author: Bockes, J.:

text:
    November, 1874.
    GREEN BENNETT and CHARLES U. BENNETT, Respondents v. ELBERT W. COOK and others, Appellants.

      Mortgagee in possession—moneys received by— Compound interest—when allowed Annual rests. .

    Upon an accounting to determine the amount due to one who has been in possession of lands as a mortgagee, moneys received by him, as damages for land taken for railroad purposes, and by the State, should be applied in payment of the interest due on his demands, and it is error to charge him with such sums, together with interest thereon from the time of their receipt to the time of the accounting.
    Annual rests should not be made, where interest on the debt is in arrear at the time when the mortgagee takes possession, nor until the principal is entirely paid off.
    Compound interest is only allowed in case of gross delinquency, or of intentional violation of duty.

      Lansing v. Lansing (45 Barb., 191) and Garniss v. Gardiner (1 Edw. Ch., 128) followed.
    Appeal from a judgment entered upon the report of a referee. This case has already been before the Court of Appeals, and is reported in 45 New York, at page 268, where the facts are very fully stated.

      J. McGuire, for the appellants.

      N. A. Halbert, for the respondents.
   Bockes, J.:

The rights of the parties in this action, on all the principal issues, were definitely settled by the decision of the Court of Appeals, reported in 45 Hew York, 268. That decision left nothing open for further examination, except such questions as should arise on the accounting, which had then been directed; and which direction for the accounting was sanctioned by that court. It was then decided that the plaintiffs were entitled to subrogation ; and judgment absolute was directed for the plaintiffs, in accordance with the report of Referee Bradley, before whom the action had been fully tried on the merits. He held that the plaintiffs were entitled to be subrogated to the rights of Charles Cook, deceased, in the premises described in the complaint, to the extent declared in his report, and directed a sale of the premises, to satisfy such amount as should be found due to the plaintiffs on an accounting; and, with a view to fix and determine such amount, an accounting was ordered. The decision of the referee, including his direction for the taking of the account, was affirmed by the Court of Appeals; whereupon, the case having been remitted to this court, an order was entered, referring it to Mr. Comstock, as referee, to take the account. Pursuant to such order, he proceeded with the accounting, and made his report; and final judgment was entered, as sanctioned and directed by the Court of Appeals. It thus appears that there are no questions in the case, undetermined by the Court of Appeals, except such as have arisen on the taking of the account. As to all questions other than those arising on the accounting, we are concluded by the decision of that court. But the proceedings before the referee, in taking the account, having occurred since that decision was made, with a view to carry it into effect, are still open to review. This proceeding will now be considered.

The order of reference, made on the filing of the remittitur from the Court of Appeals, as to the taking of the account, was as follows : That either party be at liberty to proceed with the accounting herein, to ascertain the rents and profits of the premises, also, the value or proceeds which Charles Cook, deceased, and defendants have received on account of sales of any part of the same, or of damages thereto; or from awards made by the State, or any persons or corporations, for damages; or for parts of the premises taken for public or private purposes, as alleged in the pleadings; and to ascertain the amount due plaintiffs and defendants, respectively, as directed in the referee’s report theretofore made. Subsequently, Mr. Comstock was appointed referee, to carry out the provisions of this order. He heard the proofs submitted by the parties, and made his report; by which he found due, at the date thereof, to the plaintiffs, $14,632.53; and to the defendants, $5,463.52; to satisfy which sums the premises were held to be liable, according to the judgment sanctioned by the Court of Appeals. The question now is in regard to the correctness of these sums found by the referee.

The referee found and stated the aggregate amount in favor of Cook, for the claims presented, to be $12,207.47. From this amount he made deductions, as follows :

Amount of damages received from railroad company.. $150 00-

Interest from April 1st, 1850...................... 237 48

Amount of damages received from State........... 900 00

Interest from April 1st, 1855...................... 1,109 82

For use of premises from April 1st, 1850, to April 1st,

1872, less $433.25, incurred for repairs............ 4,406 75

$6,803 95

This sum of $6,803.95 deducted from $12,267.47, leaves $5,463.52, the amount stated by the referee.

Now, it is not suggested that there was any error in the making up of the allowance to Cook of the aggregate sum of $12,267.47, above given. As regards this amount, the statement of the account stands unchallenged. Nor is any objection urged by the defendants’ counsel to the items of $150 and $900, received by Cook for land damages. But it is insisted, that, in stating the account, these sums should have been applied on interest due Cook at the time they were respectively received by him; hence that the interest on them, amounting to $1,347.30, was erroneously included in the deduction made by the referee. I should regard this ground of error in the statement of the account well taken, were it not obviated by the agreement or stipulation made by the counsel for the respective parties on the hearing before the referee. According to the case, it was agreed by the counsel, on the hearing, that these items of $150 and $900, “ and vnterest on same,” should be allowed by way of deduction. The defendants cannot allege error against their express stipulation, made on the hearing. It appears that the agreement embraced several important matters in the accounting other than this one in regard to the allowance of interest on those items. For aught that appears, mutual concessions were made by the parties in their agreement; and the stipulation to allow interest to be computed on those items, may have had an equivalent, or at least what was deemed an equivalent, in some other subject embraced therein. But be this as it may, the stipulation was made on the hearing, and the parties must he held to be concluded by it.

Without such stipulation, I am of the opinion that interest on those items should not have been allowed. Cook held the position of mortgagee as to those premises, for the several sums stated by the referee in the account; hence those items received by him for the land damages, should be deemed as payments to him ; and the ordinary rule of computation of interest, applicable to mortgagor and mortgagee, where payments have been made, should have been adopted. The rule of computation in such case, is laid down in Williams v. Houghtaling, and in Jencks v. Alexander; also in the following cases: Connecticut v. Jackson, French v. Kennedy, Stone v. Seymour. But this ease must be held to be controlled by the stipulation entered into by the parties on the hearing.

2. It is further urged, that the defendants were improperly charged, as to amount, for the rents and profits of the premises. But the sum settled on by the referee, seems to be abundantly sustained by the admissions and proof submitted. The amount to be allowed for rents and profits, was a question of fact on the evidence ; and it is not made to appear that the referee erred in his findings in that regard.

3. It is further urged, that the referee should have made annual rests in his computation. As a general rule, annual rests are not to he made on an accounting, unless the judgment or order of the court so directs. Such direction was not given in this case. The making of annual rests would have charged the party with compound interest. This is not admissible in a case like the present. Cook, like a mortgagee in possession, was accountable for the rents and profits of the premises; but the court will not require annual rests to be made, where interest on the debt is in arrear at the time when the mortgagee takes possession, nor until the principal mortgage debt is entirely paid off. Compound interest is only allowable in case of gross delinquency, or of intentional violation of duty.The question as to the allowance of compound interest, was examined at considerable length in the case last cited,-and the rule is recognized, that compound interest should be allowed only in those cases where common justice requires it, and when great injustice would otherwise be done. In the case at bar, its allowance, in the way proposed, through annual rests, would, I think, be very manifestly inequitable. There was no delinquency or violation of duty shown; and at the time Cook became chargeable with the rents and profits, and during all the time he was charged with them, interest was due him on his claims secured by the premises, to an amount exceeding their value, as found by the referee. In equity and justice he was entitled to have such interest satisfied, not to speak of the claims themselves, which were also due; and the value of the rents and profits with which he was charged, should be so applied as to meet his just demands. In my judgment, this is not a case for annual rests in stating the account.

No point of error is alleged against the account, as regards the plaintiffs’ claim. The amount certified in their favor, $14,632.53, stands unchallenged. All the objections urged on this appeal, as to the taking and stating of the account, have been above considered; and our conclusion is, that no error exists in that regard, calling for a reversal of the judgment. All other questions in the case are supposed to have been heretofore settled by the decision of the Court of Appeals.

The judgment appealed from should be affirmed;- and the respondents are entitled to the costs of appeal.

It seems that the costs of former appeals were directed to be paid out of the proceeds of the sale of the premises. But it does not appear just, that those proceeds should be further diminished, to the possible injury of the plaintiffs, by the payment therefrom of the costs of an unsuccessful appeal on the part of the defendants. I am of the opinion that the costs of this appeal should be awarded to the respondents against the appellants personally. In this way their payment will fall upon the heirs at law and next of kin of Charles Cook, deceased, for whose personal benefit the appeal was taken, and who are personally on the record as defendants.

Miller, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs of appeal against the appellants personally.

       3 Cow., 86.

       11 Paige, 625.

         1 John. Ch. R., 17.

       7 Barb., 452.

       15 Wend., 19-24.

       2 Story’s Eq., § 1016-a.

       Lansing v. Lansing, 45 Barb., 191; Garniss v. Gardiner, 1 Edw. Ch., 128.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN D. WEED, and JOHN D. WEED as Executor, etc., of MARY A. WEED, Deceased, Respondent, v. MYRIAM C. ALDRICH and others, Appellants.

      Will—Merminder — when vested.

