of those funds to pay the same; and he was, no doubt, authorized by the law to deduct the proportionate amount thereof from the distributive share of the proceeds of the sale which belonged to the purchasers, from the defendants. For, as the bequest to the defendants was a gift of “net proceeds,” it was undoubtedly the intention of the testator to bequeath to them all of the proceeds of the real estate that should remain in the hands of the trustee after setting aside the sums which he was directed to apply to the other trusts, and paying all such charges upon the prpperty and expenses as it was his duty to pay. It is true, that as the law imposing a tax upon successions was not in existence during the life of the testator, he could not have contemplated the payment "of such tax by his trustee; but the law, when enacted, required the trustee to pay it. The “net proceeds,” therefore, was the sum derived from the sale, which would be left in the hands of the trustee after paying the tax, as well as all other charges, expenses, etc.; and that sum was just the extent of the “interest” which the defendants had in the bequest, and which was sold by them to the nine heirs at law.

The theory of the plaintiff is, that the tax was a charge upon the land; that the defendants were to the extent of their beneficial interest in the bequest the equitable owners of such land, as shown by their deed granting and conveying their interest in it; that it was the duty of the defendants to satisfy such charge; that because of their failure to do so, and the inability of the trustee to make a title without paying the tax, he was compelled to, and did pay and advance the same for the defendants’ benefit, and therefore that he is entitled to recover the amount so advanced. The defendants, however, as we have seen, had no estate or interest in the land whatever, and their deed conveyed only their interest in the ultimate net proceeds to be derived from its sale. There was no charge upon the land because of the tax which the defendants were bound to remove ; but, on the contrary, it was the duty of the plaintiff under the statute to pay such tax out of the proceeds of the sale of the property. The plaintiff’s theory, therefore, is wholly erroneous, and his claim to recover is without foundation. There never was any personal obligation on the part of the defendants to pay the tax, either by the terms of the statute or otherwise.


author: By the Court.—Monell, J. Cubtis, J. (concurring).

text:
    FREDERICK S. WINSTON, Plaintiff and Respondent, v. STEPHEN ENGLISH, Defendant and Appellant.
    I. Examination of Parties before Trial under § 391 of the Code. 1. Mvcmiination of plaintiff before complaint served.

    1. Defendant has not an absolute right to have such an examination. a. Whatever may have been the doctrine of this court before the adoption of the present rules of court, it must yield to the modification made by the 21st of those rules, which is consistent with the Code.
    1. Applications for examination must now be made on affidavit, showing a case falling within the requirements of the 21 st rule, b. Such examination is not necessary to enable the defendant to prepare his answer, nor can it be said to be material in aid of a defence.
    1. Therefore no case is made for an examination under the provisions of the 21 sí rule.

    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Appeal from an order.

      The defendant’s affidavit states that this action is "brought for damages for alleged false and malicious publications of and concerning the plaintiff.
    It further appears, that the defendant is in the custody of the sheriff of the city and county of Hew York, under an order of arrest granted in the action. It appears, by an affidavit of the plaintiff’s counsel, that no complaint has been served in the suit.
    The defendant obtained an order to examine the plaintiff under section 391 of the Code. An order was granted on the plaintiff’s application to show cause why this order to examine should not be vacated. On the hearing the order to examine was vacated. From this order tire defendant appeals.

