text:
    NICHOLAS W. HARDER, as Executor, etc., of LUCRETIA WENDOVER, Deceased, Respondent, v. HERMAN PLASS and WILLIAM H. PLASS, Appellants.

      Mortgage of rye on leased land — good as between landlord and tenant — effect of the filing of a second and subsequent mortgage, prior to the first mortgage.

    On February 16, 1888, one Harder leased to Gardner a farm ■which. Gardner had already occupied for two years under a prior lease, and upon which a crop of rye was then growing; the prior lease reserved to the lessor all rye sown on the farm in the fall prior to its termination. On the same day Gardner executed a mortgage to Harder covering the rye, to secure $400 of unpaid rent then in arrear, under the former lease, and also another mortgage upon the same rye to secure $650, the rent agreed to be paid under the lease of February 16, 1888 both of which mortgages were filed in the proper town clerk’s office op March 1, 1888.
    Prior to this time and on February 10, 1888, Gardner had borrowed of one Plass $200, and had given him his note for that amount, and at the same time agreed to give him a chattel mortgage to secure such loan and ninety-four dollars and twenty-five cents of an old account, and on the 17th of February, 1888, the day after the date of the execution of the two mortgages to Harder, Gardner executed a chattel mortgage to Plass upon this same rye to secure the loan and the old account due to him as above stated, which mortgage was on the same day filed in the proper town clerk’s office, and was taken by Plass without any knowledge of the existence of the two mortgages which had been given to Harder.

      Held, that, as between Harder, the landlord, and Gardner, the tenant, this rye vías personal property and might be mortgaged as such.

      That Harder, having failed to file his mortgages before the delivery of the mort. gage to Plass, his lien on this property would have been subordinate to that of a mortgagee in good faith within the meaning of the statute (chap. 279 of 1883), but that Plass was not such a mortgagee in good faith, as the mortgage to him was given for a pre-existing indebtedness without any new consideration.
    That Harder had the prior lien, under his mortgages, upon the rye.
    Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 18th day of February, 1890, upon the report of a referee.

      John Gaclman, for the appellants.

      E. R. Harder, for the respondent.
   Mayham, J.:

Plaintiff, as executor and trustee, leased to one Gardner a farm for two years, ending April 1, 1888, reserving to the lessor all rye sown on the farm in the fall prior to the termination of the lease.

On the 16th of February, 1888, plaintiff and Gardner settled and there was found due the lessor, for accrued rents, $400. On that day the plaintiff again leased the farm to Gardner for one year for $650, taking from Gardner on that day a mortgage on the rye then growing on the farm for $400 to secure the unpaid rent in arrears, and also another mortgage on the same rye for $650 to secure the rent agreed to be paid for the ensuing year.

These mortgages were filed by the mortgagee in the proper town clerk’s office, on the 1st day of March, 1888.

On the 10th day of February, 1888, Gardner borrowed of Herman Plass, one of the defendants, $200, and gave him his note for the same, and at that time agreed to give him a chattel mortgage to secure that loan and ninety-four dollars and twenty-five cents of old' account, for which he was indebted to Herman Plass. On the 17th day of February, 1888, Gardner executed and delivered a mortgage on this same rye as security for the amount of this note and book account to Herman Plass, who, on the same day, caused the mortgage to be filed in the proper town clerk’s office. At the time of taking this mortgage Plass had no knowledge of the existence of the mortgages to plaintiff.

. The rye covered by these three mortgages was harvested by Gardner while holding under the-lease of February 16, 1888, and the straw from the same was delivered by Gardner, without the knowledge or consent of the plaintiff, to the defendants, who at the time of taking the same had knowledge of the plaintiffs’ mortgages. After such delivery plaintiff demanded the straw of the defendants, who refused to deliver the same, and plaintiff brings this action.

The rights of the plaintiff and defendants to this straw rest alone upon their respective mortgages; and, as between themselves, must be determined in favor of the one having the first or superior right by virtue of his mortgage.

On the part of the plaintiff it is insisted that this rye at the time it was mortgaged to him was a chattel real, and as such not within the provisions of the statute requiring a mortgage or conveyance of goods or chattels, not accompanied by an immediate delivery and followed by a continual change of possession, to be filed-If this rye ir. its then condition was a chattel, then the plaintiffs’ contention on this point is not sound. Subdivision Y of section 3343 of the Code of Civil Procedure defines personal property as follows: “ The words personal property ’ include money, chattels, things in action, and evidences of debt. The word “chattel” is co-extensive with goods and chattels.”

This rye would seem clearly to come within the plain meaning of this definition, and both parties to this controversy had treated it as a chattel. As between the plaintiff, who in this case was the landlord, and Gardner, the tenant, this rye was personal property, and might be mortgaged as such. (Smith v. Jenks, 1 Denio, 580.) In this case the tenant occupied land under a lease by the terms of which he was entitled to the growing crops, and it was held that he might mortgage it as a chattel by personal mortgage, while yet growing, and this was affirmed on appeal by the Court of Appeals on the ground that both parties had treated the grass as a chattel. (Jenks v. Smith, 1 N. Y., 90.) But in Green v. Armstrong (1 Denio, 554), the rule governing this class of cases seems clearly stated, and which when applied to this case is decisive of this question.

In that case the court says: “ The word land is comprehensive in its import, and includes many things besides the earth we tread on, as waters, grass, stones, buildings, fences, trees and the like, for all these may be conveyed by the general designation of land.” * * * “ They pass to the heir by descent as part of the inheritance, and not as personal chattels do, to the executor or administrator,” * * * “ and being strictly real property they cannot be sold on an execution against chattels only.”

“It is otherwise with growing crops, as wheat and corn, the annual produce of labor and cultivation of the earth; for these are personal chattels and pass to those entitled to the personal estate, and not to the heir.” * * * They may be sold on execution like personal chattels.

It follows, therefore, both within the definition given in the Code (§ 3343, sioprco), and within the rule laid down in the cases, that this rye, at the time of the execution of these mortgages, was personal property belonging to Gardner, and liable to be mortgaged 'as a chattel by him. The case of Booth et al. v. Kehoe et al. (71 N. Y., 341), cited by the learned counsel for respondent on this point, has no application to this case. In that case the mortgage was of a lease or chose in action, and not a chattel.

Chapter 279 of the Laws of 1833, provides that “ every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed,” etc. \

The plaintiff having failed to file his mortgage before the delivery of the mortgage to Plass, would, for that reason as against Plass under his mortgage, lose his lien on this property, provided Plass is a mortgagee, in good faith, within the meaning and intent of the act above quoted; unless he can claim some immunity from the terms of the lease of February sixteenth, which, for security for the rent, refers to the terms of the mortgage.

There are nó provisions in this lease or mortgage that the title to this crop should remain in the plaintiff, as in the case of Andrew v. Newcomb et al. (32 N. Y., 417), cited by respondent; and it would seem that the most that could be claimed for that provision in that lease is that it was intended as a security, and as such was subject to the provision of the statute requiring mortgages to be filed. Were the defendants in this case subsequent mortgagees in good faith ?

On tlie 10th of February, 1888, Plass loaned this $200, and at that time Gardner agreed to execute a mortgage on the rye to secure that loan and the old debt. At that time Gardner had not renewed his lease and had no interest in the rye which he could mortgage. The loan was, therefore, made with no other security or evidence of the debt than the note. If Gardner had on that day executed to Plass a mortgage on the rye, he not having the title, but intending to acquire it infutwro, the mortgage would have been void. (Otis v. Sill, 8 Barb., 102; Gardner v. McEwen, 19 N. Y., 123.) By the lease to Gardner on the 16th of February, 1888, he acquired title to this rye, and on the seventeenth of the same month, and after he had mortgaged this rye to the plaintiff, he executed a mortgage to Plass to secure the $200 loan and an old account; at that time no credit was given on the faith of the mortgage and no rights or valuable' consideration passed from Plass to Gardner for the mortgage. The only consideration for the mortgage on the day it was executed was wholly a passed one.

The agreement of Gardner to give a mortgage when the loan was made was an executory agreement, which created no lien on the property and could not be enforced against it, especially as the title was not at that time in Gardner. (Otis v. Sill, supra.)

When the mortgage was given it was for a pre-existing debt, and the mortgage was, therefore, not a subsequent mortgage in good faith, so as to divest the right of the holder of a valid, prior and unfiled mortgage.

