author: By the Court.—Freedman, J. Truax, J. (dissenting).

text:
    CHARLES A. EDWARDS, Respondent, v. ALEXANDER McLEAN, Appellant.

      Lease in counterparts, two to be construed together—General Term, when error in not disposing of case below as a matter of law cannot be assigned at—Infectious disease, ivhen not defense to action for rent.

    ' The action was for rent of a dwelling house let by plaintiff to defendant. By the lease in plaintiff’s possession the house was let “ to be furnished substantially as it now is.” By the counterpart in defendant’s possession “ it was let to be furnished as it now is.” At the time of making the lease the house was, to the knowledge of both parties, occupied by a tenant of the plaintiff. Held, that by legal implication the counterpart held by defendant expresses what is expressed by the word “ substantially ” in the lease held by plaintiff.
    One of the defenses to the action was that the requisite amount of furniture was not in the house. On the trial, both sides litigated this question. At the close of plaintiff’s case defendant moved for a dismissal of the complaint. At the close of the proof on both sides the judge ■ submitted that question to the jury upon the evidence given on both .sides, with the instruction (requested by defendant) that, “if the jury ■believe that the house as offered to the defendant June 1, 1885, was not furnished substantially as it was when the lease was executed, they .must find for the defendant.” No request for a direction of a verdict for defendant was made. Held, that the defendant could not complain ■of the disposition of the case.—(1st) because at the time of the motion to dismiss, plaintiff had made out a case for the jury; (2d) because the submission to the jury was acquiesced in by him.
    -Another defense was that the house had been infected; this was overruled. Meld, no error, it appearing that the infection occurred without plaintiff’s fault long after the making of the lease, and there being no ■ covenant as to the fitness of the premises for occupation as a dwelling.
    .Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided November 21, 1887.
    Appeal from a judgment entered upon the verdict of ¡a jury, and from order denying defendant’s motion for .a new trial.
    The facts sufficiently appear in the opinions and the ¡head note.

      Charles F. McLean, attorney, and of counsel for appellant, argued:
    I. The defendant is bound only by the lease delivered do him. The two New York cases which are cited in 'the digests as holding that the court will determine the ‘contract from the two counterparts, Mors v. Salisbury, 48 N. Y. 636 ; Calkins v. Falk, 38 How. 62, have no reference to a case such as this. Nor is the cases helped ¡by Fairchild v. Lynch, 10 J. & S. 265. It is a general rule that “ instruments should be construed contra proferentem,; that is, against him who gives, er undertakes, or enters into an obligation. The construction of grants should be favorable to the .grantee.....The reason of the rule contra prof eren

      tern is that men may be supposed to take care of themselves, and that he who gives and chooses the words by which he gives ought rather to be held to a strict interpretation of them than he who only accepts. 2 Parson Contracts, 18, 19.
    II. There was no tender of the house furnished substantially as it was when the contract was entered into. There was no occasion for a jury to pass upon this, and the court should have disposed of the case as a matter of law, as was requested upon the motion to dismiss, and upon the requests to charge. The court should have exercised its power and not left the jury to determine that which is within the observation of every person. That the house was in March prettily and cosily furnished ; that in June it was barren and incompletely furnished, is in evidence and uncontradicted. The court should therefore have disposed of the case.
    III. The court should have permitted evidence of the nature of the infection in the house.

      Walter Edwards, attorney, and of counsel for respondent, argued:
    I. The lease of the demised premises contained no covenant on the part of the plaintiff - except that defendant might peaceably and quietly have and enjoy the de.mised premises. It is the settled law in this state that in the absence of any covenant as to the fitness of the premises for occupation as a dwelling, no covenant of the lessor can be implied on that subject. Franklin v. Brown, 24 Weekly Dig. 463; Jaffe v. Hearteau, 56 N. Y. 398; Cleves v. Willoughby, 7 Hill, 83; O’Brien v. Capwell, 59 Barb. 497; Edwards v. Harlem R. R., 98 N. Y. 245.
    II. The scarlet fever occurred on the demised premises long after execution and delivery of the lease sued upon, and while the premises were occupied by one-Fuller, who was a tenant in possession when the lease in question was made—for a term to expire on May 15th, then next ensuing. The plaintiff knew nothing of the disease until informed by the defendant. Plaintiff knew nothing of the disease, in no way caused it, nor can he be in the least responsible for it. How then could such a matter affect the contract between the parties ? Cesar v. Karutz, 60 N. Y. 229, is in no way like the present case. It was cited in Franklin v. Brown, supra, and by this court very properly distinguished.
    III. As to the taking out of some of the furniture the contention of the appellant is as untenable as the one based on the contagious disease. The two parts of the lease were not exact counterparts; one read “furnished substantially as it is now,” the other omitted the word “ substantially.”
   By the Court.—Freedman, J.

The action is for the recovery of rent. The difference between the two counterparts of the lease is not material. They both bear date March 28, 1885, and under them the defendant was to have possession on the first day of June in that year. At the time of their execution the dwelling house was, to the knowedge of both parties, in the pos- ■ session of a tenant of the plaintiff. In the case of the lease delivered to the defendant, the legal implication is.' what in the lease retained by the plaintiff is expressed by the word “ substantially.” The dwelling house Avas therefore to be delivered furnished substantially as it then was, but with the further qualification expressed in the following words, Avhich are contained in both leases, viz.: “ But more particularly described in a certain inventory, Avhich is to accompany and form a part of this lease.”

Evidence was given on the part of the plaintiff, Avithout objection on the part of the defendant, to the effect that at the time of the execution of the leases, the inventory was in plaintiff’s desk; that the defendant did not ask for it, that for this reason the plaintiff did not give it, and that generally it is not gÍAren. The plaintiff also testified that he had the inventory with him at the trial. Now if that inventory had been offered and received in evidence, the jury might have found, upon a consideration of all the circumstances surrounding the execution of the leases, that the inventory referred to constituted part of the contract between the parties. But the plaintiff never offered it, and the defendant did not call for its production.

The following question propounded to the plaintiff, viz.: Q. “ Was all the furniture in the house on the first day of June, which had been in when Dr. McLean saw it which belonged to you, which was included in the inventory referred to in the lease ?.”—was, on defendant’s objection, excluded by the trial judge, “ unless knowledge of the contents of the inventory be in some way brought home to the defendant,” to which ruling the plaintiff excepted. After this ruling both parties went on to litigate, and they did litigate the question whether, irrespective of the existence of any inventory, there was or was not the required amount of furniture in the house at the time the defendant had obligated himself to take it. ' Upon this point the defendant contended, and a number of exceptions taken by him were taken upon the theory that he was strictly entitled to every piece of furniture, no matter how insignificant, which, at the time of the execution of the leases, was in the house, whether owned by the plaintiff or by the tenant then in possession, while the plaintiff contended that he performed' his part, if the house was furnished substantially as it was at the time of the execution of the leases. The trial judge submitted the question to the jury upon the evidence given on both sides, and with the instruction, that if the jury believed “ that the house as offered to the defendant, June 1, 1885, was not furnished substantially as it was when the lease was executed, they must find for the defendant.”

Of this disposition of the case the defendant has no right to complain. In view of the conceded fact that he refused to take .possession, the defendant was not entitled, at the close of plaintiff’s case, to have the complaint dismissed, because, under the operation of the rule that, on a motion for a nonsuit, the evidence must be construed in the light most favorable to the plaintiff, •and that, where different conclusions might be drawn by fair-minded men from a certain state of facts, it is the province of the jury to draw them, the plaintiff had then made out at least a case for the jury. On-the other hand, at the close of the evidence on both sides, the defendant made no motion for the direction of a verdict, and acquiesced in the submission to the jury of the question referred to. Under all the circumstances, the proceedings at the trial were fully, if not more so, as fair and favorable to the defendant as he could rightfully claim, and the verdict of the jury represents substantial justice. No reason appears why the verdict should be disturbed.

The defense, based on the claim that the house had been infected and that the infection was likely to continue, was properly overruled, because the infection •occurred, without the fault of the plaintiff, long after the execution and delivery of the lease, and the lease contained no covenant as to the fitness of the premises for occupation as a dwelling. See Franklin v. Brown, 53 Super. Ct. 474.

None of the exceptions taken being tenable, the judgment and order appealed from should be affirmed, with ■costs.

Sedgwick, Ch. J., concurred.

Truax, J. (dissenting).

The action was brought to recover the rent of a dwelling house situate at Morris-town, New Jersey. The house was let, according to the lease which was in the possession of the appellant, to be furnished as it now is,” but, according to the lease in the possession of the respondent, “ to be furnished substantially as it now is.”

The lease was dated the 28th day, of March, 1885, and! the appellant was to take possession of the premises on. the first day of June in that year.