    Defendants’ testator devised certain property to Ms wife for life, “ and at and after her decease, it is my will that all my estate, either real or personal, be equally divided between my two children, and to the survivor or survivors, share and share alike, * * * and to them heirs them surviving.” Held, that the children took vested interests at the testator’s death.
    In a devise to one for life, and from and after his death to others, or to the survivor or survivors of them, them heirs and assigns forever, the remaindermen take a vested interest at the death of the testator ; and, in such case, words of survivorship refer to the death of the testator and not to the death of the tenant for life, unless from other parts of the will it be manifest that the intent of the testator was otherwise.

      Moore v. Lyons (25 Wend., 119) followed.
    This action was brought to obtain a judicial construction of the last will and testament of John A. Aldrich, deceased, and to compel the executrix, his widow, to give security for its due execution, in so far as the plaintiff’s rights were concerned. The plaintiff claims, as sole devisee and legatee under the will of his deceased wife, who was the daughter of the above named testator, and died August 21st, 1872: her father, said testator, having died the previous year. The will, construction of which is here sought, reads as follows:
    “After all my lawful debts are paid and discharged, I give and bequeath to my beloved wife, Myriam 0. Aldrich, all my estate, both real and personal, for and during her natural life, to have, use, hold and enjoy the same, and at any time that to her may seem expedient and proper, full power to sell and convey all or part of the real estate to such person or persons as to her may seem proper, by good and sufficient deeds of conveyance. And to have, use and enjoy the same and all proceeds thereof, during her natural life; and at and after her decease, it is my will that all my estate, either real or personal, be equally divided between my two children, and to the survivor or survivors, share and share alike, namely, William F. Aldrich, my son, and Mary A., now. the wife of John D. Weed, in her own right, and to their heirs them surviving, giving to my said wife, Myriam 0., full power to sell and convey in fee simple, all my real estate, should she at any time think best to do so, and convert the same into personal estate. Likewise, I make, constitute and appoint my said wife, Myriam C. Aldrich, my sole executrix, to be executrix of this my last will and testament, hereby revoking all former wills by me made.”
    After trial before the court, at Special Term, it was decided, among other findings of fact and law, that the widow, Myriam 0. Aldrich, was entitled under the will, only to the use and income of the real and personal estate of the testator, during her natural life, and to no other or greater estate; that the daughter, Mary, and the son, John, were each entitled to one equal undivided half part of such real and personal estate, subject only to said life estate of said Myriam, and that the right of said Mary and John respectively, vested on the decease of said testator. It was further found that there was danger of waste and loss of the property in the hands of the executrix, and she was required to give security as was demanded, or, in default thereof, that a receiver be appointed, with a view to the preservation of the property. An injunction was also decreed, and the costs of the action were directed to be paid from the estate.

      Judgment having been entered on the decision at Special Term, the defendant appealed to the General Term.

      S. D. Halliday, for the appellants.

      G. S. Camp, for the respondent.
   Bockes, J.:

We are of the opinion that the court at Special Term was right, in the exposition there given of the will here brought under examination. It is evident that the testator intended to give but a life estate in the property to his widow. Such intent, we think, is plainly derivable from the language employed in the instrument. The material part of the will is contained in a single paragraph, which, stripped of all tautology and unimportant verbiage, reads substantially as follows: After all my just debts are paid, I give and bequeath to my wife, Myriam, all my estate, both real and personal, for and during her natural life; and at and after her decease^ such estate to be equally divided between my two children, William and Mary. There was also a power of sale of the real property conferred upon the wife, Myriam, with the right, in case of sale, to the use of the proceeds, the same as above expressed. It is very evident that the testator did not intend to give the entire and absolute estate to his wife; but only its use during her life. The terms employed are unmistakable; they are, a for amd during her natural life;” “ to have, use and enjoy the same, cmd all proceeds thereof d/wring her natural life; ” proceeds referring to the avails of sale, in case of a sale pursuant to the power. And on her decease, disposition was made of the estate to the two children, William and Mary — not of a portion, or what might remain of the estate after an appropriation of a part of it by the wife; but, in the language of the instrument, it is my will that all my estate, either real or personal, be equally divided between my two children, and to the survivor or survivors, share and share alike.” We must assume that the testator understood and intended the fair and legal import of the language he employed to express his purpose. 'So, it was the use and enjoyment of his property, that he gave his wife; and at her decease, the same ( “ all my estate”) was to be equally divided between his two children. The court at Special Term was right, in holding that the widow was entitled to the use and income of the property, and to no other or greater interest.

We are also of the opinion that the court correctly held that the two children, William and Mary, took a vested interest at the testator’s death. The language of the will is, that at and after the termination of the life estate, all his, testator’s, estate be equally divided between his two children, William and Mary, “and to the survivor and survivors * * * and to their heirs them surviving.” Very similar language to that here employed, received construction in Moore v. Lyons.

In this case the rule was laid down, that in a devise to one for life, and from and after his death to others, or to the survivor or survivors of them, their heirs and assigns forever, the remainder-men take a vested interest at the death of the testator; and further, that in such case, words of survivorship refer to the death of the testator, and not to the death of the tenant for life, unless, from other parts of the will, it be manifest that the intent of the testator was otherwise. The case of Moore v. Lyons received a very careful examination, and many decisions are cited, fully sustaining the conclusion there declared; and the rule has been repeatedly recognized and followed since, The subject has been so elaborately discussed in these and other cases, that nothing remains to be suggested. ISTor can it be maintained that there is anything in the will under consideration, which should relieve it from the rule of construction above alluded to. On the contrary, it seems the plain intention of the testator, derivable from a full reading of the instrument, that his two children should have his property, subject to its use and enjoyment by his wife during her life. Such is the meaning and legal signification of the instrument in its entirety, with'no indication or suggestion of a different intent. So the words, “at and after her decease,” must be deemed to relate to the period of the enjoyment of the estate, and not to the time of its vesting in interest.

The views above expressed, if sound, substantially dispose of this case. The right of the deceased daughter to the property, passed under her will to the plaintiff, her husband, who was her sole devisee and legatee. He therefore holds her position in regard to the property. It will be also readily observed, on looking into the evidence given on the trial, that the court was right, in the finding that there was danger of loss of the property devised and bequeathed. Hence, the plaintiff was entitled to the protection of the court in the form decreed.

The judgment should be affirmed, with costs of appeal against the appellants personally. This is not a case, as we think, where continued litigation should be permitted at the expense of the estate.

Miller, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs of appeal against the appellants, personally.

      25 Wend., 119.

       Livingston v. Greene, 52 N. Y., 118; Manice v. Manice, 43 id., 303; McKinstry v. Sanders, 2 N. Y. Sup. Ct. R., 181; [S. C., 1 Hun, 352. Rep.]; affirmed in Court of Appeals Sept. 22, 1874; Hopkins v. Hopkins, 3 N. Y. Sup. Ct. R. 527; Chinn v. Keith, 4 id., 126; [S. C., 1 Hun, 589. Rep.]


text:
    A. D. MITCHELL, Administrator, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Hontributory negligence—what constitutes—Pecuniary injury caused by death of any person—must be proved by party dawning damages.

    Plaintiff's intestate was killed while crossing the tracks of defendant, at their intersection with Broadway, in Greenbush. At the time of the accident, the intestate was walking toward the north, on the east side of Broadway. The tracks, three in number, cross the street in a north-westerly direction. Several cars were standing on the south track; the second track, distant six feet from the first, was clear; the third was twenty feet from the second. After passing the cars, there was nothing to obstruct the view. The intestate was killed while crossing the third track, by an engine going north. Held,, that the plaintiff was guilty of contributory negligence and could not recover.
    At the trial no special damages were proved. The jury rendered a verdict for $4,000. Held, that the recovery must be confined to the pecuniary loss sustaiñed by the death of the intestate, and that damages could only be awarded on proof of loss ; that, as in this case there was no proof that any pecuniary loss resulted to any person, the verdict was without any evidence to support it.
    This is an appeal by the defendant from an order of the Special Term, refusing a new trial on the minutes of the court; and also from a judgment, entered on the verdict of a jury, for $4,000 damages, and $1,331.81' costs.
    The action was brought to recover damages for negligently killing Elizabeth M. Mitchell, on the 23d October, 1810, while crossing a public highway in the village of Greenbush. The deceased, who was the wife of the plaintiff, and aged about twenty years, was walking from the south toward the north, on the eastern sidewalk of Broadway, in the village of Greenbush. When they reach the next street which crosses Broadway, the tracks make a short curve toward the north-west, and then cross the street diagonally in that direction. At that place, the deceased, while crossing the cross-street on her way toward the north, after passing over two tracks, was struck by the engine, coming from the south, and instantly killed. There were seven freight box-cars standing still on the track, east of Broadway, and next to it, which line of cars extended north so far as to lap over across the sidewalk. These cars obstructed the view toward the east, to any person opposite them on the sidewalk. Six feet beyond the track on which the seven freight cars stood, was a second track; and further on, a third and diverging track, which, a little south of the crossing, gradually diverged, so that it was about twenty feet from the second track, at the place where the deceased was killed when crossing the third track.
    At this crossing there was a running switch ; and as the engine, with two baggage and three freight cars, moved toward the north, the cars were switched off to pass by on the second track, and the engine proceeded on the third track to and beyond the point where it struck the deceased. The deceased passed the end of the line of standing cars, crossed the second track, passed over the space of twenty feet between the second and third tracks, and, when crossing the third track, was struck by the engine and killed. Evidence was given tending to show that the bell was not rung, nor the whistle sounded; and there was also some proof as to the speed of the engine at the time of the injury. No proof of special damage was offered.
    At the close of the ease, the defendant’s counsel moved for a dismissal of the complaint, on the ground that from the proof it appeared that the negligence of the plaintiff’s intestate contributed to the injury complained of. The motion was denied, and an exception was duly entered.
    The defendant’s counsel requested the court to charge the jury, that the plaintiff, on the evidence, could recover only nominal damages ; also that there was no evidence upon which to base any calculation as to the pecuniary value of the life of the deceased. The court declined to charge as requested, and an exception was duly entered. Other exceptions were taken to portions of the charge, and to refusals to charge as requested, here unnecessary to be noticed.
    The j ury returned a verdict for the plaintiff, for §4,000. A motion was thereupon made for a new trial on the minutes of the court, which was denied; and from the order denying a new trial, and from the judgment entered on the verdict, appeal was taken to the General Term.

