author: Parker, J.: YaN BbüNt, P. J.:

text:
    Dugald J. Bannatyne and Another, Respondents, v. The Florence Milling and Mining Company, Appellant.

      Statute of Frauds as a defense — when not cmailahle on appeal— loss of agency — measure of damages therefor —judge’s charge.

    Where the defense that a contract, set up in the complaint, was void under the ' Statute of Frauds, was neither presented hy the averments of the complaint, nor pleaded in the answer, it cannot he made available to the person against whom judgment was rendered, upon an appeal therefrom, (Van Brunt, P. J., dissenting.)
    Damages which may he recovered for the loss of an agency must he reasonably certain and such only as actually follow or may follow from a breach of the contract. They are generally involved in some uncertainty ; usually they are to he worked out in the futuro and can he determined only approximately by reasonable conjectures and probable estimates.
    An action was brought to recover damages alleged to have been sustained by reason of the refusal of an owner ot property to fulfill such of his promises to the plaintiffs as constituted conditions precedent to their securing a purchaser therefor.
    Upon the trial the plaintiffs, among1 other things, showed that if they had been permitted to continue their efforts, as agreed between them and the defendant, the sale of the property would probably have resulted therefrom.
    The defendant requested the court to charge that “ if the jury find that plaintiffs are1 entitled to damages for breach of contract, they can only take into con* sideration actual damages,” and also that the jury must ‘‘ not take into consideration possible profits or commissions which might have accrued, which are too remote and indefinite to be regarded. ’’ The court refused to so charge,

      Seld, that the court properly refused to so charge, as it should not have instructed the jury not to take into consideration, in fixing the damages, the matter of compensation to the plaintiffs for services rendered by them.
    Appeal by tlie defendant, Tlie Florence Milling and Mining Comuany, from a judgment of tlie Supreme Court in favor of the plaintiffs, entered in tbe office of the clerk of the county of New York on the 21st day of April, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made at the New York Circuit on the 6th day of April, 1893, and entered in the said clerk’s office denying the defendant’s motion for .a new trial made upon the minutes.

      T. Mo Gants Stewart, for the appellant.

      Henry T. Terry, for the respondents.
   Parker, J.:

The case presented by this record is not the usual one of an agent who has earned an agreed commission by procuring a willing purchaser, but rather of one whose recovery is for damages sustained by reason of the refusal of the owner of property to fulfill such of his promises as constituted conditions precedent to the securing of a purchaser. The propositions of fact which the jury must necessarily have found in plaintiffs’ favor in order to reach the verdict rendered are, briefly, that the defendant agreed to permit the plaintiffs to sell its mills and mining property, to allow them a reasonable time in which to make the sale, to do such acts and execute such papers as ishould be reasonably necessary for that purpose, to abstain from •other negotiations in the meantime, upon the faith of which plaintiffs expended much time and money, but without result, because the defendant refused to execute the paper which was essential to the incorporation under the English law, a fact well known to the defendant when consent was given to the efforts which plaintiffs made to sell the property.

The appellant makes the point, among others, that such findings are contrary to the evidence and the weight of evidence, and, therefore, the judgment based thereon should be reversed. But its position is not well taken : the evidence upon each proposition is abundantly sufficient to support the disposition made of it, not excejffing the one which in effect declares that defendant and its agent, who owned all its stock, knew in advance of the substantial expenditure of money made by the plaintiffs for the purpose of promoting the' formation of a corporation under the English law, to become the owner of this property; and that one of the preliminary steps required by that law would be the execution and filing of a written contract of sale.

The appellant now insists, as it did upon the trial, that the contract alleged in the complaint is void under the Statute of Frauds. As this defense is neither presented by the averments of the complaint, nor pleaded in the answer, it cannot now be made available to the defendant. (Wells v. Monihan, 129 N. Y. 161; Crane v. Powell, 139 id. 379.) If the pleadings presented the question fairly for consideration, we should feel constrained to hold that the statute is not applicable.

This action is not prosecuted by the plain tiffs on the theory that defendant made a valid contract with them for the sale of lands to such a purchaser as the plaintiffs might select, but rather that defendant made the plaintiffs its agent and persuaded them to undertake the task of selling property as to which prior and not nnfrequent efforts had resulted fruitlessly.

That defendant had fixed the terms of the agency; understood fully the character of the work to be undertaken ; appreciated the fact that it involved a substantial expenditure of money as well as skillful labor; and knew long before its refusal to do the act, essential to further progress in the scheme upon which they had embarked, that plaintiffs were acting in reliance upon its promises. And when it so acted as to terminate in effect the agency thus created the law enjoined upon it the legal duty of compensating the agents for the injury sustained.

This position of the plaintiffs is so well grounded in principle as to require neither discussion nor the citation of authority.

It is also insisted that the court erred in refusing .to charge two requests made by defendant’s counsel: First. “ If the jury find that plaintiffs are entitled to damages for breach of contract they can only take into consideration actual damages.” If that request be considered separately from the one which follows it, there would seem to be no justification-for its refusal other than that the court had already charged the jury upon that subject, in language which must have met the approval of defendant’s counsel, for no exceptions were taken to the charge as made in respect to the subject of damages.

Of course the plaintiffs were only entitled to recover compensation commensurate witli their loss or injury, and the request standing alone seems to imply only that. But considered in connection with the request following, both of which are now treated as one request in the appellant’s brief, we have an explanation of the meaning intended. The further request was that the court instruct the jury not to take into “ consideration possible profits or commissions which might have accrued, which are' too remote and indefinite to be regarded.” It thus appears that the point of the request was that the jury should be instructed that, in determining the amount of damages which should be awarded to the plaintiffs, they should not take into account the loss of commissions. If such were the rule, it would in a case like this leave no room for the jury to make an award to plaintiffs except for damages sustained by reason of the expenditure of money, and would prevent them from having regard for the time taken and skill employed in endeavoring to bring about the Result which was the desire of both parties.

The contract between these parties provided that plaintiffs should receive $50,000 if they succeeded in getting up an English .company and selling the property to it for the price fixed upon by the defendant. It also appears that the necessary expenses of the plaintiffs in the undertaking would equal the sum of $5,000, and that they had actually paid out in one item the sum of $500, which payment was made necessary in the carrying out of the plan undertaken.

Evidence was also produced by the plaintiffs tending to show that had they been permitted they would have succeeded in getting up an English company to which the mines would have been sold.

The plaintiff Mackay was not without previous experience and success in similar transactions, and it was made to appear that he had interested influential people in the scheme, who had agreed to become directors in the new company, so that there was evidence from which the jury might have inferred that their undertaking would have proved successful, but for the defendant’s conduct in refusing to take the necessary steps in that direction, and instead selling the mines to other parties. Such being the case it would seem to be within the rule as laid down in Wakeman v. Wheeler & W. Manufacturing Company (101 N. Y. 205), in which the court considered what might be taken into consideration in estimating the damages for the loss of an agency. It said, tbe damages must be reasonably certain and sncb only as actually follow or may follow from tbe breach of the contract. * * * They are nearly always involved in some uncertainty and contingency; usually they are to be worked out in the future, and they can be determined only approximately upon reasonable conjectures and probable estimates.” "With evidence tending to show, as we have already observed, that a sale would have probably resulted, had plaintiffs been permitted to continue their efforts along the lines agreed on between them and the defendant, the court could not have properly instructed the jury not to take into consideration, in fixing the damages, the matter of compensation to the plaintiffs for services rendered.

Such we deem to have been the purpose of the two requests, and their denial, therefore, does not call for a reversal.

The judgment should be affirmed, with costs.

Follett, J., concurred.

YaN BbüNt, P. J.:

I concur in the result of Mr. Justice Pabeee’s opinion, only I think he is mistaken in his statement that it has ever been decided in any case where the result depended upon this issue that, where the existence of the contract is denied in a pleading, and want of compliance with the Statute of Frauds is the ground relied upon, such ground must be stated in the pleading, and because, if it has beén so decided, such decision is contrary to all the authorities cited to support it.

Mr. Justice Paeeer cites as his authority the statement of Judge FiNoh, contained in the case of Wells v. Monihan (129 N. Y. 164), in which case the latter says: “ So far as the defense in this case rests upon the Statute of Frauds, it must fail for two reasons. No such defense has been pleaded, and it is not raised by the averments of the compiaint and without one or the other of these conditions, the defense, if existing, cannot .be made available; ” citing Porter v. Wormser (94 N. Y. 450). And then the learned judge proceeds to dispose of the validity of the contract upon other grounds.

Upon an examination of the case of Porter v. Wormser et al. (supra), cited by Judge FiNch, it does not seem to have held the proposition which it is cited to support. All that was decided in that case on this subject was, tliat where a vendee brings an action to impeach the account of his vendor, on grounds which imply the existence of a formal contract of sale, he cannot question the validity of the contract under the Statute of Frauds. Chief Judge ANDbews, who wrote the opinion in that case, says: “ The plaintiff having become an actor, and brought an action to impeach the account-on grounds which implied the existence of a formal contract, is-not in a position to question the validity of the contract under the-statute; ” citing Cozine v. Graham (2 Paige, 177; Vaupell v. Woodward (2 Sandf. Ch. 143), and 2 Story’s Eq. Juris. § 755. The above proposition is plainly supported by those cases as will be presently-shown. But the learned judge writing the opinion in the case-under consideration went further and stated: “ The general rule is that the defense of the Statute of Frauds must be pleaded, except-where the complaint on its face discloses a case within the statute.. It cannot be doubted that if the defendants had brought an action to recover a balance claimed to be due on the contract for the purchase of the bonds, without disclosing whether the contract was. oral or written, the plaintiff would have been bound to plead the-statute to avail himself of its protection.” This last proposition is not supported by the authorities cited.