It was not disputed on the trial that the house did not contain the furniture that was in it at the time the-lease was made. There was no dispute about which of the articles were not there, and therefore, under the facts in the case, it became a question of law for the trial judge to determine whether the house was or was-not substantially furnished as it was at the time the lease was made.

This question was fairly presented to the court by the motion to dismiss, and should then have been decided in favor of the defendant.

This view of the law renders it unnecessary for us to determine whether the lease delivered to the plaintiff or the lease delivered to the defendant is the controlling-lease in the case. Taking the plaintiff’s lease as the-controlling one in the case, the evidence shows that the plaintiff did not comply with his lease.

The judgment and order appealed from should be-reversed, and a new trial ordered, with costs to the, appellant to abide the event.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    DANIEL EADES, Appellant, v. HEMAN CLARK,. et al., Respondents.

      Burden of proof as to freedom from contributory negligence—Master and■ servant.

    In an action for damages for injuries caused by the falling of a rock from the roof of a tunnel in which plaintiff was at the time employed by defendants, the contractors engaged in the construction thereof, the complaint alleging that such injuries were due to defendants’ negligence,, the only evidence as to plaintiff’s freedom from negligence was his own testimony to the effect that he could not say whether he had or had not, prior to the accident, noticed the peculiar and dangerous condition oí that portion oí the rooi which fell upon him.

      Held, that the complaint was properly dismissed, the burden of showing his own freedom from' negligence resting upon plaintiff.
    Before Sedgwick, Ch. J., Freedmax and Truax, JJ.

      Decided November 21, 1887.
    Appeal from, judgment dismissing the complaint.
    The action was brought to recover damages alleged to have been sustained by the plaintiff, without negligence on his part and through the negligence of the defendant. It appeared that defendants. were contractors engaged as such in the construction of the new aqueduct for the supply of water to New York city; that plaintiff was employed by them upon said work, and that the duties of his employment called him in and out of a certain tunnel then in progress in the course of said work; that while so engaged in said tunnel, plaintiff was injured by the falling of a large piece of rock from the roof of the tunnel. It also appeared that the peculiar and dangerous condition of the roof had been noticed by others .prior to the happening of the accident. Plaintiff contended that defendants were negligent in not timbering said roof, and otherwise.
    Further facts appear in the opinion.

      W. T. Daniel, attorney, and Robert Sewell, of counsel, for appellant:
    I. It is error for the court to grant a nonsuit if by any allowable deduction from the facts a cause of action might be sustained, by the plaintiff. Greany v. Long Island R. R. Co., 101 N. Y. 419 ; Vanderwald v. Oslen, 1 N. Y. St. Rep. 506; Hart v. Hudson R. R. Co, 80 N. Y. 622; Delaney v. Hilton, 50 Super. Ct. 341; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Metro. Ry. Co. v. Jackson, 3 App. Cas. 193; Feltham. v. England, L. R. 2, Q. B. 46; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Manning v. Hogan, 78 Ib. 615; Young v. N. Y. C. R. R. Co. Daily Reg. July 15, 1885; Barry v. N. Y. C. R. R. Co., 92 N. Y. 289; Lehigh V. R. R. Co. v. Greiner, 9 East. Rep. 787; Hyatt v. Johnson, 91 Penn. St. 200; Ryder v. Wombwell, L. R. 4 Exch. 39; Improvement Co. v. Munson, 14 Wall. 442.
    II. It is in evidence : 1. That after a blast is fired the shaft boss should go in first to make proper examination,, and that he did not go in first after the blast which had. preceded the accident. 2. That the ground was bad, full of seams, rotten, dangerous and unsafe. 3. That the foreman and walking boss had been repeatedly warned of it by those working in the heading who were miners. 4. That the very stone that fell upon the plaintiff had been tested and pointed out as unsafe and' liable to fall any minute, that it was hanging down and loose so “ that a crow-bar could be run between.’ ’ 5. That it could have been made safe by removing it from the roof of the tunnel, but it was not done, and one man who attempted to pull it down was prevented by the boss. 6. That it could have been made safe by timbering or by supports, and that it was customary to timber such places, and practicable in this case. But the foreman refused to timber it, and it was not timbered. 7. That prizes were offered to the foremen of different shafts for those which would make the greatest heading in a given time.
    III. Plaintiff was employed not as a miner but to carry oil and candles to the" miners and laborers. He “hired to do anything in the way of ordinary labor.” He was merely an ordinary laborer and employed only as such, and charged with no technical knoAvledge such as miners might be presumed to possess. He was not a judge of the stability of different kinds of earth. It was not his duty to examine the roof of the tunnel. He was merely to go from the outer light into the darkness of an underground tunnel, which was to be made safe and fit for him to traverse by the defendant, carrying oil, candles, tools and water to the men. Further, if the plaintiff were a miner, that does not render him guilty of contributory negligence. He had a right to assume that the ground above him and around him,, deep down in the dark tunnel, was properly supported by those whose duty it was to furnish him with a safe place to work in. Gottleib v. N. Y., L. E. & W. R. R. Co., 29 Hun, 637, 740 ; affirmed 100 N. Y. 462; Hayes v. Bush & D. M. Co., 41 Hun, 407. He took the risk in entering the employ of the defendant of “ all hazards incident to the nature of the employment,” but he did not take the risk of injuries resulting from a “ cause which the exercise of proper care and prudence on the part of the master would have foreseen and guarded against.” Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368 ; Flike v. B. & A. R. R Co., 53 Ib. 549; Booth v. B. &. A. R.. R. Co., 73 Ib. 40; Ryan v. Fowler, 24 Ib. 410; Hutchinson v. Ry. Co., 5 Wells, H. & Y. 352; Noyes v. Smith,, 28 Vt. 59; Sheenan v. N. Y. C. & H. R. R Co., 91 N. Y. 339.
    IV: If there is any evidence or any possible inference' from the testimony of any of the witnesses which imputes any negligence to the plaintiff it is clear that the question of contributory negligence was clearly one for’ the jury and not for the court. Gibson v. Erie R. R. Co., 63 N. Y. 451; Laning v. N. Y. C. R. R. Co., 49 Ib. 521; Hawley v. N. C. R. R. Co., 82 Ib. 370; White v. Sharp, 27 Hun, 44; Sprong v. B. & A. R. R. Co., 58 N. Y. 56 ; Jones v. N. Y. C. & H. R. R. Co., 28 Hun, 364; aff’d 92 N. Y. 628; Vanderwald v. Olsen, 1 N. Y. St. Rep. 506. “The culpability of the defendant must be affirmatively proved before the case can go to the jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances.” Johnson v. H. R. R. Co., 20 N. Y. 65; Jones v. N. Y. C. & H. R. R. R. Co., 28 Sun, 364; affirmed 92 N. Y. 628; Williams v. Del., Lack. R. R. Co., 39 Hun, 430.
    V. While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably apprehend injury, generally imposes upon him the duty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this state to be a question of .fact to be determined by the jury. Bassett v. Fish, 75 N. Y. 304; Palmer v. Dearing, 93 Ib. 10; Weed v. Village of Ballston Spa., 76 Ib. 329; Niven v. City of Rochester, 76 lb. 619.

      E. T. Lovatt and Sooner A. Nelson, for respondents.
   By the Court.—Truax, J.

The plaintiff in an action of this kind must prove more than the negligence of the defendant; he must prove that he, himself, was free from negligence, before he can recover. This fact the plaintiff failed to prove ; he failed to prove that he was ignorant of the condition of the rock, the falling of which injured him.

The burden of proving his own freedom from negligence is as much a part of the plaintiff’s case as is the burden of proving the defendant’s negligence, and if he fail to prove either the one or the other, he has not proved facts sufficient to constitute a cause of action. Reynolds v. N. Y. Cen. & H. R. R. Co., 58 N. Y. 248; Hale v. Smith, 78 Ib. 480; Hart v. The Hudson Riv. Bridge Co., 84 Ib. 56 ; Becht v. Corbin, 92 Ib. 658.

The only evidence on this point is the evidence of the plaintiff himself, to the effect that he could not say whether he had or had not noticed the peculiar and dangerous condition of that portion of the roof which fell on him. This evidence does not come up to the requirements of the law; it does not prove that the plaintiff was ignorant; and in this respect the case now before us differs from Pantzar v. Tilly Foster Iron Mining Co., 99 . N. Y. 368, where the evidence tended'to show, and the jury were warranted in finding, that the plaintiff was ignorant of the dangerous condition of the rock that fell on him.

If the plaintiff had testified that he was ignorant of the dangerous condition of affairs, it would then be left .for the defendant to show, first, that he was not ignor.ant; and, secondly, if ignorant, that he was negligently ignorant, in which event the plaintiff’s negligence or freedom from negligence would become a question for the jury.

The burden of proving the plaintiff’s negligence •should not in the first instance be put upon the defendant.