      E. L. Fursman, for the appellant.

      A. J. Parker, for the respondent.
   Bockes, J.:

There was undoubtedly evidence given on the trial, bearing on the question of defendant’s negligence, sufficient to make the case a proper one for the jury on that branch of it; but it seems quite clear that the negligence — not to say gross carelessness — of the plaintiff’s intestate, contributed to the injury for which the recovery was had. Let it be conceded that the line of standing cars entirely cut off and prevented the view from the sidewalk, for over 200 feet southerly from the crossing, and it then stands undisputed, that, on passing the end of the line of those cars, the deceased came to a place where there was an unobstructed view on her right, and along the track, enabling her, without other difficulty than merely turning her head, to see an approaching train. There was, first, the space between the first and second track — about six feet; then the width of the second track; and then a further space of twenty feet to the third track, on which the accident. occurred. ■ Over this distance the deceased passed, as it appears, with nothing to obstruct the view in the direction of the approaching engine. Had she but turned her head a trifle, to make observation, the danger must have been seen. Indeed, when the deceased approached the third track, after passing the second, she had abundant opportunity, in a place of absolute safety, to make observation, which, if done, would have disclosed the danger in time for her readily to avoid it. Before attempting to cross this third track, and when in a place of absolute safety, it was her duty to look both ways, in order to avoid possible dangers.

It has been repeatedly held, that the omission of such precau-. tion is negligence, and will prevent a recovery for an injury ocea-. sioned by a passing train. In Wilcox v. The Rome, W. & Og. R. R. Co., it was decided, that, when the deceased was killed in attempting to cross the railroad track, within the limits of the. public highway, and at a public crossing, if it appear that the deceased would have seen the approaching cars in season to have avoided them, had he first looked before attempting to cross, it will be presumed that he did not look; and, by omitting so plain and imperative a duty, he will be deemed to have been guilty of negligence which precludes a recovery. This decision covers the case at bar, in all its principal phases. The deceased had the opportunity, in a place of safety, to make the necessary observa-. tion. The view was not obstructed by any intervening object. The locality and numerous tracks admonished her of danger, and she was bound to vigilance and the exercise of ordinary prudence. It was not necessary for her even to stop to look, as the mere turning of the head would have brought the line of tracks into full view, for a considerable distance in the direction from which, danger was to be apprehended. There was no other moving car; nothing whatever to divert or distract the attention, or to induce confusion. Thus, without excuse for the omission, the deceased evidently neglected the usual precaution for safety, and, with culpable heedlessness, placed herself in the way of disaster. Therefore, according to the well settled rule applicable in such cases, there can be no recovery for the injury to which her own palpable negligence contributed. The motion for a dismissal of the complaint should have been granted.

I am also clearly of the opinion, that the verdict of $4,000, is unauthorized by the proof. The recovery in this class of actions, must be confined to the pecuniary loss sustained by the death of the intestate; and damages can only be awarded on proof of loss. The rule was recognized in McIntyre v. N. Y. Cent. R. R. Co. that the burden was upon the plaintiff to prove the pecuniary injury, and such facts as could enable the jury to determine what would be a fair and just compensation for the death of the party; and it is there intimated, if not in fact asserted, that such proof was necessary, in order to entitle the plaintiff to recover more than nominal damages. In the case at bar, there was no proof of pecuniary loss to any one, except what might be inferred from the two facts, that the deceased was a married woman, and aged twenty years. There was no evidence given of her capabilities, mental or physical ; nor of her situation and circumstances in life; nor how she had been or could be of benefit to her husband and next of kin. There was no proof whatever, showing that her life was of any pecuniary value or advantage to any one. Therefore, there was no proof that any pecuniary loss resulted to any person from her death, and the verdict of $4,000, is without evidence to give it support. It must have been the result of mere conjecture. As the case is here presented on the proof, no more than nominal damages were recoverable, had the right of action in other respects been established.

The order and judgment appealed from must be reversed, and a new trial granted, with costs to abide the event.

Present—Bockes and Boardman, JJ.

Order and judgment reversed and new trial granted, costs to abide event.

       Haight v. N. Y. C. R. R., 7 Lansing, 11; Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y., 400; Barker v. Savage, 45 id., 191; Gorton v. The Erie R. Co., 45 id., 661; Beisiegel v. N. Y. C. R. R. Co., 40 id., 9, 22; Wilcox v. Rome, Watertown & Og. R. R. Co., 39 id., 358.

       37 N. Y., 287, 289.


text:
    GEORGE GERMOND, Appellant, v. THE HOME INSURANCE COMPANY, Respondent.

      Policy of inswrwnce— Change of interest of insured—what constitutes.

    A policy of insurance provided that if the property insured should be sold or conveyed, or the interest of the parties therein changed, that it should he null and void. After the issuing of the policy, the owner contracted, under seal, to sell the property covered thereby to one S., who paid part of the purchase-price. In an action upon the policy, held, that such contract of sale and payment constituted a change of interest in the property insured, and rendered the policy void.

      Savage v. How. Ins. Co. (52 N. Y., 502) followed; Hitchcock v. N. W. Insurance Co. (26id., 68) distinguished.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought upon a policy of insurance issued by the defendant. The clause of the policy, upon the construction of which the decision of the case depended, was as follows: “Provided further, that if any other insurance has been or shall hereafter be made upon the said property, not consented to by this company in writing hereon, or if the said property shall be sold or conveyed, or the interest of the parties therein changed, or if this policy shall be assigned without the consent of the company obtained in writing hereon, or if the insured shall make any attempt to defraud the company, then, and in every such case, this policy shall be null and void.”
    The facts are stated in the opinion.

      Richards & Sessions, for the appellant.

      Chapman & Martin, for the respondent.
   Bockes, J.:

The policy of insurance on which the action was brought, contained a provision that if any other insurance had been, or should thereafter be made upon the property insured, not consented to by the defendant, in writing, indorsed on the policy, or if the property should be sold or conveyed, or the interest of the parties therein be changed, or if the policy should be assigned without the consent of the company, obtained in writing thereon, or if the assured should make any attempt to defraud the company, then, and in every such case, the policy should be null and void. It was found by the learned judge, before whom the action was tried without a jury, that, after the issuing of the policy, the owner of the fee, by a contract under seal, contracted to sell the premises and property covered thereby, to one Cyrus F. Scudder, who paid down part of the purchase-price; and he held that such contract of sale and payment, constituted a change of interest in the property insured, and rendered the policy void, under the proviso above cited. In my judgment, such decision was sound in law. The provision was a valid one, and bound the parties according to its terms. So, if the fact found constituted a change of interest in the property insured, the policy became null and void. Then, did the contract of sale, with payment of part of the purchase-money, work a change of interest in the property within the purview of the above provision? How, such contract and payment, certainly, gave Scudder rights in the property and to that extent there was clearly a change of interest. As vendee under the contract of purchase, he became the equitable owner; and the interest of the vendor was also changed by the contract, from that of an absolute owner to that of one holding the legal title as a security for the unpaid purchase-money. It was laid down in Hathaway v. Payne, as follows: “ The vendor in such case is deemed in equity to be the trustee for the vendee of the title, and the vendee is the trustee of the vendor for the purchase-money; ” and further, that the interest of the vendee is real estate, and in case of his death descends to his heirs, and is devisable as real estate. It seems, therefore, beyond question, that the interest of the parties in the property was changed by the contract of sale. Undoubtedly, the vendor here, retained an insurable interest in the property, and had the condition been in form and substance like that considered in Hitchcock v. The N. W. Insurance Co. and kindred cases, the change of interest here effected, would not have rendered the policy A void. But the language of the provision in this case, is to the effect \ that a change of interest shall work a forfeiture. Thus the case is brought directly within the decision in Savage v. How. Ins. Co. In the case cited, the language of the provision was, that if the property should be sold or transferred, or any change take place in the title or possession, the policy should be void; and it was there held that a conveyance of the property avoided the policy, although, simultaneously therewith, a mortgage was taken hack for the purchase-money. This case is conclusive of the one at bar. The reasoning of the learned judge in the case cited, and his citation of authorities, are applicable here in every particular, Here, a change of interest wasf undoubtedly intended and effected by the contract of sale; hence, according to express stipulation, the policy was void.