It is true that the head note in Vaupell v. Woodward (supra) seems to support the dictum of Chief Judge Andbews, but an examination of the opinion shows upon what ground the decision proceeded. The opinion upon this point is as follows: “ The first objection to the complainant’s claim is on the ground that the contract between the parties is not in writing subscribed by the defendant. The bill alleges that the parties entered into a contract by which one agreed to sell to the other 200 shares of stock upon terms which are fully stated. The answer admits the making of the contract as set forth in the bill. On this state of the pleadings the court has nothing to do with the question whether the contract is in writing or -.by parol. The chancellor’s decision in Cozine v. Graham (2 Paige, 177) is conclusive, that where it does not appear by the bill that the con bract is not in writing, the defendant admitting the contract must insist by plea or answer that it is not in writing, or he cannot raise that objection to its validity. And in. such case no proof of the agreement is necessary.”

In oilier words, where the contract is admitted, and under the pleadings no proof thereof is necessary, if a defendant desires to impeach it he must allege his grounds. To the same effect is the case of Cozine v. Graham (supra). In this case the chancellor held that where a complaint alleged the existence of an agreement, without stating whether it was .in writing or oral, the defense that the agreement was within the Statute of Frauds could not be raised by demurrer — that where the agreement is admitted it must be deemed to be valid unless the contrary is alleged and proven.

Neither of these cases support the proposition enunciated in Porter v. Wormser and Wells v. Monihan (supra), that “ the general rule is that the defense of the Statute of Frauds must be pleaded, except where the complaint on its face discloses a case within the statute.” Upon the contrary, the chancellor in Cozine v. Graham, (supra) expressly states that “ if the agreement is denied the plaintiff must produce legal evidence of its existence, which can only be done by producing a written agreement, duly executed according to the provisions of the statute. If the agreement is admitted by the pleadings, no evidence to prove its existence is necessary, and the court never inquires whether it was or was not in writing.”

The rule, therefore, undoubtedly was, until the dicta of Chief Judge ANDsews and Judge FiNCH in the cases cited, that where the contract was denied in an answer the objection that the contract was within the Statute of Frauds, when the plaintiff attempted to prove his contract, was available to the defendant. Such a rule is entirely in harmony with our general rules of pleading, viz., that where an agreement is denied in an answer the plaintiff must support his allegation by legal proof of its truth, and this he cannot do in the case of a contract void under the Statute of Frauds unless in writing without proving a written contract. Every other agreement is void by the express provisions of the statute, and is, therefore, no contract; and proof of such an oral agreement furnishes no basis for an obligation.

The eases of Hamer v. Sidway (124 N. Y. 538) and Crane v. Powell (139 id. 379) may be cited, as also holding contrary to the above rule, but an examination of those cases will show that the cases cited to support the rule therein expressed either contain mere dicta upon the point or that the cases therein cited do not support the Tule contended for in them. In the case of Hamer v. Sidway (supra) the court, after holding that the case liad been taken out of the statute, further stated that under the authority of Porter v. Wormser (94 N. Y. 431-450), the Statute of Frauds not having been pleaded, such a defense- was not available. This was a dictum not necessary to the decision of the case and rested simply upon the case cited.

In the case of Crane v. Powell (139 N. Y. 379) it was held that where, in an action upon an agreement within the statute, defendant did not plead the statute and perniitted the plaintiff to prove without objection a verbal agreement, a motion to dismiss the complaint on the ground that the agreement was within the statute and void, made at the close of the plaintiff’s evidence, was properly denied upon the ground that the admission of incompetent evidence of the agreement without objection was a waiver of the statute, the same as an admission of the contract in an answer would be, and various cases are cited to support this proposition, none of which, however, support the contention of the learned judge writing the opinion except the dicta in the cases of Porter v. Wormser, Hamer v. Sidway and Wells v. Moniham, (supra).

In the case of Harris v. Knickerbacker (5 Wend. 638), cited in Crane v. Powell, the rule laid down is precisely that which is here contended for. The court says: “ It appears from the cases that it remained for a long time doubtful as to the manner in which a defendant could avail himself of this statute, and under what circumstances he was deemed to have renounced it. I apprehend that it is now settled that if the defendant admits the agreement and insists on the statute, he can protect himself from a decree for specific performance notwithstanding his admission, but if he admits the agreement but neither pleads the statute nor insists on it in his answer, he is deemed to have renounced the benefit of it. (6 Yes. 39.) If the bill states generally a contract which the law requires •to be in writing, the court will presume that it is made with the requisite formalities to give it validity until the contrary appears. The defendant in answering may .either plead that the contract was not in writing or insist upon that fact in his answer. If he meets the allegation of a contract in the bill with a general denial, and the complainant is put to his proof to establish it, he must show'a written contract; and if be does not, the evidence to establish the issue will be adjudged incompetent. (Cozine v. Graham, 2 Paige, 177; Talbot v. Bowen, 1 Marshall [Ky.], 437.) But if the bill set up an agreement admitting it to be by parol, or which shall in proof turn out to be by parol, the defendant cannot avail himself of the benefit of the statute, provided the bill contains along with the agreement matter sufficient to avoid the bar created by the statute. Such is said to be this case. A part performance by the respondent is alleged whereby it is insisted that the contract is taken out of the operation of' the statute.”

The rule laid down is that if the contract is denied, and it is one which comes within the statute, the plaintiff must show a written contract.

In the case of Duffy v. O'Donovan (46 N. Y. 226) all that was held was that the objection could not be raised, for the first time on appeal, that no contract was proved valid by the Statute of Frauds, where the contract was admitted by the answer. And then the rule was laid down that if the defendants had intended to insist upon the Statute of Frauds, or the invalidity of the contract for any other reason, they should ham denied the maTcing of the same and put the plaintiff to proof, or set up the special matter relied upon.”

In the case of Marston v. Swett et al. (66 N. Y. 209), also cited, the correct rule is again laid down. It is that “ if the contract alleged in the complaint had been denied, or the Statute of Frauds had been set up as a defense, then it would have been necessary upon the trial to prove that the contract was in writing, if it was one which the statute required to be in writing.”

Tire rule undoubtedly was, prior to Porter v. Wormser (supra), that where the contract was absolutely denied the Statute of Frauds was available to the defendant. And it might further be contended, under our system of pleading, that if the agreement is admitted by the answer, even if it is attempted to be attacked by another allegation in the answer as no contract, because not in writing, such a defense cannot be available, because the agreement being admitted by the pleadings, the court will not inquire whether it was .or was not in writing. (Cozine v. Graham, supra.) This is the rule laid dowa in section J55, Story’s Equity. He says: “ Courts of equity will enforce á specific performance of a contract within the statute, not in writing, where it is fully set forth in the bill, and is confessed by the answer of the defendant.” The reason giren for the decision is that the statute is designed to guard against fraud and perjury, and in such case there can be no charges of that sort.

Such, also, is the rule of pleading declared in our Court of Appeals in the case of Fleischmann v. Stern (90 N. Y. 110). In this case it was held that where a material averment of the complaint is not put in issue, such averment must, for the purposes of the trial, be taken as true; and the defendant is not at liberty to deny the existence of the facts constituting the cause of action stated in the complaint, or to prove any state of facts inconsistent therewith. And certainly, where the agreement is expressly admitted in the answer, the same rule must apply.

The defense of the statute seems to be only available, therefore, when the obligation of the contract is denied, and not otherwise.

In the case at bar the contract was denied. The plaintiff was, therefore, obliged to prove a contract valid under the statute.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: VaN BbuNt, P. J.:

license: Public Domain

text:
    Charles S. Fairchild and Others, as Executors, etc., of Mary A. Edson, Deceased, Respondents, v. Margaret B. Edson, as Executrix, etc., of Marmont B. Edson, Deceased, Appellant, and Others.

      A "bequest to one for the benefit of another cannot be sustained — corporate cha/rterk when subject to the restrictions of chapter 819 of 1848 — will — am, expression of a wish by a testatrix may create a trust —when a legacy is absolute.

    A bequest to an individual for the benefit of those incapable of taking the same is a fraud upon the law and cannot be sustained.
    Where the charter of a corporation contains a provision to the effect that it shall be subject to all provisions of law in relation to devises by will, such provision, makes the corporation subject to the limitations of chapter 319 of the Laws of 1848.
    The construction of a will must be determined by the contents thereof, and cannot be affected by extrinsic evidence.

      Although the expression of a wish or desire may sometimes operate to create a trust, or effect a charge, such expressions are by no means conclusive.
    The will oí a decedent contained the following provision: “The rest, residue and remainder of my estate not disposed of by my will or by any codicil, I give and bequeath to my executors, to be divided by them among such incorporated religious, benevolent and charitable societies of the city of New York, and in such amounts as shall be fixed or appointed by them, with the approval of my friend, the Rev. Dr. William R. Huntington, if living.”

