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    MICHAEL DONAHUE, Plaintiff and Appellant, v. ROGER O’CONOR, Defendant and Respondent.
    Tax sales.—Proceedings to determine claims to real property.
    —Notice by publication.
    The plaintiff herein claimed title in fee to the premises in question, under the deed of a referee in foreclosure proceedings, which deed was dated June 3, 1876. The defendant claimed title to the same under a lease for sixty years, made by the mayor, &c., March 18, 1876, upon a sale for taxes.

      Held, that such a claim may be determined in an action like th e present, which was brought to determine conflicting claims to certain real estate, under section 449 of Code of Procedure, and 2 R. S. 313, and amendments.
    The legislature has power to enact that the production of a deed or lease given by the mayor, &c., upon a tax sale, shall be presumptive evidence of the title of the purchaser, and that all the statutory requirements have been complied with; but proceedings of the character in question, i. e., tax sales, are to be closely scrutinized, and the provisions of the statute must be sedulously followed.

      Held, that the proceedings herein upon the sale to defendant were irregular and defective, and the lease was therefore void.
    1. With respect to the lands in question, the statutory notice published did not state on what particular day they were sold. It stated that the lands described in an accompanying list were sold on the 9th, 13th, 18th, and 35th days of March, 1874 (without specifying what lands were sold on the different days) and that, unless redeemed on or before two years from the date of the respective sales, which will be on the 9th, 13th, 18th, and 35th days of March, 1876, the .mayor, &c., would execute a lease to the purchaser. The statute speaks of a “ certain,” not an uncertain day.
    Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    3. The notice to owners and occupants, which the statute require shall be given by the “grantee” to whom the premises ' ‘shall have been conveyed, ” was never served upon the plaintiff, the owner of the premises, and was served upon the occupants and the former owner before the premises were conveyed, which service, so far as made, was therefore premature and ineffectual.
    The statute requires that notice of sale shall be published in ten different newspapers of New York city. Held, that a publication of the same in a paper printed in the German language, as one of the above number, will not invalidate the notice.
    The defendant, not having an absolute and perfected title, his act in entering upon the premises and collecting rent from' the tenants was not an interruption of the plaintiff’s possession. Though the tenants, for a few months, recognized the defendant as landlord, they subsequently resumed their proper relations -to plaintiff, which have continued ever since.
    Appeal by plaintiff from a judgment in favor of plaintiff, rendered by a judge at special term. The facts are stated in the opinion of the court.

      John Townshend, attorney, and of counsel, for plaintiff and appellant, urged:
    I. The acts of defendant in entering on the premises, and procuring the tenants to attorn, were illegal and void, and. did not in law or in fact interrupt the possession of plaintiff (2 R. S. 507, § 1; 1 R. S. 744, § 3.)
    II. The attornment did not interrupt the possession of plaintiff; his tenants, Curley and Callaghan, continued in uninterrupted possession. “ The possession of the tenant shall be deemed the possession of the landlord,” “notwithstanding such tenant may have acquired another title, or may have claimed to hold adversely to his landlord ” (2 R. S. 294, § 13; Code of Pro. of 1849, § 86; Code of Civil Pro. of 1876, § 373; Burhans v. Van Zandt, 7 Barb. 91).
    III. The lease purports to be given under the Law of 1871, c. 381. That law among other things provides : “ § 3. That when a tax has been unpaid for three years after confirmation,- the clerk of arrears may advertise the taxed property for sale.” He is to publish the notice of sale in ten daily newspapers. Upon the sale, a certificate is to be given to each purchaser, describing the lands sold, and the time for which sold, &c. (§ 3). § 4. If no redemption is made, the clerk of arrears is to publish a notice to redeem in one daily newspaper “ in such form as he shall deem best calculated to give notice of such sale, that unless the lands sold be redeemed by' a certain day, they will be conveyed to the purchaser, and if no redemption is made within two years from the date of said certificate, a lease is to be executed to the purchaser.” The lease is declared to be “presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment on said lands .... and all notices required by law ' to be given previous to the expiration of the two years allowed to redeem were regular.” §13. If, “at the time of the conveyance,”—i. e., at the time of making the lease,—the premises are occupied, notice to redeem is to be served “ on the person occupying such lands or tenements, and in all cases, notice to redeem is to-be served on the persons owning the property so conveyed.” The notice is to state the sale and conveyance, the person to whom made, and the amount of consideration money mentioned in the conveyance, with the addition “of the sum paid for the lease,” and that if those sums are not paid the conveyance (lease) will become absolute. § 15. The grantee, “ to complete his title to the land conveyed,” shall file an affidavit with the clerk of arrears of the service of the notice to redeem. § 17. The owner, occupant or any other person may, at any time within the six months mentioned in such notice, redeem, by paying purchase-money and interest, &c.
    IV. It is too well established to need at this time any confirmation by argument, or citation of authorities, that, independently of any statute, dispensing with such proof, a lease on a sale for taxes can be supported only by the proof of all the preliminaries which authorize a sale. The distinction between the legality and the existence of an assessment was maintained in Sutton v. Calhoun (14 La. Ann. 209). The provision that the sale shall be presumed regular applies only to the sale, and not to the antecedent acts (Doughty v. Hope, 3 Denio, 594). But the statute does not provide that the lease shall be evidence that the tax was remaining unpaid, or that it had remained unpaid for three years, and these are essential to give a power to sell.
    V. As to the notice of sale, if it was proper (as to which hereafter) to advertise in any newspaper, it should have been published in ten daily newspapers. The notice was published, in nine newspapers,—i. <?., English newspapers. It is claimed that the notice of sale was also published in the City Record. Something was published in a German newspaper, in the German language and German characters. What it was that was so published the court does not know. a. The City Record is not a newspaper. It is the official organ of the corporation of New York. It has no news, is no more a newspaper than is the publication of the proceedings of any body, corporate or natural. The publication, therefore, in that publication goes for nothing, b. A publication in a German paper was not sufficient. The publication in German cannot be a notice to an English-speaking people. For where the language published is one foreign to the place of publication, it will not be assumed that those who heard or read understood it (see Aman v. Damn, 8 Com. B. N. S. 597; Stark. 3 ed. by Folkard, 135; Keene v. Ruff, 1 Clarke [Iowa], 482; Danver’s Abr. Pl. 1, 2, 7). To allege a publication of English words, and prove a publication of words in another tongue, is a variance (Keenholts v. Beeker, 5 Den. 346; Kirschlangher v. Slusser, 12 Ind. 453). Where an indictment for forgery set out the alleged forged instrument in the Prussian language, the whole court of ten judges held the indictment insufficient (Rex v. Goldstein, 3 Brod. & B. 201). Under a commission to examine a foreign witness who cannot speak English, the deposition must be taken in English by an interpreter (Belmore v. Anderson, 2 Cox Ch. Cas. 288). The supreme court of Missouri held, that when legal notices are to be published in á newspaper, an English paper is always intended, unless expressed otherwise (Graham v. King, 50 Mo. 22).
    VI. The description of the premises to be sold as “lot,” when in truth there was a house and lot, was such a misdescription as should avoid the sale. It is “ of equal if not greater importance that the property should be so definitely described that no purchaser could be at a loss to estimate its value” (Blackwell on Tax Titles, 2 ed. 229).
    VII. The defect in the publication of the notice to redeem is this : it was published in the Express, and should (if the City Record is a newspaper) have been published in the City Record. Laws of 1869, c. 875, § 1, provided that the mayor and comptroller should designate six daily newspapers, and six weeklies, but no more, in which to publish the proceedings of the board of supervisors, and all proceedings and notices relating to county affairs. Next came Laws of 1870, c. 137, p. 366 (April 5, 1870), which was amended in 1871, c. 574, p. 1231 (April 18, 1871), § 1, and repealed Laws of 1873, c. 335. Then, by Laws of 1870, c. 383, p. 882, § 1, it was provided that all advertisements for the city should be published in newspapers to be designated by the mayor and comptroller, and the payment of any money for advertising of any description, for or on account of the corporation, except in such newspapers, was prohibited. The papers thus designated became known as “Corporation papers.” The court of appeals held that this provision made it imperative to publish in the designated newspapers all advertisements for city and county purposes (Re Douglass, 46 N. Y. 42; Re Astor, 50 Id. 366; Re Smith, 52 Id. 526). Then came Laws of 1871, c. 381 (April 8, 1871), requiring the notices of tax sales to be published in ten daily newspapers, and the notice to redeem in one newspaper. This must have meant, so long as the Laws of 1870, as amended 1871, c. 574 (April 18, 1871), were in force, newspapers designated by the mayor and comptroller. But Laws of 1870, chapters 137 and 883, were repealed by Laws of 1873, c. 335, § 119, p. 522 (the city charter), and by section 111 of that law provision is made for the publication of the City Record, and then it is enacted (1) that all advertising required to be done for the city, and (2) all notices required by law to be published in corporation papers, shall be inserted at the public expense only in the City Record, and a publication therein shall be a sufficient compliance with any law or ordinance requiring publication of such matters or notices. - Then follows an exception in the case of advertising for contracts, and allowing publication in case of contracts in a German newspaper. Section 119 of said act of 1873 repeals all acts and parts of acts inconsistent therewith.
    YIII. The advertisement to redeem was not properly framed. It should give notice that unless the premises are redeemed by a certain day they will be conveyed to. the purchaser. Redemption must be made “ within two years from the date of the before-mentioned certificate” (Laws of 1871, c. 381, § 4). The certificate here mentioned is the certificate of sale delivered to each purchaser (same law, § 3). Now, the notice published states in the heading, that the lands described in the following list were sold on the 9th, 12th, 18th and 25th days of March, 1874, and that unless redeemed ‘ ‘ on or before the expiration of two years from the date of the respective sales, which will be on 9th, 12th, 18th and 25th days of March, 1876,” the mayor, aldermen and commonalty of the said city will execute leases to the purchasers. Then follows the "description of the property, as thus :