In Wood v. Robinson (22 N. Y., 567) the court says: “ Where a conveyance is made or a security taken, the consideration of which was an intended debt, the grantee or party taking the security is not looked upon as a bona fide purchaser,” * * * “ and it is well settled that a grantee or incumbrancer, who does not advance anything at the time, takes the interest conveyed, subject to any prior equity attaching to the subject.” *

To the same effect is Arnold v. Patrick (6 Paige, 310); Thompson v. Van Vechten (27 N. Y., 581). In Jones v. Graham (77 N. Y., 628) the court, in discussing the effect of chapter 279 of the Laws of 1833, held: “Nor is a person a mortgagee in good faith, within the meaning of said statute, whose mortgage was given for a pre-existing indebtedness without any new consideration.”

Tbe defendants are not, therefore, in a condition to challenge the prior mortgages of the plaintiff on the ground that they were not filed before theirs.

Nor does their diligence in filing their mortgage in any way affect the priority of the plaintiff’s unfiled mortgages, for the reason that they are not, within the rules above referred to, subsequent incumbrancers in good faith. As between the mortgagor and mortgagee, all the mortgages are valid, and as the plaintiff lost nothing of his rights as to the defendants’ mortgage by his failure to file his, it follows that the plaintiff, under his prior mortgages, has title to this straw as against the defendants and their vendor.

The report of the referee was right, and must be sustained and the judgment entered, with costs thereon, affirmed.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Mayham, J.:

license: Public Domain

text:
    THE RODNEY HUNT MACHINE COMPANY, Respondent, v. JAMES M. STEWART and WILLIAM R. STEWART, Appellants.

      Conditional contract for the sale of chattels — mortgage of the chattels by the conditional vendee — liability of the vendee for so doing — chapter• 315 of 1881 and chapter 225 <^1888 — joint liability for conversion — demand.
    Certain water-wheels were manufactured, by the Rodney Hunt Machine Company under an order dated April 11, 1887, directing their manufacture, which order further provided as follows: “ It is agreed that the above-specified articles are to remain the property and subject to the order of the Rodney Hunt Machine Co. until paid for in full, and that if promissory notes are given for said sum, no payment thereof or thereon shall divest the title of the said Rodney Hunt Machine Co. until all said promissory notes are paid in full.”
    The water-wheels were delivered to the New York Pulp Company under this contract, and that company thereafter, and on the 1st day of June, 1888, executed a mortgage to secure the sum of $3,500 borrowed of one Mary Matilda Stewart, which covered the mills and real property of the company and “ also all the machinery, water-wheels,” etc.

      On the 11th of March, 1889, the New York Pulp Company executed to said Stewart a chattel mortgage upon the water-wheels in question to secure a debt of $15,000 owing by it.
    The real-estate mortgage was foreclosed and a sale of the premises covered thereby was made on the 4th day of May, 1889, to one James M. Stewart. Thereupon an action was brought by the Rodney Hunt Machine Company against the New York Pulp Company, in which it was charged in the complaint that the Pulp Company was guilty of a conversion of the water-wheels.

      Meld, that the action was properly brought.
    That whether the contract constituted the Pulp Company a bailee of the waterwheels within the strict and technical meaning of that word, or whether it was a conditional purchaser, it had no right to dispose of the property by giving the mortgage in question.
    That a conditional purchaser of property under an executory contract to sell, not performed by him, takes no title which he can conveyor transfer, and a transfer or sale by him of the property is a wrongful act, amounting to a conversion of the property.
    The contract above set forth was, on the 9th of April, 1887, filed in the proper town clerk’s office, but was never thereafter refiled, and it was claimed by the Pulp Company that the Machine Company, by failing to refile the contract within a year, as required by chapter 815 of the Laws of 1884, as amended by chapter 225 of the Laws of 1888, had lost its right to the water-wheels as against a bona fide purchaser or mortgagee, and that, as it had lost its right through its own neglect, no right of action arose against the Pulp Company by reason of its having mortgaged the water-wheels.

      Meld, that while the conditional vendor might be precluded by the provisions of these acts from following his property and recovering it from a bona fide purchaser or mortgagee in case of a failure to file or refile the conditional contract of sale within the time prescribed by these acts, yet the obligation of the conditional vendee to the vendor was not changed by these acts of the legislature, and the execution and delivery of the mortgage of this property by the Pulp Company made that company liable as a wrong-doer, and also rendered liable, as joint wrong-doers, other parties taking part in such act of the Pulp Company with knowledge of the situation of that company with regard to the property. That the giving of the mortgage constituted a conversion per se, and that no ' demand before suit was necessary.
    Appeal by tbe defendants from a judgment, entered in the office of the clerk of the county of Saratoga on the 17th day of January, 1890, on a decision rendered at Special Term in favor of the plaintiff, by which it was adjudged that the plaintiff recover of the defendants James M. Stewart and William R. Stewart the sum of $2,155.83, together with costs.
    The action was brought to recover the damages resulting from an alleged conversion by the defendants of certain property consisting of water-wheels which had belonged to the plaintiff, and had been delivered by it to the New York Pulp Company under a conditional contract of sale.

      E. T. Brackett, for the appellants.

      Gha/rles 8. Lester, for the respondent.
   Mayham, J.:

This is an appeal from a judgment upon the decision of a judge, upon a trial before him at Special Term without a jury.

The action was for the alleged conversion by the appellants and the New York Pulp Company of four sets or pairs of waterwheels furnished by the plaintiff to the New York Pulp Company under the following agreement :

“ Hadley, N. Y., April 11, 1887.
“ Rodney Hunt Machine Company :
“You will please manufacture and ship to the undersigned at Hadley, N. Y., four sets or pairs of twenty-four inch water-wheels per plan submitted and described in letters. In consideration of which the undersigned agree to pay with exchange, besides the freight from the manufactory, the sum of twenty-six hundred dollars. It is agreed that the above specified articles are to remain the property and subject to the order of the Rodney Hunt Machine Co. until paid for in full, and that if promissory notes are given for said sum no payment thereof or thereon shall divest the title of the said Rodney Hunt Machine Co. until all said promissory notes are paid in full.
“Nor shall any payment on account and receipt therefor divest said title until said sum is fully paid.
“And it is further agreed that this instrument evidences the whole contract under which • said articles are received by the undersigned.
“ Hadley, Saratoga Co., N. Y.
“NEW YORK PULP CO.,
“James M. Stewart, Manager.”

The wheels referred to in the above memorandum were placed in the mills of the New York Pulp Company, for which two notes of tlie company were given, on which there remained due and unpaid on the 1st of June, 1889, the time of the commencement of this action, the sum of $2,155.88. The memorandum or contract above set out was, on the 9th day of April, 188J, filed in the Hadley town clerk’s office, but was never refiled.

On the 1st day of June, 1888, the New York Pulp Company borrowed of Mary Matilda Stewart, the mother of the defendants James M. and William R. Stewart, the sum of $3,500 in money, and, in consideration thereof and as security therefor, executed and delivered to her its real estate mortgage, covering the mills and real property of said company, and containing this clause: “Also all the machinery, water-wheels and fixtures now in, or which may hereafter be in or upon the mill, or on said premises.” The mortgage also contained a clause that, if the interest (which was payable semiannually) was not paid within thirty days from the time when due, the whole principal sum became due at the option of the mortgagee.

This mortgage was executed by and with the ju’fvity and procurement of the defendants who did not inform the mortgagee, who was their mother, of the existence of the plaintiff’s claim under the contract for the wheels in question, and she took the mortgage without any knowledge of the existence of the same.

Default having been made in the payment of the installment of interest on said mortgage which fell due on the 1st day of December, 1888, an action was commenced for the foreclosure for the full amount of principal and accrued interest on the 15th day of February, 1889, and a sale of the premises, under judgment of foreclosure and sale, was effected on the 4th day of May, .1889, to James M. Stewart, one of these defendants.

On the 11th of March, 1889, by the procurement of the defendants, the New York Pulp Company executed and delivered to Mary Matilda Stewart a chattel mortgage upon the water-wheels in question, to secure a debt due from the New York Pulp Company to her for $15,000. This mortgage purports to be collateral to certain real estate mortgages held by her in her own right, and as executrix, against property of the New York Pulp Company.