      Held, that such clause was void and repugnant to the statute in that it had no such well-defined and ascertained beneficiaries that it could be enforced by a court of equity.
    Such will also contained the provision: “If, by reason of want of incorporation, or for any other cause whatsoever, any society or institution named in this my will or in any codicil shall be unable to take the legacy intended for it, I give • and bequeath such legacy absolutely to the person who shall be president of such institution or society, if it has a president, and if not, to the person who shall be its treasurer, if it has a treasurer, and if not, to the person who shall be its chief executive officer, to be by him applied to the uses and purposes of such institution or society.”

      Held, that such provision was in contravention of the statute, and void;
    That, although the word “absolutely” was used in connection with the bequest, it was evident that the bequest was impressed with a trust;
    That such bequest was not restricted by the limitations required by the statute-in order that it might be held valid.
    Such will contained the further provision; “If, for any reason, any legacy or legacies left by my will or by any codicil, either pecuniary or residuary, shall lapse or fail, or for any cause not take effect, m whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect, absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction.”

      Held, that it was apparent that it was the intention of the testatrix to give this residuary estate absolutely without limitation or restriction to her executors to-do with as they pleased, and that the bequest was absolute and valid.
    Appeal by the defendant, Margaret B. Edson, as executrix, etc., of Marmont B. Edson, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of December, 1893, upon the decision of the court rendered after a tidal at the New York Special Term.

      Treadwell Cleveland, for the appellant.

      2). 23. Ogden, for the respondents.
   VaN BbuNt, P. J.:

This action was brought bj the executors of Mary A. Edson, deceased, for the purpose of obtaining a judgment construing and determining the validity of certain provisions of the will of the decedent, as modified by one of the codicils executed by her. The will was dated on the 2d of May, 1890, and was modified by three codicils, the first dated May 22, 1890, and the second and third on May 21, 1890. The testatrix died on the 29th of May, 1890, and the will and codicils were admitted to probate on the 14th of January, 1891, and the executors, the plaintiffs in this action, qualified as such on the 20th of January, 1891.

By the will in question, as modified by the codicil, the testatrix, after having made bequests to various corporations, provided as follows:

“If, by reason of an error in name or description, a question shall arise as to any beneficiary intended by me to be named, whether in my will or in any codicil, I direct such question to be determined by my executors.
“ If, by reason of want of incorporation, or for any other cause whatsoever, any society or institution named in my will or in any codicil shall be unable to take the legacy intended for it, I give and bequeath such legacy absolutely to the person who shall be president of such institution or society, if it has a president, and if not, to the person who shall be its treasurer, if it has a treasurer, and if not, to the person who shall' be its chief executive officer, to be by him applied to the uses and purposes of such institution or society.
The rest, residue and remainder of my estate, not disposed of by my will or by any codicil, I give and bequeath to my executors, to be divided by them among such incorporated'rejigious, benevolent and charitable societies of the.city of New York, and in such amounts as shall be fixed or appointed by them, with the approval of my friend, the Bev. Dr. "William It. Huntington, if living.
“ If, for any reason, any legacy or legacies ieft by my will or by any codicil, either pecuniary or residuary, shall lapse or fail, or for any cause not take effect, in whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction.”

By the second codicil the testatrix made certain bequests to corporations and others, and repeated the provisions above quoted. The first and third codicils have no bearing upon the questions involved.

It is now claimed upon this appeal that the residuary clause contained in the will and the second codicil as follows: The rest, residue and remainder of my estate, not disposed of by my.wili or by any codicil, I give and bequeath t'o my executors, to be divided by them among such incorporated, religious, benevolent and charitable societies of the city of New York, and in such amounts as shall be fixed or appointed by them, with the approval of my friend, the Rev. Dr. William R. Huntington, if .living,” is void because of uncertainty.

The learned court below sustained this provision of the will upon the authority of Power v. Cassidy (79 N. Y. 602). In the case cited the testator gave one-third of the rest, residue and remainder of the estate, both reai and personal, to his executors to be divided by them amongst such Roman Catholic charities, institutions, schools and churches of the city of New York, as a majority of them should decide, and in such "proportions as they might think proper. This bequest was held to be valid, because the beneficiaries, were either named, or were capable of being ascertained within the rules of law which are applicable to such cases; and because the trusts were of such a nature that a court of equity could direct their execution.

It is to be observed that the bequest in the will cited was sustained upon the distinct ground that it was evidently intended to apply to incorporated bodies having a distinct denominational character, which was expressed without ambiguity or uncertainty ; and it was, as already stated, for this reason that the devise was upheld.

In the case of Prichard v. Thompson (95 N. Y. 76) a devise to executors in and upon trust to distribute to and among such incorporated societies organized under the laws'of the State of New York or the State of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable and educational uses, as the executors should select for that purpose, and in such several sums as they, the executors, should determine, was held to be void because of indefiniteness; and the case was distinguished from that of Power v. Cassidy, because in the latter case the class of beneficiaries was specially designated and confined to the limits of a single city, and of a single religious denomination, so that each one could be readily ascertained, and each had an inherent right to apply to the court to sustain and enforce the bequest made. In the case at bar there are no such limitations, the only restrictions being that the society should be incorporated, and of the city of New York. It might be religious, benevolent or charitable, or all three combined, but it is not restricted to any denomination or any form of incorporation. Benevolent societies are exceedingly varied and diverse in their purposes and method of organization; and it is impossible to say in the case at bar whether the various benevolent societies, under the head of benevolent orders, which are incorporated in this State, are to be included within the provisions of this will or not. It is restricted to no religious denomination, so that a test may be applied based upon religious faith, nor to societies incorporated under any particular or general law. But all religious, benevolent and charitable societies, no matter what their origin or their methods of procedure, so long as they embrace religious, benevolent or charitable features, apparently come within the terms of the clause in question. This, undoubtedly, is the making of an indefinite bequest, such as was condemned in the case of Prichard v. Thompson, and which distinguishes the case at bar very materially from the case of Power v. Cassidy, in which the power of selection was restricted and confined to the benevolent and educational incorporations of a single denomination. And we do not think, upon an examination of the subsequent adjudications, that there has been any tendency in the courts to extend the extreme rule laid down in the case of Power v. Cassidy.

■It seems to us, therefore, that the clause in question is repugnant to the statute in that it has no such well-defined and ascertained beneficiaries that it can be enforced by a court of equity.

It is also urged that the clause in the will which provides that

“ If, by reason of want of incorporation, or for any other cause whatsoever, any society or institution named in my will or in any codicil, shall be unable to take the legacy intended for it, I give and bequeath such legacy absolutely to the person who shall be president of such institution or society, if it has a president, and if not, to the person who shall be its treasurer, if it has a treasurer, and if not, to the person who shall be its chief executive officer, to be by him applied to the uses and purposes of such institution or society,” is illegal and void.

This provision seems to be in contravention of the statute. Although the word “ absolutely ” is used in connection with the bequest, it is evident that the bequest is impressed with a trust, and that it is not restricted by the limitations required by the statute in order that it might be held valid. There was an attempt to bequeath to certain individuals in trust, for the purpose of application to the uses of institutions or societies which could not take under the will. Tliis form of bequest is expressly condemned in the case of O’Hara v. Dudley (95 N. Y. 403) and also in the case of Cottman v. Grace (112 id. 299). In the case of O’Hara v. Dudley it was expressly held that a bequest to an individual for the benefit of those incapable of taking is a fraud upon the law and cannot be sustained.

The provision of the will under consideration was clearly of this •character, and, therefore, comes within the rule above laid down.

The legacies to three corporations, which were upheld, are also attacked upon this appeal upon the ground that they came within the prohibition in respect to’ time contained in chapter 319 of the Laws of 1848. One of these corporations was organized under such laws ; and the others had in their charters a provision to the effect that the respective corporations should be subject to all provisions of law in relation to devises by will. ‘In the cases of Kerr v. Dougherty (79 N. Y. 327) and Stephenson v. Short (92 id. 443) it was held that such general provisions in the charter made the corporation subject to tiie limitations of the act of 1848. The legacies to these societies would seem, therefore, to be void.

The remaining provision of the will and codicil which is objected to is to the following effect:

If, for any reason, any legacy or legacies left by my will or by any codicil, either pecuniary or residuary, shall lapse or fail, or' .for any cause not take effect, ■ in whole or in part, I give and bequeatli 'the amount which shall Japse, fail or not take effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction.”

This clause is attacked upon the ground that it creates a trust and comes within the condemnation of the case, which is sometimes improperly entitled In the Matter of the Will of O’Hara, but which ought to be entitled O’Hara v. Dudley, because the opinion relates almost entirely to questions which were presented by the case of O’Hara v. Dudley, and not to those which were presented in the Matter of O’Hara, the case of O’Hara v. Dudley being an action in equity to set aside and annul the residuary devise and bequest, or to establish a trust, which, failing as to the intended beneficiary, should result to those who would otherwise have taken by descent or distribution; an action of an entirely different character from the one at bar, which is brought for the construction of the will, which construction must be determined by the contents of the will itself and cannot be affected by extrinsic evidence.