    How, from these particulars, can the owner know with certainty which is his last day to redeem ? Although his time to redeem is limited by the date of the certificate of the sale, no information whatever as to the date of the certificate is given. If it is said that it will be presumed that the date of the certificate is the , date of the sale, we deny that such a presumption can be indulged in; there is nothing to warrant such a presumption. But allowing such a presumption, then when is the day to redeem % It nowhere appears which property was sold on the 9th, which on the 12th, which on the 18th, or which on the 25th, and how can the owner know on which day his property was sold, or until which day he has to redeem (Hand v. Ballou, 12 N. Y. 541). The extreme accuracy required in these notices is illustrated by the case of Adriance v. McCafferty (2 Robt. 153), where it was held that a notice requiring objections to be served on “ the commissioners,” instead of upon the chairman of the commissioners, made the assessment and sale void.
    IX. The notice to owner and occupant was not sufficient, because, a. The notice was served before the lease was executed; b. The notice was not served on all the occupants ; c. The notice was served on the former owner, and has never been served on'the owner who was owner “at the time of the conveyance.” There can be no doubt of the fact that the notice to redeem was served before the lease was executed. Cady distinctly states that the lease was not executed until a day or two prior to December 30, 1876, and the defendant states the lease was not delivered until after January 6, 1877, while Daly testified he served the notice on March 22, 1876. The lease is signed by John Kelly, comptroller, and he did not take office until December, 1876. The fact is undoubted as to the time of the execution of the lease, and the law is as undoubted that such a service was premature. Section 13 of the Laws of 1871, c. 381, provides that whenever lands sold for taxes and conveyed shall, at the time of conveyance, be in the actual occupancy of any person, the grantee, to whom the same shall have been conveyed, shall give notice, and the notice is to state the sale and conveyance, the person to whom made, the amount of consideration money mentioned in the conveyance, and the amount paid for the lease, and that, unless redeemed, the conveyance will become absolute. It seems too patent to need argument; indeed, no argument could make it clearer than does the reading of this section, that the notice is not to be served until after the property has been conveyed. Besides, such is the construction put on a similarly worded statute. Marvin, J.: “Hence he must have a conveyance before the notice can be served” (Hand v. Ballou, 12 N. Y. 541; Paillet v. Young, 4 Sandf. 58). Until this notice is served and the six months have expired in which to redeem, the purchaser has no estate in the land. His title is not complete till service made, and affidavit of service filed (Laws of 1871, c. 381, § 15; Smith v. Sanger, 3 Barb. 360). The notice was not served on all the occupants, and until this is done the purchaser’s title is not complete. After service of the notice to redeem, the owner, occupant or any other person may redeem (Laws of 1871, c. 381, § 17; Comstock v. Beardsley, 15 Wend. 348; Bush v. Davison, 16 Wend. 550; Leland v. Bennett, 5 Hill, 286; Smith v. Sanger, 3 Barb. 360). There is one other irregularity which may be urged, the want of filing the affidavit, and notice of demand required by Laws of 1843, c. 230, art. 11, §§ 7, 8, 9, as amended Laws of 1850, c. 121, § 32; but the other objection seems so substantial, it is not deemed necessary to enlarge on this point.
    X. The motion for a mandamus was addressed to the discretion of the court. It was a mere motion, not an action. And being a mere motion it was not res adjudícala. Besides, the same question was not in issue in the motion as in the action (Lalor v. Dunning, 56 How. Pr. 209; Boon v. Moss, 70 N. Y. 466).

      Thomas N. Cuthbert, attorney, and J. A. Beall, of counsel, for defendant and respondent, urged:
    I. The-lease established aprima facie title in the defendant to hold and enjoy the premises for the term of sixty years, and threw upon the plaintiff the burden of showing that title to be bad. It was objected by the counsel for the plaintiff at the trial that the act intended that the lease should be presumptive evidence of the regularity of the "proceedings only, and that it was incumbent upon the purchaser at the tax sale, the defendant here, to show by other evidence the fact that the proceedings had been had ; and the lease itself showed only their regularity after they had been proved to have taken place, and for this construction counsel referred to two cases, but neither of them appear to have arisen under'a statute similar to that of 1871 (14 La. Ann. 209; 3 Den. 594; Blackwell, 401, § 4). We are not without judicial decisions to the same effect in this State (Bank of Utica v. Mersereau, 3 Barb. Ch. 528). In Hand v. Ballard, 12 N. Y. 543, the court says: “The legislature certainly have power to determine by law what shall in civil cases be received by the courts as presumptive evidence.” Under the California statute of 1854 it was not necessary to recite in a tax deed the various acts showing a compliance by the revenue officers with the condition of the statute. Hecitals of these acts in the deed are prima facie evidence, but if not inserted, may be proved aliunde (Weatherby v. Dunn, 32 Cal. 106; Morse v. Shear, 25 Id. 38). Nor is it necessary, before introducing the deed in evidence, to prove that the person by whom it was executed held the office of tax collector when the sale was made. “ General recitals that the property was duly assessed, and the tax levied upon it according to law, are sufficient to make the deed prima facie evidence” (33 Cal. 287; 39 Id. 326).
    II. The sale was well and sufficiently advertised. The proof is that the advertisement was published in eleven daily newspapers, ten in the English language, and one in the German language. It has been contended that the City Record was not such a newspaper as was required, by the act of 1871. But the act does not describe the newspapers in which the notice shall be published, further than that they shall be “daily newspapers published in the city of New York.” It appears that the City Record publishes news, and of an interesting and important character—viz., the proceedings of the several departments of the city government, proposed municipal improvements, contracts and investments. The several departments are furnished with copies of the paper. They are furnished gratuitously to every newspaper, public library, and public institution, and it may be sold to the public generally. To say, in the face of these facts, that the City Record is not a daily newspaper, seems .to be the merest hypercriticism. But even without the advertisement in the City Record, the notice of the sale was sufficiently published. The law, chapter 381, section 3, of 1871, does not require the notice to be published in the English language. The only statutory provision in this State for the use of the English language is to be found in the third volume of the Revised Statutes, at page 467, which is that “allwrits, processes, proceedings and records in any court within this State, shall be hereafter conducted in the English language.” What the legislature intended when it provided for the publication of the notice of sale, was that the best and fullest publicity should be given, to the end that the notice might reach the owners of property listed for sale, and all persons likely to be in any way interested therein. It is a fact so well known that the court will take judicial cognizance of it, that a very lar^e number of our citizens, probably one-fifth of the entire population of the city of New York, are Germans, speaking and reading the German language, and many of them no other. The cases cited by the learned counsel to sustain his objection to the publication in the Staats Zeitung are none of them applicable to this case. With one or two exceptions they were cases of libel or slander, and went only to this extent, that where the words were uttered in a foreign tongue, it should be shown that they were understood by those who heard or read them.
    But in one case of slander, Wright, J., said— citing Starkie, p. 85: “If that is good law, the rule seems equally applicable to German words, spoken in a German county like this” (Bechtell v. Shatler, Wright [O.], 107). The Missouri case undoubtedly •depended in some measure upon a statute in relation to legal proceedings similar to that in force in this State, and cited swpra, or it may well be founded upon the English statute in the same behalf, which is part of the common law in this country. The provision of the charter of 1873 (Laws of 1873, p. 515), for the publication of notices in the German language, we submit, sustains the action of the comptroller in making the German publication—it is a direct legislative recognition of the fact of the large German-speaking and reading population of the city of Hew York.
    ' III. The description of the property in the notice of sale was sufficient. It was described as being Ward Ho. 4 in block Ho. :¡39, between the Third and Fourth avenues and Eighty-eighth and Eighty-ninth streets, and assessed to Thorp, the owner (Blackwell's Tax Titles, 250; Ronkendorff v. Taylor, 4 Pet. 349; 2 Ohio, 278; 3 Miss. 452).
    IV. The notice to redeem was well and sufficiently published. That notice stated the location and description of the property, and the ownership, precisely as in the notice of sale, and gave the amount for which the property was sold. It is objected that this notice stated that the sale took place on several successive days, and that the property might be redeemed within two years from the time of sale, and did not state as to each particular lot, nor as to the lot in question, upon what day it was sold. The act, chapter 381 of the Laws of 1871, says, at section 4: “ The clerk of arrears, under the direction of the comptroller of the city of New York, shall cause an advertisement to be published at least twice in each week, for six weeks successively, in one of the daily newspapers printed ' and published in the city of New York, in such form as he shall deem best calculated to give notice of such sale, that unless the lands and tenements sold be redeemed by a certain day, they will be conveyed to the purchaser.” The form of the notice is here left to the discretion of the clerk of arrears. Embodying, as it does, all the essential particulars, the court will not now say that that discretion was improperly exercised. It would be a strong case, indeed, a manifest case, of carelessness or negligence, which the court would so characterize. That the exact day upon which the lot in question was sold, was not stated, was not calculated to mislead, or in any way injure, the owner or the person wishing to redeem. The notice stated that the sale was held on several different days, commencing on March 9. The notice to redeem is not required to be published in the City Record. The learned counsel cited the Laws of 1869, chapter 875, and the Charters of 1870 and 1873, to show that the notice to redeem should be published in designated official papers, and that since 1873 the City Record was such paper. The most cursory examination will satisfy the court that those acts have no bearing upon the advertisement either of sales for taxes, or to redeem therefrom. The designated official papers were to publish the proceedings of the supervisors and of the common council, and no others were required to be published therein, and the cases cited were all proceedings to vacate assessments, where the questions were as to the publication of the resolutions and ordinances of the common council. The law of 1871, chapter 381, however, stands separate and apart from the charters, and there is no necessary connection between them ; they are not in pari materia, neither are they in conflict, but if there is any conflict between the act pf 1871 and the charter of 1870, then the charter must be held to be modified by the act of 1871, that being the later. So much down, to 1873. Under the charter of that year counsel argues that publication of notice to redeem must of necessity be made in the Qity Record^ because at section 111 it is provided that all advertising required to be done for the city, and “all notices required by law to be published in corporation papers, shall be inserted at the public expense only in the City Record;” the erroneous punctuation of the extracted words in the appellant’s brief shows how the learned counsel fell into his mistaken construction of the statute. There is no law requiring the notice in question to be published in corporation papers, and the prohibition as to publication in other papers is only as to publication at the public expense. The expense of publishing the notices under the law of 1871, first in ten papers and then in one, is, pursuant to section 3, to be charged upon the property, and included in the amount for which it is sold; these publications are not, therefore, at the public expense, and not within the prohibition of the charter.
    Y. The notice to redeem, within the additional period of six months, was also served within the time required by the statute. It is contended that the statute contemplates a service by the purchaser at the time, and only at the time, of the actual delivery of the conveyance to him, and for that several authorities were cited (Comstock v. Beardsley, 15 Wend. 348; and Hand v. Ballou, 12 N. Y. 541). These cases were different in every essential from the case at bar. Both were sold by the comptroller of the state, and absolute deeds in fee were given. In the first case, the lands sold were occupied by one Bean, who apparently had no title thereto, but who lived upon and cultivated the lands. Ho notice to redeem, was ever given to him. The court held that he was in the actual occupancy of the premises, and therefore notice should have been given. In Hand v. Ballou, the land was sold in December, 1848, and on December 17, 1850, the purchaser became entitled to the deed, which, bearing that date, was actually delivered in July, 1851. In December, 1850, the land was not occupied, but it was in July, 1851. Ho notice to redeem whatever was given to any one. It is also contended that the notice was not adequately served, because not served upon all the tenants of the premises. It never was intended that personal service of the notice should be made upon the occupant of every room in a tenement house. The principal tenant upon these premises, occupying the principal apartment, was Mrs. Callahan, and she was actually served with the written notice. The other tenant was present, and had a verbal notice of the whole thing. It was explained to him, and he understood it. The occupant whom the statute intended should be served with this notice, was such an occupant as could be made liable for the tax. This was held in the case of Comstock v. Beardsley, before cited. Moreover, this objection is not available to the plaintiff, but only to the tenant not served. Even less tenable is the objection that Donahue was not served with notice ; he knew that the time for issuing the lease had arrived, and that notice to redeem might have been duly served on Thorp. The law of 1871 forbids the recording of the lease until the certificate prescribed by that act has been given, and as we have seen that the lease and certificate are given together, the appellant’s construction would prevent a title under a tax sale from ever vesting.