If the plaintiff knew of the dangerous condition of "the rock, he had no right to rely upon the presumption ■ of the performance of the duties that the defendant owed to him of “adopting proper and suitable measures of precaution to guard him against the consequence of any danger arising from the unsafe condition of the rock.” If he did not know, then he had the right to rely on the obligation put upon the defendant by the law; but he must either testify that he was ignorant, or the evidence in his own behalf must be such as would warrant the jury in finding that he was ignorant. But there is nothing in the plaintiff’s testimony in this case that would warrant the jury in finding that he was ignorant ■ of the condition of affairs.

The above is, I think, the rule to be deduced from such cases as Laning v. The N. Y. Cen. R. R. Co., 49 N. Y. 521; Gibson v. The Erie Railway Co., 63 Ib. 449; Leonard v. Collins, 70 Ib. 90 ; De Forest v. Jewett, 88 Ib. 264.

There are certain cases which it is claimed are authorities for the proposition that the burden of proving the plaintiff’s knowledge is upon the defendant. Of this «class of cases are, Niven v. The City of Rochester, 76 N. Y. 619; Plank v. The N. Y. C. & H. R. R. Co., 60 Ib.. 607; Williams v. The Del., L. & W. R. R. Co., 39 Hun, 430, and Pantzar v. The Tilly Foster Iron Mining Co., supra. These cases are not authorities for such a proposition.

The Plank case is not correctly reported. See De Forest v. Jewett, 88 N. Y. 269, from which last case it-appears that the person injured as a matter of fact had no knowledge of the defect in the thing through which he was injured.

In the Niven case, while the person injured had at one time knowledge that the sidewalk was in a had condition, yet she was ignorant of the particular defect (a hole in the sidewalk) that caused her injury. Moreover, she was walking carefully.

In Palmer v. Dearing, 93 N. Y. 7, the plaintiff knew of the defect that caused her injury; but she had been told, a day or two before the accident, by the defendant’s agent, that the defect would be repaired, and at. the time of the accident she supposed that it had been repaired; in other words, she was then ignorant of the defect.

Whether the plaintiff was or was not ignorant of the' existence of the thing through which he was injured was one of the questions in dispute in Williams v. The Del., Lack. & West. R. R. Co., supra, and therefore the question of plaintiff’s contributory negligence was rightly left to the jury.

We have also seen that, in the case of Pantzar v. The Tilly Foster Iron Mining Co., supra, the evidence showed that the plaintiff was ignorant of the defect.

This view of the law renders it unnecessary for us to' consider the questions raised by the rejection of certain, evidence offered by the plaintiff, as that evidence tended, only to prove the negligence of the defendant.

The judgment appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    BENJAMIN WEBB, et al., as Admr’s., &c. v. DAVID B. SANFORD.

      Will—devise of life estate, with limited power of disposition.

    Where the will gives the devisee, the testator’s wife, a life estate in his-. real property, and then provides, “ it is my will that.....my real estate be at the disposal of my wife for distribution among her own relatives,”—upon the death of such devisee without the exercise of this power, the fee is held by the heirs of the testator, free from such power.
    Upon construction of the will in question in this case, held that it gave-to the widow only a life estate in the realty, with a limited power of disposition thereof.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided November 21, 1887.
    Questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure.
    The facts are substantially as follows —One Benjamin Webb, in his lifetime, made and published his last will and testament, dated the 11th day of June, 1840, in due form of law, to pass real estate under the laws of the state of New York. By this will he gave his wife, therein named, all his household furniture and certain other property, and the use and improvement of all his real estate during her natural life for her support. He then directed that one third of his “ real estate be at the disposition of his wife for distribution among her own relatives.” The remaining two-thirds of his real estate he gave and bequeathed to certain of his relatives who were named in the will, and he then directed that at the decease of his wife his real estate be sold and divided and paid over as above directed. Said Benjamin Webb died in the month of August, 1840, without issue and with■out in any manner having revoked or altered the devises contained in the said will, which was duly proved ■and admitted to prohate according to law, as the last will and testament of the real and personal estate of the said Benjamin Webb, deceased, before the surrogate of the county of New York, on or about the 22d day ■of September, 1840. The wife of the said Benjamin Webb survived him, and died in the year 1870, intestate, without having made any disposition among her-•relatives of the one third of the testator’s real estate, relerred to in said will.
    The question which is submitted to the court is as •follows: Did the one third of the real estate of the said Benjamin Webb, as to which the said will provided as follows: “ It is my will that one-third of my real estate be at the disposal of my wife, for distribution among her own relatives”—the widow of said testator having died without making any distribution of the same—descend to the heirs of the said Benjamin Webb, the testator above named?
    It was agreed that if this question was answered in the ■affirmative, judgment was to be rendered against the said defendant for a certain amount, and that if the •question was answered in the negative, then judgment is to be rendered in favor of the defendant against the plaintiffs.

      Stapler & Wood, for the plaintiffs :
    I. The estate granted to Mrs Webb under the will was a limited estate, viz.: An estate for life, and the power of distribution which was placed at her disposal was not absolute, but limited in the scope of its exercise to a particular class; the fee, therefore, did not become vested in Mrs. Webb, but descended to the heirs of the testator, subject to being divested by the exercise of the power placed at her disposal. Her death without embracing the opportunity afforded her by the testator of .showing favor to her relatives, if she should see fit to do so, left an indefensable estate in fee simple to the heirs, since the fulfillment of the condition of the divestment of the estate, viz.: the desire of Mrs. Webb to benefit some one or all of her relatives, as expressed by the exercise of the power, was forever rendered impossible. See Sugden on Powers, 179; Liefe v. Sattingstone, 1 Mod. 189 ; Bradley v. Westcott, 13 Ves. jr. 445; Jackson v. Robinson, 16 John. 537; Flimthan’s Appeal, 11 S. & R. 23.
    II. The Revised Statutes, while enlarging the life estate accompanied by an absolute power of disposition of the remainder to a fee, have not changed the rule established by the common law, that where the estate is for life, and the power of disposition is not absolute but limited, the estate' for life is not enlarged to a fee. 3 R. S., Banks, 7th ed., p. 2, 189, § 81. An absolute power of disposition is defined by the Revised Statutes as follows : “ Every power of disposition shall be deemed absolute by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.” 3 R. S., Banks, 7th ed., p. 2, 189, § 85. That the devisee of a life estate accompanied by a limited power of disposition of the remainder, and especially by a mere power of appointment, in the event of the life tenant desiring to execute the same, does not create a fee in the life tenant under the Revised Statute is not only clear from the above considerations, but is well settled by unquestioned authority. Terry v. Wiggins, 7 N. Y. 514 ; Trustees of Auburn Seminary v. Kellogg, 16 N. Y. 83; Taggart v. Murray, 53 N. Y. 233 ; Smith v. Van Ostrand, 64 N. Y. 278. See also Van Horn v. Campbell, 100 N. Y. 301.
    III. It is therefore clear that Mrs. Webb did not take a fee in this one third of the real estate in question, and this result clearly harmonizes with the intent of this testator. This intent is clear. He provided for the vesting of two-thirds of his real estate by specific divises. But as to the remaining one third he provides : “It is my will that one third my real estate be at the disposal of my wife for distribution among her relatives.” There is here no specific clause ipso facto changing the title of this estate from himself and his heirs to specific devisees; but in words indicating as clearly as the English language can express the purpose that one third of his real estate is to be, to remain in its then status of ownership, with liberty to his widow, if she sees fit to do so, to divert it to her own relations. The volition of Mrs.'Webb to so divert it is the necessary step to be taken before the property can be changed from its status as the undisposed of realty of. the testator, expressly so left by him in order that his widow, if she saw fit, might have the liberty of disposing of it to her relatives. The phrase “ at the disposal of ” also clearly shows this intent. The phrase is the ordinary phrase of our language which is used to permit the use by another of one’s property while retaining the full ownership and control of it until such permission is accepted.
    IV. There is nothing in this clause which justifies its construction as a “trust power,” or as a technical statutory power. There is no possible construction whereby the clause can be made imperative. There is no possible direction, no wish, no condition; merely an opjDortunity given for Mrs. Webb to exercise it, if she chooses. In the nature of things there is a wide distinction between a power and a trust. In the former a party may or may not act in his discretion. Story s Eq. Jur., § 1007; 2 Redfield Wills, 412. The power to appoint is considered a trust, in default of complete appointment, where the direction to appoint is imperative and the subject matter and the objects of the power can be distinctively defined. 4 Vesey, 708; 2 Hill, 569. Even if the words of this will were of doubtful import, a trust would not be spelled out by the court, since “ the tendency of modern decisions is not to extend the rule or practice which from "words of doubtful meaning deduces or implies a trust.” Foose v. Whitmore, 82 N. Y. 406.