That such was the character of the discussion in O’Hara v. Dudley is expressly asserted in the Matter of Keleman (126 N. Y. 73-79), where the court says that in the O’Hm'a case there was never any question of construction at all; that the opinion was based upon a bill filed claiming that the devise and bequest in the hands of the legatees was the product of a fraud upon the executrix and upon the law, and seeking relief against that fraud. The case of O’Hara v. Dudley is no authority whatever upon the question as to the construction of the will. This was expressly held in the Matter of Keleman (supra), the distinction according to the latter opinion being manifest, and requiring no explanation, although it requires a very close examination of the case of O’Hara v. Dudley to perceive the distinction pointed out in In re Keleman.

Upon an examination of the rules laid down in this latter case we are unable to distinguish that case from the one at bar! In fact it appeared in that case that the codicil was executed because the testatrix had been advised that there were doubts in regard to the validity of certain bequests for charitable purposes. The language of the codicil was as follows: “Doubts having arisen as to the validity of the bequests made' for charitable purposes in my said will, I hereby modify said will, dated February 18,1889, by making my friend Townsend "Wandell, my residuary devisee and legatee, and hereby request him to carry into effect my wishes with respect thereto; but this is not to be construed into an absolute direction on my part, but merely my desire.” And it was held that it was very evident that the testatrix did not intend to die intestate as to any part of her estate; and having by her will given legacies to four charitable institutions, and to one of them her residuary estate, the purpose of the codicil was to carry that residue certainly and absolutely to an individual legatee, leaving him in that event to deal with the charities as he pleased. ' The court says: It is true that the expression of a wish or desire may sometimes serve to found a trust, or effect a charge; but such expressions are by no means conclusive. "We must still examine the will to discover the testamentary intention. In the present case the testatrix expressly guards against a mistaken interpretation. She says that the expression of her wish is not to be construed as an absolute direction, by which she evidently means that while she desires that her residuary legatee shall deal with the charities as she would have been glad to, yet she does not mean to fetter his ownership or qualify his right. She leaves him absolute owner, and free to do-as he shall choose. She puts him under no obligation, legal or equitable, but contents herself with the bare expression of a wish which she hopes will influence his free agency; and so the bequest was absolute, and, therefore, valid on the face of the will.” Certainly the language of the will in the case cited was as strong as the language in the case at bar; and it is as apparent (if not more so), in the case at bar that it was the intention of the testatrix to give this residuary estate absolutely and without limitation or restriction to her'executors to do with as they pleased; so the bequest was absolute and, therefore, valid on the face of the will. She puts her executors under no obligation, as was said in the Keleman case, but contents herself with the statement that she is satisfied, or believes that they will follow what they believe to be her wishes. The language does not even contain a request, such as was embraced within the Keleman will, but is a mere expression of opinion in respect to the disposition that her legatees would make of the money which was bequeathed to them.

We think that it is impossible, under such circumstances, to spell ■out a trust, and that the provision is in entire harmony with the idea that the testatrix intended to give this residuary estate absolutely to her legatees, without restriction or limitation, although she might desire that such residuary legatees should deal with the charities as she would have been glad to do. We are unable to distinguish this case from the case In the Matter of Keleman, above eited, and we think that the clause in question is valid.

The judgment appealed from should be modified in accordance with the views expressed in this opinion, with costs to all parties appearing to be paid out of the estate.

Eollett and Parker, JJ., concurred.

Judgment modified as directed in opinion, with costs to all parties out of the estate.


author: Eollett, J.:

text:
    Joseph B. Rose, Appellant, v. David Stewart et al., Respondents.

      Evidence as to the quality and quantity of light received by a building — competency of a witness.

    Where the vital question of fact upon the trial of an action, by which the rights of the litigants were to be determined, was whether certain structures of the defendants deprived the plaintiff’s building of the light and air to which it was entitled, a witness who occupied a part of the plaintiff’s building, before and since the erection of the structures complained of, and who was engaged in an occupation requiring light, and whose business qualified bim to judge of the quantity and quality of light received by said building, before and since the erection of such structures, is a competent witness upon the question as to whether less light or light of a poorer quality was enjoyed after the erection of such structures.
    It is not necessary that a witness should be a scientific expert, capable of actually measuring the quantity of light, and of determining by scientific processes its quality, to qualify him to testify as to whether less light and light of a poorer quality was received after a certain event.
    Appeal by the plaintiff, Joseph B. Rose, from a judgment of the Supreme Court in favor of tbe defendants, entered in the office of the clerk of the county of New York on the 28th day of June, 1893, upon the decision of the court dismissing the plaintiffs complaint upon the merits and for costs, rendered after a trial at the New York Special Term.
    This action was begun December 26,1890, to recover a judgment perpetually restraining the defendants from erecting and maintaining in a yard structures obstructing or preventing light and air from entering plaintiff’s building from said yard. On the 13th of November, 1832, Nathaniel G. Carnes was the owner of Nos. 42 and 44 Cedar street and, of Nos. 57 and 59 William street, the rears of which lots abutted. No. 44 was then wholly covered by a brick store, and there was a brick store on No. 42 about fifty feet deep north and south, leaving a yard about thirty feet long north and south and about twenty-five feet wide east and west which abutted Nos. 57 and 59 William street on the west. At this date Lynde Catlin owned No. 40 Cedar street, which was abutted on the south partly by Carnes’ William street property and partly by said yard. November 13, 1832, Carnes and Catlin mutually executed a contract (duly recorded November 16, 1832, in the office of the register of the city and county of New York, in Book 289 of Conveyances, at' page 449), which contained, among other recitals and covenants, the following:
    “ Whereas, the said Lynde Catlin is desirous to have the use of the privy in the yard of the stores of the said Nathaniel G. Carnes in common with the tenants of the surrounding stores, and also to use and enjoy the light and air appertaining to said yard for his said store now erecting as aforesaid, as will appear by the map hereto annexed. * * *
    “ And the said Nathaniel G. Carnes does hereby give and grant unto the said Lynde Catlin, his heirs and assigns, the use, benefit and advantage of the privy in the yard of the stores of the said Nathaniel G. Carnes on William street aforesaid, in common with the tenants of the surrounding stores, and also the use, benefit and enjoyment of light and air for the said store of the said Lynde Catlin, so far as the same in common belongs and appertains to the yard aforesaid. * * *

      “ That vn no ease or wider cun/y pretense shall the said I/ynde Caili/n, his heirs or assigns, be deprived of the use or privilege of

      access to and use of the privy therein, or the light and avr as contemplated to loe granted to or enjoyed Toy the sand Lynde Gatlin, his heirs or assigns. * * *
    “And it is further mutually covenanted and agreed by and between the parties to these presents, that the triangular piece of ground in the rear of the lots Nos. 40 and 42 Cedar street, as delineated on the plan or map hereunto annexed, shall forever remain open for light and air, excepting that the said party of the second part (Catlin) reserves to himself, his heirs, administrators and assigns, the right to inclose the ground belonging to him, the said party of the second part (Gatlin), with an iron railing and of putting stej>s to descend into the yard from the first or principal story of his building on said lot No. 40 Cedar street.”
    The ground embraced within the yard and owned by Catlin was a small triangular piece containing less than thirty square feet. The plaintiff has acquired No. 42 Cedar street, except a small triangular piece on the southeast corner of that lot forming part of the yard, through mesne conveyances, subject to the covenants above quoted, and the defendants have acquired Nos. 57 and 59-William street,, through mesne conveyances, subject to said covenants. The court found:
    “ Ninth. That the defendants, prior to the commencement of this action, erected and are now maintaining in said yard, in immediate proximity to the rear wall of the building on the premises Nos. 57 and 59 William street, an iron cylinder or pipe of the diameter of about two feet, which extends from the ground in said yard to a point about two feet above the top of the rear wall of the building' on the premises Nos. 57 and 59 William street, a height of about' one hundred and fifty feet, and that the defendants, prior to the-commencement of this action, also erected and constructed, and are-now maintaining in said yard, two skylights or ventilating shafts,, one of which is seven feet eight inches long by six feet five inches wide and four feet six inches in height, and the other of which is three feet seven inches long by four feet wide and four feet five inches in height.
    “ Tenth. There is no evidence that the said iron cylinder or pipe, or said skylights, substantially interfere with or obstruct the use, benefit or enjoyment of the light appertaining to the yard in the. rear of the premises Nos. 57 and 59 William street for the premises of the plaintiff No. 42 Cedar street.”
    The court found the following conclusions of law, the first and second upon the plaintiff’s request, and the last upon the request of the defendants:
    “ First. That the plaintiff, at the time of the commencement of this action, was, and still is, entitled to the use, benefit and enjoyment of the light and air of the said yard, so far as the same in common belonged and appertained to the said premises No. 42 Cedar street, in the city of New York.

      “Second. That the plaintiff is entitled to the use, benefit and enjoyment of the light and air of the said yard, which fell in and upon the said premises No. 42 Cedar street, as said light and air had existed prior to the erection of said cylinder or pipe, and of said skylights.
    “ The defendants are entitled to judgment against the plaintiff dismissing the complaint herein, with costs, and I order and direct judgment accordingly.”
    The plaintiff has not excepted to the ninth finding, but has to the tenth, and by six requests, asked, in various forms, the court to find the converse of the tenth finding, which requests were refused and exceptions filed. The plaintiff also excepted to the last conclusion of law above quoted, and requested the court to decide that the plaintiff was entitled to the judgment prayed for, which was refused and an exception filed.