The judgment should be affirmed, with costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.

       Moore v. Burrows, 34 Barb., 173; Smith v. Gage, 41 id., 60, 66; Rood v.New York & Erie Railroad Co., 18id., 80,83; Griffith v. Beecher, 10 id,, 432; McKechnie v. Sterling, 48 id., 330, 335; Hathaway v. Payne, 34 N. Y., 103.

       26 N. Y., 68.

      52 N. Y., 502.

       See, also, Perry v. Lorillard Fire Ins. Co., 6 Lans., 201.


author: Bocees, J.:

text:
    MEDAD T. MORSS, Appellant, v. JAMES C. PURVIS and others, Respondents.

      Sale under execution — right of creditor to redeem—when and, where redemption must iahe place.

    Where a judgment creditor attempts to redeem premises sold under a prior judgment, on or after the last day of the fifteen months allowed hy law for that purpose, such redemption, to he valid, must take place at the sheriff’s office of the county where the sale took place.

      Gilchrist v. Comfort (34 N. Y., 285) followed.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The facts are stated in the opinion.

      J. L. Stewart, for the appellant.

      T. F. Bush, for the respondents.
   Bocees, J.:

The plaintiff’s judgment against James P. Overton, docketed on the seventeenth of March, gave him a standing in court to demand and have the fraudulent deed made by the judgment debtor to his son, declared inoperative and void, as to such judgment, witli a view to secure the right of redemption thereunder. But, to render his right to redeem effectual, the plaintiff was bound to show performance of all the statutory requirements, necessary to entitle him to the sheriff’s deed, had the fraudulent conveyance never been made. In other words, he must show himself entitled to the sheriff’s deed; putting the fraudulent conveyance out of the question, as of no effect and void. Then, admitting the case to stand the same as if James P. Overton still held the title on the seventeenth of March, when the plaintiff’s judgment was docketed and became a lien on the premises claimed, the question is, did the plaintiff show a compliance on his part with the provisions of the statute, entitling him to the sheriff’s deed as a redeeming creditor % The sheriff’s sale under the prior judgment, took place on the 16th of January, 1869. The time fixed by the statute, within which creditors might make redemption — to wit, fifteen months — expired on the 16th of April, 1870. On that day, the plaintiff made an attempt to redeem, as a judgment creditor under his judgment, by presenting the necessary papers to the sheriff, all in due form, and paying him the requisite sum to secure the deed to himself. But this was done at a place, other than the sheriff’s office. As stated in the finding of fact, “ this transaction took place at the office of Judge Bush, * * * and no attempt was made by said Morss to redeem the said premises at the sheriff’s office.”

How, the statute, requires all redemptions, made on or after the last day of the fifteen months by any creditor, to be made at the sheriff’s office of the county in which the sale took place.” The attempted redemption was made on the last day of the fifteenth month, but was not made at the sheriff’s office. Consequently, in this case the statute was not complied with, for there was no redemption made, or attempted by the plaintiff, at the sheriff’s office, and the proceeding by him in his atttempt to redeem, was ineffectual, being without authority of law. The decision in Gil christ v. Comfort, is directly in point. It was there held, that the mode of obtaining title to land, sold under execution, is wholly a creation of the statute, and its provisions must be strictly followed'; and further, that since the act of 1847, a redemption by a creditor on the last day given for redeeming, to be valid and effectual, must be made at the office of the sheriff of the county in which the sale • took place. The facts of that case will be found, on examination, to be the same as here on every material point, and the opinion of the court, per Weight, J., leaves nothing to be added by way of suggestion or argument. After considering the question in its various bearings, he says, in conclusion: “ Since the act of 1847, therefore, a redemption by a creditor, on the last day allowed for redeeming, to be valid and effectual, must be made at the sheriff’s office of the county in which the sale took place. The redemption attempted by Gilchrist, was on the last day of the fifteen months, and was made to the sheriff at his dwelling-house, and not at his office. It was, consequently, ineffectual and void, and did not entitle him to a deed of the premises in dispute.” This case seems entirely decisive of the one under examination; and the conclusion of the court on the trial, that the attempted redemption by Morss was of no effect and void, was right.

There is no element of fraud in the case, as regards the attempted redemption. The plaintiff’s misfortune seems to have resulted from his own neglect to comply with the provisions of law, enacted for-the benefit of judgment creditors.

The judgment appealed from must be affirmed, with costs.

Miller, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.

       Laws of 1847, chap. 410, § 8.

       34 N. Y., 235.


author: Boardman, J.: James, J.

text:
    JEFFERSON FRASER, Appellant, v. ARCALOUS WYCKOFF, Respondent.

      Commissions — agreement to pay, upon sale of patent right—What constitutes sale.

    In September, 1857, plaintiff and defendant, the owner of a patent boring machine, entered into an agreement, whereby defendant agreed to pay plaintiff $1,500, provided he effected a sale, or obtained a customer who should pay $17,500 for said patent, or ten per cent on any less sum defendant might agree to take. In pursuance of said agreement, plaintiff had conversations with Swan and Hobbie, in consequence of which a copartnership was entered into between defendant and Hobbie and Swan, for selling rights under said patent, and the construction of water-works with the material to be made thereunder. The firm were to pay defendant $15,000 as follows: Twenty-five per cent of the net profits to be realized from the sale of rights secured by said patents, and twenty per cent of the net profits to be realized from the construction of water-works, until the whole amount should be paid. Held, that this agreement did not constitute such a sale as was contemplated and provided" for by the contract between the parties to this action, and that plaintiff was not entitled to the commissions agreed to be paid upon such sale. (James, J., dissenting.)
    Appeal from a judgment, rendered for the defendant for costs, upon the report of a referee.
    The finding of the referee was, that plaintiff was a patent solicitor and expert; that in September, 1857, the defendant being the owner of a patent boring machine, entered into a contract with plaintiff to pay him $1,500, provided he effected a sale, or obtained a customer who would pay $17,500 for all the unsold territory of said patent; or that he would pay plaintiff ten per cent on any less sum which the defendant would agree to take; and if plaintiff should sell for more than $17,500, he to receive all above that sum in addition to the ten per cent; that plaintiff, without any unnecessary delay, commenced efforts to make a sale of said patent, and continued such efforts with reasonable skill and diligence until October 13, 1859; that during such period he repeatedly saw and conversed with J. S. Hobbie, and urged upon his attention said patent, and also on one L. B. Swan, and held conversations on said patent with Hobbie and Swan together.
    That on October 13, 1859, defendant, Hobbie and Swan, entered into copartnership, under the firm name of Wyckoff, Hobbie & Co., for the purpose of selling rights secured, by said patent, and in the business of constructing water-works, and which copartnership should continue for ten years, on the following terms: That said firm should pay Wyckoff for his unsold interest in said patent, except, etc., the sum of $15,000, as follows: Twenty-five per cent of the net profits to be realized from the sale of rights, and twenty per cent of the net profits to be derived from the construction of water-works, etc., until the whole should be paid; and that on payment of said $15,000 by said firm, the interest of said Wyeltoff in said patent should immediately vest in said copartners equally. That the conversations of said plaintiff with said Hobbie and said Swan, and his recommendations of, and information concerning, said patents, etc., to them, contributed to, and were in part the procuring cause of the making of, said agreement between defendant, Hobbie and Swan.
    And, as conclusions of law, the referee held, that said agreement between defendant, Hobbie and Swan, was not such a sale, etc., as was contemplated by said contract between plaintiff and defendant, and that plaintiff had not therefore performed all the conditions of said contract, on his part, and directed judgment for the defendant.

      E. H. Benn, for the appellant.

      E. P. Hart, for the respondent.
   Boardman, J.:

The plaintiff claimed to recover of the defendant $1,500, as commissions earned in effecting a sale of a patent, invented and owned by defendant. The written contract under seal between the parties, upon which such claim is founded, bears date September 21, 1857, by which the defendant agreed to pay plaintiff $1,500, provided plaintiff effected a sale, or obtained a customer who should pay $17,500 for the unsold territory of said patent, or ten per cent on any less sum that defendant might agree to take.

The referee finds that the plaintiff made due efforts to effect such a sale, and at various times had conversations with one Isaac S. Hobbie, and once or oftener with one L. B. Swan, in reference thereto, prior to October IS, 1859, which contributed to, and were in part, the procuring cause of the making of the agreement, hereinafter referred to, between defendant and said Hobbie and Swan.

On the 13th of October, 1859, said defendant and Hobbie and Swan entered into a copartnership, under the name of Wyckoff, Hobbie & Go., for the selling of rights under said patent, and for the construction of water-works with the materials to be made by them under said patent. The firm were, by such articles of copartnership, to pay defendant for his unsold interest in said patents, the sum of $15,000, as follows : Twenty-five per cent of the net profits to be realized from the sale of rights secured by said patents, and twenty per cent of the net profits to be realized from the construction of water-works, or the manufacture and sale of pipe made by augers and machinery, until the whole should be paid.