      Charles W. Dayton, for defendant.
   By the Court.—Truax, J.

While it is well settled that a valid executory devise cannot at common law be limited after a fee, upon the contingency of the non-execution of an absolute power of disposition vested in the first taker, it is to be noticed that the first taker under the will of Mr. Webb did not have an absolute power of disposition. Her power of disposition was limited to the persons therein named, namely, her relatives; and :a disposition made otherwise than among her relatives would have been illegal and void. For this reason the will does not fall within the rule laid down by the court •of appeals in Van Horne v. Campbell, 100 N. Y. 287.

We are of the opinion that the will gave to the wife ■a life estate in the property with a limited power of •disposition, to be exercised by her in the method provided in the will; and that upon her death before any •exercise of this power of disposition, the heirs of the "testator held the fee freed from the power.

Judgment is ordered for the plaintiff for the amount ".mentioned in the consent.

.Sedgwick, Ch. J,, and Freedman, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    THE NATIONAL PARK BANK OF NEW YORK, Respondent, v. WILLIAM REMSEN, Appellant.

      Laws of 1882, chapter 701—Stockholders of corporation incorporated by— Liability of— Statute of limitations.

    Stockholders in the German, American Mutual Warehousing & Security Company are not liable for debts made or, incurred by the compauy after the capital stock has been fully paid in, and a certificate thereof duly filed and recorded, in the county clerk’s office, pursuant to sec- ■ tion 9 of chapter 701, of the Laws of 1872.
    The six years statute of limitations begins to run in favor of such stock- ■ holders, as soon as the company neglects or refuses to pay the debts, or perform its contract, in respect whereof the stockholders are sought to be held liable.
    Section 24 of chapter 40 of the Laws of 1848, the General Manufacturing-Act, prescribing the condition on which stockholders in corporations formed under that act, shall be liable for the debts of the corporation,, does not apply to stockholders in the corporation chartered by chapter 701 of the Laws of 1872; because, (1) Those provisions are not privileges which are included in and covered by the term privileges used in the 9th section of chapter 701 of the Laws of 1872; in fact not a privilege at all. (2d) Even if those provisions in chapter 40 of the Laws of 1848, constituted a privilege, still they are not applicable to the case at bar, because they would be inconsistent with the provisions of the act of' 1872.
    Before Sedgwick, Ch. J., Truax and Freedman, JJ.

      Decided December 5, 1887.
    Appeal by defendant from judgment entered on a verdict as directed by the court, and from an order denying a motion for- a new trial made upon the minutes.
    The defendant had been and was a stockholder of a warehousing corporation, incorporated by chapter 701,. Laws of 1872. The company was indebted upon certain promissory notes, upon which actions had been brought against it, judgment against it obtained, and execution thereunder returned unsatisfied. This action was brought against the defendant, as liable for the debts and contracts of the company that are above referred to. The defendant’s liability was placed' by the plaintiff’s counsel and by the court below, upon the 9th section of the charter, as follows: The stockholders of said company incorporated under this act, shall be severally and individually liable to the creditors of said company, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of the capital stock fixed and limited by such company, shall have been paid in and become full stock, and a certificate thereof shall have been made and recorded in the clerk’s office of the county, etc., and when the stock held by such stockholder shall be full paid stock, then to the extent of said stock only, with costs against such stockholder. The corporation hereby created shall possess all the general poAvers and pmdleges, and be subject to all the liabilities conferred and imposed upon corporations organized under and in pursuance of an act, etc., passed February 17, 1848, and the several acts extending and amending the same, Avhere the provisions thereof are not inconsistent Avith the express provisions of this act, etc.” The act of February 17, 1848, is the general manufacturing act.
    One defence was under the statute of limitations.
    Another defence AAras that certain of the liabilities of the company, and upon which the plaintiff obtained judgment in this action, were not incurred by the company until after the Avhole capital had been paid in, and a certificate thereof recorded.

      William H. Ingersoll, attorney, and of counsel for appellant.

      Barlow & Wetmore, attorneys, and Francis O. Barlow, of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The learned counsel for the respondent supports the claim to recover for liabilities incurred by the company, after payment of the capital and the recording of the certificate, by this sentence of the 9th section of the charter: “ and when the stock held by such stockholder shall be full paid stock, then to the extent of said stock only with costs,” etc.

The words “full paid stock ” do not refer to the whole capital stock of the company. They refer to stock held by the stockholder individually, for which or upon which the full amount which should have been paid, has been paid. By the charter, commissioners in the first instance, and afterwards the directors, take subscriptions to the capital stock, to a gross amount, as directed by the act. Some of the subscribers may pay the full amount due under their subscriptions, and cannot be called upon by the directors for further payment. ■ Others may fail to pay the whole, or a part of the amount due under their subscriptions. Or the amount of the capital fixed under the law, may. be subscribed for only in part, and that part may be fully paid for. In such case, the stock that had been entirely paid for, would be “ full paid,” while at the .same time the whole amount of the capital had not been paid in. The sentence of the section expressly refers to stock, as severally held by a stockholder, and not to the capital stock taken as a whole.

The next question is, what is the liability of a holder of such “ full paid ” stock ? The sentence in view does not describe it. Therefore, there would be none, but for the implied reference to the earlier part of the section. This earlier part creates a liability “ for all debts and contracts made by such company”......“until the whole amount of the capital stock fixed and limited by such company, shall have been paid in, and become full stock,” and a certificate thereof recorded. The respondent’s counsel, in the course of the argument, admits or claims that this means debts and contracts “made” before the certificate has been recorded. This earlier part of the ■section creates no liability for debts “ made ” after the payment of the capital and the recording of the certificate. As the later part refers the liability to the preceding matter, there was created by the section no liability for debts or contracts incurred or made after the recording of the proper certificate.

On the argument, there was no assertion in behalf of the respondent that the capital had not been paid in fully, and a certificate of that recorded, before the indorsement of the note of November 27, 1878, and the recovery of judgment for costs and disbursement in the ■action against the company.

I am, therefore, of the opinion that the plaintiff should not have recovered for any part of that note, or for the costs and disbursements in the action.

I think the recovery for interest on the amount of the •debt of the company before this action was begun, was correct, if the recovery is not objectionable for other reasons. The principal and interest, down to the beginning of the action, were not together more than the amount of shares held by the defendant.

The statute of limitations was pleaded to the supposed causes of action. The action was not brought, until after six years from the time the company had failed to pay its obligations, with which this defendant is here charged. This defense should have been sustained if the 9tlx section of the charter is the only statute to be considered, for then a liability, upon which an action could be begun, Avould exist at least as soon as the company had neglected or refused to pay its debts, or perform its contracts, the capital not being paid and a certificate thereof recorded. The respondent contends that another statute is to be considered, in the provisions of section 24 of the general manufacturing act of 1848 (2 R. S., 6 ed., p. 508, § 59 [24]): “No stockholder shall be personally liable for the payment of any debt contracted by a company formed under this act, which is not to be paid, within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall have become due,......nor until an execution against the company, shall have been returned unsatisfied in whole or in part.” The 10th section of the manufacturing act had, in its words, said generally that stockholders should be hable for the company’s debts. The form of the provision is substantially the same as the first ¡Dart of the 9th section of the charter, in this case. The 9th section of the charter also provides that the corporation shall possess all the general powers and privileges, and be subject to all the liabilities conferred and imposed upon corporations organized under “ the general manufacturing act, as amended....... when the provisions thereof are not inconsistent with the express provisions of this act.” It is argued that a stockholder is a part of the corporation under the charter and therefore has the privileges of a stockholder, under the section 24 of the manufacturing act, and among the others, the privilege of not being sued for the debts of the company until after a return of an execution upon a judgment obtained against the company in an action upon its contract. If this position is valid the statute of limitations is not a defense. This action was begun within six years after the return of such an execution, in an action against the company brought in due time.

In the beginning, let it be conceded that a stockholder is a part of the corporation. It is then to be ascertained what are the “privileges” intended by the 9th section of the charter. The words are the “ general powers and privileges.” According to the ordinary use-of words, the word “ general ” qualifies “ privileges,” as it does “ power.”- The meaning is “general privileges.”" I am of opinion that the “ privileges ” meant, are such as would belong to the whole of the corporation, as a. -corporation, and not a particular privilege, that would belong to a particular part oí a corporation. The limited character of the privilege claimed, shows that it is not general as to all the parts of a corporation, for it ■ does not refer to the corporation as a legal person. Its subject matter is not general, for the regulations that contain it are based upon a particular combination of facts.