      YI. It should be borne in mind that the previous decisions upon the validity of tax titles have been made in cases where the fee of the property was disposed of, and not where, as in New York city, the utmost that can be conveyed is a leasehold interest. Formerly, too, the laws governing sales for taxes were invalid, cumbrous, and difficult of execution and of comprehension. Where the laws have been simplified, and are easy to be understood, and carefully regard the rights and interests of the citizen, the same reason for straining every point against a tax-title does not exist (McMillen v. Robbins, 5 Hamm. 28; Hinman v. Pope, 1 Gilm. 141, 142, Searles, J., dissenting; Atkins v. Hinman, 2 Id. 452, 453).
    VII. At most, the plaintiff is entitled only to redeem. We have shown, we submit, that the sale, and the lease given thereunder, were valid, and if the purchaser has not served the notice to redeem, in accordance with the provisions of the statute, it would not invalidate the lease, but only extend the property-owner’ s time to redeem.
    .VIII. The plaintiff is not entitled to recover in this proceeding or to maintain this action. 1. This is a strictly statutory proceeding, unknown at common law. The burden of proof, therefore, is upon the plaintiff, to show that his case is within the provisions of the statute, otherwise he cannot maintain his action (Bailey v. Southwick, 6 Lans. 366; Austin v. Goodrich, 49 N. Y. 266). 2. One of the first requisites of the statute is that the plaintiff must prove that he, or those through whom he claims, have been for three whole years prior to the commencement of the action in the actual possession of the property, claiming the same in fee, &c. (R. S. title 2, c. 5, part III.; see § 1; § 2, subd. 3; and § 7). 3. It is submitted that the defendant clearly proved that the plaintiff was not in the actual possession of the premises during a period of three months shortly prior to the commencement of this action. It is not disputed that O’Conor,, the defendant, claiming title to these premises, collected the rents of the same for the months of February, March and April, 1877, made alterations and repairs therein, and placed a new tenant, Bennett, in the upper story. The term actual possession, as used in this statute, has been the subject of judicial interpretation, and has been held' tó mean the actual physical use, occupation and enjoyment of property, whether legal or not, as distinguished from a strictly legal or constitutional possession (see Boylston v. Wheeler, 61 N. Y. 521; Churchill v. Onderdonk, 59 Id. 134; Cleveland v. Crawford, 7 Hun, 616). 4. But the appellant claims that O’Conor was a mere trespasser on his property, and had no right to collect rents or take possession. The answer to this is that if O’ Conor was a trespasser, then he must have been in the actual possession of the premises, or some part thereof, in order to constitute trespass, and that such possession on his part would defeat the plaintiff’s right to recover in this action. But O’Conor was not a trespasser, if his lease was valid. In that case he was entitled to the possession of the property, no matter how that possession was obtained. And if this latter proposition were not true, the defendant has shown that he obtained possession lawfully. The tenants attorned and paid rent to him, as they had á right to do. While a tenant may not dispute the title of his landlord, he may always show that his title has ceased and may attorn and pay rent to the rightful owner (see Despard v. Walbridge, 15 N. Y. 377; Jackson v. Rowland, 6 Wend. 670).
    IX. Another action for the same cause is pending between the same parties. The affidavits, notice of motion and notice of appeal from order denying motion, offered in evidence by the defendant, show that another action, or proceeding, for the same cause as in this action, and between the same parties, is now pending. It is true that this prior proceeding is not an action, but a special proceeding, and that the clerk of arrears, who is a party defendant in that proceeding, is not made a party to this action, but both these objections have been held to be immaterial. The object of both actions is the same, and the pendency of the first is a bar to the second (Dwight v. St. John, 25 N. Y. 203; see Groshon v. Lyon, 16 Barb. 461; Ogden v. Bodle, 2 Duer, 611).
   By the Court.—Van Vorst, J.

This is an action under section 449 of the Code of Procedure, and 2 Devised Statutes, 313, and the several amendments thereto, to determine claims to real property (Burnham v. Onderdonk, 41 N. Y. 425; Barnard v. Simms, 42 Barb. 304).

The plaintiff, by his complaint, claims to have an estate in fee in the lands in question. His title was derived through a conveyance made to him by a referee in pursuance of a sale made under a judgment in an action for the foreclosure of a mortgage executed by one Thorp, the owner of the land. The referee’s deed is dated June 3, 1876. The plaintiff, in his complaint, alleged that he, and those through whom he claims, have been in the actual possession of the land for three years before the commencement of his action.

The defendant claims title to the premises under a lease made by the mayor, aldermen, and commonalty of the city of Hew York, for sixty years, from March 18, 1876, on a sale for taxes. Such a claim may be determined in this action (cases above cited).

By his answer, the defendant denied each and every allegation of the complainant, except as admitted, and set up the particulars of his title, through the lease granted to him by the mayor, &c., &c., of Hew York.

The learned judge, before the action was tried at special terrU, found as a fact, that neither the plaintiff, nor those from whom he claimed, had been in the actual possession of the premises for three whole years before the commencement of the action, and, as his first conclusion of law, decided that the plaintiff’s complaint should be dismissed. But, on the assum ption that the plaintiff could maintain the action, the judge decided that under the facts found by him the defendant is entitled to the possession of the premises as owner thereof until the term of sixty years, being the time limited in and by the lease, under which he claimed, should be complete and ended, and rendered judgment accordingly. In reaching this conclusion, the judge decided, as matter of law, that the sale, of the premises by the mayor, aldermen and commonalty of the city of New York, and all the proceedings prior thereto, from and including the assessments thereon, for taxes and Croton water rents, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular, and according to the provisions of the statute in such cases made and provided, and that the six months’ notice to redeem the premises from the sales was duly served upon the proper parties. The plaintiff’s counsel excepted to the findings of fact, upon which the conclusions of law above indicated were reached, as also to all the conclusions of law.

