text:
    JAMES E. CRISFIELD, as Supervisor, etc., Respondent, v. JAMES S. MURDOCK, JOHN HYLAND and Others, Appellants; JAMES S. WADSWORTH, Respondent.

      Collector’s bond— nature of the statutory lien on lands of the collector and his sureties created thereby — right of redemption under á foreclosure of such lien — one surety converting the tax money is primas'ily liable.

    The docketing of a bond of a town tax collector in the county clerk’s office, pursuant to tbe provisions of chapter 10 of the Laws of 1885, does not create a lien which supersedes, or is prior to, the equities of third parties existing in the lands of the sureties thereto at the time the statutory lien is so created.

      The lien created by such bond, is not in the nature of a mortgage lien, but is rather in tlie nature of a lien by judgment, and equitable interests in a specific piece’of real estate are entitled to priority over this general statutory lien when it is. created subsequent to the transaction with the owner of the land which gives to a party an equitable interest in the particular piece of land in question.
    An arrangement between a tax collector and one of the sureties on his bond, as to the management and use to be made of the tax moneys, providing that they are-to be deposited in a bank in which such surety is a stockholder and officer, and the refusal of such surety as an officer of the bank to obey the directions of the-collector to pay the money over to the county treasurer, are sufficient to charge . the surety with the misappropriation of the funds, and to make him primarily responsible on the bond as between himself and the collector and his co-surety.
    Although the owner of premises, or subsequent lienors thereon, may not have the right of redemption from a foreclosure of the statutory lien created by the tax collector’s bond, yet a court of equity possesses the power to direct that any sale made under such foreclosure be made subject to the right of the subsequent lienors to redeem therefrom in such mode and manner as may be indicated in. the judgment.
    Appeal by certain of tbe defendants from a judgment entered, upon a decision rendered at the Livingston Special Term, in the-office of the clerk of Livingston county October 29, 1888.
    The plaintiff is the supervisor of the town of North Dansville, Livingston county, New York. The defendant James S. Murdock was the collector for the same town for the year 1886-87, and the-defendants James Faulkner and Reuben Whitman were sureties on his bond, and on the 7th day of February, 1887, upon the petition of the plaintiff, as supervisor, the county treasurer of Livingston county extended the time for the collection of the unpaid taxes, and the collector, with his sureties, renewed their bond in pursuance of the provisions of chapter 10 of the Laws of 1885, which was docketed that day in the county clerk’s office, as required by the said statute, and there was uncollected at that time the sum of $4,847.30. On the 9th day of July, 1887, the collector made return upon his warrant, and there was at that time collected and unpaid the sum of $2,180.10, which has never been paid to the county treasurer, and the collector is in default. At the time of docketing the bond James Faulkner was the owner in fee simple of several separate and distinct parcels of land located in the county of Livingston, and his co-surety Whitman was also the owner of lands within the said county upon which the said bond became a lien, and the collector was not the owner of any real estate. The moneys so collected was, by the collector, deposited with the First National Bank of Dansville, James Faulkner being one of the shareholders, the president, 'cashier and chief manager. On the 24th day of August, 1887, the bank ceased to do business, and its assets passed into the hands of a receiver, and it and the said Faulkner and Murdock were insolvent.
    On the 14th day of September, 1886, before the tax warrant ■was delivered to the collector, James Faulkner borrowed of the defendant, James W. Wadsworth, $10,000, and to secure the payment thereof executed and delivered to Wadswortha mortgage on two of the parcels of land then owned by him, which mortgage was not recorded imtil the 25th day of August, 1887, the day after the failure of the bank and of Faulkner. On and about the time of the failure of the said Faulkner and of the said bank, James Faulkner deeded one of the parcels of land owned by him to the defendant Hyland, and executed to him a. mortgage upon other parcels of land, including the parcels mortgaged to Wadsworth, for the purpose of securing and paying a then existing indebtedness owing by him to Hyland, and as accommodation indorser for Faulkner.
    By the judgment, the Wadsworth mortgage was declared to be a lien on the premises described therein, prior and superior to the lien created by the docketing of the bond, and those premises were directed to be sold subject to that mortgage. The judgment also provided that all the lands owned by Faulkner, upon which the bond became a lien, should be sold prior to any of the land owned by Whitman. After the commencement of this action, Whitman died and the defendant Rebecca E. Whitman and others were appointed executors of his last will and testament, and have been made parties defendant, and they appeal from so much of the judgment as declares that the hen created by the Wadsworth mortgage is prior to the lien created by the docketing of the bond. The defendant Hyland appeals from the entire judgment.