I am of opinion however, that the 24th section of the manufacturing act does not contain a privilege whether general or otherwise, of a kind intended by the 9th section of the charter. The privilege argued for is that the stockholder is exempt from liability for debts, upon which no action has been brought against the corporation. Exemption from liability is not a privilege, even in a colloquial or figurative sense, unless, but for the -exemption, there would be liability. The enjoyment of a legal right is not a privilege, in a legal point of view. And to maintain that the benefit, supposing there is a benefit, in the provisions of the 24th section, .it is necessary to show that, but for that section, there would have been a liability for all debts, as soon as they arose. Taken by itself, the section .intimates that there would have been the general liability, if the 24th section had not become law. This .intimation is justified by the 10th section only. But in fact, the 10th section in its 'generality, never became law, until the act itself was made the law, and then all the parts were to be construed together. Before the passage of the act, the generality of the 10th section had been restrained by the provisions of the 24th section. So that in reality, the stockholder had never been liable generally, for all the debts, but only for those debts upon which action had been begun and prosecuted to a return of execution unsatisfied, in whole or in part. If he had never been liable generally, the 24th section - contains no exemption from liability, although it is also true, that if the 10th section had become law, before the 24th section became law, there would have been the, general liability, until a law like the 24th section limited that general liability. The 10th section and the 24th, section together, create the stockholder’s liability, and. from that as created, there is no exemption.

On this point, another thing is to be brought in view.. That is, that but for the 10th and 24th sections of the manufacturing act, the stockholder would not have been, to any extent liable for the debts of the company, and the effect of the sections is not a privilege or an exemption, but a liability of the stockholder.

I am therefore of the opinion that there was no “ privilege ” to a stockholder found in the true construction of the 24th section, and that what is called a privilege, is a part of a description of a cause of action against the stockholder, created when the act was passed.. It was no privilege. It only shaped his legal obligation.

It would seem clear that the question is not whether one cause of action is more or less onerous or rigid, or of advantage, than another. All causes of action involve by presumption, the same justice and regard for obligations and policy. The person liable to any particular cause of action, has no privilege in that cause of action as being more lenient to him than some other-cause of action would he.

The case of Wakefield v. Fargo,. 90 N. Y. 213, is cited as being adverse to these views. I do not think so, after considering the title and words of the act in question in that case. The court held that a stockholder in a certain corporation became subject to liability under the 18th section of the manufacturing act, “for all debts that may be due and owing to their laborers,” etc. The corporation had been formed, as the court held, under chapter 63 of the Laws of 1863, p. 87. The title was, “An act to extend the operation and effect of the act passed February 17, 1848, entitled ‘ An act to authorize the formation of corporations, for manufacturing etc. purposes.’ ” The first section was, “ Any three or more persons may organize themselves into a corporation in the manner specified and required in and by” the manufacturing act, “ for the purpose of bottling and selling mineral water,” etc. The second section was, “Every corporation so formed, shall be subject to all the provisions, duties and obligations contained in the above mentioned act, and shall be entitled to all the benefits and privileges theréby conferred.” This act was substantially an amendment of the general manufacturing act, and furnished' sure indications that all the provisions of the latter act were applicable to the corporation to be formed under the act of 1863. These indications are absent from this case.

I am further of the opinion that the terms of the 24th section, if they should contain the privilege as claimed, are not applicable to the corporation in this case.

The express provision of the 9th section of the charter is, that the stockholders shall be liable to the creditors for all debts and contracts made by such company. This is to be first construed. It expressly describes an unconditional liability, perfect, and furnishing a cause of action to a creditor, as soon as there are debts and contracts made, upon which action might be brought against the company, and, perhaps, the company has made default. Any provision of the manufacturing act that would declare of such a kind of liability, that it should not exist and no action should be brought upon it, until after the return of an execution in an action against the company, would not be consistent with the express provisions of the 9th section of the charter. This is clearer, if looked at from the side of the creditor. His rights and those of the stockholder are correlative. The express provision of the 9th section is, that the creditor shall have the cause of action when the company becomes liable. It is inconsistent with this, that he should have no cause of action until after the return of execution.

The ninth section applies the provisions of the manufactoring act to this corporation “ where the provisions thereof are not inconsistent with the express provisions of this act.” For this reason the 24th section of the manufacturing act does not affect the rights of the stockholder or the creditor. As the action was brought more than six years after the cause of ' action had occurred, the statute of limitations was a defense that should have been sustained.

Nothing has been said of that part of section 9 which subjects the corporation to all the liabilities imposed upon corporations formed under the manufacturing act. It would be necessary, under the views expressed, to hold that there was on this subject, as well as regards privileges, an inconsistency which would prevent the application of the 10th and 24th sections of the manufacturing act. The counsel for respondent does not claim that the liability in this case is found elsewhere than in the charter. It is unnecessary to corroborate that position.

The .judgment should be reversed, as well as the order denying the motion for a new trial. There should be a new trial, with costs to abide the event.

Truax and Freedman, JJ., concurred.


author: By the Court.—Ingraham, J.

text:
    CHARLES ROBINSON, Respondent v. THE NEW YORK, LAKE ERIE & WESTERN R. R. CO., Appellant.

      Reference—When ordered.

    The complaint in an action on a contract of indemnity, showed that plaintiff defended certain actions, the expenses of which defense, the defendant here was hound, under said contract, to repay plaintiff; that plaintiff paid therefor $13,177.70, for which sum judgment was demanded. In response to defendant’s request, plaintiff served a bill of particulars of Ms claim, showing twenty-four items of money paid by him from May 19, 1878, to March 8, 1882. The answer among other defenses, put in issue the employment by plaintiff of attorneys and counsel to defend said actions, and the payments alleged to have been made by plaintiff, and also set up two counterclaims; the first alleging that the agreement relied on in the complaint was obtained by fraud, and asking judgment that it be cancelled; the second re-alleging the ground of the first counterclaim, and demanding a money judgment for damages.

      Held, it sufficiently appearing from the pleadings and the bill of particulars, that the examination of a long account will be involved in the trial, and it also appearing from the record that no difficult questions of law are presented,.—a proper case for, a reference of the whole issues, including those made by the counterclaims.
    Before Sedgwick, Ch. J., Freedman, and Ingraham, JJ.

      Decided December 12, 1887.
    Appeal from order of the Special Term referring the issues in this action for trial before a referee.
    The facts appear in the opinion.

      Abbett & Fuller, attorneys, and Henry Schmitt, of ■counsel, for appellant.

      Burnett <6 Whitney, attorneys, and of counsel for :respondent.
   By the Court.—Ingraham, J.

The complaint in this action alleges the execution of a contract, whereby the defendant agreed to hold plaintiff harmless from all ■claims, demands and suits, which might be brought against him on account of certain transactions therein alleged, and that defendant would indemnify and reimburse him (plaintiff) for all expenses which he might be put to, or compelled to pay, on account of the transfer of certain stocks therein referred to, or claim of ownership thereto ; that, subsequent to the execution of such ■agreement, certain actions were brought against the plaintiff on account of the ownership of said stock, and. that plaintiff requested the defendant to assume the-defense of said actions, but that defendant authorized and requested the plaintiff to defend such actions, and agreed to assume the expenses of such defense; and that plaintiff paid for the expenses of such defense the sum of $13,177.70, for which he asks judgment.

In response to a demand of the defendant, the plaintiff' served a bill of particulars of his claim, showing twenty-four items of money paid by the plaintiff, from May 19, 1878, to March 8, 1882.

The answer of the defendant puts in issue the employment by plaintiff of attorneys and counsel to defend such suits, and the payments made by plaintiff, as specified in his book.

The plaintiff, to recover the amount demanded in this action, will have to prove each item set up in his bill of particulars, and also prove that the same was-paid in the defense of the suits mentioned in the agreements.

By section 1018 of the Code, it is provided that the-court may, of its own motion, or upon the application of either party, without the consent of the other, direct the trial of the issues of fact by a referee, when the trial will require an examination of a long account on either side, and will not require the decision of difficult questions of law.

The case of Welsh v. Darragh, 52 N. Y. 592, is a direct authority to sustain the power of the court to-refer this action. There the action was for goods sold and delivered, and the bill of particulars showed that' there were twenty-six items of specified articles of merchandise, which were alleged to have been sold and delivered to the defendants, at specified prices. It was-held that actions on contract could be referred; that the nature of the action must be determined by the-complaint, and the answer could not change it. If the - action is a referable one, the answer could not make it. non-referable; and that the number of items was sufficient to make a long account within the requirements-of the statute.

What is said there will apply to this case, and it would be extremely inconvenient if not impracticable, for a jury to try each of the twenty-four issues, and determine which of them had been proved and which should be disallowed as unproven. The fact that an examination of an account will be involved in the trial of the issues, is apparent from the pleadings and the bill of particulars. It is not necessary that the fact that an examination of a long account is- involved, should be shown to the court in any particular manner; Avhere it does so appear, either by the pleadings or by affidavit, the court may refer.