In consideration, the defendant agreed that his interest in said patents, etc., should immediately vest equally in said copartners, and that he would assign and convey his interests in said patents to said firm upon request, and in the mean time execute any assignment or conveyance of territory sold. Defendant, Hobbie and Swan were to devote their time and attention to the business, to share equally in the profits after payment of said $15,000, and to be equal partners in the business, and in the ownership of the patents.

Hpon such facts found, the referee decided that the agreement between defendant, Hobbie and Swan, did not amount to or constitute such a sale as was contemplated and provided for by the contract between the parties to this action, and that the plaintiff had not effected a sale, or obtained a customer for the unsold territory of defendant’s patent.

It is now urged that the learned referee erred in his conclusion of law upon the facts found.

The agreement between the plaintiff and defendant, contemplated a sale of defendant’s remaining interest in his patent for $17,500, in cash, or its equivalent. Hpon effecting such a sale, or procuring a customer who would buy at that rate, the plaintiff was entitled to $1,500, by way of commissions. This contract was made in September, 1857. Plaintiff made the effort according to the referee’s findings. He talked up the patent with Hobbie and Swan, but they were not led to buy the defendant’s unsold interest. Finally, after more than two years had elapsed since the making of the contract, the defendant makes a contract with Hobbie and Swan, not for the sale of his interests, but for a copartnership with them, for the purpose of selling rights secured by said patents, * * * and in the business of construction of waterworks in cities and villages. Hobbie and Swan agreed to pay nothing. But the new firm of Wyckoff, Hobbie & Co. agreed to pay defendant twenty-five per cent of the net profits of sales of territory, and twenty per cent of the net profits arising from construction of water-works, until the payments should amount to §15,000, and then the patents and unsold territory were to belong to the three partners. This was very far from being a sale of defendant’s interest for cash or its equivalent. Whether he ever got anything out of this contract for his patent, depended on_ several'contingencies: whether the partners were active and successful in procuring purchasers; whether sales should yield a net profit; whether if water-works were constructed for cities and villages, such works yielded a profit to the builders ; in short, whether enough of time, labor and care were expended by defendant, in connection with or independent of Hobbie and Swan, to realize $15,000 under the contract for the defendant, and pay the partners for their services and the capital necessary to be employed in the manufacture of pipes, and building of water-works. It was not a sale, but rather a putting the patent interest into a partnership undertaking, to secure sales thereof; to manufacture the pipes to introduce them, into use. For these purposes, Hobbie and Swan were brought in to help defendant. Their services were purchased for a contingent price, dependent upon success, industry and the merits of the patent. If it failed, defendant would get nothing for his patent or his services, and Hobbie and Swan would get nothing for their labor, or for any capital they might introduce.

I am clearly of the opinion, that the referee did not err in holding this was not a sale within the spirit, meaning and intent of the parties, as set forth in their -contract of September, 1857. It follows that the decision of the referee on the merits was right, and should not be disturbed. The silent acquiescence of the plaintiff for twelve years, in the midst of constant business relations with the defendant, impresses me with the belief that such was his construction of the contract.

There is nothing erroneous in the rulings of the -referee, in the admission or rejection of evidence.

It was competent for defendant to ask plaintiff as to his testimony on a prior examination before the county judge, to establish a fact, or with a view° to his contradiction.

The judgment should be affirmed, with costs.

James, J.

(dissenting):

Whilst I concur with the referee in his finding of facts, I differ from him as to the legal effect of such facts.

The agreement between defendant, Hobbie and Swan, contained a contract of sale by Wyckoff to the firm, of all his interest in said patents, not specially excepted, for $15,000 ; and as effectually prevented a conveyance to any other person, except in pursuance of said agreement, as though it had been a sale for cash to any other third person. It was also a sale brought about by the efforts of plaintiff, whose labors were commenced and continued until the consummation of said agreement between defendant, Hobbie and Swan.

It made no difference that the sale was to a firm of which defendant was a member; it was not a sale to him, but to a legally created third person. The plaintiff, as a broker, having found persons who united in creating a copartnership which purchased the property he was employed to sell, on terms acceptable to his principal, was entitled to his commission. The referee therefore erred, in directing judgment for the defendant.

Judgment reversed; new trial granted; order of reference dismissed; costs to abide the event.

Present — Miller P. J., Boardmam and James, JJ.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    HENRY L. BURROWS, Respondent, v. ESLIE R. NORTON, Appellant.

      Justice's judgment — notice of appeal from — when sufficient.

    Where a notice of appeal from a justice’s judgment, indicates that the defendant in the judgment appeals to the County Court, giving the ground upon which such appeal is founded, and the notice is signed by the appellant or Ms attorney either at the end or upon the back thereof, it is sufficient.
    Appeal from an order of the Otsego County Court, dismissing an appeal from a justice’s judgment by the defendant, upon the ground that neither defendant nor his attorney signed the notice of appeal at the bottom thereof. It appeared, however, that the .attorney for the defendant indorsed upon the back of the notice the following words : “ Notice of appeal, H. N. Warner, appellant’s attorney, Hartwick, N. Y.” By the affidavits used upon the motion to dismiss the appeal, it also appeared that the appeal was taken in good faith; that the name of the appellant was not signed to the notice of appeal at its bottom, by reason of a misapprehension of the person to whom they were given to serve; and that the notices were not returned by the plaintiff or justice upon whom they were served.

      J. A. Lynes, for the appellant.

      S. S. Morgan, for the respondent.
   Boardman, J.:

The Code, section 353, requires the service of a notice of appeal, within twenty days after judgment. It has been held to be sufficient if such notice is signed by the appellant by his attorney. It is not necessary that the appellant should personally sign the notice. It may be signed by others for him, and it will be good. In this case, the signature was upon the back of the notice, and not at the end of it. It cannot be, that such a variance ■ from the usual forms is of any consequence. If the notice indicates that the defendant in the judgment appeals to the County Court, giving the grounds upon which the appeal is founded, and the notice is signed or superscribed by some person as attorney for such appellant, it will be sufficient, if served within twenty days. By reference to the notice in this ease, it is apparent, the plaintiff was not and could not be deceived by any real or apparent defect. He knew who the appellant was, and that he was represented by his attorney. The judgment appealed from, is described in the notice. The affidavits of the defendant show a good ground for an appeal, and an attempt in good faith to perfect the same by the service of such notice. The objection, therefore, if well founded, is purely technical. The policy of the law is liberal in giving the right of review, and such right should not be curtailed without sufficient cause.

The notice of appeal is sufficient, and the court erred in dismissing the appeal upon the assumption that it was fatally defective. If, however, this conclusion can be questioned, it is still apparent, the defect could and should have been amended. By section 327 of the Code, an omission or mistake in any act necessary to perfect the appeal, may be cured by amendment where a notice of appeal has been given in good faith. That power would be enough to warrant a court in making such an amendment, without resort to the more general power given by section 173 of the Code.

But upon the first ground stated, we think the order of the County Court should be reversed, with ten dollars costs of this appeal.

Present — Miller, P. J., Bockes and Boardman, JJ.

Order reversed, with ten dollars costs.

      Hall v. Sawyer, 47 Barb., 116.

      4 Wait’s S. C. Pr., pp. 222, 895, and cases cited; 13 How., 409.


author: Boabdman, J.:

text:
    DANIEL HARTNETT and others, Appellants, v. STEPHEN S. WANDELL, Executor, etc., Respondent.

      Ecclesiastical lam — Surrogate —powers of— whence derived —Executor must he named in wiU.

    The ecclesiastical law of England is no part of the law of this State, except so far as it was established by the statutes and resolutions of the Colony of New York.
    The appointment of executors by construction or implication, is not favored; and in doubtful cases, administration with the will annexed must bo resorted to. Under the provisions of the statutes of this State, the surrogate has no power to issue letters testamentary to a person not named in the will, and who cannot be identified by any process of construction or implication applicable to the language of the will. The testator may name any one he pleases to be his executor, but the law does not sanction his right to appoint an agent or attorney who may, after his death, designate or appoint such executor.

      Matter of Bronson (1 Tucker, 467) followed.
    Appeal from an order of the surrogate of Albany county, refusing to revoke letters testamentary, issued by him to the respondent, under the will of Andrew Alexander.
    By said will, in the second clause, all the rest of the testator’s property, real and personal, was given to his wife, Mary E. Alexander, absolutely. The will concludes as follows:

      “ Lastly, I hereby nominate and appoint my said wife the executrix of this my will, hereby revoking all former wills by me made, and request that such male friend as she may desire, shall be appointed with her as coexecutor.”
    The will was proved, and letters issued to the wife, June 27, 1873. On the 2d of March, 1874, on the petition of the wife, letters testamentary were issued to the respondent. The appellants’ creditors of the estate, petitioned the surrogate to revoke the letters to Wandell, which petition was dismissed, and the application denied.

      Robt. H. McClellan, for the appellants.

      Edgar L. Fursman, for the respondent.
   Boabdman, J.:

The ecclesiastical law of England is not in force in this country ; nor was it, strictly speaking, any part of the common law. It is true, that, in the earlier history of England, the common law was administered, to a greater or less extent, by the spiritual courts. But, long before our Revolution, a distinct separation of jurisdictions was established, and is still retained. By article 1, section 17, of the Constitution of this State, the common law of England was alone made a part of the law of this State. The ecclesiastical law is therefore no part of our law, except so far as it was established by the statutes and resolutions of the Colony of New York. By reference to the interesting opinion of Judge Daly, in Brick's Estate, it will be seen that the jurisdiction of the spiritual courts was never expressly given to the prerogative or mayor’s courts of the Province. As such statutes, resolutions and the common law constituted our law after 1775, 1777, the courts exercising jurisdiction in testamentary matters, were bound by such law, except so far as it was thereafter modified by our State laws.