The theory upon which the plaintiff prosecutes this action is that the New York Pulp Company was, under the contract, only plaintiff’s bailee of the wheels in question, and that by the procuring and giving of a mortgage on the' property they (the company and these defendants) were gnilty of a conversion of the same, and that these defendants are liable for participating in that conversion. Before the commencement of this action the plaintiff claims to have demanded the return of the wheels of the defendants, and that they failed or refused to return or surrender them on such demand. The chattel mortgage has never been foreclosed, and no possession of the wheels has ever been taken by the mortgagee thereunder.

The defendants insist that the contract between the plaintiff and the Pulp Company was a conditional sale, and not a bailment, and that the Pulp Company under the same got a mortgageable interest in the wheels, and that the mortgagee thereunder took the rights of the Pulp Company under the conditional sale; a right which the plaintiff could divest on the failure of the Pulp Company, or those succeeding to its interest, to pay the purchase-price, unless the plaintiff by failing to refile the conditional bill of sale within a year, under chapter 315 of the Laws of 1884, as amended by chapter 225 of the Laws of 1888, had lost its right as against a bona fide purchaser or mortgagee, and if it had, it was through its own neglect and created no right of action against the mortgagor or those defendants at whose instance the mortgage was made.

The question which seems first to be presented for consideration is, whether the New York Pulp Company could, as against this plaintiff, legally mortgage this property ? And the answer to this question must depend upon the construction of the contract between the plaintiff and Pulp Company whether it was a conditional sale, the title to remain in the plaintiff until payment by the Pulp Company, which was a condition precedent to the vesting of the same with a qualified right of possession in the Pulp Company, dependent upon their performance of that condition. Or whether it was an absolute sale, under which the title passed at the time, and the conditions as to payment was a mere security for the price, as in Wait v. Green (36 N. Y., 556).

I am of the opinion that this was' an executory contract for a sale, dependent entirely upon the payment, which was a condition precedent to the vesting of the title, and that the possession of the Pulp Company was also dependent upon the performance of that condition. That being so, whether the Pulp Company was a bailee in the strict and technical meaning of that word, or was a conditional purchaser, it had no greater right to dispose of the property than a naked bailee.

In Ballard v. Burgett (40 N. Y. [1 Hand], 316), where the referee found that a yoke of oxen in controversy were, by the contract, to remain the property of the plaintiff until defendants’ vendor paid for them, although defendant had no knowledge of such agreement, plaintiff was held entitled to recover the oxen. Grover, J., says: “ The possession of the contemplated purchaser gives him no better opportunity to impose upon purchasers than that of an ordinary bailee.”

In Herring v. Hoppock (15 N. Y., 411), where, under a written bargain for the sale of a safe, the purchasers were to give a note for the price, and the writing contained a provision that the vendor neither parts with, nor does the vendee acquire any title until the note is fully paid. Paige, J., in delivering the opinion of the Court of Appeals, says: Whenever there is a condition precedent attached to a contract of sale, and the condition is not waived by an absolute and unconditional delivery, no title passes to the vendee until he performs the condition, or the seller waives it.” * * *

“No property could vest in them under the contract until the payment of the price of the safe. It remained in their possession as the property of the plaintiff. Their implied right to use it, until the maturity of the note, was not such an interest as could be levied upon ; their possession until that time was as the mere bailee or servant of the plaintiff.” (See, also, Frank v. Batten, 49 Hun, 95.)

In Austin v. Dye (46 N. Y., 502), the court says: “It is well established that neither an ordinary bailee of property, nor one having possession under an executory agreement to purchase, can give a title thereto to a purchaser, although the latter acts in good faith, and parts with value without knowledge or notice of the want of title of his vendor, or' that third persons have claims upon the property,” and the court, upon this proposition, cites, with approbation, the case of Ballard v. Burgett (supra), and add that the court held “ that one who purchases personal property from an individual having possession under an executory agreement for purchase, the conditions of which have not been performed, acquires no title as against the original owner.”

From these and many other cases which might be cited on this point, it would seem well settled that a conditional purchaser under an executory contract to sell, not performed by him, takes no title which he can convey or transfer ; and it must follow that a transfer or sale by him would be a wrongful diversion of the property amounting to a conversion.

Was the mortgaging of the wheels such a transfer? The answer to this question must, to some extent, depend upon the effect which the mortgage may have upon the plaintiffs’ right reserved under the contract with the Pulp Company. We have seen that under that contract the title remained in the vendor, subject to the power and right of the vendee to divest the same by the performance of the subsequent condition of payment provided in the agreement, which was a condition precedent to the vesting of the title in the vendee.

Is that rule changed as between the vendor and bona fide purchasers or mortgagees of the vendee by the provisions of chapter 815 of the Laws of 1884, as amended by chapter 225 of the Laws of 1888 ? Section 1 of chapter 315 of the Laws of 1884 is as follows :

“ In every contract for conditional sale of goods and chattels hereafter made which shall be accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing contracted to be sold, all conditions and reservations which provide that the ownership of such goods and chattels is to remain in the person so contracting to sell the same, or other person than the one so contracting to buy them, until said goods or chattels are paid for, or until the occurring of any future event or contingency, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, and as to them the sale shall be deemed absolute, unless such contract for sale with said conditions and reservations therein, or a true copy thereof, shall be filed, as directed in the succeeding section of this act.” Section 2 of this act provides that such filing shall be in the office of the town clerk; and section 3 provides that unless a copy thereof is refiled within thirty days next preceding the expiration of each year, together with a statement of the amount due or unpaid, the conditions and reservations specified in the first section of the act shall cease to be valid as against subsequent purchasers and mortgagees, in good faith, after the expiration of one year from the filing of such instrument.

As we have seen, the first contract was filed, but it was not refiled, and the mortgages executed by the Pulp Company to Mrs. Stewart were both made more than one year after the filing of the original agreement in the town clerk’s office.

It seems clear that the object of this statute was to change the rule between the vendor on a conditional sale and a subsequent purchaser or mortgagee of the vendee in good faith without knowledge of the condition, and that, unless the agreement evidencing the conditional sale is filed, and kept renewed from time to time as required by that act, the subsequent purchaser or mortgagee in good faith will hold the property as against the conditional vendor. If this be so, the unauthorized sale or mortgage by the conditional vendee may and would, as between the vendor and the vendee or mortgagee in good faith of the conditional vendee, completely divest the orginal vendor of title, and thus put it beyond his power to reclaim the property.

Under such circumstances, it would seem clear that the sale or mortgage by the conditional vendee, who, as we have seen, was before the performance of the condition under the conditional purchase, but a bailee of the vendor, is a conversion of the conditional vendor’s chattel. While the conditional vendor would be precluded by the provisions of this act from pursuing his property, and recovering the same from a Iona fide purchaser or mortgagee, the obligation of the conditional vendee to the vendor is not changed by this act. The conditional vendee is still, in effect, the vendor’s bailee, and as such remains liable to the vendor for any conversion of the goods.

But it is urged that the plaintiff has been guilty of negligence in not refiling the contract of conditional sale, and by reason of that negligence, and not by the act of the Pulp Company, the plaintiff has lost its property in these wheels.

I do not think that the defendants are in a condition in this case to avail themselves of the plaintiff’s alleged negligence as a defense to this action. The mortgages in each instance were absolute and do not purport to be subject to any other or superior outstanding title. It is clear that these defendants were both cognizant of the plaintiff’s title in the property, and they were bound to know that a sale or mortgage by the Pulp Company was an unauthorized disposition of the plaintiff’s property which the company held as agent or bailee of the plaintiff before the performance of the condition, which alone would perfect the sale and vest the title in the Pulp Company. I think, under the circumstances of this case, the execution and delivery of the mortgages was a conversion of this property by the Pulp Company, and the part taken by the defendants made them liable as joint wrong-doers in that conversion.

The learned trial judge was right in holding that “the position of the Pulp Company in regard to these wheels is not unlike that of a mortgagor of personal chattels after default, when the title of the mortgagee is held to be absolute.” In such a case, Thomas, in his treatise, on Mortgages says: “ If the mortgagor or any person in his behalf, or under his title, does anything after breach of the condition which is inconsistent with the mortgagee’s title, he will have an action against them for trespass or conversion.” (Thomas on Mort., 446; Dudley v. Hawley, 40 Barb., 397.)