The case of Camp v. Ingersoll, 86 N. Y. 433, is not-in conflict with this decision. In that case the issues in the action did' not involve the examination of accounts. Such examination could only be necessary collaterally; the account was not the ground of the action, but it was-alleged that an examination of the accounts between a party to the action and a third party would prove that there was a defense to the action.

We think therefore that it did appear to the court below that a trial of the issue of fact in this action will require an examination of a long account, within the section of the Code referred to. The defendants, claim, however, that section 974 of the Code, requires that the counterclaims set up in the answer must be tried, either before the court or by a jury. That section provides that when the defendant interposes a counterclaim, the mode of trial of an issue of -fact arising-thereon, is the same as if it arose in the action brought by the defendant against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment. The first counterclaim set up in the answer alleges that the agreement set up in the complaint was obtained by fraud, and asks judgment that it be cancelled and annulled. This would be an equitable cause of action and would be triable as directed in section 969, viz.: before the court, unless a reference is ordered. In this case as a reference has been ordered, the trial before a referee will not be in conflict with that section. The second counterclaim re-alleges the ground set up as a ground for the equitable relief asked for- in the first counterclaim, and demands judgment therefor for sixty thousand dollars. This counterclaim would under section 914, be triable as directed by section 968, that is, by a jury, unless a jury trial is waived, or a reference is directed, and as a reference has been directed, a trial before a referee would not be in" conflict with that section.

We have examined the record and can see no difficult questions of law presented. On the case as presented, therefore, we think the court had power to refer the action, and that such power was properly exercised.

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

Sedgwick, Ch. J., and Freedman, J., concurred.


author: Per Curiam.

text:
    FRANCIS LAHEY, Appellant, v. GOUVERNEUR KORTRIGHT, Individually and as Trustee, &c., et al., Respondents.

      Bill of particulars of specific defects in title.

    In an action by the vendee of real property to recover of the vendor the amount of the deposit made by the vendee, and expenses of examining title, etc., on the ground that the vendor could not give good title, the court may order a bill of particulars of the specific defects claimed in the complaint to exist in defendant’s title.
    .But the court will not concurrently order such a bill of particulars and that the pleading be made more definite and certain as to the same matters.

      Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 12, 1887.
    Appeal from an order requiring plaintiff to make his reply more definite and certain, by specifying the particulars in which he claims defendants’ title to be defective; and to furnish defendants with a bill of particulars setting forth the specific defects claimed in the complaint to exist in defendants’ title.
    The action was to procure the repayment to the plaint • iff of the ten per cent, deposited by him with the auctioneers, on a stile by auction of certain real estate, and to recover the expenses of examining the title, on the ground that the vendors could not give a good title. The answer, among other things, alleged a cause of action against the plaintiff for a forfeiture of the ten per cent., alleging that the vendors have a good title. The reply to this cause of action repeated substantially the allegations of the complaint.

      James F. Malcolm, attorney, and S. Jones, of counsel for appellant:
    I. Defendants allege in the answer that they have a good title. It would be more appropriate to us to ask to be informed as to what the facts are constituting that good title. We allege that, so far as we know, their whole title is derived from the will and court proceedings set forth in both the complaint and reply, with great particularity. If there is any other source of title they know it, not we. We then, rather than they, should be seekers after information.
    II. The allegations in the reply are absolutely definite and certain. They allege that the only right and title of the defendants are such as are derived from a will and certain court proceedings, particularized and set forth, and that nothing therein contained gave the defendants any power or authority to convey in fee simple. Nothing can be more clear or definite than that we base -our objections to the title on the insufficiency of that will and the said court proceedings to vest in defendants a right to convey in fee simple.
    III. Defendants want us to furnish them with the points of law (not the argument) upon which we rely to establish such inefficacy. This is not the office of a bill ■of particulars. Higganbottom v. Green, 25 Run, 214, 216. Nor is it the office of a pleading. The defendants have the same means of knowledge and information as to defects in the said will and court proceedings, as the plaintiff. Indeed they ought to have better, for they claim under them. There is no difficulty in putting on the defendants the burthen of establishing ■defects. Indeed they have done so by their answer to the complaint. For this reason, if no other, the motion should be denied. Reardon v. New York, &c., Card Co., 50 Super. Ct.. 514. The defects, if any, depend on the validity of certain legal propositions arising' from the matters appearing on the face of the will, the court proceedings, and on the other facts specifically and particularly set forth in the reply. A respondent might as well, before argument, ask the appellant to furnish him with the points on which he relies to reverse a judgment, .as the defendants ask for the order applied for.

      Platt & Bowers, attorneys, and John M. Bowers, of counsel for respondents :
    I. The motion to make the reply more definite and certain was properly granted. § 546, Code Civ. Proc. The scope of this section is much broader than that of § 160 of the Code of Procedure. The latter was limited to cases where the “ nature ” of the action was uncertain and the cases under that Code limit the application of that section to such cases. The present section in terms ■applies to cases like the one at bar. Notes to Throop’s Code.

    II. The defendants are entitled to the bill of particulars, as ordered. The power of the court to order a bill «of particulars extends to all descriptions of actions. Dwight v. Germania Life Ins. Co., 84 N. Y. 493 ; Tilton v. Beecher, 59 Ib. 184. The case of Doe v. Philips, 6 T. R. 596, in some of its features is like the case at bar. The title to real estate was involved. It was an action • of ejectment, and it was made to appear to the court that the action was founded upon the alleged forfeiture of the term of a lease by a breach of covenants contained in it. The court ordered the plaintiff to furnish particulars qf the covenants, of the breaches, of the times when, . &c., he meant to insist that the plaintiff had forfeited his lease. See also Peters v. Link, 2 Abb., N. C., 419.
   Per Curiam.

Section 531 of the Code provides that the court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party. Tilton v. Beecher, 59 N. Y. 187, states the rule ■ to be, that in almost every kind of case in which the ■ defendant can satisfy the court that it is necessary to a fair trial that he should be apprised beforehand of the particulars of the charge that he is expected to meet, the court has authority to compel the adverse party to specify those particulars, so far as in his power.”

To entitle plaintiff to recover in this action, he must prove that the defendants have failed to convey or offered to convey a good title to the property which the plaintiff agreed to purchase. Baylass v. Stimson, 53 Super. Ct. 233.

The charge that defendants will be called to meet, is that the title that they offered to convey was not a good title to the premises, and we are satisfied that it is necessary to a fair trial of the action that defendants should ■be apprised beforehand of the specific defects in the title. Without such knowledge defendants may be surprised on the trial, by the presentation of 'a defect which it is possible may be met or removed. If there is no substantial defect, plaintiff cannot be injured by being «compelled to.specify such defect.

The order appealed from, however, in addition to-requiring a bill of particulars, requires that the plaintiff make his reply more definite and certain, or specify some particulars that he is required to furnish by the bill of particulars ordered. Both of these remedies are not required, and we think from the nature of the action, that the more appropriate method is to require the plaintiff to furnish the bill of particulars.

The order appealed from should be modified by striking out the provision for the service of an amended reply, and as so modified, affirmed without costs of this appeal to either party.


author: Freedman, J.

text:
    THE CHURCH OF ST. MONICA v. THE MAYOR &c. OF THE CITY OF NEW YORK AND EDWARD V. LOEW, COMPTROLLER OF SAID CITY.

      Taxation, exemption from—Religious Societies, property of in the city of New York—When exempted, under the laws as they stood in 1882—Con-ditions of exemption—Declaring tax assessment void—Injunction, perpetual.

    In 1882, subdivision 3, section 4, title 1, chapter 13, part 1 R. S., providing that, among other buildings, “ every schoolhouse,” and the lot whereon the same was situated, and the furniture belonging to it, should he exempt from taxation,—and chapter 282 of the Laws of 1852, as altered in its re-enactment by section 827, chapter 410 of the Laws of' 1882, providing that “ the exemption from taxation of every..... schoolhouse, or other seminary of learning, “ under the above provisions of the R. S. should not apply to any such building or premises in the city or New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society ”;— constituted the law regulating the exemption from taxation of premises used for school purposes.
    Under these statutory provisions, premises-in-the city of New York used exclusively for school purposes, and being- the exclusive property of a. religious society, were in 1882, exempt from taxation.

      Incorporation not necessary.—It is not neeessary.that a religious society,, exclusively owning premises in the city of New York, which are used, exclusively for school purposes, should be incorporated before it can have the benefit of exemption of such premises from taxation.

      Title not in the name of the society.—In the case at bar, it being established that in the Roman Catholic church it was common to take the title of real estate belonging to its churches, in the name of the pastor of the church owning it; that the premises on which the tax in question was levied, although standing in the name of the pastor of the plaintiff, yet were purchased with money of the church; and that the pastor never claimed any personal.benefitfrom or under the deed—it was held, that the fact that the deed stood in the name of the pastor did not deprive plaintiff of the benefit of exemption of the premises from taxation. So also the fact that the deed was not delivered to the pastor until February, 1882, did not deprive it of that benefit, as to the taxes for the year-1882, it appearing that the contract for the purchase was made in December, 1881, and the fitting up for school purposes took place before the commencement of the year 1882; especially as the books for the correction of errors in the assessment for taxes were not closed until May 1, 1882, on which day the character of the property for purposes, of taxation became fixed.