      Sewell & Pierce, attorneys, Robert Sewell and John K. Porter, of counsel for respondent, urged:
    I. It is well known to the court, that prior to the promulgation of the rules which went into effect in February, 1871, this court and the Supreme Court differed very materially in their construction of section 391 of the Code of Procedure. The Supreme Court held that the examination of an adverse party could not be had until after issue joined, while this court permitted such an examination before issue, and before the service of a complaint. But while this court was thus liberal in its construction of the statute, it was particular in requiring that the person applying for such examination before issue should bring himself within the rules applicable to a bill of discovery in chancery, for which the examination before issue is expressly stated by the court to be a substitute. Ho fishing examination will be allowed; and the propriety or impropriety of the questions are not to be left to be decided on the examination. A proper case must be made on the papers (Duffy v. Lynch, 36 How. 509; McVicker v. Greenleaf, 4 Rob. 657; Merritt v. Thompson, 3 E. D. Smith, 283; Brevoert v. Warner, 8 How. 321).
    II. The rule of court now recognizes the former practice of this court, and recognizes the fact that such an examination is a substitute for a bill of discovery— calling it so by name. The rule is as follows :—
    “ The application for an examination, under section 391 of the Code, shall be upon an affidavit disclosing the nature of the discovery sought, to enable the party to frame his complaint or answer, or to prove his case or defence upon the trial, and how the same is material in aid of the prosecution or defence.”
    III. This proceeding cannot be sustained under this rule. The affidavit does not disclose the nature of the discovery sought, and how it is material either to prove the defendant’s case on the trial or to enable him to answer.
    r He does not yet know what the complaint will be, and how can he tell what he will be required to answer ?
    He does not know what defence he wants to prove on the trial.
    It appears that he knows the matters he speaks of well enough already to plead them (Farley v. Farley, 1 McCord’s Ch. 517).
    It does not appear that the plaintiff has any peculiar knowledge on the subject (Bullock v. Boyd, 2 A. K. Marsh, 323).
    There is nothing before the court whereby it can judge of the materiality of the discovery sought.
    The matter of allowing a discovery before issue joined rests in discretion, and is not appealable.
    IV. This proceeding of discovery to enable a person to plead, being in the nature of a substitute for the bill of discovery in chancery, can only be allowed in cases where it would be granted in chancery. This is not .one of the cases. The very nature of a libel suit prevents a discovery. It would be intolerable to allow a libeller to examine his victim, lest, haply, he might stumble on a defence. A man who alleges a defamatory fact of another, and publishes it to the world, takes the responsibility of having then at his command the means of proving that fact. He cannot say of a merchant he is insolvent, and when sued, ask the court as matter of grace to allow him to discover from the merchant’s books and papers his financial condition. He cannot say of a married woman she is unchaste, and when sued, place her under oath and ask her where she slept last night and the night before. Such a course would be increasing the power of the libeller under the sanction of the court (Glynn v. Houston, 1 Keen, 329; Brownell v. Curtis, 10 Paige, 213; Livingston v. Harris, 3 Paige, 528; Lambert v. People, 9 Cowen, 578; Northrup v. Hatch, 6 Conn. 361; Leggett v. Postley, 2 Paige, 969; Story Eg. Pl. §§ 521, 524, 579, 598; U. S. v. 28 Packages, Gilpin, 306; Butter v. Catlin, 1 Root, 310; Ocean Ins. Co. v. Field, 2 Story, 59; Adams v. Porter, 1 Cush. 170; Harrison v. Southcote, 1 Atk. 539; Brownsword v. Edwards, 2 Ves. S. 243; Baker v. Prichard, 2 Atk. 389; Mitchell v. Koecher, 11 Beav. 380; Livingston v. Tompkins, 3 John Ch. 542; The People v. Mathu, 4 Wend. 229; 1 Burr's Trial, 244; Southerd v. Rexford, 6 Cowen, 254; Bellenger v. People, 8 Wend. 595; Marsh v. Davidson, 9 Paige, 580; Lynch v. Henderson, 10 Abb. P. R. 345; Keeler v. Dusenbury, 1 Duer, 661; Opdyke v. Marble, 44 Barb. 64; Day vTuckett, 1 Bail Court R. 203; Metro Saloon Co. v. Hawkins, 4 Hurl. & Nor. 146; Girand v. Beach, 3 E. D. Smith, 337).
    V. In England a bill of discovery in aid of a libel suit is authorized by statute, but the only relief allowed is to discover the names of the owners of the newspaper in which the libel has been published. The fact of the existence of this statute shows that the right did not exist without it. Even this limited right does not exist here, for we have no statute allowing it (Opdyke v. Marble, 44 Barb. 64).
    VI. Under the common-law procedure act in England, authority is given to examine parties similar to the provisions of our Cede. The court, however, has decided that the provisions do not apply to a libel case (Com. Law Pro. Act. 17 and 18 Vic. C. 125; Metro Saloon Co. v. Hawkins, 4 Hurl. & Nor. 146).
    VII. A person cannot be forced to answer a question which will tend to convict him of a criminal charge. The evidence of criminality consists of many links, and a person is not to be forced to supply even one of the most trivial of those links.
    It may be said that this is the privilege of the witness, and he may refuse to answer. Therefore examination may be ordered and the questions put, and he may or may not claim his privilege. Such is not the law. The court will not allow the examination on the chance that the wifcdess will answer. Courts are not gamesters or speculators in the doctrines of probabilities (Stern v. Sevastopuli, 32 L. J. C. P. 268; Baker v. Lane, 3 H. & C. 544; Bowden v. Allen, 22 Law Times, 342; Tupling v. Ward, 6 Hurl. & Nor. 749).
    VIII. The order should be affirmed, with costs.