In the case last cited it was held that a sale of the mortgaged property after default by the mortgagors or their agent was a conversion of the goods, and that an agent of the mortgagors, who sold the goods and was ignorant of the existence of the mortgage, was liable as well as the mortgagors for the conversion; and that the laches of the mortgagee in not reducing the goods to possession for more than a year after default was no defense in an action for conversion. The mortgaging of the wheels being a conversion ^x?r se, no demand was necessary, especially as we have seen that by that act the mortgagors put the property beyond their control, and, as between the plaintiff and a bona fide mortgagee, beyond the reach of the former by reason of the operation of chapter 316 of the Laws of 1884.

As it is admitted in the pleadings, and found as a fact, that this wrongful act of the Pulp Company was done “ by and with the privity and procurement of the defendants,” they, as well as the Pulp Company, are jointly and severally liable for the wrong. The rule is elementary that whoever aids or assists in the commission of a wrong is liable in an action for such wrong.

On the whole case, we think the decision of the learned trial judge was right, and that the judgment should be affirmed.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


author: Dwight, P. J.:

text:
    MARIA MOELLER, as Administratrix, etc., Appellant, v. H. AUSTIN BREWSTER and Others, Respondents.

      Oontributory negligence of an employee engaged in testing castings — when a question for the jury.

    In an action to recover the damages resulting from the death of the plaintiff’s intestate and husband, it appeared that the deceased had for a number of years been employed in testing castings used for steam-heating purposes and manufactured by the defendants ; that a new pattern of casting had been introduced into the defendants’ shop, of which only four or five had been tested before the one from the explosion of which the death had occurred; that this new pattern of casting had a larger interior cross-section than any which the deceased had previously been employed in testing, and that the greater the interior cross-section of the steam cavity the greater was the pressure to the square inch of a given force of steam, and consequently the greater the liability to explosion with the same thickness and strength of iron.
    The appliances for testing these castings were the same, both before and after the introduction of the new pattern, and had been in use for seven or eight years in testing the castings of the earlier pattern without any explosion having taken place. The pressure of steam and the application of the hammer, by which the test was made, were both under the control of the plaintiff’s intestate.

      Held, that the question whether the plaintiff’s intestate was chargeable with knowledge of the danger involved in testing these castings of the newer pattern, and with negligence in not adapting his mode of operation to the requirements of the changed condition of affairs, should have been submitted to the jury.

      Exceptions ordered to be heard at the General Term in the first instance after a trial at the Monroe Circuit October 10,1889, before the court and a jury, at which a verdict was rendered by direction of the court in favor of the defendants.

      Q. Van Voorhis, for the motion for a new trial.

      II. McGuire, opposed.
   Dwight, P. J.:

The action was for damages resulting from the death of the husband and intestate of the plaintiff, caused, as is alleged, by negligence of the defendants. At the close of the evidence on the trial the defendants asked the court to direct a verdict in their favor, on the sole ground “ that on the undisputed evidence in the case the plaintiff’s intestate was guilty of contributory negligence,” and the direction was given. That question was also the only one discussed in behalf of the defendants on the argument of this motion for a new trial, counsel declaring that he was content to stand or fall with the proposition above stated, thus conceding, for the purposes of this review, that the question of the defendants’ negligence was a proper one for the jury. We think it would have been more in accord with the rule established by the later cases if both questions had been so treated. It requires a very plain case, indeed, to warrant the withdrawal of the question of contributory negligence from the jury. The Court of Appeals of our own State has lately gone so far as to say, in an opinion by its chief judge, that that question is for the jury “ in all cases except those marked by gross and inexcusable negligence.” (Parsons v. N. Y. C. and H. R. R. R. Co., 22 N. Y. St. Rep., 697, 702.)

Without insisting upon the full force of the rule thus declared we think this case was one in which the fact of the negligence of the deceased should have been found by the jury if it was to defeat the plaintiff’s action.

The defendants were manufacturers of steam-heating apparatus, and the deceased was a workman in their employ. His particular branch of the work was the testing, for leaks, of the cast-iron bases of radiators; and he was killed by the explosion of one of those bases while being tested by him. The testing was accomplished by means of steam let on from the boiler connected with the engine which propelled the machinery of the works. The radiator being set up by the insertion of upright tubes into the base, a steam pipe from the boiler was connected with one end of the base, to admit the steam, and a rubber tube with the other end to permit the steam to pass off into a sewer or drain. Of course, the supply of steam must exceed the exhaust in order to produce a pressure sufficient for the detection of leaks, which were indicated by the escape of steam; and to control both the supply and the exhaust the two pipes were fitted with stop-cocks which might be wholly or partially closed by the operator. There was a class of small orifices sometimes found in the iron which were to be closed by a process of hammering, which had the effect of so expanding or flattening the particles of iron surrounding the orifice as partly to close it, and the process of rusting completed the operation. . Of course, the danger of explosion of the base, with a given strength of material and construction, depended, in the first instance, upon the pressure of steam; but the evidence tended to show that that danger was increased by the vibration iii the particles of iron produced by the hammering mentioned. It is probable that vibration, to some extent, was produced by any hammering of the iron; but the evidence tends to show that with a pressure of steam properly regulated, moderate blows of the hammer might be applied with safety, and that it was usual to apply the hammer when the steam was on, because only then could the operator discover the precise location of the orifice to be closed. It follows that safety from explosion, in this operation, depended largely upon the proper regulation of the pressure of steam, together with the proper use of the hammer, both of which were in the control of the operator, but, that both of these elements of danger were greater or less in proportion to the strength or weakness of material and construction employed in the casting operated upon. And this brings us to the fact, which the evidence tends to show, and upon which the plaintiff’s cause of action, if she has one, may possibly depend, viz.: That the casting which exploded was of a new pattern, only just introduced into the defendants’ shop, of which only four or five had been tested before this one, and which were of a larger interior cross-section than any which the deceased had previously been employed in testing. It appears that the greater the interior cross-section, or interior diameter, of the steam cavity, the greater the pressure to the square inch of a given force of steam, and consequently the greater the liability to explosion with the same thickness and strength of iron. And so we find in this case that the deceased had been employed in testing bases with precisely the same appliances and in the same manner of operating, for seven or eight years, without, so far as appears, causing an explosion, until the introduction of the bases of the new pattern. The one which exploded with fatal effect was, as we have seen, only the fifth or sixth of those tested, and the one last before it had also been exploded, though without injuring any person, not by hammering, but by striking a corner on the floor or table, when being turned over with the steam on. From these facts there was room to argue that the pressure of steam and the manner of manipulation, with the hammer or otherwise, which the deceased had been accustomed to employ, was safe with the castings which he had been accustomed to test, but dangerous with those of the new size and pattern ; and if so, the material. question would be whether he was chargeable with knowledge of the danger in the case of the latter and with negligence in not adapting his mode of operation to the requirements of the situation. This question was to be determined, in view of all the circumstances of the case; and it would have been for the jury, if the ease had been submitted to them, to attach to each of those circumstances its proper weight and determine the effect to be given to them as a*whole. There was, for instance, the circumstance of the long experience of the deceased in the work; but, on the other hand, the fact that lie was never a skilled mechanic; that he began at this place as a common laborer and had had no mechanical education except what he had gained by experience of the narrow routine of testing cast-iron radiator bases by the pressure of steam, and the closing of minute orifices by the use of a hammer. Whether from this experience he was likely to gain a knowledge of the mechanical principles involved in the inquiry whether it was safe to make use of the old methods under the new conditions, may have been a question in this case; if so, it was a question for the jury. There is a good deal of evidence in the case, of warnings which the deceased received about this time, especially from his foreman, ’Widdowsón, in respect to his method of testing, but it does not appear that any of these warnings had reference to the change in the pattern and size of the bases in use, and it is a question whether there was any evidence that his methods at this time were different from those which he had habitually employed through a long period of immunity from accident.

There are many other facts in the case of more or less importance as bearing upon the question of the negligence of the deceased, but none, we think, which render that question anything more or less than a question of fact for the jury.

We have no intention to intimate an opinion whether in the respect considered, a case was made for a recovery. We have reached the conclusion only that the question was one upon which the jury should have been permitted to pass. The motion for a new trial must, therefore, be granted.

Ooelett, J., concurred; Macomber, J., taking no part.

Motion for a new trial granted, with costs to abide the event.


text:
    LYDIA HULBERT and Another, Administrators, etc., of REUBEN D. HULBERT, Deceased, Respondents, v. WILLIAM B. CLARK and CHARLOTTE M. CLARK, Appellants.

      Foreclosure of a mortgage given to secure notes, after suit upon the notes is barred under the statute of limitations.