      J. Treadwell Richards, for the appellant.

      William Allen Butler, for the respondents.
   Eollett, J.:

The questions raised on this appeal arise on the exceptions filed to the findings and refusals to find facts, and the exceptions to the conclusions found and refused, and upon the exceptions taken to the -exclusion of testimony offered by the plaintiff. The exceptions to the facts found and refused, and the exceptions to the conclusions of law found and refused, are not argued, but those taken to the exclusion of testimony are argued and relied on as grounds for a reversal of the judgment and for a new trial. The evidence con-tamed in the record sustains the facts found and the conclusions of law, and fully justifies the refusals to find facts and conclusions requested by the plaintiff. The only questions remaining to be considered are whether the testimony offered by the plaintiff and rejected by the court upon the defendants’ motion was relevant to the issues, and if relevant and believable, would it have justified a judgment for the plaintiffs.

Thomas McMullin, a witness called and sworn in behalf of the plaintiff, testified that he was a steel plate photographer and printer, and occupied the second and fourth floors of 42 Cedar street (plaintiff’s premises) before and since the erection of the structures complained of. He was asked: “ Q. Did you have occasion, after that pipe was put up, to notice the relative amount of the light you received after it was put up as compared with what you received in that, easternmost window ?

“ Mr. Butler.— I object to it as calling for a conclusion of the witness. [Objection sustained. Exception.]

“ Q. Did you notice at any time after the standing pipe was put up the light which comes in in the easternmost window on your premises ?

“ The Witness. — Tes.

“ Q. What, if anything, did you notice ?

“ Mr. Butler. — That is objected to. [Sustained. Exception.]

“ Q. Had you noticed the quantity of light which came in that window before the standing pipe, the smokestack in the rear of 57 and 59 William street, was put up ?

Mr. Butler. — I object to it on the ground that the witness has. no means of determining; he is not an expert. [Sustained. Exception.]

“ Q. State whether, after the erection of the standing pipe in the rear of the premises Nos. 57 and 59 William street, you observed any diminution of light coming in your easternmost windows ; if so, state to the court how much the diminution was as near as you can ? [Objected to on the same ground. Sustained. Exception.]

Q. State any facts in regard to the light coming in those windows before and after the erection of this standing pipe and what were the differences ?

“Mr. Butler. — We object to it on the ground that it calls for certain facts; he may state what the facts were at any time before' and after; for him to determine whether there is a difference is objectionable. [Sustained. Exception.] ”

Like facts were offered to be proved by this witness at folios 123, 125 and 135, and by John M. Coonan at folios 99, 100, 101, 106, 101 and 108, and by James B. Rose at folios 112 and 113, which were excluded on the objection of the defendants. The exclusion of this testimony was error. The vital issue of fact by which the rights of the litigants were to -be determined was whether the defendants’ structures deprived the plaintiff’s building of “ the light and air as contemplated to be granted to or enjoyed by the said Lynde Gatlin, his heirs or assigns.” The witness McMullin occupied part of the plaintiff’s building before and since the erection of the structures complained of, and was engaged in an occupation requiring light, and his business qualified him to judge of the quantity and quality of light received from the courtyard before and since the erection of the structures objected to. It is not necessary that a witness should be a scientific expert, capable of accurately measuring the quantity of light and of determining by scientific processes its quality to qualify him to testify as to whether less light and light of a poorer quality was enjoyed after a certain event.

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

Yan Brunt, P. J., and O’Brien, J., concurred.

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


author: Parker, J.:

text:
    Jacob D. Nordlinger, Appellant, v. The Manhattan Railway Company and Another, Respondents.

      JBhiidence as to whether an obstruction cuts off any light — competency of a witness.

    Whether an awning or an elevated railway platform overhanging a window wilt cut off any light is a fact easily within the grasp of the average intellect, and it is competent for an ordinary witness to testify in regard to the same.
    Appeal by the plaintiff, Jacob D. Nordlinger, from a judgment of. the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of New York on the 27th day of January, 1893, upon the report of a referee, dismissing the plaintiffs complaint upon the merits.

      H. W. Tyler and H. A. Hibbard, for the appellant.

      Julien T. Davies and Sherrill Dabeoclc, for the respondents.
   Parker, J.:

The purpose of this suit was to procure an injunction enjoining the defendants from the maintenance of their elevated railway in front of plaintiff’s premises, and also to obtain, as incidental to the decree of injunction, an assessment of the past injuries to the rental value.

A station of the defendants is situated at the corner of Forty-second street and Second avenue, and the platform of the station extends the full length of the building.

The issues presented by the pleadings were referred to a referee to hear and determine. After the hearing he determined that the plaintiff had not been injured by defendants’ station and dismissed the complaint.

Among the findings of fact upon which he based his conclusion of law was the following: “No substantial interference with the air or light of said premises has been shown to result directly from the maintenance of the railway structure of the defendants in said avenue.”

But that is what the plaintiff apparently attempted, although ineffectually, to prove. A tenant in the building in question, being under examination, the plaintiff asked him: “ Q. Now, then, will you state whether or not this platform in front of your store cuts off any light from the front part of the store ? The question is whether any more light would come to it if that structure, the station, was not there, or if the light is cut off by it ? [Objected to by defendants’ counsel on the ground that it calls for an opinion of the witness upon a state of facts that does not exist.] The referee sustained the objection and counsel for the plaintiff duly excepted.”

The objection was not well taken. The question called for a fact. Whether an awning or an elevated railway platform overhanging a window “ will cut off any light ” is a fact easily within the grasp of the average intellect.

As the error is one calling for reversal, we need not discuss the other exceptions to which our attention has been called.

The judgment should be reversed, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Follett, J'., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    Selser Brothers Company, Appellant, v. Potter Produce Company, Respondent.

      Wa/rrant of attachment — 'defective affidavit — a third person, assailing an attachment, must demonstrate his lien on the attached property.

    Where the plaintiff and defendant in an action are hoth foreign corporations, and the affidavit upon which, in part, the granting of an attachment is based, does not show that the contract sued on was made, or that the cause of action arose, within the State of New York, the attachment is improperly granted.
    The affidavit upon which a warrant of attachment is granted is defective where the important allegations are all upon information and belief, the source of information being said to be contained in affidavits on file in the court, when the affidavits referred to are not quoted from, nor are their contents nor any portion of them stated.
    Section 682 of the Code of Civil Procedure authorizes a defendant, or a person who has acquired a lien upon attached property, to apply to the court to vacate the warrant of attachment, and it is necessary for the party making such an application to demonstrate that he has a lien upon the property covered by the attachment which he seeks to set aside, and whether he has such lien may be called in question on the motion by the party whose attachment is assailed, to the end that it may be determined whether the moving party is qualified to make the motion which the debtor either cannot or will not make.
    Appeal by the plaintiff, Selser Brothers Company, from an order of the Supreme Court, made at the New Yorlc Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1894, vacating and setting aside a warrant of attachment granted on the Fifth day of November, 1893, and setting aside the judgment entered and the execution issued thereon on the 2d day of January, 1894.

      Elon 8. Hobbs, for the appellant.

      J B. Lecmitt, for the respondent.
   Parker, J.:

Plaintiff and defendant were foreign corporations when this action was commenced, and the affidavit upon which in part the granting of the attachment was based did not set forth that the contract sued on was made, or that the cause of action arose within this State. The attachment, therefore, was improperly granted. (Smith v. Union Milk Co., 70 Hun, 348.)

Nineteen days afterwards the defendant, in writing, offered to allow the plaintiff to take judgment against it for a sum which was about twenty-five per cent less than that for which a recovery was demanded in the complaint. The offer was accepted on that day, and judgment accordingly entered, on which execution was issued to the sheriff who had leviéd the attachment.

The motion which resulted in the order appealed from was made by Charles IT. Kuskej who based his right to make it upon the claim that he had acquired a lien upon the property after plaintiff hád issued its execution.

The vacation of the attachment merely would not, of course, have accomplished his purpose, for, as we have already observed, subsequent to that event judgment had been entered after a general appearance in the action, upon an offer of judgment by the defendant, and, by virtue of the execution issued thereon, the sheriff was in a position to enforce collection of the amount for which the plaintiff had obtained judgment. So the moving party asked and obtained the further order of the court that the judgment and the execution issued thereon be vacated and set aside. This part of the relief asked was granted upon the authority of Robinson v. Oceanic Steam Nav. Co. (112 N. Y. 315), in which it was held: Fwst. That prior to the statutory enactment which, with some amendments, has become incorporated into section 1780 of the Code of Civil Procedure, the Supreme Court could entertain actions between foreign corporations, or non-resident parties, plaintiff and defendant, even though the cause of action did not arise, or the contract sued upon was not made, within the State. Second. That while the court had jurisdiction in such cases, it would not always take jurisdiction, and could, of its own motion, dismiss the action when the facts should come to its knowledge. Third. That the effect of section 1780 of the Code of Civil Procedure is to so limit the jurisdiction of the court as to absolutely coniine it to the cases therein specified.