From the character of the judgment from which this appeal is taken, the first question to be determined is whether the defendant’s claim under his lease can be legally maintained, and its solution determines in fact-all the points involved in this action.

The defendant gave his lease in evidence, and claimed affirmatively under it. By the terms of the act under which the proceedings were had, which resulted in the lease to the defendant, the lease, when properly executed, is made presumptive evidence that the sale and all proceedings prior thereto, from and including the assessments on the lands and tenements, for taxes, assessments, or Croton water rents, and all notices required by law to be given, previous to the expiration of the two years allowed to redeem, were regular, and according to the provisions of the statute in such case made and provided; and the purchaser shall lawfully hold and enjoy the land, against the owner, until the purchase term is complete (Laws of 1871, c. 381, § 4).

The legislature has the power to determine what shall be presumptive evidence of regularity to uphold the title of the purchaser (Hand v. Ballou, 12 N. Y. 543). The burden then rests upon the plaintiff to show that the defendant’s claim is unjust, and that the proceedings through which he claims are irregular and illegal, and the lien void. Proceedings of the character of those in question, instituted, and in all their essential details regulated by statute, are closely scrutinized, and the provisions of the statute should be sedulously complied with (Brown v. Goodwin, 1 Abb. New Cas. 458). It is to be observed that the lease is only presumptive evidence of regulan ty. That the proceedings are not, in fact, regular and valid, may be shown. The plaintiff’s counsel urges that the proceedings are irregular and defective in several particulars, and that the lease is therefore void.

In the first place, he urges that the notice of sale required by the statute was insufficient. The statute provides that no houses or lots shall be sold or leased for the non-payment of any tax, assessment or Croton water rent, which may be due thereon, unless notice of such sale shall have been published once in each week successively, for three months, in at least two of the daily newspapers printed and published in the city of Hew York.

It is objected that one of the newspapers in which the notice was published was printed in the German language, and that for that reason the notice was void.

It may be conceded that the general intent of the statute is that these notices should be published in newspapers printed in the English language. As the object is to. give general as well as specific notice, in an effective form, it could not be otherwise well attained. In the case to which we are, by.the plaintiff’s counsel, referred, Graham v. King (50 Mo. 22), publication was made in only one newspaper, and that- printed in German. There were two English papers printed in the same county; the court held the publication ‘ ‘ obviously bad,” and said: “When notices are to be published in a paper, an English paper is always intended, unless it is expressed otherwise.” There were special circumstances in that case which showed clearly enough that the insufficiency of the notice had wrought an injury to interests designed to be protected through the publication which the court had ordered. The good faith of the act. in question was open to criticism. As above stated, the object of the statute was to give notice to all interested, and how that end could be best reached, must be left in a measure to the good judgment of those to whom the duty of carrying out the provisions of the law, in the selecting of the newspapers, is left.

The court may certainly take notice of the fact that a very large number of our citizens are of German birth, and speak and read the German language. And if those, upon whom the duty is cast of making a selection out of the daily newspapers in the city of Hew York, of ten journals, in which the notices in question should be printed, should select one paper printed in the German language, as the most effective way of giving the notice required to all concerned, we cannot perceive that they have violated the law, or done injustice to any interest. The propriety of the publication of legal notices in a German newspaper, that the same may reach those who read that language, is recognized by the Laws of 1873, c. 335, § 111. And in making the selection of the one German newspaper out of ten to be designated, the municipal authorities but recognized a fitness in things, which subsequently received legislative sanction. Coming to this conclusion as to this subject, it is not important to inquire whether or not the Qity Record is a newspaper, or whether a publication therein meets the requirements of the statute in this instance.

An objection of a more serious character is, however, taken. It is that the notice to redeem in pursuance of section 4, of chapter 381, of the Laws of 1871, was defective in substance. We are of opinion, upon consideration, that this objection is well taken.

The above section requires the clerk of arrears to publish a notice in one of the daily newspapers, printed and published in the city of Mew York, in such form as he may deem best calculated to give notice of such sale, that unless the lands and tenements are redeemed by “a certain day,” they will be conveyed to the purchaser.

The notice published did not specify any certain day,” on, by, or before which the land was to be redeemed. The notice stated that the lands described in an accompanying list were sold on the 9th, 12th, 18th and 25th days of March, 1874, and that, unless redeemed, on or before two years from the date of the respective sales, which will be on the 9 th, 12th, 18th and 25th days of March, 1876, the mayor, &c., &c., would execute a lease to the purchaser.

With respect to the land in question, the notice did not state on what particular day it was sold. It might have been sold on the 9th of March, the first day, or on the 25th, the day last named, or on either of the intermediate days-, and the day to redeem might expire on either of such days, according to the day on which it was sold. The statute speaks of a “certain,” not an uncertain, day.

Nor can the notice be aided by the date of the certificate issued to the purchaser, as that is not given in the notice.

In reply to this objection, it is urged that the clerk of arrears had a discretion as to the form of the notice. That discretion, however, as to mere form, was to be exercised under the express language of the act, so that the" notice should be one best calculated to give information of the sale. That could only be well done by expressly naming the day on which the premises in question were sold. The day on which the right of redeeming was to expire was “a certain day,” which,we think, should not have been left indefinite, or as to which, by connecting it with other days during which much other property was sold, a mistake might readily occur. Suppose the party affected relied on the last day named, and attempted to redeem at the expiration of two years from that day, he could not have done so, if the property had been in fact sold on the first day.

We do not think the notice given was such as the statute contemplated,' and as it was to operate upon and limit a right of redeeming property sold, the law under which it was given should have been strictly followed, and a day “certain” for redemption should have been stated. The section of the statute under consideration proceeds to say that if the person or persons claiming title to the lands shall not, within two years from the date of the certificate, pay to the clerk of arrears,.for the use of the purchaser, the sum mentioned in the certificate, together with interest at the rate of fourteen per cent, per annum from the date of certificate, the comptroller shall execute to the purchaser a lease of the lands so sold for the term of years for which they shall have been sold.

The date of the certificate, as already observed, was not stated in the notice "published. The statute does not require that it should be stated, nor as information for the. guidance of the owner was it necessary to be stated, provided a day had been distinctly named on which this property was sold, or a day “ certain” had been mentioned for redemption. But neither was definitely stated.

We think the defect in the notice was one of substance, and that the lease granted in pursuance of a default in redeeming under such notice is void. If this conclusion be correct, the judgment should for this defect be reversed. But there is another objection which appears to be equally fatal to the defendant’s case. It is further objected by the plaintiff that the notice to owners and occupants required to be given by the purchaser at the sale in pursuance of section 13 of chapter 381 of the Laws of 1871, was not given to him. This section provides that if the land in question, sold “and conveyed,” as in the act provided, shall, at the time of the conveyance, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, and in all cases on the person owning the property so conveyed.

The object of the notice being to give the owner, in so "far as he is concerned, further time to redeem, by paying the amount for which the premises were sold at the tax sale, with an addition of forty-two per cent, on such sum, and that unless paid the conveyance would become absolute, and the owner be forever barred, &c., &c. A service upon the occupants of the premises is not a service on the owner. The defect in the notice is that it was served upon the occupants by the purchaser before the conveyance to him, and that no service was ever made upon the plaintiff, the owner. The evidence is, and the court has found, as a fact, that the lease to the defendant was executed and delivered on or about December 30, 1876, while the notice was served on the occupants and the former owner, March 22, 1876. The service of this notice was premature and wholly ineffective. It was the “ grantee” to whom the premises “shall have been conveyed ” who was to give the notice. Until conveyance actually made, there could be no grantee (Hand v. Ballou, 12 N. Y. 541; Paillet v. Young, 4 Sandf. 58).

Besides, the notice required by this section was also required to be served on the person owning the premises “so conveyed.” When the lease was actually made and delivered by the comptroller, in December, 1876, the plaintiff was the owner of the property, and had been since the month of J une, 1876, and he has never been served with the notice required by section 13 of the act.

The title of the purchaser at the sale is only complete after the service of the notice required by section 13, and proof thereof shall have been made and filed as provided in section 15, and after the persons entitled to redeem shall have failed to pay the amounts within the time prescribed by such notice, section 16.

As no such notice has been served on the plaintiff, he is not barred of his right in and to the premises, and his right to pay the tax and redeem the land is wholly unaffected.. The conclusion of the learned judge, therefore, that the defendant is entitled to the possession of the premises, and may lawfully hold and enjoy the same against the plaintiff for the term of sixty years, and the judgment entered thereon, is erroneous.

The next question to be determined is, whether the finding of the learned judge, and his conclusion thereon, that neither the plaintiff nor those from whom he claimed had been in the actual possession of the premises for three whole years before the commencement of this action, was correct. The only interruption of the plaintiff’s possession, upon which the result is reached that neither he nor those through whom he held had been in possession for three whole years before the commencement of this action, was for three months, in the early part of the year 1877. The defendant, after obtaining the lease from the comptroller, went upon the premises, and told the tenants that he was the owner, and that they must pay rent to him. The tenants were threatened that unless they paid rent to the defendant, they would be expelled from the premises. Under such circumstances and threats, the tenants, for three or four months in the fore part of the year 1877, paid rent to the defendant. Since that time they have again recognized the plaintiff’s title, and have regularly paid him rent, as they had done before they were interfered with by the defendant.