      Fred. W. Noyes, for the executors, etc., appellants.

      J. A. Van Derlip, for Hyland, the appellant.

      Hubbard & Coyne, for the defendant Wadsworth, respondent.

      Charles J. JBissell, for the plaintiff, respondent.
   Barker, P. J.:

It is conceded by all the parties that, on docketing the bond as provided by chapter 10 of the Laws of 1885, the same became a lien on all the lands owned by the collector and each of his sureties, as provided in section 20, chapter 11, title 3, article 2, part 1 of the Revised Statutes, which provides that “ every such bond shall be a hen on all the real estate held jointly or severally by the collector or his sureties, within the county at the time of the filing thereof, and shall continue to be such lien till its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied.” Neither of the appellants disputed but that, as between Wadwsorth and Faulkner, the mortgage by the latter to the former to secure the loan of $10,000, was a specific lien upon the premises embraced therein. The lien on Faulkner’s land secured by the docketing of the bond is a general statutory lien upon all of Faulkner’s real estate at the time of the filing thereof. There is nothing in the statute which expresses or indicates that it was the intention of the legislature that the lien created thereby should supersede or be prior to the equities of third j>arties existing in the lands ak the time the statutory lien was created. It is the apparent purpose of the statute that if the collector or his sureties were the owners of any real estate, that the bond should become a lien thereon, but there is no requirement in any statute that the collector, or either of his sureties, should be the owner of real estate, with a view of securing the public against the collector’s defalcation. Without the application of general principles of equity, this circumstance sustains the proposition that the lien was intended to be general, and not specific, and the interests of all parties having liens should be adjudicated upon the basis of their priority. There is no provision in the statute which supports the contention of the appellants that the lien created in the statute is in the nature of a mortgage, for’ there is no identification of any parcel of lands which is affected by the lien; and an instrument which does not describe or indentify a parcel of land, so that the same can be located, is utterly void under the general rule of law applicable to mortgages, and the same could not be recorded as such under our statutes. The lien is in its nature and character more like the lien of a judgment, although the statute does not provide the mode and manner of enforcing the same. "Without the aid of the statute, a judgment rendered in a court of record would not be a ben upon real estate, but the same is made such by the provision that a judgment shall be a charge upon lands, tenements and real estate, and chattels real of every person against whom any such judgment shall be rendered, and that the same may be sold on execution issued thereon.

It has also been frequently adjudicated in this State that a judgment, being a general lien on the lands of the debtor, is subject to «very equity which existed against the lands in the hands of the judgment-debtor, and that judgment-creditors have no preference over the «quitable claims of third parties. (In the Matter of Howe, 1 Paige, 125; Keirsted v. Avery, 4 id., 9; Cook v. Kraft, 3 Lans., 512; 2 Pomeroy’s Equity Juris., § 721.)

The docti-ine is clearly and certainly established in courts of equity, that prior equitable interests in a specific piece of real property have priority over a general statutory lien created subsequent to the transaction with the owner, which gives a party an interest in the particular piece of land in question. Having reached -this conclusion, which sustains the judgment giving the "Wadsworth mortgage priority over the lien created by the statute, the remaining questions discussed on the appeal have an easy solution.

The arrangement between the collector and James Faulkner, as to the management and use to be made of the tax moneys, and that they be deposited in the bank in which he was a stockholder and an •officer, and his refusal to obey the directions of the collector to pay the money over to the county treasurer, aré sufficient to chai-ge him with the misappropriation of the funds and make him primarily liable on the bond as between the collector and his co-surety. As all the interests of the appellant Hyland in the lands owned by Faulkner were acquired subsequent to the time when the equities of the collector and of "Whitman were established by the facts of the case, he cannot justly complain of the provisions of the decree which directs the order of sale of the premises made with a view of protecting those equities.

The learned counsel for the appellant Hyland contends that the action was in the nature of an action at law founded upon a contract, and should have been tried as such by a jury, and not as an equitable action by the court. Hyland was not a party to the bond, and was not sued with a view of obtaining a money judgment against him,, and was simply brought in as a party defendant for the purpose of ascertaining his interest, if any, in the premises which were to be sold for the purpose of enforcing such judgment as might be obtained against the parties to the bond. 'He did not in his answer deny any of the allegations of the complaint, and, as between him and the plaintiff, there was no issue to be determined which a party has a right to have tried by a jury.