      Exclusive use for school purposes.—The premises in question consisted of a lot 19 feet 6 inches in width, by about 102 feet in depth. During the whole of the year 1882, every floor of the building on the premises except the top floor was in actual use for the purpose of furnishing instruction to pupils free of charge. The top fioor-was occupied bjr some-sisters of the plaintiff as a residence; but they had the immediate management of the school, and resided there only on that account, and such residence was not a source of revenue or profit to the plaintiff. Held,. that the entire premises were devoted to school purposes.

      Application to the case at bar.—Held, that the property on which the tax for 1882, was levied, was during that year the exclusive property of the plaintiff, a religious society, and was used exclusively for school purposes ; therefore it was exempt from taxation; and that the tax of 1882 was imposed without jurisdiction; and further Held, that plaintiff was entitled to judgment, adjudging the assessment for that tax void;, that the lien created thereby be removed as a cloud on the title; and that defendants be perpetually restrained from collecting the tax.
    Before Freedman, J., at Special Term.

      Decided December 15, 1887.

      Trial of an action.
    The facts sufficiently appear in the opinion.

      Alexander B. Johnson, for the plaintiff.

      Morgan J. O'Brien, counsel to the corporation, and George S. Coleman, of counsel, for the defendants.
   Freedman, J.

This action was brought to have a certain tax assessed for the year 1882, upon a certain lot :and building of the plaintiff in the city of New York, adjudged void, to have the lien created thereby removed as a cloud upon plaintiff’s title, and to perpetually restrain the defendants from collecting the tax. The tax is valid upon its face, and constitutes an apparent lien, hut the plaintiff contends that, at the time of the assessment of the tax, the premises in question were exempt by law from taxation, by reason of their ownership and use.

The evidence shows that at the time in question the plaintiff was a Roman Catholic church ; that the deed to the premises stood in the name of James J. Dougherty, the pastor of the church, with the knowledge and consent of the archbishop; that it was actually in the custody of the archbishop; that the money paid for the premises had been advanced by and on behalf of the ■church; that the premises were used as a parochial school of the Roman Catholic church under the direction ■of said Dougherty, and under the immediate management of certain sisters of the church; and that, upon the incorporation of the plaintiff in 1885, a deed of the premises from Dougherty to the plaintiff was executed. The children taught at said school were girls of the parish of St. Monica-, between the ages of 5 and 16 years, ;and they were taught the common branches of education free of any charge. The school was supported entirely by voluntary contributions.

Upon this state of facts the plaintiff claims that the premises were and are exempt from taxation under the .statute exempting schoolhouses.

The learned counsel for the defendants, on the other hand, contends that the said statute does not apply, because the Court of Appeals in Chegaray v. The Mayor, &c. of N. Y., 13 N. Y. 220, held that the schoolhouse referred to in the statute, is the schoolhouse of the public ■common schools, by which the Court of Appeals must ■have meant the schools maintained by the public authorities.

The statute referred to by the Court of Appeals in the •case cited, consisted of the Rev. Stat. Part 1, ch. XIII, Title 1, section 4, subdivision 3, which read as follows :

“ § 4. The following property shall be exempt from taxation:

“1,.....

“2-,....._

“3., Every building erected for the use of a college, incorporated academy, or other seminary of learning; every building for public worship; every schoolhouse, •courthouse and jail; and the several lots whereon such buildings are situated, and the furniture belonging to each of them.”

The history of the case of Chegaray v. The Mayor Ac., is as follows:

The premises of the plaintiff, Madame Chegaray, were kept by the plaintiff as a young ladies’ boarding and day school, in the city of New York, and a portion of the pupils were lodged and boarded in the building. It was :a private school established and carried on for private •gain. The premises were taxed by the authorities of the city, and, upon the plaintiff’s refusal to pay the taxes, her personal property was seized for the payment thereof by one Jenkins, who was a constable and acted under and by virtue of a warrant issued to him by the receiver of taxes for the city and county of New York. ■She thereupon brought an action against the officer for an alleged wrongful taking of the property, and in said, action claimed that her premises were exempt from taxation under the statute above quoted.on the ground that, the building had been erected for the use of a “ seminary of learning.” The trial took place in October-1849, and resulted in a judgment for the plaintiff. The-general term reversed the judgment and directed judgment for the defendant. Upon plaintiffs’ appeal to the Court of Appeals (Chegaray v. Jenkins, 5 N. Y. 376), it was said by Rugoles, Ch. J., that the school kept by the plaintiff was a seminary of learning which was not required to be incorporated; and that even if it had been only a school, it was exempt, because under the statute-every schoolhouse was exempted from taxation, whether-the school was incorporated or not, and that it made no-difference whether the school was a public common school or a private school, and as such, the private property of a single individual. He was of opinion, however, and voted for the affirmance of the judgment on. the ground that, as the warrant was in due form of law, the defendant, as aii officer, was protected by it. Foot, J., placed his concurrence on the ground that the plaintiff was not an incorporated association. The views of the other judges do not appear from the report. The-final result was that the judgment was affirmed.

Madame Chegaray thereupon brought another action against The Mayor &c., of the city of New York; to recover, as unlawfully assessed, the amount of the taxes-, which Jenkins had collected, and which the complaint alleged he had paid over to the defendants. In that, action the general term gave judgment for the plaintiff, on the ground that her school was a seminary of learning,” and for that reason exempt (2 Duer, 521). Upon, defendants’ appeal to the Court of Appeals the counsel for the plaintiff, as appears from his points, rested the claim to exemption upon the sole ground that plaintiff’s, building had been erected for the use of "a seminary of learning. This claim, the Court of Appeals, in 13 N. Y. 220, held to be untenable. In disposing of it, Hand, J., in delivering the opinion of the court, said:

“ It is evident that it was intended to exempt only property nsed by the public for the purposes of education, or which belonged to a corporation created for the advancement of learning, and thereby devoted to educational purposes. And, it may be remarked, that it is not the college, academy or seminary that is exempt, but ‘ every building erected for the use ’ of these institutions, thereby implying that the words i college ’ and 6 seminary,’ as well as ‘ incorporated academy.,’ were here used to express some legal entity. And this is the only reasonable construction. By that contended for by the plaintiff, any person might build a school-room and establish a private school in his house, and thereby ■exempt the building and the lot from taxation; and, by liberal construction, every house in which a private boarding-school should be kept Avould be exempt. The :school in question appears to be a laudable private ■enterprise; and I should regret A7ery much that our decision should discourage such commendable efforts; but the meaning of the act appears to be plain, and that must control. The case of Chegaray v. Jenkins (5 N. Y., 376) was decided entirely upon another ground, and Avhat was there said by one of the judges on the question now before us was wholly obiter and formed no part of the judgment.”

All the judges, except Gardiner, C. J., who took no part in the decision, concurred in this disposition of the case, and the reversal of the judgment proceeded exclusively upon the ground that the statute had no application to a private seminary of learning owned by a single individual.

This examination clearly shows that the court was not called upon to construe or interpret the words “every school-house” contained in the statute, and that no such question was before the court for determination. "When, therefore, Hand, J., in the introductory part of his opinion, said: “ The property, however, is not exempt from the payment of taxes. Not as a ‘ schoolhouse,’ for the use of that word is familiar in this state, and its meaning in our school laws cannot well be mistaken, and we cannot suppose it was here used in a different sense. It is the building provided for the use of our public common schools,”—his remarks thus made were as much obiter as the remarks of Ruggles, Ch. J.,. in 5 N. Y. 376.

Moreover, the remarks made by Hand, J., concerning; school buildings, were made exclusively with reference to the 4th section of the statute as it stood by itself at the time of the commencement of the action by Madame Chegaray, and as that is a fact which cannot be controverted, it follows that, even if the said remarks constitute a decision, the remark made by Peckham, J., in the case of The Association for the benefit of Colored. Orphans v. The Mayor &c. of N. Y., 104 N. Y 581, as to what was decided in Chegaray v. The Mayor, 13 N. Y.. 220, concerning the meaning of the word “ school-house,” can have no greater weight than the decision itself. ■

Under these circumstances, I not only am at liberty,, but it is my duty to proceed and to examine how far-other statutes affect the question now under consideration.

Under the third section of chapter 262 of the Laws of 1823 (p. 391) all schoolhouses within the state and the-lots on which they stood were exempt from taxation.