The attention of the court does not seem to have been directed to the question whether it was within the power of the Legislature to thus restrict and confine the jurisdiction of the Supreme Court. The Constitution provides that “ there shall be the existing Supreme Court with general jurisdiction in law and equity.” The fact is, as asserted in Robinson’s Case (supra), that formerly the court had general jurisdiction in actions like the one now under consideration. Whether, under the Constitution creating the three departments of government, and prohibiting either from interfering with the powers and duties committed to the others, the Legislature has authority to cut down the jurisdiction of the Supreme Court' in the manner attempted by section 1780, presents a question of such importance that it would have received careful consideration in the court of last resort had that court been invited to consider it. But that question need not be determined on this review, for, as we view it, the party had not acquired such a lien upon and interest in the property attached by this plaintiff as gave him a standing to make the motion.

The affidavit upon which his attachment was granted is defective in that the important allegations are all upon information and belief, the source of information being said to be contained in affidavits on file in this court. The affidavits referred to are not quoted from, nor are their contents, nor any portion of them stated; so the court was not put in possession of the facts affirmed therein. The respondents cite in support of this affidavit Whitney v. Hirsch (39 Hun, 325) and Bennett v. Edwards (27 id. 352). In Whitney’s case the affidavits were copied in the moving affidavit, and a reason assigned for copying the affidavit and referring to the original instead of producing the affidavit of him who made it, the reason given being that he was unable to procure an affidavit from the person making the one then constituting a part of the records of the court, and it was held sufficient.

- In Bennetts case the affidavit on which the attachment was granted not only quoted from the affidavit on file in the clerk’s-office, but gave the reason why the plaintiffs were unable to obtain the affidavit of the person having positive knowledge, and the court said that having given the names of the persons from whom the information was derived and quoted their affirmations, and in addition presented satisfactory excuses for failing to produce an .affidavit of the person having positive knowledge, it was sufficient. Such is undoubtedly the general rule. (Marine Bank v. Ward, 35 Hun, 395; James v. Richardson, 39 id. 400.) But this affidavit is, as we have pointed out, quite different; and no case has been called to our attention, nor do we think can be, which upholds it.

There are other defects, but they need not be referred to, for it is clear that the affidavit upon which ICuske obtained his attachment was so defective that it would have been vacated upon a motion by any party having a standing for such a jmrpose. But he insists here that while he has a standing to attack the warrant of attachment issued on behalf of the plaintiff, the plaintiff cannot in turn challenge the validity of the one granted, on his aj^plication. This position is not well taken. Section 682 of the Code of Civil Procedure authorizes a defendant or a person who has acquired a lien upon the attached property to apply to the court to vacate the warrant of attachment. It is apparent from the language of the section that it is necessary for the party making such an application to demonstrate that he has a lien upon the property covered by the attachment which he seeks to set aside. And whether he has such lien the party whose attachment is assailed may call in question on the motion, to the end that it may be determined whether the moving party has a standing to make the motion which the debtor either cannot or will not make.

This section was so construed, and, we think, correctly, in Delmore v. Owen (44 Hun, 296).

Having reached the conclusion that the moving party had no standing to make the motion, it follows that the order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs.

Yak Brunt, P. J\, and Follett, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.


author: Parker, J.: O’Brien, J.

text:
    William E. Wamsley, Appellant, v. H. L. Horton & Company, Limited, Respondent.

      Contract to sell what the vendor does not own — test as to intention — a recital in a contract of a non-enforcible option does not nullify the contract.

    It is a general rule of law that a man may contract for the sale of a specific thing which is not his own at the time, but • among the exceptions to such rule are agreements to sell something which at the time belongs to the buyer, or to sell property which cannot be the subject of private ownership.
    The usual test as to whether there was an intent to contract is not whether the thing contracted to be done is absolutely impossible, but whether reasonable men in the position of the parties must treat it as impossible. (O’Brien, J., dissenting.)
    In an action brought to recover damages caused by a failure to perform an agreement, it appeared that the plaintiff’s assignor had entered into an agreement with a firm by which the latter, in behalf of the stockholders of a corporation,, undertook to give the former an option for the purchase of all the stock of such corporation which the former in terms accepted. This writing was not enforcible by or against either party, one of the parties reserving the right to terminate it at pleasure and the other not being bound thereby.
    Thereafter the plaintiff’s assignor entered into an agreement with the defendant, by which he bound himself to sell and deliver the stock of such corporation within a specified time to the defendant, who in turn agreed to form a corporation and take the stock at an agreed price therefor. The attempted option was recited in the second agreement which was under seal and recited a money consideration.

      Held, that the recital of the attempted option did not operate to nullify that which otherwise would have been a perfectly valid agreement. (O’Brien, J., dissenting.)
    Appeal by tbe plaintiff, William E. Wamsley, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of November, 1893, upon the decision of the court rendered at the New York Special Term, and also from an order made at the New York Special Term and entered in' said clerk’s office on the 11th day of November, 1893, sustaining the defendant’s demurrer to the complaint.

      Alexander 8. Bacon, for the appellant.

      John Ii. Dos Bassos, for the respondent.
   Parker, J.:

Plaintiff’s assignor, Planders, and Stout & Douglass executed a writing in which the latter, in behalf of ail the stockholders of The Knapp, Stout & Oo. Company, pretended to give to the former an option for the purchase of all the stock of the corporation, aggregating 4,000 shares of $1,000 each, which he in terms accepted.

This writing, which for convenience will be called an option, was not enforcible by either party. Stout & Douglass reserved therein the right to terminate the option at any time if dissatisfied with the progress of Flanders in his negotiations for a sale, while Flanders was in no way bound by it.

But Flanders, apparently confident that the option was enforcible, entered into an agreement with the defendant by which he bound himself to sell and deliver the 4,000 shares of The Knapp, Stout & Oo. Company, within a time specified, to defendant, who in turn agreed to form a corporation to take the stock and pay the agreed price therefor in the event that the representations of Flanders as to the gross and net income of the business and value of assets should be verified by them in the manner provided in the agreement.

This plaintiff, as assignee of Flanders, seeks through this action to recover against the defendants because of their failure to perform the agreement.

The validity of the agreement is now challenged. It is urged that the recital of the alleged option between Flanders and Stout & Douglass, which was in reality of no effect, operated to nullify that which otherwise would have been a perfectly valid agreement.

This harmful and unintended result, it is said, comes from the fact that, by the appearance of the option in the contract, H. L.’ Horton & Oo. were apprised that Flanders was not the owner of the stock, and that the option under which he expected to be able to procure it was not enforcibie.

It has been said in a tentative way that the onxy consideration for the agreement was the option, and that being void, the agreement was without support in that respect. But there is nothing in the suggestion. The agreement is under seal and beyond that expressly recites a money consideration.

We have, then, to meet the suggestion that, as both parties to the contract must be presumed to have known that Flanders could not liave enforced the option, and, therefore, might not be able to deliver the stock which he contracted to sell, neither of them was bound by the agreement.

No authority for such a proposition is cited, and it is difficult to conceive of any principle of law relating to contracts which tends io support it.

It is a general rule of law that a man may contract for the sale, ■of a specific thing which is not his own at the time. Among the exceptions to the ruie are agreements to sell something which, •at the time, belongs to the buyer ; or property which cannot be the subject of private ownership at all, such as public buildings or a ship in the navy. Performance of such an agreement is impossible, ■either by law or in itself, and, therefore, it becomes void.

The ground on which it is put is that the impossible nature of the promise shows that there was no real intention of contracting, and, therefore, no real .agreement, the usual test being not whether the thing contracted to be done is absolutely impossible, but whether reasonable men, in the position of the parties, must treat it ■as impossible. (Pollock on Cont. 318-382.)

There was nothing in this cpntiact which suggests that performance on Flanders’ part would be impossible, or that the parties so understood it, and, therefore, had no intention of contracting, or which would authorize the court to treat it as a contract impossible ■of performance.

On the contrary, the option indicated that performance by Flanders would be possible, and if, for any reason, it had turned ■out otherwise, the validity of the contract would not have been affected, the remedy of the other party being an action for damages because of the breach.

It is further urged in support of the order sustaining the demurrer, that the defendant is not bound by the contract pleaded, inasmuch as the name of the corporation appears to. have been signed by a director. This position is not well taken because the ■complaint alleges that the defendant, for a valuable consideration, made, executed and delivered a contract to Flanders, and the demurrer necessarily admits the fact to be as alleged.

Respondent makes the further point that the contract pleaded provides that “ if such statements (meaning statements vouched for by Flanders in the agreement) be substantially incorrect * * * this agreement shall cease and determine and be of no effect,” and insists that plaintiff has not alleged that the statements were substantially true and correct.

Without passing on the question whether plaintiff should bear the burden of establishing the truth of the “statements,” in view of that provision of the contract wherein the purchaser covenanted to send an expert within five weeks to examine the books of Knapp, Stout & Co. Company, and the promise of the seller that if the examination of the books and assets by the expert should not determine his statements to be substantially correct then the vendee should have the right to decline to proceed further in the matter, we cite a paragraph in the complaint which the respondent has apparently overlooked, in which the plaintiff makes such allegations as entitle him to prove full performance on the part of his assignor. It declares that plaintiff’s assignor “ performed all the obligations of said contract on his part, and was at all times able, ready and willing to carry out all the conditions thereof, and frequently offered to do so.”