The decree provides that the premises subject to the lien be sold by the sheriff of Livingston county in the same manner, subject to-the same right of redemption in the parties interested therein, as if sold upon an execution issued upon a money judgment in a court of' record. The 'executors of Whitman’s estate object to this provision, and insist that the sale should take place without the right of redemption, as none is given by the statute. Without affirming the-proposition that the owner of the premises or the subsequent lienors, have the right of redemption on a foreclosure of the lien created by the statute, we have concluded not to disturb this part of the decree, for this court, as a court of equity, possesses the unquestioned power to direct that the sale be made subject to the right of the subsequent lienors, to redeem in the mode and manner indicated by the judgment. The statute provides no special mode for enforcing the lien, and as it has been intimated in a prior decision, where the nature and character of the lien was considered, that the owner of the premises- and other parties having liens thereon may redeem the same as if the premises were sold on an execution issued on an ordinary judgment, we deem it prudent in this case not to give the question any further consideration. (Upham v. Paddock, 13 Hun, 571.)

The judgment should be affirmed, with one bill of costs to the-respondent the plaintiff, to be paid by Hyland; and a bill of costs to-the respondent Wadsworth, to be paid by the executors of Whitman’s estate, out of any funds in their hands applicable to such a purpose-

Dwight, J., concurred; Macomber, J., not sitting.

Judgment affirmed, with one bill of costs to plaintiff, respondent, to be paid by appellant Hyland ; and one bill of costs to the respondent Wadsworth, to be paid by appellants, the executors of Whitman, out of any funds of the estate in their hands applicable thereto.


source: Caselaw Access Project

author: Barker, P. J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT WALLACE, Appellant.

      Indictment for not employing a discharged Union soldier — such soldier is entitled to employment for himself and team in preference to others — he must establish his right by proof • — chap. 464 of 1887, construction of.

    Upon the trial of an indictment charging the street superintendent of Auburn with a violation of the provisions of chapter 464 of the Laws of 1887, in regard to the employment of honprably discharged Union soldiers in the repairing and .improving the public streets in the city of Auburn, it appeared that the superintendent was authorized to employ laborers and teams to do work on the public streets, in grading and improving the same, as directed by the common council; that one Ryan, an honorably discharged Union soldier, requested the superintendent to give him, with his team, employment in repairing and improving the streets, which request was refused, although the superintendent was engaged in doing work on the streets and was employing other laborers with teams who were not discharged Union soldiers.

      Held, that it was the intention of the act that it should apply to all cases of appointment or employment of individuals on all the public works in all the cities, towns and villages in the State who are not required, under the civil service laws, to submit to competitive examination as to their fitness and qualification to fill the'position for which they apply, and that Ryan was entitled to employment for himself and team in preference to others who were not discharged Union soldiers.
    The evidence tended to show that when the superintendent refused to give Ryan employment for himself and team he was not informed and did not know, as a matter of fact, that Ryan was an honorably discharged Union soldier.

      Held, that it was the duty of the applicant for employment, under the provisions of the act of 1887, to furnish satisfactory evidence that he belonged to the class of persons intended to be benefited by the law, and that an officer could not be charged with violating its provisions, in refusing employment to an applicant, where he did not know, as a matter of fact, from other sources than the mere statement of the applicant, that he belongs to such class of persons.
    That the fact that the superintendent in this case did not place his refusal to employ Ryan on the ground that ho did not know that he was an honorably discharged Union soldier, did not preclude him from taking the position upon the trial that Ryan did not furnish him with satisfactory evidence on the subject.
    That the provision of the statute requiring the officer in disposing of applications presented to him, to administer the law, in its spirit as well as its letter, was intended merely as a guide and as an instruction to the officer, and had no application to a criminal trial, nor was it intended to change any rule of evidence or of construction in cases of criminal procedure founded upon the provisions of that act.
    Appeal by tbe defendant from a judgment entered in the office ■of the clerk of Cayuga county December 11, 1888, after a trial at the Cayuga County Court of Sessions, convicting the defendant of violating the provisions of chapter 464 of the Laws of 1887, in refusing to employ an honorably discharged Union soldier in repairing and improving the public streets in the city of Auburn, over which he was superintendent.
    The enacting clauses of the statute are, viz.: “Section 1. In every public department and upon all public works of the State of New York, and of the cities, towns and villages thereof, and also in the non-competitive examinations under the civil service laws, rules or regulations of the same wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physicial impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them,, provided they possess the business capacity necessary to discharge the duties of the position involved.
    Section 2. “All officials or other persons having power of appointment to or employment in the public service as set forth in the first-section of this act, are charged with a faithful compliance with its-terms, both in letter and spirit, and a failure therein shall be a, misdemeanor.”