We cannot think that the defendant was entitled do enter into the occupation of the premises, or to the rents and profits thereof, until after his title had become perfected and absolute, in pursuance of the provisions of sections 15 and 16 of the act under consideration.

The rights conferred by the 4th section are dependent upon the performance of the acts required to be done by the holder of the lease, by the sections above named, and the omission of the owner to redeem in pursuance of the six months’ notice. The penalty of forty-two per cent., imposed by section 13, must be regarded as ample compensation, allowed by law, for the delay of six months from the service of the notice to redeem, before the grantee should acquire all the rights, among which is possession, incident to a perfected and absolute title. The defendant’s act in entering upon the premises, and in this manner collecting rents from plaintiffs tenants, we do not think, in law, should be held an interruption of the plaintiff s possession.

It is provided by statute that no entry shall be made into any lands, or other possessions, but in cases where entry is given by law (2 R. S. 507, § 1). And the attornment of a tenant to a stranger is absolutely void, and shall not in any wise affect the possession of his landlord, unless it be made with the consent of the landlord, or in pursuance of a judgment at law, or the order or decree of a court of equity, or to a mortgagee after a mortgage has become perfected (1 R. S. 744, § 3). The defendant’s action did not in law interrupt the plaintiff’s possession, under his deed of June, 1876 (Burhans v. Van Zandt, 7 Barb. 91).

The plaintiff and Thorp, through whom he claimed, had together a three years’ possession of the premises prior to the commencement of the action, and the defendant did not obtain any title by means of the lease, for the reason that it was void, and if not void, it never became a perfected instrument sufficient to cut off or bar the plaintiff’s right and interest under his deed.

The motion made by the plaintiff against Artemus Cady, clerk of arrears in the supreme court, for a mandamus, is no bar to this action, for the reason that it is not a proceeding between the same parties, and was not for the same relief sought in this action.

The judgment is reversed, and a new trial is ordered, costs to abide the event.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Van Vorst, J.

license: Public Domain

text:
    FRANCIS MORRIS and ZACHARIAH E. SIMMONS, Plaintiffs and Appellants, v. WILLIAM H. WEBB, Defendant and Respondent.
    Before Van Vorst and Speir, JJ.

      Decided May 16, 1879.
    Trustee.
    Where a note was drawn payable on demand, and indorsed over and delivered to the defendant, who thereupon executed and delivered a receipt for the same, whereby he acknowledged that the note had been so indorsed and delivered to him <l to hold the same and the proceeds thereof, to secure, indemnify and save harmless the plaintiff for being sureties for the payees of the note, &c.,” —Held, that the defendant occupied a trust relation towards the plaintiffs and the payee of the note; the extent of his trust, however, being limited by the terms of the receipt and the resolution of the directors of the payee of the note.
    He was bound or under a duty, to hold that note, and its proceeds, if paid to him, for the benefit of plaintiffs.
    As there was testimony in the case tending to show that he did not hold the note in his possession and under his control continuously, and also that he considered and stated that the note had been paid,—Held, that the dismissal of the complaint by the court below, without any explanation of these acts and statements of defendant, that seemed to be in violation of his duty as trustee, was erroneous, for the plaintiffs had established a Cause of action.
    Appeal from a judgment dismissing the complaint.

      William D. Hennen, counsel, for plaintiffs and appellants.

      William Allen Butler and John K. Porter, for defendant and respondent.
   By the Court.—Van Vorst, J.

The plaintiffs became sureties on an undertaking to discharge an attachment in an action brought against the Central American Transit Company. For their indemnity they held two steamships of the company, the America and the Moses Taylor. Subsequently, the affairs of the company not being prosperous, an arrangement was projected by and between the Transit Company and another corporation, the North American Steamship Company, by which the former company agreed to sell to the latter its steamships and other property for the sum of $600,000.

The title to the two steamships above mentioned was in the plaintiffs.

The plaintiffs declined to part with the steamships unless they were indemnified against the liability which they had assumed by becoming sureties on the undertaking in the suit in which the attachment was issued, and which was then pending and undetermined. Plaintiffs claimed that $40,000 of the $600,000, which was agreed to be paid for the property of the Transit Company, should be set aside for their ultimate indemnity.

After some negotiation, it was finally arranged and agreed that a note for $40,000 should be given by the purchasing to the selling company, and that the same should be placed in the hands of the defendant, to be held by him for plaintiffs’ indemnity.

Such note was accordingly made and delivered to the Transit Company, signed, on the behalf of the purchasing company, by the defendant as its president. The note was drawn payable on demand, and was, by the treasurer of the Transit Company, the payee thereof, indorsed over and delivered to the defendant, who thereupon executed and delivered a receipt to the Transit Company, in and by which the defendant acknowledged that the note had been indorsed over and delivered to him “to hold the same and the proceeds thereof, to secure, indemnify and save harmless” the plaintiffs, for being sureties to release the property attached. The note and receipt were dated April 23, 1876.

The American Transit Company had, by a resolution adopted by its board of directors, dated the same day, resolved to accept the note as part of the consideration money for the property in question sold to the North American Steamship Company, and had authorized and directed the same to be indorsed to the defendant, and had empowered and directed him to hold the same and the proceeds thereof (but without personal liability, except for fraud and willful negligence), for the purposes mentioned in the receipt signed by the defendant. The arrangement, consummated by the delivery of the note to the defendants as their security, was satisfactory to the plaintiffs, and in reliance upon the same the plaintiffs executed transfers of, and delivered the two steamships to the purchasing company. The defendant’s receipt, executed upon the delivery to him of the note for $40,000, was at the time shown to the plaintiffs.

The learned judge below decided that the resolution of the directors of the Transit Company, and the defendant’s receipt, imposed upon him no duty to collect the note in question.

But he did certainly occupy a trust relation towards the Transit Company and the plaintiffs, the extent of his engagement, however, being limited by the terms of the resolution and receipt.

Although he may not have been, under any duty to enforce by affirmative action the payment of the note, which was payable on demand, without positive direction from those interested in its collection, yet he was under a duty to hold the note, and, when received, its proceeds.

Did he do that? According to his own testimony, he at once delivered the note to the treasurer of the purchasing corporation, of which he was president, and the same was kept and retained by him until after the North American Steamship Company became insolvent, and it was afterwards found among the papers of the receiver of that corporation. The treasurer of the purchasing corporation testified, however, that the note was in the defendant’s possession, in his private office in Lewis street, for a time, and was then brought down by the defendant to the office of the company, and was placed in his hands.

Payments were made by the purchasing corporation on account-of the $600,000, the consideration agreed to be paid for the steamships and other property, until the whole amount was, in fact, paid.

The defendant was the president of the purchasing corporation, and was, for a time at least, the president of the Transit Company, and the active duty of managing the affairs, and adjusting the concerns of the former company largely rested upon him. The defendant was acquainted with all the facts and circumstances which entered into the creation of the note, and agreed to take the attitude of trustee in the premises. He knew the straitened condition of both companies, and that the Transit Company had parted with all its property, and that the purchasing company needed funds to carry on its business. He frequently came to its aid with his own means to a very large amount. It must have been present to his mind that the plaintiffs’ only effective means of indemnity against loss occasioned by their becoming sureties for the Transit Company was through the note, reserved to meet it.

The evidence shows that he did feel some responsibility about the payment of the note, and that his trust with respect thereto should be discharged, and his knowledge of the affairs of both companies, and his active relation thereto, imposed some responsibility.

In one or more interviews with the treasurer of the purchasing company, to whose care he had intrusted the note, the treasurer stated that $40,000 of the sum agreed to be paid for the property of the Transit Company ought to be set aside, and held to meet the note. The defendant replied that there was no immediate need for that, but that he had to take care of the interest on the note before the entire amount of $600,-000 should be disbursed.

It appears that this whole sum has been, in fact, paid by the purchasing corporation to and for the use of the Transit Company, subsequently to the purchase. The defendant, however, testified that the note in question has not, in fact, been paid, and it was produced upon the trial in its original condition.

But the person who acted as treasurer of the company testified that in statements, made by the defendant, of the condition of the company, to the directors, the note was entered as paid. This testimony we do not understand to be denied.

Such statements, made by defendant, who had the principal control and charge of the affairs of the company, and whose signature to checks for the payment of money was necessary, would suggest to the directors that it was not necessary to set aside specific funds to meet the obligation, which appeared by the statement to be satisfied.

If the note was not, in fact, paid, we cannot but think that the rendering of such statements to the directors by the defendant was a breach of duty towards the plaintiffs and the Transit Company. It was prejudicial to the interests of the plaintiffs, for whose indemnity the defendant held the note.

We are not prepared to say that, by the simple delivery of the note to the treasurer of the purchasing corporation, who was also the secretary or agent of the defendant, the defendant lost control of the note. He could at any time have resumed possession, if it had not, in fact, been paid. But such fact, in connection with the rendering of statements, showing that the note was paid, give some color to the idea that the note was treated by the defendant and the steamship company as paid.

We do not consider that such statements, unless the note was actually paid, are consistent with such holding of the note for the plaintiffs’ indemnity as the defendant’s obligations under the resolution of the directors of the Transit Company and his own receipt clearly imposed.