The order sustaining the demurrer and the interlocutory judgment entered thereon should be reversed, with costs, the demurrer overruled and defendant allowed to answer within twenty days on payment of costs.

Yan Brunt, P. <L, concurred.

O’Brien, J.

(dissenting):

I do not concur in the views or the result reached in this case. The action is brought to recover damages for breach of a contract set forth in the complaint, alleged to have been entered into between one Flanders, who was plaintiff’s assignor, and the defendant company. The agreement recites in substance that Flanders obtained from two persons, on behalf of all the stockholders of the Knapp, Stout & Oo. Company (which was a corporation engaged in the lumbering business), an option to purchase all the stock of said corporation, consisting of 4,000 shares, which option was to continue until the 1st day of August, 1891. The right to terminate such option was reserved, in the event of the corporation being dissatisfied with the progress made in the negotiation for the sale of the stock upon the terms specified.

Flanders was in no way bound by the agreement, nor is it alleged that he paid any consideration for the option, and if the question here involved were as to the binding force and effect of such an agreement upon the Knapp, Stout & Co. Company, or the persons giving the option, I think that the claim that it was a nudum factum should be sustained, because such an agreement, being' a mere offer or option, without any binding or legal effect upon either of the parties, can in no sense be regarded as a contract. Flanders himself did not agree to buy or procure any one else to buy, nor did he undertake or assume any obligations, but without, as it appears, having paid any consideration therefor, he secured an option, under which the parties with whom he was dealing stated that they would deliver to him the capital stock of the corporation provided he complied with certain conditions as to payment, etc.,, on or before a day specified.

In Story on Contracts (§ 495) it is said: If, by the terms of an offer, a certain time he prescribed within which it may he accepted by the other party, it must bo accepted within that time. The rule of law is, that the party making such an offer may retract it at any time previous to its acceptance by the other party; * * * and

the ground upon which this rule is said to he founded is that the offer heing merely gratuitous, there is no sufficient consideration to support it until it is accepted.”

The same rule is variously stated in Bishop on Contracts (§§ 178-180); Metcalf on Contracts (16); Pollock on Contracts (23); and American and English Encyclopaedia of Law (vol. 21, p. 452).

In the so-called, agreement between Flanders and the defendant company, this option is set forth and is made the basis of an agreement between them, hy the terms of which Flanders agrees to sell, and the defendant to buy, the capital stock of the corporation upon which such option had been secured by Flanders.

No doubt, one not owning property may enter into a valid binding agreement to sell it to another, taking the risk of being able to secure it before the date fixed for the delivery of the property, and if he should fail in his expectations in this regard he would be liable to respond to the purchaser in damages. On the other hand, if the purchaser, under an agreement to purchase, should neglect or refuse to comply with the conditions, it would give to the vendor a corresponding right of action for damages. These reciprocal rights, however, grow out of the fact that one agrees absolutely and without reservation to sell something, and the other to buy that something, upon terms and conditions fixed between the parties; and thus the mutual promises are sufficient consideration to support the contract in favor of either party. But where, as here, the basis of the agreement between a purchaser and seller is an option with respect to the property to be sold, which is made a part of the agreement, and which distinctly sets forth the relation of the seller to the property, then, unless by the terms of the arrangement the seller is in a position and does in fact enter into an agreement to sell, there would be wanting a consideration sufficient to support the agreement of the purchaser.

An examination of the terms of the alleged agreement relied upon, shows that what the vendor was to give, and what the defendant, as purchaser, was to take, were the rights which the vendor had ■or held under the option secured from those claiming to represent the stockholders or the corporation itself. Assuming, therefore, that the former recitals, showing a compliance with the terms and conditions of the so-called agreement on Flanders’ part, and the neglect or refusal of the defendant to comply with the obligations on its part, are fully set forth, I think the question as to whether this was a binding agreement, or a mere nud/u/m pactum, is to be tested by the determination whether or not it could be enforced against Flanders in such a way that if he did not deliver the property agreed to be sold, a corresponding action for damages would result to defendant. Such a test seems to me to be conclusive, because, unless there were some reciprocal binding promises, or in other words, unless Flanders on his. part had agreed to sell something, the agreement on the part of the defendant to purchase would be without consideration to support it, and would not give to Flanders a resultant action for damages upon failure of the defendant to comply with the terms of what, in the absence of a better word, may be called an arrangement between the parties.

The parties, in the written arrangement entered into between •them, fully set forth what rights Flanders had under his agreement with the corporation, whose option, as alleged, he held, and the defendant was thereby fully apprised of the fact that such option was not of binding force and effect against either the corporation or the persons who, on its behalf or on behalf of the stockholders, had given it to Flanders, but that it was a mere offer or proposition that-they would sell upon certain terms and within a specified time, and which, as already said, was revocable, because without any consideration to support it, and without any binding obligation upon the part of Flanders to purchase. As this underlying arrangement between Flanders and the corporation or the persons from whom he secured the option was not in a strict sense a contract which was enforcible, the defendant company, who had full knowledge by reason of the option being fully set forth, could not enforce any action for damages, even assuming that they had complied with all the conditions on their part, and Flanders had refused to complete, or if by the acts of the corporation or the persons who gave him the option, he was unable to complete. I think, therefore, as this underlying agreement was a midvm paolmm,, and was made the basis of the arrangement between Flanders and the defendant company, that it was not a condition sufficient to support any obligation upon the part of the defendant to purchase, and that a breach by either party would not give to the other an action for damages.

I am of opinion, therefore, that upon this ground the demurrer should be sustained.

The other two contentions in support of the demurrer I do not regard as well taken.

The first, based upon the fact that the agreement appears to be signed on behalf of the defendant company by a director, and that, therefore, it is not a binding agreement of the defendant, is correctly disposed of by the learned judge below in saying: “ This claim cannot be sustained because of the allegation in the complaint that the defendant made, executed and delivered the agreement. Under this allegation the plaintiff may prove on the trial that the said Raich was authorized by the defendant to sign its name, and that the agreement was in fact made, executed and delivered 'by the defendant.”

I do not think, however, that the judge was equally correct in his conclusion that the demurrer should be sustained upon the ground that, as the agreement provided, if the statements made by Flanders should be substantially incorrect, that then it ivas to c.ease, determine' and be of no effect, and inasmuch as he did not allege that such statements were substantially true and correct, he could not be allowed to prove them, and that proof that such statements were correct was a condition precedent which must be alleged to have been complied with before a cause of action in favor of Flanders would arise. In this the judge overlooked the fact that the contract provided the manner in which the verification of the statement was to-be made. It was therein provided that the defendant was to employ an expert who was to verify the statements, and that the employment of such expert Avas to be by and at the expense, in the first instance, of the defendant. As the gravamen of the action was that the defendant had not complied Avith the conditions of the agreement, and that Flanders had fully performed all the obligations of said contract on his part, it is an ei-roneous construction to hold that, Avhere the agreement provides that the defendant was, through an expert,, employed by him to verify such statements, it is a condition precedent to plaintiff’s cause of action to allege and sIioav that the statements were substantially true and correct.

I think, therefore, that it was error to sustain the demurrer upon this ground, as I regard it equally erroneous not to have sustained it upon the ground herein first considered, namely, that the agreement sued on is not a valid, binding agreement, for breach of which an action in favor of plaintiff or his assignor Avas created.

In my opinion, therefore, the order and interlocutory judgment should be sustained, with costs.

Order and interlocutory judgment reversed, with costs, and demurrer overruled and defendant allowed to answer within twenty-days, on payment of costs.


author: Van Brunt, P. J.:

text:
    In the Matter of the Appraisal for Taxation of the Estate of John A. Phipps, Deceased.

      Collateral inheritance tax — property within this State is subject to it —right toa legacy, not taxable — situs of a debt — property of a non-resident decedent, when taxable — debts due him from residents a/re not taxable.

    The determination of the question whether a tax can be imposed upon rhe property of a non-resident decedent under the provisions of chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887 and chapter 315 of the Laws of 1891, involves the inquiry as to whether the decedens had any property within the State of New York at the time of his death; if he had, the tax can be imposed, otherwise not.
    The right to a legacy, given by the will of a resident of the State of New York, cannot be considered property located within the State for the purposes of the collateral inheritance tax.
    The situs of a debt is not determined by the residence of the debtor, but by the domicile of the creditor.
    The situs of personal property is presumptively the domicile of its owner and its disposition is controlled by tbe laws of such domicile, but for certain purposes of taxation a different rule obtains.
    Where the resident of another State dies the owner of personal property which he has habitually kept invested in tbe State of New York, it is liable to taxation, but if a resident of another State dies leaving debts due him by residents of the State of New York, such debts are not the subject of taxation as being tbe property of the decedent within the State of New York.
    Appeal by Benjamin Phipps, executor of tbe last will and testament of Jolm A. Pliipps, late of Boston, Massachusetts, deceased, and ancillary executor of said will, from an order of tbe Surrogate's Court of tbe county of New York, entered in tbe office of the cierK of the New York Surrogate’s Court on the 11th day of September, 1893, affirming an order of said Surrogate’s Court, dated the 24th •day of February, 1893, assessing a tax upon such estate.