    In an action for tlie foreclosure of a mortgage upon real property, given to secure a simple contract debt evidenced by certain promissory notes, all of which prior to the bringing of the action had been due more than six years, but less than twenty years, a plea Of the statute of limitations was interposed.

      Held, that although an action for the collection of a simple contract debt, secured by promissory notes, was barred by the statute of limitations of six years, that the action to foreclose the mortgage given to secure the same was not barred by such statute.
    In such action, simply for the foreclosure of a real estate mortgage, no personal judgment can be entered, as the action is one in rem.

    The efEect of the statute of limitations of the State of New York, except in the case of a judgment or decree for the payment of money, is only to limit the time within which an action may be commenced, and it does not raise a presumption of payment of the debt or obligation.

      Appeal by the defendants from a judgment, entered in the office of the clerk of the county of Seneca on the 13th day of November, 1888, upon questions of both law and fact.
    The action was tried before a referee, upon whose decision in favor of the plaintiff the judgment was entered.

      J. M. Hammond, for the appellants.

      F. L. Manning, for the respondents.
   Dwight, P. J.:

The action was for the foreclosure of a mortgage of real estate given to secure a simple contract debt evidenced by a series of eight promissory notes, the last of which became due more than six but less than twenty years before the commencement of this action. Also, the last payment allowed as a credit on the notes was made more than six years before the commencement of the action, and more than six years before the death of the plaintiff’s intestate, who was the payee and mortgagee named in the notes and mortgage. It is admitted that all of the notes except two, the sixth and eighth of the series, were paid during the lifetime of the' intestate, and the plaintiffs seek to recover, by a foreclosure of the mortgage, the amount of the two notes alleged to be unpaid and which were found among the papers of the deceased after his death. The principal contest on the trial seems to have been made on the issue of payment. The evidence on that subject was conflicting and the fact was not free from doubt, but the affirmative of the issue was with the defendants, and they have failed to satisfy the mind of a careful and conscientious referee that the two notes in question had been paid. The finding is to the contrary, and with that result, we do not feel at liberty to interfere.

The plea of the statute of limitations which was interposed by an amendment to the answer, allowed on the trial, presents the simple question whether an action to foreclose a mortgage of real estate, for the collection of a simple contract debt, which the mortgage was given to secure, is barred by the six-years statute of limitations. Upon that question we regard the law as settled in this State, against the contention of the defendants. (Waltermire v. Westover, 14 N. Y., 16; Pratt v. Huggins, 29 Barb., 277; Gillette v. Smith, 18 Hun, 10; Kincaid v. Richardson, 9 Abb N. C., 319; Matter of Latz, 33 Hun, 622.)

The argument of counsel for the defendants is based largely upon the assumption that the statute of limitations raises the presumption of payment of the debt or obligation within the time prescribed by the limitation. But this assumption is erroneous. There is only one case in which, by our statute, a jn’esumption 0f payment is created by the lapse of time; and that is the case of a judgment or decree for the payment of money. (Code of Civ. Pro., § 376.) In all other cases the effect of the statute is only to limit the time within which an action may be commenced. (Id., §§ 381, 382 et seq.) In all these cases the debt or obligation remains unaffected, except-as to the remedy for its collection or enforcement. It is still recognized by the law as a good and valuable consideration for any subsequent promise or undertaking or transfer of property. If a party has two remedies for the collection of the same debt, he may pursue either within the time limited by the statute for its pursuit. In this case the debt evidenced by the notes in question was not paid or satisfied by the lapse of six years from the time it became due; the statute only forbade after that time an action on the notes for its recovery. But the same debt was also secured by the mortgage, upon which an action might be maintained at any time within twenty years; and that was the action brought by the plaintiffs. The plea of the statute of limitations was, therefore, properly overruled, and a judgment ordered for a foreclosure of the mortgage. But the same considerations above presented show that in one respect the judgment entered, and from which the appeal was taken, was one to which the plaintiffs were not entitled, and which was not warranted by the findings of the referee. The action being on the mortgage, and not on the notes, was solely an action in rem, and no personal judgment could be had therein against either of the defendants. The judgment, as entered, directs that the defendant, ’William B- Clark, pay to the plaintiffs whatever deficiency may arise oh the sale of the mortgaged premises. The judgment should be modified by striking out the provision mentioned, and as modified affirmed, without costs of this appeal to either party.

Macomber and Corlett, JJ., concurred.

Judgment modified by striking out the provision for personal judgment against the mortgagor, and as so modified affirmed, without costs of this appeal to either party.


text:
    MARY SCHNEIDER, Respondent, v. EDWARD LEIZMAN and RICHARD HILL, Appellants, Impleaded with THOMAS C. HODGSON, as Sheriff, etc.

      Proceedings for forcible entry and detainer — what the petition must slate— Gode of Civil Procedure, sec. 2235 — injunction to restrain dispossession.

    In summary proceedings for forcible entry and detainer, the petition presented to the magistrate, under section 2235 of the Code of Civil Procedure, must contain a description of the premises of which possession is claimed, and of “ the interest therein of the petitioner or the person whom he represents.”
    It is not sufficient to allege therein that the petitioner was, on the date of the forcible entry complained of, “in the peaceable possession and occupancy” of said premises, “and lawfully entitled to remain and continue in possession thereof.”
    Such a petition does not confer jurisdiction upon a justice of the peace, and the Supreme Court may be properly appealed to to restrain proceedings thereunder.
    Appeal by the defendants Edward Leizman and Richard Hill from an order made at the Monroe Special Term, and entered in the office of the clerk of the county of Monroe on the 21th day of May, 1890, which denied a motion to vacate a temporary injunction.

      J. Sullivan, for the appellants.

      P. McIntyre, for the respondent.
   Dwight, P. J.:

The action was in equity to restrain the defendants from enforcing a warrant issued by a justice of the peace in the town of Irondequoit, in Monroe county, to dispossess the plaintiff of premises situate in that town, in summary proceedings for forcible entry and detainer. The complaint alleged, among other things, in effect, that the warrant was void for want of jurisdiction in the justice to issue the-precept by which the proceeding was commenced, and the want of 'jurisdiction was predicated upon tlie failure of the petition presented to the magistrate, to comply with the requirements of the statute by which the proceeding is given.

The statute referred to is section 2235 of the Code of Civil Procedure. It prescribes, among other requisites of the petition, that it shall contain a description of the premises of which possession is claimed, and of “ the interest therein of the petitioner, or the person whom he represents.” The petition in this case contains no description of any interest claimed in the premises described. In that respect it alleges only that the petitioner was, on the day of the forcible entry complained of, “ in the peaceable possession and occupancy” of such premises, “and lawfully entitled to remain and continue in possession thereof.” This was manifestly not in compliance with the statute. It was not a description of the interest of the petitioner in the premises, but, at most, an allegation, by inference, that the petitioner had some interest therein which entitled him to the possession. The statute plainly requires a description of the particular title, estate or interest under which the petitioner claims.

It is an elementary rule that, in every purely statutory proceeding, the statute must be strictly pursued in order to give jurisdiction to the court or officer called upon to apply its provisions. The magistrate to whom the petition in question was presented was, therefore, without jurisdiction to .issue the original process in the proceeding sought to be commenced before him. On the return of that process the defendant therein, plaintiff in this action, made the objection to the jurisdiction here considered, but it was overruled, and the magistrate proceeded to issue the final warrant for her removal from the premises. She thereupon took an appeal to the County Court from the supposed judgment or final order of the justice upon which the warrant should have been based; but the proofs before the Special Term, upon which the motion to vacate the injunction was denied, tend to show, and the court was justified in finding that at the time the appeal was taken no judgment or final order in the proceeding had been made or entered by the justice. That appeal was, therefore, a nullity, and the only remedy of the defendant in the proceeding against the void warrant was by an injunction to restrain its enforcement.

There has been much discussion by the courts of the question in wliat cases an injunction will lie to restrain this particular proceeding, especially under the apparent restrictions imposed by section 2265 of the Code of Civil Procedure; but all the cases agree that that statute does not affect the power of the courts to restrain those proceedings when void for want of jurisdiction. (Chadwick v. Spargur, 1 Civ. Pro. Rep., 422 and note; Kiernan v. Reming, 7 id., 311; Bokee v. Hamersley, 16 How. Pr., 461.)

We can have no doubt that this action was well brought, and that the motion to dissolve the injunction herein was properly denied.