Even in England, however, it is by no means clear, that the power claimed by the respondent was exercised by their courts prior to the present century. The cases cited by the learned surrogate to sustain his decision, were all since 1820, and a majority since 1840, and are therefore insufficient evidence of the practice of such courts in the last century, even if, by implication or necessity, it had been adopted by us. But I judge that such was not the practice. The executors should be named in the will, or appointed expressly, or by necessary inference. But the appointment of executors by construction or implication is not favored, and, in doubtful cases, administration with the will annexed must be resorted to. The appointment of an executor is a mark of personal confidence and trust. But as the rights of others are dependent upon the faithfulness, intelligence and integrity of the trustee, courts will not look with favor upon a delegation of that power, given by the will to others, or permit the judgment and discretion, demanded of the testator, to be exercised by another. In England, the executor of an executor takes the property unadministered. But our statutes forbid it.

Iij however, I am wrong in supposing that the law and practice of the ecclesiastical courts never had any binding force in the Colony or State of New York, I still think a fair construction of the statutes of this State will prove equally unfavorable to respondent. By the Revised Statutes the jurisdiction of the surrogates’ courts was created, limited and defined. Under that law, it is conceded this appointment of the respondent could not have been made. The surrogate was thereby forbidden to exercise any jurisdiction, not given by statute, under pretense of incidental power or constructive authority. Experience soon showed the difficulties and embarrassments in the way of doing what the law plainly required and expected surrogates to do. So great and burdensome did this restriction become, that the act of 1837 was passed, in which this restrictive clause was repealed, and the powers of the court enlarged. The powers of the court did not cease 'thereby to be derived from the statutes which also imposed its duties. But by such repeal, the surrogate was permitted to invoke the aid of incidental power and constructive authority, to aid him in the discharge of his jurisdictional duties. The equities of the parties in interest, need not be sacrificed for the want of such incidental powers as should be inherent in every court for the accomplishment of the purposes of its creation. The legislature could not foresee and provide for all of these ; hence the wrong and the repeal.

The statutes provide who shall issue letters testamentary; and by 2 Revised Statutes, 69, section 1, it is provided when, and to whom, such letters shall be issued, viz.: “ to the persons therein named as executors, who are competent by law to serve as such, and who shall appear and qualify.” Administration with the will annexed, is provided by section 14, page 71, “ as if no executors were named in such will.”

Now, in view of these positive provisions of the statute, can it be said that the surrogate has power to issue letters to a person not named in the will, and who cannot be identified by any process of construction or implication applicable to the language of the will ? Does not the law limit and define the persons who may be executors, and provide for their competency ? The testator may name any one he pleases to be his executor, but the law does not sanction his right to appoint an agent or attorney, who may, after his death, designate or appoint such executor. As well might an attorney, under a power, continue to act after the death of his principal.

Besides, does not the fact that Mrs. Alexander, by taking letters in her own name, without the exercise of the power of appointment, waive it? She neglects to ask that any person may be appointed coexecutor with her. Does she not thereby, in effect, renounce the right of appointment, given her by the will ?

The novelty of the case is such that but one direct authority has been presented. That is the opinion of Mr. Surrogate Tucker, in the Matter of Bronson The reasoning in that opinion is very satisfactory, and to my mind conclusive. Fully concurring with the learned surrogate of the city of New York, I think the surrogate of Albany county erred in issuing letters testamentary to the respondent, and in refusing to revoke such letters upon the petition of the appellants.

The decision of the surrogate of Albany county, dismissing the petition of the appellants, and denying their prayer for relief, is reversed; and the proceedings are remitted to said surrogate’s court, with directions that an order be entered, revoking the letters testamentary heretofore issued to Stephen S. Wandell, respondent. Costs of this appeal are granted to the appellants against the respondent personally.

Present — Miller, P. J., Bockes and Boardman, JJ.

Ordered accordingly.

       Youngs v. Ransom, 31 Barb., 49.

       3 Black. Com., ch. 4 and 5

       15 Abb. Rep., 12.

      2 Bl. Com., 504; Dayt. on Sur., 206, etc

      2 Bl. Com., 506.

       2 R. S., 71,72, § 17.

       Tit. 1, chap. 2, pt. 3.

       2R. S., 60, §28.

       See also like words in §§8, 5, 6, 8, 9, 12,15,16, 18, 21, on pp. 70, 71, 72 of 2 R. S.

       1 Tucker, 467.


author: Boardman, J. :

text:
    HELEN BAKER, Respondent, v. JAMES H. POPE, Appellant.

      Oluupter 646, Laws of 1873—“ Oiml damage law”—constitutionality of.

    Chapter 646, Laws of 1873, known as the “civil damage law,” is constitutional and valid. It is part of the general excise law. The legislature intended to impose upon every person who took out a license to sell liquor, as well as upon such as should sell without a license, the condition that they should be liable in damages for the injuries done by the purchasers of such liquors, if intoxicated thereby.
    Quaere, whether the license could be given in evidence, in mitigation of damages, under a general denial.
    Appeal by the defendant from an order of the Special Term, sustaining a demurrer to part of defendant’s answer.
    The action is brought under chapter 646, of the Laws of 1873, entitled “ An act to suppress intemperance and crime,” commonly known as “ the civil damage law.” The complaint alleges sales by the defendant, a retail liquor dealer, of liquor to plaintiff’s husband, who thereby became intoxicated, squandered his earnings, destroyed his and plaintiff’s property, injured plaintiff personally and in her means of support, and demands damage in the sum of $600.
    The answer consists, first, of a general denial; and, secondly, sets up that at the times of such sales of liquor to plaintiff’s husband, the defendant was duly licensed under the State and United States laws, to make such sales.
    To the second defense, the plaintiff interposed this demurrer, which was sustained, with leave to amend the answer within twenty days, on payment of the costs of the demurrer by the defendant.

      B. W. & C. M. Woodward, for the appellant.

      W. L. Norton, for the respondent.
   Boardman, J. :

The position of the appellant is substantially this: By the excise law he was permitted to sell to the plaintiff’s husband, liquors, as charged in the complaint. By the law of 1873, the appellant is made liable for the damages caused by such lawful act. Hence, the two laws are in conflict, and the latter is of no force or validity as applied to a lawful sale. If such conclusion be not correct, and damages arising from a lawful sale are contemplated, it is then claimed that the act of 1873 is not constitutional, because it impairs the contract between the excise board and the person taking out a license. For a good consideration the excise board have given to the appellant the right to sell liquors. Any law which deprives the appellant of the fruits of such contract, by making him liable in damages to third persons for the indiscretion or willful misconduct of the buyer of such liquors, whereby such damages are caused, must be unconstitutional and void. Such are understood to be the views of the appellant; and for such reasons he asks that the order of the Special Term should be reversed.

The law of 1873 must.be construed as part of the general excise law, under which licenses are granted. They are to be read as one act. So read, it is plain the legislature intended to impose upon every person who took out a license to sell liquor, as well as upon such as should sell without a license, the condition that they should be liable in damages for the injuries done by the purchasers of such liquors, if intoxicated thereby. The seller is bound by the law to exercise judgment and discretion in making his sales, and if he fails in this respect he becomes liable for consequences. The act was intended to apply to all persons selling liquor, whether with or without a license. • For, by the last part of the first section, a special penalty is imposed upon persons who shall unlawfully sell or give away liquors, whereby they forfeit their rights as tenants under any lease of the premises. This provision is undoubtedly inserted for the protection of landlords against a continued liability for an unlawful use of their premises. But, in connection with the other parts of the section, it shows conclusively an intent to make liquor sellers, with or without a license, liable for the damages specified in the act.

Such being the purpose of the act, is there any irreconcilable inconsistency in its provisions ? I think not. It is no more inconsistent than various parts of the excise law forbidding sales to minors, or on Sundays, etc., under certain penalties therein named. It does not forbid the sale, but attaches a liability, by reason of certain consequences of the sale. It imposes upon the seller the duty of guarding his conduct, so as to produce no mischievous results. He must not use his license to aid the poor in squandering the means necessary for the aid and support of families or the education of children. If his abuse of his license leads to such results, the law makes him liable for such damages as ensue.

Upon such a construction no constitutional objection arises. As the right of the legislature to restrain the sale of liquors is unquestionable, the person taking a license is subject to all existing laws, and to such as may thereafter be passed. The right given is personal, and may be wholly taken away, or it may be restricted or burdened with conditions or penalties, to any extent the law making power may deem proper. It is not a contract depriving the legislature of the right to act.

Whether the license may be given in evidence, by way of mitigation of damages, is not clear. If it can be, I think the weight of authority would allow such evidence under the general denial in the answer.