When the plaintiffs rested their case, the learned judge dismissed the complaint upon the plaintiff’s evidence, no explanation having been given of these alleged statements in respect to the note.

We think that such disposition of the case was erroneous, and that the complaint was improperly dismissed. The plaintiffs’ case established a cause of action.

Judgment reversed, and new trial ordered, with costs to abide the event.

Speir, J., concurred.


author: Per Curiam.

text:
    MORRIS K. JESUP, et al., Plaintiffs and Respondents, v. ANDREW CARNEGIE, et al., Defendants and Appellants.
    Security on appeal.—Waiver.
    The defendants, pending this appeal, deposited, under stipulation, bonds to an amount less than that specified by the Code as security in such cases. Held, that they thereby waived all right to the exercise of the discretion of the court, in limiting or reducing the amount of security.

      Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    Appeal from order, denying motion made, by four defendants (joint judgment having been rendered against them, with others), to limit amount of security to be given upon their appeal.

      Lewis Sanders, for appellant.

      A. W. Evarts, for respondent.
   Per Curiam.

The respondents move upon affidavits to dismiss this appeal. The' affidavits show that while this appeal was pending, all the defendants were permitted by stipulation to deposit and did deposit bonds to an amount less than the amount of security specified by the Code. By so doing, these defendants have finally disposed of the subject-matter of appeal, and have waived any right they might have had, to claim that the discretion of the court should be exercised on their behalf, by reducing or limiting the amount of security.

The motion to dismiss appeal is granted, with $10 costs and disbursements, if any, to be taxed.


author: By the Court.—Sedgwick, J.

text:
    GEORGE WEBB, Plaintiff and Appellant, v. JAMES P. FOSTER, et al., Defendants and Respondents.
    Sham answer.—Motion to strike out.
    A pleading upon information and belief cannot be stricken out as sham, unless it clearly appears that there could not have been any information or belief.
    The principles1 stated in Wayland v. Tyson (45 N. Y. 281), and Thompson v. Erie R. R. Co. (45 Id. 468), prevent an affirmative defense being stricken out as sham upon affidavits.

      Before Sedgwick and Speir, JJ.

      Decided June 13, 1879.
    Appeal from order, denying plaintiffs motion to strike out, as sham, the separate answer of the defendant Poster.

      O. E. Branch, for the appellant.

      Thomas F. Wentworth, for the respondent.
   By the Court.—Sedgwick, J.

The action was for rent. The answer, among other defenses which it is unnecessary to set out, pleaded, on information and belief, payment by the co-defendant, James Sperry.

The affidavits on which the motion was made did not show at all that at the time1 the answer was made, that it- could not have been true that the defendant Poster had not been informed, and did not and could not believe, that his co-defendant had paid the rent. The Code declares that an averment may be made upon information and belief, to put the fact in issue. Such a pleading cannot, in the nature of things, be stricken out as sham, if, at least, it is not clearly shown that there could be no information or belief.

As to the fact of the co-defendant’s not having paid the rent, the affidavits did not so convincingly or indisputably show the non-payment, that a court could determine that there could be no question for the jury, if the action were tried.

I further agree with the learned counsel for the respondent, that the principles stated in Wayland v. Tyson (45 N. Y. 281), Thompson v. Erie R. R. Co. (45 Id. 468), prevent an affirmative defense from being stricken out as sham upon affidavits. If it could, there would be no reason why a defendant should not have the right to strike out a complaint as sham.

Order affirmed, with $10 costs, and disbursements to be taxed.

Speir, J., concurred.


text:
    JOSEPHINE S. DOUGLAS and JENNIE S. TWEED, Plaintiffs and Appellants, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided June 13, 1879.
    Life insurance policy,
    A condition to the effect that if the party whose life is insured, shall, without the written consent of the company, travel upon the seas, or pass beyond the civilized settlements of the United States (excepting the British Provinces, &c.), the policy should be void, is an important condition, and if violated, the contract is terminated between the parties by its oxvn limitation, unless continued in force by some other provision, or by the waiver of the violation by the insurance company (Hathaway v. Trenton Mutual Life & Fire Ins. Co., 11 Cush [Mass]. 448; also Nightingale v. State Mutual Life Ins. Co. of Worcester, 5 R. I. [2 Ames] 38).
    The principles controlling the construction of “ endowment policies,” and the rights of the beneficiaries thereunder, fully considered in the opinion at special term.
    Appeal from judgment- at special term.

      Robert Sewell and A. B. Conger, for appellants.

      Henry W. Johnson, for respondent.
   Per Curiam.

Judgment affirmed, with costs, upon the opinion of Freedman, J., at special term.

The following is the opinion of the court at special term:—

Freedman, J.—By the terms of the policy and in consideration of the premium of $1,180.90 paid, and of the annual premium of a like sum to be paid on or before. October 1, at noon, in every year during the continuance of the policy, the defendant assured the life of William M. Tweed of New York, in the amount of $10,000, for the benefit of the plaintiffs, his daughters, share and share alike, and in the case of the death of either or both, the portion belonging to the deceased child or children to pass to Mary J. Tweed, the wife of said William M. Tweed. In case of the death of William M. Tweed before April 3, 1878, the defendant stipulated to pay the amount insured to the beneficiaries as stated, but in case he should be alive on that day, the amount was to be paid to him, whereupon the policy should be void. This policy was issued and accepted upon the express conditions enumerated therein, that if the party whose life was thereby insured should, without the written consent of the company previously obtained, travel upon the seas (except in voyages between coastwise ports of the United States), or should pass beyond the civilized settlements of the United States (excepting into the settled limits of the British Provinces, of the two Canades, Nova Scotia, New Brunswick), the policy should be void, null and of no effect.

It is upon an alleged violation of this clause that the defense mainly rests ; for the defendant has shown by testimony, which was not controverted, that Wm. M. Tweed, after having, on the 4th of December, 1875, escaped from the custody of the sheriff of the city and county of New York, was, during the year 1876, found in the port of Yigo, in Spain, a distance of about 3,500 miles from New York, where he had gone without defendant’s consent; and that, on September 26, 1876, he . was, at said port, placed on board the United States man-of-war Franklin, and subsequently brought back to New York on said vessel as a prisoner.

Upon this state of facts there can be no doubt that an important condition upon which the policy had been issued and accepted was violated, and that in consequence thereof the contract between the parties came to an end by its own limitation, unless continued in force by some other provision, or by defendant’s waiver of the violation.

There is no evidence of any waiver. It has been argued, however, that because the policy states that written permits, signed by the president or secretary of the company, will be granted on reasonable terms, for persons insured in said company to make voyages to any foreign country, equity will relieve against the violation. The answer to this proposition is, that the granting of such a permit, upon terms to be prescribed by the company, involves a new bargain to be entered into by the parties to the original contract, which the court cannot make for them. As matter of law, the company has a right to determine each application for a permit upon its own facts, and with, special reference to the additional risk to be incurred (Rainsford v. Royal Ins. Co., 1 Jones & S. 453; affirmed, 52 N. Y. 626). Nor is there any evidence showing upon what terms Tweed would or could have obtained a permit, if he had applied for one, or that the company had or has a uniform rule upon the subject. Under these circumstances the company cannot, at this late day, be adjudged liable to execute a permit nune pro tunc upon, such terms as to the court may seem reasonable.

Thus, in Hathaway v. Trenton Mutual Life & Fire Ins. Co (11 Cush. [Mass.] 448), the condition of the policy was that it should be void and of no effect if the assured, without defendant’s consent, previously ob tained and indorsed upon it, should pass beyond the settled limits of the United States. In returning from California he did go beyond those limits, and the court held that the policy was thereby rendered invalid, and the defendant discharged from all liability upon it, unless the company did give its consent that he might do so. It then appeared that the assured had permission to make one voyage to California and home in a first-rate vessel, round Cape Horn or by Vera Cruz; but it also appearing that the assured had returned home by way of Panama and Chagres. The court held that the consent given was not a general license, but a carefully-defined and restricted permission ; that in giving it, the company had a right to fix its own terms and to circumscribe it within such limitations as it deemed expedient; that, as given, it restricted the assured to the two routes named; and that, having chosen to return by neither, but by a third, not embraced in the consent, there was a breach of the condition of the policy which rendered the policy void, although there was then no usually-traveled route by way of Yera Cruz, and although he may have returned the shortest and safest way.

In Nightingale v. State Mutual Life Ins. Co. of Worcester (5 R. I. [2 Ames] 38), the policy fixed the limits of constant residence of the assured within certain States of the United States, with the privilege to travel or be in others upon certain conditions. One of these conditions was that if the assured should, without the consent of the company first had and indorsed upon the policy, go into any of the States prohibited between July 1 and October 15 of any year, and remain therein more than five days, the policy should become void, and all payments thereon should be forfeited to the company. The policy further provided that “in case of forfeiture from the above or any other cause, the party interested shall have the benefit of such equitable adjustment as may from time to time be provided by the board of directors.” The assured went into one of the prohibited States, in violation of the provisions stated, and after remaining therein ten days, was attacked by apoplexy and died. The proof showed that such violation did not contribute to the death, and it was claimed that the policy upon its face held out an express promise of an equitable adjustment, in case of forfeiture from the alleged or any other cause. But the court held that it had no power to interfere with the action of the directors, or to dispense with or qualify the forfeiture of the policy, according to its own notions of what would be an equitable adjustment under the circumstances.