The order appealed from should be affirmed.

Corlett, J., concurred; Macombee, J., not sitting.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    MARY G. MORRIS, Respondent, v. ALFRED G. SICKLY, Appellant, Impleaded, etc.

      Legacy — evidence of extrinsic facts to show the intent to cha/rge it upon real estate— not limited, to facts existing when the will was made.

    In an action to charge a general legacy on real estate of which the testator died seized, the inquiry as to the intention of the testator is not limited to the extrinsic facts as they existed at the time that the will was made.
    As the effect of the will is not confined to property possessed by the testator at the date of its execution, but extends to property subsequently acquired, so the intention of the testator in making the will must be supposed to embrace future probable or possible changes in the form and character of his estate, and his subsequent dealings with his property may furnish satisfactory evidence of the intention with which the provisions of his will were made.
    Appeal by the defendant Alfred G. Sickly from a judgment entered in the office of the clerk of the county of Livingston on the 17th day of March, 1890, after a trial at the Livingston County Special Term on the 17th day of December, 1889, by which it was adjudged that the legacy bequeathed by the will of Margaret M. Gray to the plaintiff Mary G. Morris was a charge upon the real property of which the said Margaret M. Gray died seized, and directing a sale of said real estate and the payment of the legacy out of the proceeds thereof.

      S. Hubbard, for the appellant.

      L. O. Reed, for the respondent.
   Dwight, P. J.:

The action was to charge a general legacy on real estate of which the testatrix died seized. The legacy in question and one other were given after the payment of debts and funeral expenses and the expense of a tombstone, and they were immediately followed by the familiar residuary clause which disposed of “all the rest, residue and remainder” of the estate, “both real and personal.” Concededly, this will did not, by its terms, purport to charge the plaintiff’s legacy on the real estate whereof the testatrix died seized j but its terms were not inconsistent with such an intention on the part of the testatrix, and it might be construed to do so, provided that intention should be made to appear from extrinsic circumstances. (Brill v. Wright, 112 N. Y., 129.)

It must also be admitted that if the inquiry for the intention of the testatrix were limited to the extrinsic facts as they existed at the time the will was made, the answer must be fatal to the plaintiff’s case, because not only was there at that time no insufficiency of personal estate for the payment of the legacies, but there was no real estate upon which they could have been charged. But, clearly, our inquiry is not thus limited, and the facts mentioned are not conclusive upon the question of the intention of the testatrix. As the effect of a will is not confined to property possessed by the testator at the date of its execution, but extends to property subsequently acquired, so the intention of the testator must be supj>osed to embrace future, probable or possible changes in the form and character of his estate; and his subsequent dealings with his property may furnish satisfactory evidence of the intention with wdiich the provisions of his will were made. It was upon evidence of this character that the judgment of the Court of Appeals was made in the case of Scott v. Stebbins (91 N. Y., 605), where the court, after stating what appeared from the evidence respecting changes in his property made by the testator subsequent to the execution of his will, proceeds to say: “ It is evident he must have known and intended that his personal property would not be charged alone with the payment of the legacies. The reduction of his personal property and the increase of his real estate evince that he must have regarded the latter as chargeable with the legacies.” And, in Briggs v. Carroll (117 N. Y., 288), the same effect is given to evidence of the character referred to. In that case Finch, J., speaking of the action of the testator subsequent to the execution of the will, by which his personal estate had been largely depleted, says: “ Either he intended to sacrifice the comfort and welfare of his wife and son Charles for the benefit of his older' and married children, and deliberately continued to make their situation worse by putting personal estate into land and incurring debts, or he supposed that their legacies would rest upon real estate. I think we are justified in holding that the latter was his understanding of the will.” And again, after referring- to the legacies as of such a character, that it is hard to suppose they were meant to abate, he adds: “And the subsequent action of the testator strongly indicates that ne meant to impose their payment upon his lands.” The facts in both of the cases referred to are similar, in the respect considered, to those of the present case ; and if a similar effect is given to the latter, we shall readily conclude that nothing was further from the intention of the testatrix than that the legacy to the plaintiff should abate, and that the whole body of the estate should fall into the residue and go to persons who, under the conditions existing at the time the will was made, would have taken only an inconsiderable surplus of the estate.

The circumstances of this case extrinsic to the will were briefly as follows: The testatrix was an unmarried woman upwards of sixty 3rears of age at the time her will was made. Seven years before that time she had found a home with the plaintiff, who was her sister, and she continued to live with her until her death, which •occurred eleven years later. During this time she paid to the plaintiff’s husband $100 a year for her board; a sum which may possibly have reimbursed him for his actual outlay for her benefit, but which left the plaintiff’s services, kind offices and care, in sickness and in health, wholly unrequited. At the date of her will her property consisted solely of personal estate worth $2,500. Her will provided a legacy to the plaintiff of $1,800, and another to a niece of $200. This left of her property, as it then existed, the sum of $500 out of which to pay her funeral expenses, the cost of a tombstone and any possible debts; and whatever small surplus was left would have gone to three residuary legatees, a brother, a sister and a nephew, in equal shares. Such was the status when the will was made. The eleven years which intervened before her death brought no change in her relations — and only an increase of obligations — to the sister to whom she had proposed to give two-thirds of her estate ; but the estate itself had been changed in form, from personal to real, by investment in land, and the brother and sister named in the residuary clause had died. The effect of these changes, upon the theory of the appellant’s contention, was to cut off the legacy to her sister, the plaintiff, as well as that to her niece ; to devolve one-tliird of the entire estate upon the nephew .named in the residuary clause, and to leave the remaining two-thirds to be divided between her heirs-at-law, near and remote, including the same fortunate nephew, who alone appeals from the judgment in- this action. No one can believe that the possibility of such a result ever entered the mind of the testatrix, much less that it was consistent with her intention at any moment of her life.

If, then, effect is to be given to this will according to the intention of the testatrix, and that intention is to be ascertained by inquiry of extrinsic circumstances which followed, as well as those which accompanied the execution of the will, including the fact that she suffered the will to stand unchanged under the changed.conditions in respect to her property which had supervened, then the conclusion reached by the learned trial court in respect to the plaintiff’s legacy was right. ¥e confess that we are unable to see precisely why the same conclusion might not have been reached in respect to the legacy of $200 to the niece, but this appeal does not present the question.

The judgment should be affirmed.

Maoomber and Oorlett, JJ., concurred.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J.: Macomber, J. :

text:
    FRANK C. BOLT, Respondent, v. JOHN HAUSER, Appellant.

      Six-years statute of limitations — does not apply to the enforcement of a justice’s judgment, of which a transcript has been filed in the county clerk's office — when the objection must be taken.

    The six-years statute of limitations does not apply to a proceeding for the enforcement of a judgment which has been recovered before a justice of the peace, and of which a transcript has been filed in the office of the county clerk.

      Semble, that, in proceedings supplementary to execution, where an order is applied for extending a receivership ov^r the judgment upon which such proceedings are based, the objection that the proceeding is barred by the statute of limitations must be taken at the first appearance of the defendant, namely, on the return of the original order, or at least during the pendency of the proceeding. It cannot be reserved and first presented on a motion to vacate the final order extending a receivership over the judgment upon which such supplementary proceedings were instituted.
    Appeal by the defendant from an order of the County Court of Erie County, entered in tbe office of the clerk of Erie county, March. 28, 1890, denying defendant’s motion to vacate an order extending a receivership in supplementary proceedings, granted on another judgment against the same defendant, to the judgment in this action.

      George T. Quimby, for the appellant.

      William G. Fitch, for the respondent.
   Dwight, P. J.:

The motion to vacate the order in question was based upon the objection that the proceeding in which it was made was barred by the statute of limitations; that proceeding having been instituted on a judgment rendered in a court not of record, more than six yeai's after the rendition of such judgment; and the appellant relies, in support of his objection, upon subdivision 7 of section 382, and the last clause of section 414 of the Code of Civil Procedure.

The former of these provisions of the statute applies the six-years limitation to “ an action upon a judgment or decree rendered in a court not of record,” and the latter declares that “the word action,, contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein or in an action.”

But the same statute, by subdivision 1 of section 414, expressly excepts from the provisions of the chapter in which it is contained the case of an action or proceeding for which a different limitation is specially prescribed by law; and section 2435 specially prescribes the limitation of ten years after the return of an execution for proceedings supplementary thereto.