It is not, however, necessary to decide that point now. The facts set up in the second part of the answer are alleged as a defense. We have seen they do not constitute a defense. If they are to be used by way of mitigation, the defendant must decide whether an amendment of the answer be necessary for that purpose, and if so, avail himself of the leave given.

Upon the whole case, we think the order of the court below, sustaining the demurrer, was correct, and should be affirmed with ten dollars costs of this appeal, with leave to the defendant to amend his answer, if he shall be so advised, within twenty days, upon payment of costs of demurrer and of this appeal.

Present—Miller, P. J., Bockes and Boardman, JJ.

Ordered accordingly.

         Chapter 646.

      Moak’s Van S. PI., 550, 586, 587, 566, 567, and cases cited.


author: Bockes, J.: Boabdman, J.: Miller, P. J.

text:
    HARVEY MATTOON, and others, Appellants, v. JOHN N. YOUNG, Respondent.

      Ustoppel—Representation as to effect of written instrument—Real estate—when owner of estopped from, claiming title to.

    John M., the owner in fee simple of certain real estate, conveyed the same to his son James, for the life of the said John. Subsequently, a judgment was recovered against James, and his interest in the land was sold by the sheriff. One S., the assignee of the purchaser at such sale, having received the sheriff’s deed, attempted to sell the land to one W., who, before purchasing, called upon John M., and was told by him, that if he bought of S. the title would be good; that he had no rights or interests except the rents, and that he had no interest after his death. During the interview, the agreement between John M. and his son was produced and read over. It was not in the usual simple form of a conveyance, but was intricate in language, complicated with various provisions, and not to be readily comprehended. W. purchased relying upon the statements made by John M. Held, that it would be unreasonable to hold one, whose attention had been briefly called to such an agreement, to a full understanding of it according to its exact legal import, and that, as the evidence showed that there was a want of knowledge on the part of the purchaser of its import and legal effect, John M. and all persons claiming under him, were estopped from claiming the land from the grantor of W. (Miller, P. J., dissenting.)
    The assertion of a particular construction and effect of a written instrument of an obscure or doubtful character, is equally good as an estoppel, if believed, relied upon and acted upon, as is a disclaimer of title, to the person about to purchase. (Per Boardman, J.)
    Appeal from a judgment in favor of the defendant, except as against Prudence Mattoon, entered upon the report of a referee.
    In 1845, John Mattoon, the owner in fee simple of the premises for the recovery of which this suit is brought, conveyed the same to his son, James Mattoon, to hold the same during the natural life of John, the grantor. In 1849, James Mattoon’s interest was sold by the sheriff, upon a judgment which had become a lien upon his realty in that year, to one Cook, who assigned the certificate of sale to one Sherwin. The case has already been before the Court of Appeals, and the decision of that court is reported in 45 New York, page 696. The other facts are stated in the opinion.

      L. Hasbrouck, Jr, for the appellants.

      L. W. Russell, for the respondent.
   Bockes, J.:

When this case was in the Court of Appeals, the question of estoppel was considered, based on the offer of proof as to what occurred between plaintiff’s intestate, John Mattoon and Henry P. Cook, at the time of the purchase of the premises by the latter at sheriff’s sale under judgment and execution against James Mattoon. The offer of proof was this: that John Mattoon was present at the sheriff’s sale and stated publicly to bidders, and in the hearing of Cook the purchaser, that he (John) had no interest in the premises; that the entire title was in James, and whoever purchased at the sale would get good title. The court held that this was competent evidence on the question of estoppel; apd further, that if credited and not rebutted or explained, 11 would require ” a finding that it was made with a view to influence the action of bidders—-hence would operate as an estoppel in favor of the purchaser and his grantees. (Trover, J., said, that he thought it a legitimate inference from this testimony offered,” that Cook was induced to purchase by a reliance upon this statement. On the second trial, the evidence, so decided by the Court of Appeals to be competent, was given, and stood in the case unrebutted and unexplained; for aught that appears, entirely credible. The deputy sheriff, who made the sale, testified that John Mattoon was present at the sale, as was also Cook, the judgment creditor; that just before the sale, he (John) said “ his son, James, had a deed of the place — he had given him a deed, and if it was sold on. execution the title would be good. * * * He said it to Cook, and myself and others present. Cook immediately told me to sell, the • premises. I did sell, and Cook bid them in. Before John. Mattoon had stated as I have testified, Cook asked him if James had any title, and he replied as I have stated. "x" * 'x' He had. before the sale stated to us that he had a life interest in the premises, and the sale was made with the understanding that it was. subject to that life interest.” No question exists in the case as to. the life interest, as John died in 1859. This evidence was accepted, by the referee as credible, for he finds and certifies in favor of its-truthfulness. But notwithstanding the decision of the Court of Appeals, to the effect that this evidence standing unrebutted and. unexplained, “ would require ” a finding that it was made with a view to influence the action of bidders, yet the referee has found, without any qualifying proof, that Cook was not induced or influenced to bid thereby. So he holds, as regards this branch of the case, that there was no estoppel. His finding in this regard seems very palpably erroneous. The evidence was clear, uncontradicted and abundant, to establish an estoppel against John Mattoon (except as to his life interest) and all persons claiming title under him ; for the estoppel would be equally effectual against his heirs and subsequent grantees. But this point cannot avail the defendant here, as he has taken no exception to the findings of the referee. The defendant has not appealed; and as regards this branch of the 'case, he must be deemed to have acquiesced in the decision as rendered.

The case will now be considered on the question of estoppel, based on what occurred on a subsequent occasion, when one, Willard, made a purchase and took a conveyance of the premises. It appears that Cook assigned his sheriff’s certificate of sale to Isaac 0. Sherwin; and the sheriff’s deed was executed to him. Sherwin took possession thereunder, claiming as absolute owner. Subsequently, and in 1852, a sale was in contemplation by Sherwin to Willard. The latter refused to purchase until he could learn from John Mattoon what interest he had, if any, in the premises. Whereupon Willard and his wife with Sherwin had an interview with Mattoon, who, in answer to questions put to him concerning the property, stated, that if they, Willard and his wife, bought the place of Sherwin, the title would be good. He spoke about the agreement between himself and his son Janies, and said he had no rights or interest except his rents; that it would be all right if the conditions of the agreement were complied with; that he had no interest after he died, if everything was kept up according to the writing. It also appears that the original agreement was then produced and was read over. Within a few days after this interview, Willard completed the purchase and took a conveyance from Sherwin. The referee found that Willard relied upon such declarations of John Mattoon, and was induced thereby to purchase the premises, and paid Sherwin the full value thereof; and as matter of law he held that such statements and assurances so made to Willard, created an estoppel in favor of the defendant, who succeeded to Willard’s title, against the title set up by the heirs at law of John Mattoon. Laying out of view the fact that the agreement between John Mattoon and his son James, was produced and read over at the time, and there can he no question, I think, but that the conclusion of the referee was eminently right. Willard was negotiating with Sherwin for the purchase of the premises; understanding that Mattoon might have some claim thereto, he refused to close the purchase until he could learn how the fact was, from Mattoon himself. Thereupon he sought out the latter, and interrogated him on the subject. The latter, well knowing of his intended purchase, and of course understanding his object in making inquiry, assured him that if he should make the purchase from Sherwin, he would obtain good title ; that he, Mattoon, had no rights or interest in the property except his rents; in substance, that all his rights therein would terminate on his decease. Thereupon, and relying upon those assurances, he closed the purchase and paid the grantor the full value of the premises. In this view, the case presents every element necessary to an estoppel in pais; and this well settled rule of law, based on considerations of high morality and manifest justice, may he invoked to protect the title of the purchaser against all claims on the part of the person giving the assurances, except such as he then set up and asserted. The cases cited are but a few of the many in the books, which, in my judgment, fully sustain the findings and conclusions of the referee on the question of estoppel. But it is insisted the doctrine of estoppel in pais fails in this case, for the reason that the paper which established the rights of John Mattoon, as between him and James, was present at the interview above alluded to, and was read over in Willard’s presence; hence, that the latter must have known the precise extent of John Mattoon’s rights, and could not, therefore, have relied on the oral statements, except as they were qualified or explained by the instrument itself. The evidence shows that Mattoon, in the conversation, mentioned over the provisions as to the cow, horse, house, etc., and alluded to the payments to be made in butter and sugar, in the nature of rent; and in this connection, referred to the paper which was then read over. Now, if it must be assumed that Willard understood perfectly all the terms and conditions of the instrument-— comprehended its entire legal effect — then, of course, the doctrine of estoppel mpais could have no application; for a party cannot be misled to his prejudice when he knows the truth as fully as the party sought to be estopped. In such case he would have purchased with full knowledge and understanding of all the facts; hence, could not have been misled. But, is it clearly proved that Willard understood — fully comprehended — the terms and legal effect of the instrument ? True, it was read over in his presen ce, but, as would seem from the evidence, rather with a view to the provisions particularly alluded to by Mattoon — all which would terminate with his life — than to determine the estate thereby conveyed ; which estate he asserted to be absolute in James on his decease; that James had the fee, subject only to certain rights held by John, the father, during life, was distinctly asserted by the latter, and seems to have been accepted as a fact by all; and the instrument was probably referred to, in order to obtain a full understanding as to those rights belonging to John. The paper was not one to be readily comprehended. It was not in the usual simple form of a conveyance; but was intricate in language, as well as complicated with various provisions. To understand it, careful study was needful. It was evidently drawn by a person unaccustomed to the preparation of legal instruments. Its provisions and the qualifications of the grant, are thrown in without order or definiteness. It lacks perspicuity to a degree that requires analysis and arrangement in order to comprehend it; and even then, what the parties in fact intended, will remain somewhat in obscurity. Therefore, it might well be, that one educated in construing such instruments, might have heard it read, without comprehending its legal significance. Should, then, every one, whose attention had been briefly called to its provisions, be held to a full understanding of it according to its exact legal import — and that too, when declared to have a different meaning and effect in some particular, by one inter-