      William JB. Woodin, for the appellant. '

      A. P. JSioh, district attorney, for the respondent.
   Barker, P. J. :

The prosecutor, William Byan, is a resident of the city of Auburn, a laborer and the owner of a team and wagon, and an honorably discharged Union soldier from the military service of the United States. The defendant, at the time stated in the indictment, was street superintendent in the said city, and under the charter thereof, and the ordinances passed by the common council of said city, he was authorized and empowered to employ laborers and teams to do work on the public streets, in grading and improving the same, as-ordered and directed by the common council. Byan requested the defendant to give him, with his team, employment in repairing and improving the streets, and this application was flatly refused. At that time the defendant was engaged in doing work on the streets.

, and employed other laborers, with teams, who were not discharged Union soldiers, to do the same under his supervision. It is claimed. by tbe people that such a refusal to employ Ryan and his team, in preference to those whom he did employ, was a breach of duty and in violation of the provisions of chapter 464 of the Laws of 1881.

The defendant contends that the prosecutor, in seeking employment on the streets, did not bring himself within .the provisions of the act, and was not entitled to the preference and benefits conferred on the class of persons mentioned therein, for the reason that he did not limit his request to the employment of himself only, but included his wagon and team within his demand for employment. This act is to be construed by itself, as it bestows the benefits and privileges which the prosecutor demanded, and imposed upon the defendant the duty which it is alleged he has violated. The provisions of the civil service act (chap. 410, Laws of 1884) affords us no aid in disposing of the question presented on this appeal, as that law was intended to improve the public service and make it more efficient, while the provisions of this act are beneficent in their character and were intended to benefit a class of persons who may be in some respects inferior, physically and mentally, to other applicants for the same service, provided.such impairment does not disqualify them from performing the labor and duty which may be required of them in the position to which they may be appointed. We are unable to find any other statute which aids us in ascertaining the legislative intention in enacting this law. The language used is general and quite comprehensive, and evidently embraces other persons of the class mentioned than mere workman or laborers. It is susceptible of the construction, and we are inclined to think that such was the legislative intention, that it should apply to all cases of appointment or employment of individuals on all the public works in all the cities, towns and villages in the State, who are not required, under the civil service laws, to submit to competitive examination as to their fitness and qualification to fill the position for which they apply. The officials having the power of appointment or employment in the public service, as prescribed in the act, are charged with the faithful compliance with its terms, both in letter and in spirit, and we are of the opinion, and so hold, that the prosecutor was entitled to employment for himself and team, in preference to others who were not discharged Union soldiers. It is well known to everybody that in grading and improving the streets and highways, a large portion of the" work is done and performed by the use of teams, and when used in such service, it is giving-employment, within the meaning of the act, to the owner.

The defendant’s evidence tended to show that when he discharged the prosecutor and refused to give him and his team further employment, he was not informed and did not know, as a matter of fact, that he was an honorably discharged Union soldier, and the question was raised on the trial whether, if he was ignorant of that fact, he was guilty of a misdemeanor. The People’s evidence, if it had not been disputed or contradicted by other evidence, was amply sufficient to show that the defendant knew that the claim of the prosecutor that he was a discharged Union soldier was true. The court sub mitted the question to the jury as one of fact for them to determine, with instructions, which we think were erroneous. The learned county judge instructed the jury, in substance, that the defendant was chargeable with the knowledge that the complainant was a Union soldier, or chargeable with neglect in not making it an objection for not employing him, that he was not an honorably discharged Union soldier, if they found, as a matter of fact, that he did not make that ground of objection when he refused to employ him. That, as a rule of law, “ wherever a party makes a claim of right to anything or at least in some instances where a party makes a claim of right to anything- and the other party does not object to his claim on the ground he has no such right, he is precluded or estopped from raising that objection afterwards.” And he then added, that if Ryan went to the defendant in good faith, being a Union soldier, and made claim for work on that ground, and the defendant did not assume or pretend to dismiss him on the ground that he did not know that he was a discharged Union soldier and refuse to give him work on that ground, he cannot now come here and say he furnished me no evidence that he was a Union soldier. And he also added to this part of his charge that if the jury found that the defendant did not make it an objection to the employment of the prosecutor that he did not know that he was a discharged Union soldier, he cannot now claim that he had no evidence that he was such in fact.