The proceeding in this case was strictly within the provisions of the section last cited, as limited by reference therein to section 2458. It was instituted upon a judgment rendered upon personal service of a summons on the judgment-debtor for' a sum not less than .twenty-five dollars, and on the return of an execution issued out of a court of record. The judgment, though rendered by a justice of the peace, was, by reason of the filing of a transcript in the office of the county clerk, to be deemed a judgment of the County Court, and was to be enforced accordingly (§ 3017); and the execution was issued out of that court by the county clerk.

There is nothing in the case of Dieffenbach v. Roch (112 N. Y., 621) to support the appellant’s contention in this case. It was there held only that the judgment of a justice of the peace, of which a transcript was filed in the office of the county clerk, although it became thereby a statutory judgment of the County Court, was not a judgment rendered in a court of record; and,’therefore, that an action on such a judgment could not be maintained after the. expiration of six years from the rendition of the judgment. That decision was based upon the letter of the statute (§ 382, subd. 7, supra), and does not conflict with the decisions to the effect that a judgment such as that in this case is a judgment of the County Court for all the purposes of its enforcement. Such it has been held to be in the two cases in this department of Agar v. Tibbets (46 Hun, 52) and Townsend v. Tolhurst, decided at the last Term of this court (57 Hun, 40; 32 N. Y. St. Rep., 21). In the case last mentioned we sustained an order of the County Court granting leave to issue an execution on such a judgment after the expiration of six years from the date of its rendition.

Another answer to the defendant’s objection to the order in question ought probably to be conclusive, viz., that it was waived by not being taken in time. In analogy with the requirement of the Code (§413) and of the common law, to the effect that the objection of the statute of limitations must be taken at the first appearance of the defendant, viz., by answer, it would seem that the same objection toa special proceeding should be taken on the retrum of the original ■order, or at least during the pendency of the proceedings, and that it cannot be reserved for a motion to vacate the final order in which the proceeding results. But we prefer to rest our affirmance of the order in this case upon the merits of the question, and to hold that the six-years statute of limitations does not apply to a proceeding for the enforcement of- a judgment which, for the purposes of its enforcement, is made' by statute a judgment of the County Court.

The order appealed from should be affirmed.

Macomber, J. :

The judgment upon which the proceédings for the appointment of a receiver were founded, was recovered in a court of a justice of the peace on the 31st day of March, 1880, a transcript of which judgment was filed in the Erie county clerk’s office on the same day. An execution was duly issued upon the judgment by the county clerk, and was returned unsatisfied April 6,1887, whereupon proceedings supplementary thereto were instituted, which resulted, on the 19th day of September, 1887, upon due notice to the defendant, and on the appearance of himself and his attorney at the hearing of such motion, and without objection on their part, in the appointment of Mr. Green as the receiver of the defendant’s property.

The motion now made is to set aside the appointment of such receiver, and the same is placed upon the ground that, inasmuch as six years had elapsed between the rendition of the judgment and the motion for the appointment of the receiver, the judgment had become inoperative and ineffectual to support any subsequent legal proceedings thereon.

By the Revised Statutes (2 R. S., 247, §§ 127, 128) a transcript of a judgment of a justice of the peace for twenty-five dollars and upwards, exclusive of costs, could, be filed and the judgment docketecl in the clerk’s office of the county. It was provided that the judgment, after being so filed and docketed, “ shall be a lien on the real estate of the defendant within the county, in the same manner and with the like effect, as if such judgment had been rendered in the Court of Common Pleas; and may, in the same manner, be discharged and canceled.” It was further provided that all actions on judgments rendered in any court, not being a court of record, should be commenced within six years next after the cause of action accrued. (Id., 295, § 18.) The Code of Procedure, however, wrought a material change in these provisions of the Revised Statutes. By section 63 thereof, where a judgment was recovered in a Justice’s Court for any amount, a transcript thereof could be filed, and the same could be docketed in the county clerk’s office, and from that time the judgment was.a judgment of the County Court, but such judgment for a sum less than twenty-five dollars, exclusive of costs, was not a lien on or enforceable against real property. Section 90 of that Code permitted an action upon a judgment or decree of any court of the United States, or any State or territory within the United States, to be begun within twenty years after its rendition.

Section 3017 of the Code of Civil Procedure has substantially the.same provision as existed under the Revised Statutes in this regard. It provides that a transcript of any judgment rendered in a Justice’s Court for any amount may be filed in the county clerk’s office, and that “ thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly ; except that an execution can be issued thereupon only by the county clerk as prescribed in section 3043 of this act, and that the judgment is not a lien upon and cannot be enforced against real property, unless it is for twenty-five dollars or more, exclusive of costs.”

By subdivision 7 of section 382 of the Code of Civil Procedure an action upon a judgment or decree rendered in a court not of record must be brought within six years from its rendition.

In the case of Dieffenbach v. Roch (112 N. Y., 621), it was held that upon the docketing of the justice’s judgment in the county clerk’s office the same became a statutory judgment of the County Court, yet it was not a judgment “ rendered ” in that court, and that an action upon such judgment to compel a set-ofi of the same against a judgment of a court of record could not be maintained unless the same be brought within six years from the time the same was rendered in the court of the justice of the peace. But we do not understand that case to hold that no proceedings can be had for the enforcement of the debt represented by a judgment recovered before a justice where the same were not begun within six years from the time of the recovery of the judgment. There is nothing in that decision which detracts from the authority of the case of Waltermire v. Westover (14 N. Y., 16) where it is held that the filing of a transcript and docketing of a judgment rendered by a justice of the peace pursuant to the Revised Statutes, rendered it a lien on the real estate, eo-extensive in time with judgments recovered in the Court of Common Pleas; and that though an action on such judgment was barred after six years, such statute of limitations did not extinguish or destroy the lien of such judgment when the same had been duly docketed in the county clerk’s office. That decision was given under the provisions of the Revised Statutes, which, as has been pointed out above, are substantially the same as the present Code of Civil Procedure, and that authority is consequently our guide in reaching the result on this appeal.

Furthermore, we held in, the case of Townsend v. Tolhurst (decided April 11, 1890, and reported in 32 N. Y. St. Rep., 21, and 57 Hun, 40) that a judgment creditor, upon application duly made to the County Court, might obtain leave to issue execution on a justice’s judgment, so filed and docketed, though more than six years had elapsed after the filing of the same in the county clerk’s office. (Kincaid v. Richardson, 25 Hun, 237; Rose v. Henry, 37 id., 397; see, also, Herder v. Collyer, 6 N. Y. Sup., 513.)

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

Corlett, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Macomber, J.:

text:
    MARY E. LUETCHFORD, Respondent, v. ELIZABETH LORD, Appellant, Impleaded with GEORGE D. LORD.

      Foreclosure of a mortgage given to pay a gambling debt — competency of the mortgagor to testify to personal transactions with the mortgagee, since deceased — rights of the heirs at law of the mortgagor in the premises.

    An action having been brought for the foreclosure of a mortgage upon real estate owned by Elizabeth Lord, who, together with her husband had given a mortgage thereon to secure the sum of $5,500, of which amount $1,100 had been lost by the said George D. Lord to William Allen, the mortgagee, at a game of chance called poker, George D. Lord, who was a party defendant, made default in pleading: Elizabeth Lord, his wife, who had interposed an answer alleging that the said bond and mortgage was void by reason of the fact that the said debt for $1,100 was included in the consideration thereof, on the trial of the action called George D. Lord as a witness, and he was asked in regard to personal transactions had between himself and William Allen, who had died prior to the trial. This evidence was objected to as incompetent under the provisions of section 829 of the Code of Civil Procedure.
    It appeared upon the trial that at the time of the execution of the bond and mortgage the said George D. Lord and Elizabeth Lord had four children who would have been entitled to the real estate covered by the mortgage had Elizabeth Lord died immediately upon the execution of that instrument.