The policy in the case at bar also provides that the omission to pay the annual premium on or before 12 o’clock at noon on the day or days mentioned therein for the payment thereof, shall then and thereafter cause said policy to be void, without notice to any party or parties interested therein. One of the conditions printed upon the back of the policy reiterates this requirement; and by still another clause contained in the body of the policy it is provided, that if it shall be found that the conditions printed on the back thereof have been violated, the policy shall be void and of no effect, either to the insured, insurer, or any party to whom this policy may be assigned, and all the premiums paid thereon shall be forfeited to the company. But upon the back of the policy the following further stipulation appears : “It being understood and agreed that if, after the receipt by this company of not less than three or more annual premiums, this policy should cease in consequence of the non-payment of premiums, then, upon a surrender of the same, the company will issue a new policy for the full value acquired under the old one, subject to any notes that may have been received on account of premiums—that is to say, if payments for three years have been made, it will issue a policy for three-tenths of the sum originally insured; if for four years, for four-tenths, and in the same proportion for any number of payments, without subjecting the assured to any subsequent charge, except the interest annually on all premium notes remaining unpaid on this policy.”

From the fact that this stipulation appears at the foot of all the conditions, and that it was indorsed upon the policy in red ink, and separately signed by the president and secretary of the defendant, the learned counsel for the plaintiffs very ingeniously argued that the contract of life insurance under consideration was in part with the person whose life was insured and in part with the beneficiaries named in the policy, and that, as between them and the company, it was divisible, so that, after the payment of the third annual premium, the contract could not be terminated by the company for a violation by the person whose life was insured, of any of the conditions, except on notice to the beneficiaries. No such notice having been given, it was further argued that the policy continued in force up to October 1, 1876, and that on that day the beneficiaries were in a position to elect to omit the payment of the premium falling due upon that day, and to demand a new policy for the full value acquired under the old one, without further charge, there being no outstanding notes for premiums given by them or the assured.

To test the soundness of this argument, I have made quite an extensive and critical examination of all the conditions of the contract of insurance, and their bearing upon one another, as well as their collective force and effect. Some, as already stated, are contained in the body of the policy, and the remainder, partly by way of reiteration and partly by way of explanation and qualification, are printed under the general title of “Conditions of Insurance” upon the back of the instrument. But the latter are referred to in the body of the policy as constituting part of the same, and hence all of the conditions are to be treated as if they appeared in their appropriate places in the body of the instrument. Considered with reference to their general legal effect, some bear the character of conditions precedent, or active conditions, the performance of which is essential to give a right of action, while others, being of a restrictive character, declared the instances on the occurrence of which the policy was to become void. The breach of the latter discharges the liability, when once created by the performance of the active conditions. Upon the foot of all is the saving clause in favor of the continuance of the policy after the receipt of at least three annual premiums.

But this clause is available to the person whose life is insured as well as to the beneficiaries. It is not a separate contract, because, standing by itself, it has not sufficient meaning, nor is it capable of separate execution or enforcement. It was manifestly designed to be a part of the original contract, since it refers to the policy ih express language, and by its express language it was to bind the company only in case the policy ceased in consequence of the non-payment of premiums.

Time and space do not permit me to discuss the other conditions more fully than I have done. It is sufficient to say that nothing can be found in them or any of them which warrants the conclusion that there was a contract with the beneficiaries separate and apart from that made with the person whose life was insured, or that they acquired any vested rights after the payment of the third annual premium, which could not be divested by a subsequent breach of a condition not covered by the saving clause, or that they were entitled to notice of the election of the company to treat the policy as at an end in case of a violation of any of its conditions not embraced in the clause last referred to. The policy, and all the conditions contained in and upon it, together constitute the contract, and only one contract, upon which the rights and liabilities of all parties depend.

Taken as a whole, therefore—and the only safe rule, after all, is to always take the whole contract as written, subtracting nothing therefrom, adding nothing thereto—the general plan and scheme of the policy and the plain intent of the contracting parties was that, if after three annual payments had been made, the policy should lapse in consequence of the non-payment of premiums falling due, the company should not be in a position to enforce the absolute forfeiture of all the premiums received, provided all the other conditions upon the observance of which the life of the policy depended had been complied with. But in case any of these other conditions had been violated, the policy should become null and void, without notice to any of the parties interested. The liability of the company could become absolute only on the happening of a certain event, and not even then unless the assured had done certain acts and had refrained from doing certain others. What he was required to do and what he was prohibited from doing, were conditions of liability agreed to by all parties in interest, and no court has the right to impose other or additional ones. Such conditions are essential parts of the contract. They qualify the entire contract, and upon a violation of any of the prohibitory clauses, the contract by its terms becomes ipso facto void (Evans v. United States Life Ins. Co., 6 Supm. Ct. [T. & C.] 331; Rainsford v. Royal Ins. Co., 33 N. Y. Super. Ct. [J. & S.] 453; affirmed, 52 N. Y. 626; Ritzler v. World Mut. Life Ins. Co., 42 N. Y. Super. Ct. [J. & S.] 409; Foot v. Ætna Life Ins. Co., 61 N. Y. 571).

Plaintiffs sue as assignees of Tweed and as beneficiaries named in the policy. According to the proofs the eight annual premiums that were paid were paid by them. It may be a great hardship for them to find that the whole of these payments were made in vain, and that the policy which is labeled as an endowment policy wholly failed to secure for them any endowment whatever. Indeed, to call a policy like the one in question an endowment policy is a misnomer ; but the court can only carry into effect the contract as they made it, and, as thus made, they stand in no better position than Tweed would have stood if he had brought the action. The courts cannot make contracts for the parties, nor alter or vary those made by them. The law, it is true, frequently supplies, by its implications, the want of express agreements between the parties ; but it never overcomes, by its implications, the express provisions of the parties. If these are illegal, the law avoids them ; if they are legal it yields to them, and does not put in their stead what it would have put if they had been silent. The plaintiffs, even if they be regarded exclusively in the light of beneficiaries, chose Tweed as the subject of risk under certain conditions which they agreed to accept; he violated them, and his breach is their breach. By such breach the policy, by its express terms, became null and void.

The policy having come to an end in consequence of Tweed’s flight to Spain without the consent of the company, it is not necessary to examine whether or not his return to New York on board the Franklin, which made the journey by a circuitous route, partly by steam and partly under sail, violated another provision of the policy, which required that the party whose life was insured, when traveling, should proceed by the usual mode of conveyance for travelers.

In any aspect of the case the policy ceased to exist by Tweed’s travels upon the ocean to reach Spain ; and hence, on October 1, 1876, there was no policy in force on which the premium could be paid. It had, become null and void, and it could only be revived by the mutual agreement of the parties: No such agreement having been made, and there being no waiver of the violation, the plaintiffs could not, by electing on October 1, 1876, to omit to pay the premium due on that day, impose upon the defendant the liability to issue a new policy for eight-tenths of the sum originally insured. Even if it could be done, the new policy would be in the same form as the old one, and consequently it would be broken the moment it was given.

The defendant is entitled to judgment dismissing the complaint, with costs.


text:
    DANIEL CARPENTER, Plaintiff and Respondent, v. HARRY A. ALLEN, Defendant and Appellant.
    Attorney.—Authority of, to commence an action, <&c.
    On a motion of defendant, that the summons and complaint, in an action, be dismissed, on the ground that the attorneys for the plaintiff had not sufficient, or any authority, to institute the action in behalf of plaintiff, it appeared from the motion papers, that defendant had previously obtained an order in the same action, that plaintiff’s attorneys.show cause why they should not be compelled to produce their authority from the plaintiff for commencing this action; that on the return of said order to show cause, the affidavit of the plaintiff was filed and read, in which plaintiff stated in substance that he had instructed the attorneys who appeared in his behalf to bring the action in his name against the defendant, and said authority was deemed sufficient by the court and so declared by its order.
    The court held, on this motion, that in the former proceedings this court had declared that sufficient authority for the commencement of this action, by the plaintiff’s attorneys, appeared in the affidavit of the plaintiff; that such adjudication was final until reversed on appeal;. and that it cannot be reviewed on this motion, subsequently made in this action.

      Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.
    Appeal from an order denying defendant’s motion to dismiss complaint, upon the ground that the attorneys of record for the plaintiff had not at the time of the commencement of this action any sufficient authority, or any authority, to institute the said action, in behalf of said plaintiff.

      Harvey A. Allen, defendant and appellant, in person, urged:
    I. The attorney shall have a written request from the plaintiff, or his agent, to commence the action, or a written recognition of the authority of the attorney to commence the same (2 R. S. 306). Said attorneys did not possess such request, nor do they produce any such recognition.
    II. No general retainer to attend to the business of the plaintiff is sufficient; it must be specific (Howard v. Howard, 11 How. Pr. 80). Hence, it must be given for a special purpose at a proper time therefor, for the purpose of bringing the action, and before the commencement of the action.
    III. Plaintiff in his affidavit states “and I have instructed them (my attorneys) to bring an action to eject.” When ? On that day, and by that instrument; that is to say, January 11, 1879. Plaintiff does not say, this action was brought by my direction ; had he said in such affidavit—I instructed them to bring this action, the authority would be full, but “to bring an action,” can only be construed to apply to the future, and cannot be considered as giving them authority to have brought this action at the time they did. If the authority produced does not assume whatever has been done in the premises, it should antedate the action. Full assumption of the acts heretofore had has been held sufficient in the single case cited, and the only one reported (see Howard v. Howard, supra). But in the affidavit herein produced there is no such plenary assumption. Plaintiff simply directs for the future; that is to say, from and after January 11, 1879, and his affidavit does not relate back in any way, and cannot be so construed. Where the requisite is a statutory one, nothing can be presumed in favor of the authority produced ; it must appear on its face that the attorneys were authorized to institute the action at the time it was commenced. Hence, the service of the summons and complaint by the said attorneys, assuming to be for the plaintiff, was not for him, was entirely without adequate or any authority whatever, and was a naked assumption by them of unauthorized power.