'When a person applies to a public officer for appointment and employment under the provisions of the act, it is incumbent upon him to furnish satisfactory evidence that he belongs to the class of persons intended to be benefited by the law, and an officer cannot be charged with violating its provisions and be held to be guilty of a misdemeanor in refusing employment to an applicant by declining to act upon the mere assertion of the applicant if he does not know, as a matter of fact, from other source, that the statement of the applicant is true. As to the kind of evidence and information on the subject which ■should be regarded as sufficient for the guide and action of the ■officer in disposing of the application we do not intend, in disposing of this appeal, to lay down any rule, as each case should be disposed of upon the evidence which the applicant is able to present and the actual information which the officer may possess on the subject. 'The rule adopted on the trial, that if the defendant did not place his refusal to employ the prosecutor on the ground that he did not know that he was an honorably discharged Union soldier, he was precluded from taking the position that the applicant did not furnish him with satisfactory evidence on the subject is manifestly erroneous, and for that reason alone, a new trial should be granted.

The jury were also instructed, in substance, that the statute under which the indictment was framed was to be construed liberally, and not strictly, as it should be if it did not contain the clause charging the officer, vested with the power of employment, with a faithful •compliance with its terms, both in letter and in spirit. We are also ■of the opinion that this was error, and may have misled the jury and induced them to render a verdict convicting the defendant of the ■offense charged. The provision of the statute referred to, was intended as a guide and as an instruction to the officer who possessed the power of appointment requiring him, in disposing of applications presented him, to administer the law in its spirit as well as its letter, .and has no application whatever in a criminal trial, and was not intended to change any rule of evidence or of construction in cases of criminal procedure founded upon the provisions of the act.

Judgment reversed and the verdict set aside, and a new trial granted and the proceedings remitted to the Cayuga County Court •of Sessions with instructions to proceed.

Dwight and Macomber, JJ., concurred.

Judgment and conviction reversed and case remitted to the Court of Sessions of Cayuga county to proceed therein.


author: Barker, P. J.:

text:
    JOHN J. P. READ, Respondent, v. THE BANK OF ATTICA, Appellant.

      Certificate of deposit payable on demand without interest — subsequent promise to• pay interest thereon, enforceable — deposit made by am, agent is recoverable by his-' principal.

    A certificate of deposit, given by a bank for money deposited with it, did not contain any provision for the payment of interest.
    In an action brought to recover the amount of such certificate, with interest, from the bank, the holder of the certificate was permitted to prove that after the ■ certificate was made out and handed to him at the cashier’s counter, he discovered that no rate of interest was mentioned in the certificate, and called the-attention of the cashier to the fact, who then promised to allow three per cent, on the deposit if it remained for any length of time.

      Held, that as the certificate was payable on demand, and the money could have been withdrawn at any moment by the payee of the certificate, the promise was-conditional and executory, and that as the payee allowed the money to remain with the bank for several years thereafter, the promise was based upon a good consideration.
    That evidence offered, to show this oral agreement, was competent.
    The bank offered to prove that the money when deposited, was the money of a third party, which had been received by the plaintiff in the action as her agent, and had been deposited by him in his own name; that the certificate of deposit, in fact, belonged to her, and that a demand had been made on her behalf for the payment of the certificate.

      Semble, that the circumstance that the plaintiff deposited the money in his own name did not give him, as against the original owner, any right or title to the same; that as long as money or property belonging to the principal, or the representative thereof, may be traced and distinguished in the hands of the agent, or-his representatives or assigns, the principal is entitled to recover it unless it has been transferred for value without notice.
    Appeal by tbe defendant from a judgment, entered in the office of the clerk of the county of Erie on the 8th day of July, 1889, upon the verdict of a jury, rendered at the Erie Circuit, for the sum of $5,498.18.