      Held, that the evidence of George D. Lord in reference to the transactions with the deceased mortgagee was competent.
    That under the provisions of sections 16 and 17 of 1 Revised Statutes (page 668), the bond and mortgage were void as to William Allen to the extent of depriving him of all rights thereunder, but not to the extent of restoring to the mortgagors the property which they had conveyed in violation of the statute, by the terms of which the security enured to the sole benefit of the children of the said Elizabeth and George D. Lord.
    That the policy of the statute was not alone to deprive the mortgagee of any right to the mortgage, but at the same time to put it out of the power of the mort. gagors to make any other like disposition of the property to the impoverishment of their heirs-at-law.
    That the defendant George D. Lord had no right as tenant by the curtesy initate in this part of the real estate as against the mortgage.
    That the children of Elizabeth Lord were not necessary parties to this action.
    Appeal by tlie defendant Elizabeth Lord from a judgment of tlie Supreme Court entered in the office of the clerk of the county of Monroe on the 12th day of May, 1890, after a trial before the court at an equity term thereof, held in the county of Monroe April 10, 1890, at which judgment was rendered, in favor of the plaintiff that the real estate described in the complaint be sold at public auction and that out of the proceeds of such sale there be paid to the plaintiff for the payment of her mortgage debt, costs, disbursements and referee fees the sum of $5,805.55, with interest.

      William JW. Cogswell, for the appellant.

      Horace McGuire, for the respondent.
   Macomber, J.:

The mortgage, for the foreclosure of which this action is brought, was executed, together with the bond to which it is collateral, on the 6th day of September, 1877, by the defendant Elizabeth Lord, the owner of the mortgaged premises, and her husband, George D. Lord, by which they promised to pay one William Allen, the mortgagee, the sum of $5,500 on the 1st day of January, 1880, with interest, payable semi-annually. William Allen died in the month of September, 1888, leaving a last will and testament, and the executors thereof assigned such bond and mortgage to the plaintiff.

The only answer interposed is that of the defendant Elizabeth Lord, in which it is alleged that at the time of making the bond and mortgage the defendant George D. Lord had lost to William Allen, the mortgagee, the sum of $1,100 at a game of chance called poker, and that the consideration of the bond and mortgage to that amount was for the payment, or securing payment to said William Allen, of such moneys so lost in gaming. The defendant George D. Lord, who made default in pleading, and did not appear in the action, was called as a witness by his wife to prove this allegation of the answer. Objection was made thereto upon the ground that the witness was incompetent to testify to any communication or transaction between him and William Allen, deceased, under the provisions of section 829 of the Code of Civil Procedure. The objection was sustained by the court, the offer of the defendant was excluded, to which ruling the defendant duly excepted.

It appeared in evidence, and was so found by the trial judge, that at the time of the execution of the bond and mortgage Anna Eliza Lord, George Jarvis Lord, Jessie Lord and Durell Lord, were the children of the said Elizabeth Lord and George D. Lord, and that they would have been entitled to the real estate covered by the mortgage liad Elizabeth. Lord died immediately upon the execution of that instrument, and that all of such children are now living.

The reason stated by the learned trial judge for excluding the evidence so offered is that the witness is interested in the event of the action, and hence rendered incompetent to testify to any transaction or communication between him and the deceased mortgagee. The cases cited by him are those which are applicable only to questions where, clearly, the proffered evidence would enure to the pecuniary benefit of the witness. A present reference to them would avail nothing, for we deem them inapplicable to the facts existing in this case. Yet, except for the statute pleaded .in the answer, these authorities would be controlling and a safe guide for our decision. But the appeal presents a question, outside of such authorities, arising upon an ancient statute to which the trial court has not adverted. No case has arisen in this State or elsewhere, of which we are aware, which is an authority in the solution thereof.

By section 16 of the Revised Statutes (pt. 1, p. 663) All things in action, judgments, mortgages, conveyances, and every other security whatsoever, given or executed by any person, where the whole or any part of the consideration of the same shall be for any money or other valuable thing won by playing at any game whatsoever, or won by betting on the hands or sides of such as do play at any game, or where the same shall be made for the repaying any money knowingly lent or advanced for the purpose of such gaming or betting aforesaid, etc., are rendered utterly void, “except where such securities, conveyances or mortgages shall affect any real estate, when the same shall be void as to the grantee therein, so far only as hereinafter declared.”

Section 17 is as follows: “When any securities, mortgages or other conveyances, executed for the whole or part of any consideration specified in the preceding section shall affect any real estate, they shall enure for the sole benefit of such person- as would be entitled to the said real estate, if the grantor or the person encumbering the same, had died, immediately upon the execution of such instrument, and shall be deemed to betaken and held to and for the use of the person who would be so entitled. All grants, covenants and conveyances, for preventing such real estate from coming to or devolving upon the'person hereby intended to enjoy the same as aforesaid, or in any way encumbering or charging the same, so as to prevent such person from enjoying the same fully and entirely, shall be deemed fraudulent and void.”

By the clause quoted from the sixteenth section, the mortgage in question was made void as to William Allen, so far only as is expressed in the seventeenth section, that is to say, if we understand correctly its meaning, this security was not so absolutely void, even by the terms of the sixteenth section, as to render it inoperative for any purpose whatever; but it was rendered void only so far as to deprive the mortgagee of all rights thereunder, but not void to the extent of restoring to the mortgagors the property which they had conveyed in violation of the statute. The seventeenth section saves the security for one purpose only, and that .is for the benefit of such persons as would be entitled to the real estate if the grantors or persons incumbering the same had died immediately upon the execution of the mortgage. As applicable to this case, the mortgage was not available to the mortgagee, and yet the land covered by it was not restored to the mortgagors freed from such incumbrance. On the contrary, the statute declares that the same shall be deemed taken and held for the use and purpose of the four children of the mortgagors. The policy of the act manifestly was not only to deprive the mortgagee of any right to the security, but at the same time to put it out of the power of the mortgagors to make any other like disposition of this property to the impoverishment of their heirs-at-law.

As was said in Ruchman v. Pitcher (1 N. Y., 396) “ the question is not upon the abstract rights and obligations of parties left free to contract, consent and act for themselves and bound by their admissions and acts. * * * The legislature has prescribed the rules which are to govern the case, and our inquiry must be what the rules are which the statute intends to apply. * * ■ * The evident intention of the legislature was to discourage and repress gaming in all its forms, including bets and every species of wager contracts of hazard, as a great public mischief, calling for effective measures of prevention and remedy.”

In Storey v. Brennan (15 N. Y., 527) the court says: “ The object of the statute to prevent betting and gaming was the protection of the public morals. The act being enacted for the public good, it should be so construed as to attain, as far as possible, the end proposed, by suppressing the mischief against which it was directed.”

This statute works a transfer of the title to these securities from the mortgagee to the four children of Mrs Lord. If the bond and mortgage had been assigned by Allen’s executors to the children of Mrs. Lord, the plaintiff could not, under the answer interposed, maintain this action. The absolute transfer thereof which the statute makes to them is not less effective as a defense. Some doubt was, at first, entertained by us whether it would not be necessary to bring the children into this action in order to make an effective application of the statute. But, on the whole, we think that whatever future action may be taken in their behalf, and whatever affirmative relief may therein be awarded to them, yet the answer is good as a simple defense, in analogy to the plea that the plaintiff was not the owner and holder of the securities, but that certain persons, naming them, were. If Mrs. Lord had died before this action had been brought, these children would be necessary and the principal parties defendant. They clearly would have the right to plead this statute, and, under the proof offered, to demand a judgment that their title should be entirely freed from the alleged indebtedness to Allen or his transferree.

But it is argued by counsel for respondent that if the evidence were admitted, and if under it the bond and mortgage were declared to be null and void, the witness would have a right of curtesy initiate in the real estate, and hence he is interested in the event of this action. This position, however, ignores the very substance and meaning of the statute against gaming, for if that act can be read for any efficient purpose, it is that its object is, from beginning to end, to deprive the mortgagors absolutely of all interest in the property, and to transfer it in its entirety to the persons presumed in law to be dependent for support upon the mortgagors. The testimony, therefore, so excluded, while it would defeat a recovery by this plaintiff, would not obliterate the bond and mortgage, but would adjudge them to belong to third persons. "Whether they should be held by one person or another, is a question in which the witness has no pecuniary interest. Neither he nor his wife can recall, for the benefit of either, their unlawful act in executing these instruments. The securities remain as binding obligations, but for the benefit, not of the mortgagee or his transferree, but of the persons named in the statute against gaming. If such is the true meaning of this act, then section 829 of the Code of Civil Procedure is no impediment in the way of a legal remedy for the legal wrong, and the witness is not disqualified from giving the evidence so offered.

It follows, therefoi’e, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the final award of costs.

Dwight, P. .1., and Corlett, J., concurred.

Judgment appealed from reversed and a new trial granted, with costs to the appellant to abide the final award of costs.