      Thomas Darlington, for appellant.
   By the Court.—Monell, J.

Upon the return of the summons issued by a judge of this court, requiring the plaintiff to appear and be examined before trial at the instance of the defendant, under section 391 of the Code, it was shown by affidavit, that although the action had been commenced by the service of a summons, no complaint had been served upon the defendant; and it is understood that the decision at the Special Term was put upon the ground, that until the complaint was served upon the defendant, there was nothing upon which the plaintiff could be examined.

But the defendant, upon his appeal from the order made at the Special Term, setting aside the summons for the plaintiff’s examination, insists that he has an absolute right, at any time after the action is commenced, to take the plaintiff’s examination, and that the court has no discretionary power over the matter.

Whatever may have been the views of this and of other courts, as to the right of examination at any time before the trial, even before issue joined or complaint served (see McVickar v. Greenleaf, 4 Robt. 657), those views must, I think, now yield to the modifications in the law which have been made since that and other similar decisions were rendered.

The convention of judges convened pursuant to chapter 408 of the laws of 1870 (vol. 1, p. 951, § 13) had power to revise, alter, abolish, and malee rules, which it was declared should be binding upon all courts of record, so far as they might be applicable to the practice thereof.

It will be seen that the restrictive words in a similar provision in the Code [Code of 1849, § 470), “ not inconsistent with this act,” are left out of the act of 1870. But I do not think it was intended to remove such restriction, or to authorize the making of any rule, which might conflict with- the provisions of the Code, or abridge or impair any right or remedy given by it.

The power, however, did extend to the adoption of all necessary and proper rules, to regulate the practieé in actions and proceedings in all courts of record.

In accordance with that power, the present 21st rule of court was adopted, and it requires that the application for the examination shall be upon affidavit, disclosing the nature of the discovery sought, which discovery, it must be averred, is required to enable the party to frame his complaint or answer, or to prove his case or defence, etc.

The rule, it will he seen, provides first for the examination of the defendant to. enable the plaintiff to frame his complaint; second, of the plaintiff to enable the defendant to frame his answer ; and third, of either party after issue.

The rule follows in effect the construction by this court, of the 391st section of the Code in McVickar v. Greenleaf, supra, so far as it permitted the examination before issue; but by necessary intendment limits the right to the purposes specified.

The limit thus put upon the examination, namely, for a plaintiff to frame his complaint, or for a defendant to prepare his answer, is in accordance with the true intent of the statute, and does not in my judgment conflict with any of its provisions.

Whatever may be the right, therefore, to have the examination at any time, the application must conform to the rule, and it must be made to appear that the examination is required for one of the purposes specified.

If it does not, or if the court cannot see that the examination is material in aid of the prosecution or defence, the application should be denied.

In this cáse it was an attempt by the defendant to examine the plaintiff. It could not be said to be necessary to enable the defendant to prepare his answer, for until the complaint was served, he could not know what the alleged cause of action was or would be, nor what he would have to answer; nor could it be seen that it was material in aid of a defence, until an issue had been framed.

It was therefore a question properly addressed to the power of the court; and as the defendant. had not brought himself within any of the specified cases, authorizing the examination, the decision of the court at the Special Term setting aside the summons, was correct.

I have not found it necessary to examine the other question; namely, as to the right to require the plaintiff to testify against himself in an action of the nature it is said this is. That is a question which, as it seems to me, does not now properly arise.

The order should "be affirmed with costs.

Cubtis, J. (concurring).

The right to examine a party to an action at the instance of the adverse party, after the commencement of the action, is conferred by the Code. That this is an absolute right where the materiality appears, is held in various decisions (McVickar v. Greenleaf, 4 Robt. 657; Fullerton v. Gaylord, 7, Robt. 559; Duffy v. Lynch, 36 How. P. R. 509).