By the third section of the Laws of 1825 (p. 123 ), it was provided that “the exemption from taxation of .....any school, under and by virtue of the third section of the said act of the 23d of April, 1823, entitled' an act for the assessment and collection of taxes,’ shall not extend or apply to any such buildings or premises; in the said city (viz.: the city of New York), unless, the same shall be exclusively used for such purposes, and exclusively the property of a religious society, or the New York Free School Society.”

The act of 1823. and all acts amending the same, were' repealed by the 398th section of the general repealing-act contained in 3 Rev. Stat. 1st ed., p. 147. This-, repeal, as held by Euggles, Ch. J., in Chegaray v. Jenkins, carried with it the repeal of the 3d section of the-act of 1825.

The consequence was, that under the Eevised Statutes'of 1830, and at the time Madame Chegaray’s cause of action accrued, and up to the passage of ch. 282 of the Laws of 1852, the 3d subdivision of § 4 of title 1, ch., 12 of part 1 of the Eevised Statutes, was the only provision of law which regulated the exemption of schoolhouses and of the lots on which they stood.

In 1852 it was provided by ch. 282 of the Laws of that year (p. 417), as follows: The exemption from taxation of every building for public worship, and every school-house or other seminary of learning, under the-provisions of subdivision 3 of § 4, title 1, ch. 13, of part 1 of the Eevised Statutes, or amendments thereof, shall not apply to any such building or premises in the city of New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society, or of the New York Public School Society.”

The act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York, being ch. 410 of the Laws of 1882, made no abridgement in the exemptions prescribed by the Eevised Statutes. Section 824 of said act provides that certain property, specifically mentioned therein,, shall be exempt from all taxation, in addition to any which may be exempt by virtue of general laws, and. section 827 is a re-enactment of the act of 1852, above-set forth, with the single exception that the concluding-words, “ or of the New York Public School Society,” are omitted.

Pursuant to section 2143 of the said Consolidation Act, as it stood in 1882, and prior to the amendment by ch.-276 of the Laws of 1883, the said act was to take effect ■on March 1, 1883, but for the purpose of determining the effect of said act upon other acts, except .the Penal ■Code, and the effect of other acts, except the Penal 'Code, upon the said act, the act was to be deemed to have been enacted on January 1, 1882.

The question of exemption, in the case at bar, must be ■determined with reference to the law as it stood in 1882, •and the state of the law in that year, as already shown, was identical with the state of the law under the 3d subdivision of § 4 of title 1, ch. 13, of part 1 of the Revised Statutes and the Act of 1852, taken together, with fhe single exception presented by the omission of the words, or of the New York School Society,” which ■omission is undoubtedly due to the fact .that the said society had ceased to exist in 1853.

Having now ascertained the precise state of the law in the^year 1882, the next step in order is to ascertain, so far as necessary for the proper determination of the question in controversy, the true meaning of the law as it then ■stood. Here two propositions present themselves -for ■construction. The first is that every school-house and the lot whereon it is situated, shall be exempt from taxation. The second is that the exemption shall not apply to any such building or premises in the city of New York, unless the same shall be exclusively used for school purposes and exclusively the property of a religious sociéty. When these two propositions are construed together, the second operates as a limitation upon the ■first. As a necessary consequence the subject of the limitation contained in the second, must be included in the first. At the same timé, the implication necessarily arises that whenever in a case in the city of New York, the conditions specified in the second are met, the exemption specified in the first shall attach. The only ■conditions specified in the second proposition, are that the school-house and premises shall be exclusively used for school purposes and shall be exclusively the property ■of a religious society. No further condition can he imposed by the courts. Nor can either of the conditions specified be imposed, unless the school-house upon which it is to be imposed, belongs to the class comprised within the words, “ every school-house.” The most that can be required is that both conditions shall be concurrently imposed. Such a construction would exclude, rather than include, the public school buildings and premises under the care and control of the Board of Education in the city of New York. Their exemption from taxation is probably secured by other provisions, because the said board is, as has been shown in Donovan v. The Board of Education, 44 Super. Ct. 53, a governmental agency, .created by the sovereign power of the state for the purposes of public education in the city of New York, and because the title to all school property under its care and control is by express statute (Laws 1853, ch. 301, § 14; Consolidation Act, § 1029), vested in the Mayor, Aldermen and Commonalty of the city of New York. But if the exemption of the school-houses and premises under the care and control of said board, were resting solely upon the two propositions now under examination, it could not be made out, except by holding that after all, the true intention of the legislature was that the two conditions of the second proposition should be applied disjunctively, and not conjunctively, and that the word “ and ” which stands between them, should be considered to meán “ or.” It is not necessary, however, to pursue that inquiry any farther, because, as will presently be shown, the plaintiff in the- case at bar has satisfied both conditions. Suffice it to say that it has thus been clearly demonstrated that the words “every school-house,” in their application to the schoolhouses contained in the city of New York, must be held to include at least the school-houses owned by religious societies. Any other construction would render both the act of 1852 and § 827 of the Consolidation Act wholly superfluous and meaningless, as to school-houses.

Upon the evidence it is established beyond doubt that-during the whole of the year 1882, the plaintiff was a religious society. But in this connection, the point is-raised that, inasmuch as the plaintiff did not become-incorporated until 1885, it cannot have the benefit of the statute. In my judgment the subsequent incorporartion is an entirely immaterial fact upon this point.. Under subdivision 3 of § 4, Title 1., Ch. 13, of Part 1 of the Revised Statutes, it is necessary, as has been held by the Court of Appeals, for a college, academy or other-seminary of learning, to be incorporated. But no such requirement can be attached to the words “ every schoolhouse.” Neither the clauses of the said subdivision considered separately, nor the subdivision considered as a whole, admit of any such interpretation. Even the-punctuation is an argument against such interpretation.. Nor can the word “ incorporated ” be imported into the-Act of 1852 or into § 827 of the Consolidation Act, without the violation of well settled rules of construction and-interpretation. So in the case of the Hebrew Free-School Association v. The Mayor, etc., of N. Y., 4 Hun,. 446, it was expressly held that under the Act of 1852,. incorporation was not necessary.

For the reasons stated, the fact that the plaintiff during the year 1882, was not incorporated, cannot defeat-the action. So it can make no difference that the deed' stood in the name of the pastor of the church, for the-evidence establishes that that is a common transactioni in such cases in the Roman Catholic church. The money paid for the building and premises was the money of the church, and the pastor never claimed any personal benefit from or under the deed. Nor can it make any difference that the deed was not received by the pastor until February, 1882. The contract for the purchase was made in December, 1881, and the fitting up for school purposes, took place before the commencement of the-year 1882. Moreover, the books for the correction of errors in the assessment of taxes for the year 1882 were; closed upon the first day of May, 1882, and the character of the property in question for the purposes of taxation became fixed on that day. Upon all the facts the schoolhouse and lot in question were, for the purposes of the present case, in equity and within the principle of the decision in 4 Hun, 446, as much the exclusive property of the church of St. Monica during the year 1882, as they would have been if the church had been incorporated, and the deed had stood in its name, from the first of January of that year. In the case last referred to, the Hebrew Free School Association did not own the fee, nor did it possess an equitable title to the land. It owned the building, but as to the land it had only a. leasehold interest in it, with the privilege of a renewal of the lease, and the duty of paying all taxes and assessments. Notwithstanding all this, it was held to be the exclusive owner of the land and the building, within the meaning of the Act of 1852.

It still remains to be considered whether the schoolhouse and premises in question were used exclusively for school purposes. The land involved consists only of a lot 19 feet 6 inches in width and about 102 feet in depth, and on that the building stands. The building-had, prior to 1882, been fitted up for school purposes, and during the whole of that year it was in use as a school. Every floor was in actual use for the purpose of furnishing instruction to pupils, free of charge, except that the top floor was occupied and used by some sisters of the church, as a residence. But as the sisters thus residing there, had the immediate management of the school, and resided on the premises only on that account, and as their residence did not constitute a source of revenue or profit to the plaintiff, the top floor may be fairly said to have been as much devoted to a school purpose as the other floors were. Upon all the facts, the whole building and the entire premises, were used exclusively for school purposes within the meaning of the statute.

It thus having been shown that, in 1882, the building and lot in question were exclusively used for school purposes, and exclusively the property of a religious society, represented by the plaintiff in this action, within the nfeaning of the statute, it follows, as was held in 4 Hun, 446, that the tax for that year which was imposed upon the said building and lot, was imposed without jurisdiction, upon property exempt by law, and that the omission of the plaintiff to appear before the Commissioners of Taxes and to object, did not give validity •to the assessment.

Besides the cases mentioned by me in this opinion, there were others upon the briefs of the counsel for the respective parties. They were all examined with care, but no specific reference to them made by me, because •they do not bear with sufficient directness upon the questions discussed.

The plaintiff is entitled to judgment, as prayed for in vthe complaint, with costs.