      Man & Parsons, attorneys, and William Man, of counsel, for respondents, urged:
    I. It was not necessary that the attorneys should have any written authority to commence the action. The provision of the statute is alternative ; it is sufficient if the attorneys produce, 1. Any written request of the plaintiff to commence the action ; or, 2. Any written recognition of the authority of the attorneys, duly proven, &c. (3 R. S. 6 ed. 573, § 15). The affidavit of plaintiff that he had instructed Man & Parsons, his attorneys, to bring this suit to eject the defendant, and that he had directed the action to be brought in his own name, was ample evidence of the authority of the attorneys, by way of “ recognitioh” of their authority (Howard v. Howard, 11 How. Pr. 82).
    II. The authority in question had already been adjudged sufficient by the order of January 18, 1879, which states the authority produced and in question, to be “ the authority asked for by defendant, given by plaintiffs to his said attorneys.” Ho appeal was taken from this order.
   By the Court.—Sedgwick, J.

The action was in ejectment. The motion was made upon the ground, as stated in the notice, that the attorneys for plaintiff “had not, at the time of the commencement of the action, any sufficient authority, or any authority, to institute this action on behalf of said plaintiffs.”

Before such motion was made, the defendant had obtained an order that the attorneys for plaintiff show cause why “they shall not be compelled to produce their authority from the plaintiff for commencing this action,” staying proceedings in the meantime.

On the return day of this order, an affidavit of the plaintiff was produced, made after the action was begun, which stated : “ I have instructed Man & Parsons, of 56 Wall street, New York city, my attorneys, to bring an action to eject, from the said premises, Harvey A. Allen,” “and I have directed that such suit should be brought in my name, as plaintiff.” An order was thereupon made, reciting the order to show cause, and continuing, “ now, on producing and filing the said authority asked for by the defendant, given by said plaintiff to his said attorneys, the order is hereby confirmed.”

This order was not appealed from, but subsequently the present motion was made, on the ground that the authority produced was not sufficient, under 2 R. S. 2 ed. p. 314, § 20, which is “ any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority.” But it is manifest that the court, in proceeding upon the order to show cause, had once declared that there was sufficient authority in the affidavit of the plaintiff that had been produced. This adjudication was final until reversed, and could not be reviewed upon the motion for the order now appealed from.

If the court had been called upon to look at the character of the authority, it must have been held sufficient. It was a reasonable inference, that when the plaintiff swore that “I have instructed,” and “I have directed that such suit shall be brought,” he referred to this suit, as already to his knowledge brought.

Order appealed from affirmed, with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.


text:
    JOHN CONROY, Plaintiff and Respondent, v. FELIX CAMPBELL, Defendant and Appellant.
    Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.
    COPABTNEBSHIP.
    Where, by the terms of the agreement, the defendant furnished the capital stock, and the plaintiff contributed his skill and service, and the profits of the copartnership were to be equally divided, the plaintiff is not entitled to any part of the capital stock, on a settlement of the affairs of the partnership. He has no interest in any part of the capital excepting so far as, in the progress of the business, the same may have been converted into profits.
    Appeal from judgment for plaintiff.

      John Hardy, for appellant.
    A. P. Hinman, for respondent.
   By the Court.—Sedgwick, J.

The complaint alleged that the parties had entered into a co-partnership, which was to be for the term of three months ; that the capital was stock furnished by the defendant; that the plaintiff’s contribution to the capital was his skill and services ; that the plaintiff was to be paid one-half of the profits ; that the business continued for two weeks ; that at the end of that time the defendant sold the stock to a third person, and stopped the business of the copartnership. The complaint thereupon claimed an accounting of the profits, and a judgment for the amount that should appear due to him, and also for the damages to plaintiff for breaking up the business and depriving him of its profits for the remainder of the three months. The plaintiff had judgment for an amount of profits as due him, and also for damages.

The judgment proceeds upon the propositions that the plaintiff had an interest in the stock, and also that the defendant was responsible for the sale of the stock, and putting a third person in possession, which stopped the business. As to the first, there was no agreement that the plaintiff should have any part of the capital, consisting of the stock. He was, therefore, not entitled to any part, excepting so far as, in the progress of the business, it might be converted into profits. As to the second, I can find no evidence whatever that the defendant had part or lot in the transaction, by which the third person was put in possession of the stock and place of business. It seems to have been the sole act of the defendant’s brother, and there was no evidence that the defendant, in any manner, acted with his brother or aided him. The case made it quite as much of a wrong and harm to the defendant as to the plaintiff. The defendant was not, therefore, liable for any damages for breach of the partnership agreement. On the facts, then, the plaintiff was entitled only to his share of the profits actually made. There were no debts. The partnership had earned, according to plaintiff’s testimony, at the most $37.50 profits. One-half of this, viz. : $18.75, was plaintiff’s. He received, however, $20. The defendant should have judgment for the difference, viz., $1.25. This seems to be the necessary result, after some doubtful matters of law and fact are determined in plaintiff’s favor. There is no need of a new trial. Neither justice nor the parties’ interests demand it.

The judgment should be set aside, and judgment entered for defendant in the sum of $1.25, with the costs of this appeal, but no costs in the action generally.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    EMELINE PECKHAM, Plaintiff and Appellant, v. CORNELIUS D. VAN WAGENEN, Defendant and Respondent.
    Before Speir and Freedman, JJ.

      Decided June 13, 1879.
    Corporation. — Shareholders, their relations with each other.
    A person claiming to be a shareholder of a corporation, and whose claim is not recognized by the corporation, must establish his claim and enforce recognition by an action directly against the corporation itself.
    Where a dividend has been made and paid by a corporation among those whom it deems to he, and recognizes as, shareholders, one who claims to be a shareholder, but whose claim is not recognized or admitted by the corporation, cannot maintain an action against one of the recognized shareholders for a portion of such dividend.
    Such claimant has no cause of action against the shareholder, ^he claim must be established against the corporation.

      Appeal from judgment dismissing complaint.
    Bristow, Peet, Burnett & Opdyke, attorneys, and James Emott, of counsel, for appellant.
    Burrill, Davison & Burrill, attorneys, and John E. Burrill, of counsel, for respondent.
   By the Court.—Freedman, J.

The testimony shows that the only claim the plaintiff has to be recognized as a shareholder of the New York and Fort Lee Railroad Company rests upon a lost certificate, dated November 6, 1863, which was not executed by the company, but purported to have been given by order of a certain board of commissioners, whose duty it was at a certain time to take subscriptions for the stock of the company, and under which no application was ever made to the company for the issue of certificates of stock, in accordanQe therewith. Her claim is surrounded by many suspicious circumstances, and it has not been recognized by the company. The interpretation of the evidence most favorable to her leaves her, therefore, in the attitude of one whose claim to membership is contested by the company, upon grounds which require investigation. While occupying that position she has no standing as a shareholder, and can enforce no rights peculiar to shareholders, against third persons, recognized as such by the corporation. The money divided by the corporation belonged to the corporation. It was paid by the corporation to the defendant and his associates, in recognition of their right to receive it; and what they received, they received as their own. By such payment, the corporation was not discharged from its liability to the plaintiff, if the latter was entitled to share therein. In such a case the law does not imply a promise, on the part of the defendant, to refund the excess received to the plaintiff (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 Id. 450). The case of Hathaway v. Town of Cincinnati is distinguishable upon the facts. In that case the State recognized the claim of the plaintiff (Town of Solon), as well as the claims of the other towns, to the bounty money, and paid the money over to the committee of the county supervisors, for the purpose of distribution among the towns, Solon included. The committee, therefore, received the money, charged with the trust of distribution, and the State was discharged from all claim of the town of Solon against it; and the money having been received to be paid over to Solon, was the money of Solon when the committee received it, and when it came to the hands of the defendant. It further appeared that the defendant received the money with notice of the claim of the town of Solon. In all these respects, that case differed from the two cases above cited, and from the case at bar.

If the, transaction, resulting in the division of the money by the Hew York and Fort Lee Railroad Company among the shareholders, recognized upon the books of the company as such, and the mode of division, can be inquired into in the action as brought, it can be inquired into and passed upon in as many other actions as the plaintiff may see fit to bring against other shareholders. In every one of these the plaintiff would be bound to establish her right to membership as a part of her case ; and yet, in case of success, not one of the judgments would be binding upon the corporation. Such a course might also result in verdicts conflicting as to the fact involved. The bare statement of these difficulties is sufficient to show that the action cannot be maintained as brought. The objection is not that there is a defect of parties defendant, who are jointly liable with the defendant sued, but that the plaintiff has no cause of action, at all, against the defendant.

The complaint was properly dismissed, and the judgment appealed from should be affirmed, with costs. .

Speir, J., concurred.