It was urged on the argument, that the force of this provision was somewhat modified and affected by the 13th section of chapter 408 of the laws of 1870, and the adoption of the 21st rule of the Supreme Court, by the convention of judges, which met pursuant to the requirements of that law. The 13th section of the law of 1870 is as follows:

“ All rules of the Supreme Court now in force, not inconsistent with the constitution or any statute of the “ State, shall remain in force until abolished or altered “by the General Term justices, the chief judges of the “Superior Court of cities, the chief judge of the Court “ of Common Pleas of the city of Hew York, and of the “City Court of Brooklyn, in convention assembled at “the capital in the city of Albany. A convention of “such justices and chief jndges shall be held at the “place aforesaid, on the first Wednesday in August, “1870, and every two years thereafter; and such contention shall revise, alter, abolish, and make rules, “which shall be binding upon all courts of record, so far “as they may be applicable to the practice thereof.”

The 21st rule of the Supreme Court is as follows :

“The application for an examination under § 391 of “the Code, shall be upon an affidavit disclosing the “nature of the discovery sought, to enable the party to ‘ ‘ frame his complaint or answer, or to prove his. case or “defence upon the trial, and how the same is material “in aid of the prosecution or defence.”

I am unable to see that the legislature attempted to confer any power upon the convention of judges to alter or nullify in any degree the law, or that this rule No. 21, adopted by the convention, adds to or restricts in any way the operation or effect of sections 390 and ' 391 of the Code.

Even if any modification of these sections had been attempted, by inserting provisions to that effect in a rule, it would have been inoperative, as the constitution of the State does not authorize the legislature to delegate any law-making power to a convention of the judges. (Barto v. Himrod, 3 N. Y. R. 941.)

The Code, by directing that the party shall “be examined as a witness,” and “ subject to the same rules of examination as any other witness,” limits the examination to what is material.and relevant to the prosecution or defence. To carry out and give effect to these provisions of the law, this court has indicated at Special Term, that the affidavit upon which the application for examination is made shall disclose what is requisite in respect to the action, to enable the court to properly apply and enforce the directions of the Code (Duffy v. Lynch, 36 How. P. R. 509; Greene v. Herder, 7 Rob. 463).

The Supreme Court rule No. 21 is substantially in accordance with this view. It is framed for the purpose of enabling the court to have the information before it that will enable it to enforce the provisions of section 390 and 391 of the Code, and also to restrict the examination of the party to that which is relevant and material, and which mode of examination is alone authorized under these sections.

When the motion for the examination is made by the defendant, before answering, the affidavit, in order to show the nature of the discovery sought, should set out the complaint or its material allegations, and the nature of the defence. Where no complaint, as in the present action, has "been served, "but an affidavit stating the cause of action has been made and served with the order of arrest on the defendant, pursuant to section 181 and 184 of the Code, then if the defendant in his moving affidavit should set it out, or its material allegations, together with the nature of the defence, a question would arise which we are not now called upon to decide. It is only when this information is thus presented that the court is able to limit the examination to that which is relevant and proper, and thus give effect -to the provision of the Code, that the examination of a party shall be governed by the same rules as that of any other witness.

The affidavits on this motion show that the action is brought for damages for alleged false and malicious publications of and concerning the plaintiff, and that the nature of the discovery sought by the examination of the plaintiff, is to obtain information in regard to a great variety of alleged transactions and occurrences.

It does not appear that these matters, in respect to which this examination of the defendant is sought, have any relation, direct or indirect, with the alleged publications for which the action is brought.

It nowhere appears in the motion papers what those publications were, or even what subjects they touched upon. The most careful examination furnishes no information.

The defendant does not set out the matters complained of by the plaintiff, either as contained in the plaintiff’s affidavit made to procure the order of arrest, or otherwise. The court is left without the means of knowing whether the examination sought is an inquiry into the past life and acts of the plaintiff, or in respect to matters pertinent to the action; it has no means of causing the examination to he conducted pursuant to the requirements of the Code, and restricting it to such matters as are relevant, material, and proper.

In this view of it, and upon the present papers, the order appealed from should be affirmed with costs, but without prejudice to the defendant’s taking out another one founded upon a proper affidavit.