ested to give it a correct construction ? More especially, should the party be held to such knowledge, in view of the additional fact, that its examination was probably induced in order to obtain an understanding of certain provisions, other than the clause as to which the mistaken construction was asserted ? On the other hand, it seems to me, that under the circumstances attending this case, it would be far more reasonable to hold that there was a want of knowledge on the part of the purchaser, of the import and legal effect of the paper; and to require that John Mattoon be held to his deliberate and unqualified assertion, that the former would obtain good title in case he should consummate the purchase. It seems impossible that Willard understood that he would obtain by his purchase from Sherwin, only such interest as the instrument, according to its exact legal construction granted to James, to wit: but a qualified right of occupancy for a very few years at most. The payment by him of the full value of the property, shows quite conclusively, I think, that he did not understand the paper, but relied on the assertions of John Mattoon as to the estate he proposed to obtain. And he had a right to rely on those assurances. As was said in Favill v. Roberts, he had a right to presume that the party knew the situation of his own title. It is quite apparent, I think, that Willard remained ignorant of the legal effect of the instrument — that he did not know or understand that the grant of the premises in controversy to James, gave him but a qualified interest therein during the life of John, and for one year thereafter. Admit that John did not intend to deceive Willard, and it is quite manifest that all the parties were under misapprehension as to the legal import of the instrument. Sherwin, who was present at the interview between John and Willard, swears that he had never heard of any claim by John or his heirs. John asserted that he had none, except such as would terminate on his decease; and further assured Willard that if he should make the purchase he would obtain good title; and Willard then made the purchase and paid the full value of the property. But if all were under mistake, that fact would not relieve the case from the effect of the estoppel here urged. Mow if Willard in point of fact remained ignorant of the legal effect of the instrument, then, the case is the same on this question of estoppel as if the paper had not been read over in his presence. The referee has so found, in effect; for he has found as a fact, that Willard relied upon the declarations of John, and was induced thereby to purchase, aud did purchase the premises and paid the full value thereof. I think this finding right. I am of the opinion that it is well supported by the evidence. If so, then the estoppel was established; and it may be insisted on against the heirs at law of John. It follows, if the above conclusions be sound, that the judgment directed by the referee was right and should be affirmed.

Boabdman, J.:

I concur, believing that the assertion of a particular construction and effect of a written instrument, of an obscure or doubtful character, is equally good as an estoppel, if believed, relied upon and acted upon, as is a disclaimer of title, to the person about to purchase.

Miller, P. J.

(dissenting) :

In the case now considered, the Court of Appeals, on a former appeal, held that it was error to exclude evidence of declarations by an owner of real estate, made publicly to the bidders at a sheriff’s sale thereof, and in the hearing of one who afterwards purchases at such sale, that he had no interest in the premises and that the entire title was in the execution debtor, and whoever purchased at such sale would get a good title. Upon the last trial of the case it was proved that upon a sheriff’s sale of the interest of James Mattoon, who held under a conveyance from John Mattoon, his father, that Cook, the purchaser of the interest of the said James Mattoon at said sale, asked John Mattoon, who was present, what interest he had in the premises; and John replied that he had given James a deed, but had a life interest; that James had not complied with the conditions of his agreement, and that he, Cook, would get a good title if he had a sheriff’s deed. Cook then told the sheriff to sell; which he did, and Cook became the purchaser and received the usual certificate of sale from the sheriff. It was also proved that the certificate of sale was assigned to one Sherwin, who received the sheriff’s deed, and took possession of the premises; that Sherwin negotiated with one Willard for a sale of the premises, and, pending the negotiations, Willard having refused to purchase until he could interview said John Mattoon, he and his wife and Sherwin met Mattoon, who stated, among other things, that if they bought of Sherwin, the title would be good ; that he had no rights or interests except the rents, and that he had no interest after his death, except that his wife had the use of fifteen acres after one year from his death. The referee found that Cook was not induced or influenced to bid by the reply of Mattoon to Cook, at the sheriff’s sale. He also found that Willard relied upon the declarations, made by John Mattoon to him and wife and Sherwin, and was induced thereby to purchase, and did purchase the premises; and by said declarations, all of said plaintiffs, except the widow, were estopped from asserting their title. The referee having found that Cook was not induced or influenced to bid by reason of the declarations made by Mattoon at the sheriff’s sale, and based his conclusion entirely upon the ground that the subsequent declarations constituted an estoppel, it is only necessary to consider whether the statements then made precluded a recovery by the plaintiffs as found by him. The principle upon which an estoppel in pcds is founded is .quite familiar. The admission must have been made, or the act done, with the intention of influencing the conduct of another, and the other party must have acted upon, or been influenced by, the declaration or act. It must also be shown that the act, declaration or omission, out of which the estoppel arises, influenced the conduct of the other party, or that he took action in the matter in reliance thereon, As Willard, was not sworn upon the trial, there is no-direct proof that he was influenced by the declarations of Mattoon. But, taking into consideration that he refused to make the trade until he received information from John Mattoon that he would acquire a good title if he bought of Sherwin, and that he thereupon-purchased at the full value, receiving only a quit-claim deed, it is a fair and legitimate inference, that he was induced to make the purchase relying upon the representations made. Such inferences are often quite as conclusive and controlling as if positive testimony is given, and, I think, warranted the conclusion at which the referee arrived. This view is supported by the opinion of the Court of Appeals in the case; and it was there said that the testimony offered would have shown an estoppel, and that such an inference might be drawn from the same. It is true that the referee came to a different conclusion as to the declarations made at the sheriff’s sale, but this does not affect the principle decided.

The question then remains, whether the misapprehension of the legal effect of the agreement by Willard, weakens and destroys the effect of the declarations and representation made by John Mattoon. It does not impair the effect of the estoppel, because Mattoon was mistaken as to the import of the instrument. But a different question arises, where the party, acting upon the representations made, had an opportunity to know and understand, and fails to avail himself of it. The rule is laid down in Herman on Estoppel, section 331, that where both parties know, or have the means of knowing, and each is equally in fault, neither can have an equitable claim to relief against the other. It appears that the agreement was read in the presence of Willard, and the presumption is that he heard it read. If he did thus hear it read, it was not the fault of John Mattoon that he did not understand it. Even if it were difficult of comprehension, except to those familiar with the rules of interpretation applicable to instruments of such a character, I do not well see how a party can be excused from understanding its true import and meaning." As the agreement itself showed what title James Mattoon had, it cannot be urged that he had any other, and the testimony establishes that John Mattoon referred to the written agreement. In Storrs v. Barker, although the purchaser may have known that the law was that the will of a feme covert, devising real estate, was void, the question now considered was not passed upon; and we have not been referred to any case which holds that ignorance of the effect of an agreement exhibited to a party, will justify him in relying upon mere verbal statements to the contrary, which, of themselves,' and independent of other circumstances, would create an estoppel. Hor am I prepared to say that this is a case where the defendant can invoke the rule, that where it is uneonseientions for a party to avail himself of a mistake of law, an exception lies to the rule ignorantia juris non excusat. It would be somewhat dangerous to hold that a legal title can he defeated by proof of declarations made, upon which it is claimed a party acted, when that party had full opportunity to learn and comprehend what the legal title was. Such a rule would be calculated to impair the effect of written contracts, and lead to confusion and looseness in the acquirement of title to lands.

My opinion is that the referee was wrong in this respect, and, for that reason, the judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed.

       45 N. Y., 696.

       Jackson v. Parkhurst, 9 Wend., 209 ; 45 N. Y.,702; Wood v. Seely, 32 id., 116.

       Plumb v. Ins. Co., 18 N. Y., 392, 394 ; Brown v. Bowen, 30 id., 519; 50 id., 222; Maloney v. Horan, 53 Barb., 29, 40; Wood v. Seely, 32 N. Y., 105, 112; Muller v. Pondir, 55 id., 325.

      Calkins v. Gas-Light Co., 1 N. Y. Sup. Ct. R., 546.

       50 N. Y., 222-225.

       Favill v. Roberts, 50 N. Y., 226; Tilton v. Nelson, 27 Barb., 595.

      Mattoon v. Young 45 N. Y., 702; Wood v. Seely, 32 id., 116.

       Brown v. Bowen, 30 N. Y., 519.

       Maloney v. Horan, 49 N. Y., 111.

       Storrs v. Barker, 6 J. Ch. R, 166; Tilton v. Nelson, 27 Barb. 595; Garnar v. Bird, 57id., 277.

        Supra.