      J. II. Dougherty, for the appellant.

      JS. J. levey, for the respondents.
   Van Brunt, P. J.:

Elizabeth Fogg, a resident of this State, died on the 3d day of January, 1891, leaving a last will and testament, which was admitted to probate on tbe lotb of April, 1891. By her will sbe gave and devised .all her residuary estate, some of which consisted of real estate, but where situated does not appear, equally to Iiiram Fogg, of Bangor, Maine, and John A. Phipps, of Boston, Mass. In January, 1892, Phipps died at said Boston, leaving a will which on February 1, 1892, was duly admitted to probate in the county of Suffolk, Mass., the domicile of the decedent at the time of his death. An exemplified copy of the will was on the 20th October, 1892, filed and recorded in the office of the surrogate of the county of New York, by whom ancillary letters testamentary were duly issued. The executors of Elizabeth Fogg’s will took proceedings under the Collateral Inheritancé Acts for a determination of the value of the property passing by her will subject to taxation and the fixing of said tax. The proceedings resulted in an order fixing the amount of her estate subject to tax, including the legacy to Phipps, which was taxed at the rate of five per cent. The tax was paid by the executors to the comptroller of the city and county of New York. The legacy to Phipps was never paid to him, nor was it in a condition to be paid, he having died while Mrs. Fogg’s estate was unsettled. By his will he gave his estate to his widow. This proceeding was instituted by the ancillary executor for the purpose of having it determined what amount of inheritance tax, if any, he was liable to pay upon the legacy bequeathed by Mrs. Fogg to his testator Phipps. Such proceedings were had that the value of said legacy was ascertained, and it was determined that it was liable to the inheritance tax. An appeal was taken from the surrogate’s order affirming the appraiser’s report to the surrogate as prescribed by statute, and he, singularly enough, affirmed his previous decision, and from this order of affirmance the present appeal is taken.

The question involved upon this appeal depends upon the construction to be given to section 1 of chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1881, as amended by chapter 215 of the Laws of 1891, the last-named statute being the one which was in operation at the time of the death of the testator, Phipps. The provisions of this act, as far as they are necessary to be considered in the disposition of this appeal, are as follows: , After the passage of this act all property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, or if the decedent was not a resident of this State at the time of his death, which .property or any part thereof shall be within this State * * * shall be and is subject to a tax at the rate hereinafter specified.”

The determination of the question as to whether any tax can be imposed under the facts above stated, therefore, involves the inquiry whether the decedent had any property within this State at the time of his death. If he had, then under the principle announced in The Matter of Romaine (127 N. Y. 88) it is liable.

If he had not, then clearly there is nothing upon which the tax can operate.

In the consideration of this question it will not be necessary to note the difference between the law as it was originally enacted in 1885 and as it existed at the death of the testator, but simply to determine the question as to whether a right to a legacy given by the will of a resident of this State can be considered property located within this State. It seems to us that the mere statement of the proposition carries its answer with it, when we consider that the residence of a debtor does not fix the situs of the debt, but rather the domicile of the creditor.

It is a familiar principle that the sihis of personal property is presumptively the domicile of its owner, and its disposition is controlled by the laws of such domicile. But for certain purposes of taxation a different rule has obtained because of statutes passed to prevent non-residents having the protection of our laws for their property which is invested and kept within this State without contributing to the expense of such protection. And it is in the same line of legislation that the statute of 1891 has been passed; and consequently where a resident of another State dies the owner of personal property which he has habitually kept and invested in this State, it is liable to taxation, as has been adjudicated in the case of Romaine, above cited. But it has not yet been determined that if a resident of another State dies, having debts due him by residents of this State, that those debts are the subject of taxation as being the property of the decedent within this State. That such property is not the subject upon which the act in question was intended to operate seems to have been intimated in the case of Swift (137 N. Y. 77), where the property the subject of taxation is likened to realty, being tangible and located within the limits of the State, as was the fact in refei’ence to the estate of Romaine. Rut a mere chose in action, a right to recover a sum of money, has never, as yet, been given the attribute of tangibility, and this seems to be all that Phipps had at the time of his death. He had a right to claim the amount of money which his share of the residuary estate of Mrs. Fogg would result in, nothing more; no particular piece of property, no particular sum of money, no particular representatives of money or property. And until this residuary estate was ascertained by an accounting of the executors, the legatee might not be even able to maintain an action for its recovery. It would appear, therefore, that a tax in this proceeding has been levied upon a legacy which not only had never been realized, but the right to the possession of which had never accrued. And if, as intimated in The Matter of Romaine, it was not the intention to attempt to levy a tax upon property, except such as the owner at the time of his death voluntarily permitted to remain in the State, how can such a tax be levied upon property which the decadent has never had it in his power to remove, if this unrealized legacy can be called property within this State ? In other words, can this act be construed to cover a right at some future time to receive a sum of money, or to recover a debt ?

We think, clearly, it cannot, and that all that it was intended to cover was tangible property kept within this State by the decedent, and that property which is transiently here, as upon the person or in the baggage of a man suddenly dying within this State, was never intended to be covered by the provisions of the act. If the claim advanced in support of the tax in the case at bar is to prevail, then in every case such as has been cited must the tax be collected, which never could have been the intention of the Legislature.

We think, therefore, that the right to this legacy, which had never been reduced to possession and which was kept within this State without the will of the decedent, is not the subject of taxation under the acts in question, and the order appealed from should be reversed, with costs.

Follett and O’Brien, JJ., concurred.

Order reversed, with costs.


author: Per Curiam :

text:
    The East River Savings Institution, Respondent, v. Charles L. Bucki, Appellant, Impleaded with John L. Brown and Others.

      Special Term has no power to direct the insertion of provisions in a judgment to be rendered.

    A Special Term cannot, in advance of a decision and the entry of judgment in an action, by an order granted on a special motion, require the court to which the action is to be submitted for judgment, to enter particular provisions m that judgment.
    Ai>peal by the defendant, Charles L. Bncld, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of February, 1894, which, among other things, provided for additional advertisement for the sale of the premises described in the complaint herein, and for the insertion of a provision to that effect in the final judgment of foreclosure and sale to be entered in this action, and requiring the appellant to place some person in charge of said premises.

      Wallach cBeach, for the appellant 0. L. Bucki.

      J. W. G. Lemeridge, for the plaintiff, respondent.

      Michael II. Oardozo, for the defendant, respondent, Hattie E. Bucki.
   Per Curiam :

The parties to this appeal are husband and wife, who are living apart, and between whom there is an action pending for a limited divorce brought by the wife against the husband. Charles L. Bucki, the husband, is the owner of the fee of No. 116 West Seventy-ninth street, subject to a mortgage given by a prior owner which is being foreclosed in this action, and the appellant and respondent are parties defendant. During the pendency of the action, before judgment was entered, and so far as it appears before the defendants had made default, the wife moved at Special Term for an order directing that a clause be inserted in the judgment to be entered in this action, providing that the premises described therein should be advertised in such manner as to the referee might seem proper, in addition to the advertisement required by law, and that said referee be authorized to place a person in charge of said premises to show the same to persons desiring to purchase the said premises, and for that purpose the defendant, Charles Lloyd Bucki, be directed to deliver to said referee the keys of said premises in order to place such person in proper charge thereof, and the expense of such extra advertising and employment of person to be placed in charge of said premises be paid by said referee out of the proceeds of the sale, such expenses not to exceed a sum to be fixed by the court.”

Upon this motion an order containing the following provisions was granted: “It is ordered that there be inserted in the final judgment of foreclosure and sale to be entered in this action, in appropriate places, the following paragraphs: And the referee above named is hereby directed to advertise the sale of the premises herein described (in addition to the manner provided by law) in such newspapers and at such times and by means of posters, and in any other manner as in his discretion may seem proper, in order to prevent the premises from being sacrificed on the sale herein provided for, and that the cost of such advertising and posters be paid by said referee out of the proceeds of said sale as one of his expenses thereof, providing there are sufficient moneys arising from such sale, after paying the plaintiff’s claim, interest, costs and allowances, and expenses not to exceed one hundred dollars.

And it is further ordered, adjudged and decreed, that the defendant, Charles Lloyd Bucki, open the house on the premises herein described, and place some proper and suitable person or persons in charge thereof, with orders from him to show all or any part of the interior thereof to all persons applying for leave to inspect the same, and allow such inspection to be made on all secular days intervening between the day of the date of this judgment and the day of the actual sale of said premises, such inspection to be made on said days at any of the hours between nine a. m. and six p. m., and the persons or person so piaced in charge of said premises are hereby

Ordered and directed to carry out and obey the directions regarding the inspection of said premises as above fudy set forth.’ ”

We are not aware of any rule of practice authorizing a Special Term, in advance of a decision and the entry of a judgment in a pending action, to order and decree what provisions the judgment, when rendered, shall contain. If the defendants desire to be heard as to the provisions and form of the judgment, they should appear in the action, and, when application is made for final judgment, then present their views in respect to the provisions which it should contain. It is sufficient for the disposition of this appeal that a Special Term cannot, before the case is ripe for judgment, by an order granted on a special motion, bind the court before which the action is to be submitted for judgment by requiring that court to enter particular provisions in the judgment.

The order should be reversed and the motion denied, but as this litigation is between husband and wife, without costs to either party.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order reversed and motion denied, without costs.