      Spencer Clinton, for the appellant.

      O. O. Cottle, for the respondent.
   Barker, P. J.:

This action was brought to recover a sum of money deposited by the plaintiff with the defendant. The facts are stated in a bill of' exceptions. The deposit was made by the plaintiff in person, and, the defendant, at the time the same was made, issued to him a certificate in this form: Buffalo, March 25, 1879. J. J. P. Bead has deposited in -this bank four thousand one hundred and fifty-two and sixty-four one hundredths dollars, payable to the order of J. J. P. Read on return of this certificate,” which was signed by the cashier and teller of the bank. The complaint alleged the making of tbe deposit and a demand for its repayment, which was refused by the defendant, no reference whatever being made to the issuing- and delivery of the certificate. The defendant, in its answer, admitted the making of the deposit by the plaintiff at the time and. for the sum stated, and set up a delivery of the said certificate, and then averred that the certificate was not in the possession of the-plaintiff, but that it was in the actual possession of one Rockwell,, who claimed to be the owner and entitled to the moneys payable thereon. In a separate answer it is also alleged that the plaintiff' was not in possession nor the owner of the certificate, but the same-was by him, before the beginning of this action, transferred to one Mrs. Rockwell, now deceased, whose executor, George W. Rockwell, is now in possession thereof, claiming to be the owner and holder of the same, and to be the owner of and entitled to the moneys so received by the defendant on deposit from the plaintiff, and that the said Rockwell, as such executor, had demanded of the defendant the payment of the moneys to himself. On the trial, the certificate was produced by Rockwell, not voluntarily, but as a witness in the plaintiff’s behalf, who attended in obedience to a subposna duces tecum. When produced, the certificate was not indorsed by the plaintiff, and after making some oral proof as to the agreement of the defendant to pay interest on the deposit, the plaintiff rested. The defendant then offered to prove that the money, when deposited, was the money of Mrs. Rockwell, and was received by the plaintiff as her agent and deposited in his own name, and that the certificate of deposit, in fact belonged to her; and that demand has been made upon the defendant by the persons representing her estate for the payment of the certificate.

If the facts are as the defendant claimed them to be, and offered to-show by proper evidence, the plaintiff, when the deposit was made, held the funds as the agent or trustee of his sister, Mrs. Rockwell, and in justice and equity they belonged to her personal representatives,, or those who' may have otherwise succeeded to her personal estate. The circumstance that the plaintiff deposited the money in his own name does not give him, as against the real owner, any right or title to the same. (Van Alen v. American Nat. Bank, 52 N. Y., 1; Viets v. Union Nat. Bank of Troy, 101 id., 563.)

This proposition is based upon the principle, well settled, viz.: That so long as money or property belonging to the principal or the proceeds thereof may be traced and distinguished in the hands of the agent or his representatives or assignees, the principal is entitled to recover it unless it has been transferred for value without notice. As the defendant failed to prove that the certificate was indorsed by the plaintiff, or that he transferred the same by assignment or otherwise to Mrs. Rockwell as her property, the defendant’s position cannot be maintained unless he is able to show that the funds deposited were the funds of his sister, Mrs. Rockwell. The whole defense rests for its support upon this contention of the defendant. Assuming that to be true, then, in an action in proper form, with all the necessary parties before the court, the principal could recover ■the moneys from the bank; and we also think that if the bank had, before the commencement of this action, paid the moneys to the true owner in discharge of its liability, it would have been a perfect defense to this action. (Van Alen v. American, Nat. Bk., supra.)

If the facts which the defendant offered to show had been properly pleaded and proved, then the legal proposition would have been presented whether in this action, founded on the defendant’s promise, it could defeat a recovery by showing that the funds when deposited belonged to another, who had demanded the payment of the same, such ownership not having been recognized by the ■defendant by payment of the money deposited. The plaintiff’s position is, that so long as the bank retains the money he may maintain a common-law action on its promise to refund the money, and the question is not now presented whether the claimant could recover the money in an equitable action with all the necessary parties before the court.

We may, however, pass all these questions without further consideration, for the reason that the defendant did not set up in its ■answer, as a defense, the facts which it offered to prove. There is no averment in the answer that the funds when deposited were the funds of Mrs. Rockwell. The claim of the defendant, as set forth in the answer, that. the ■■ funds deposited, belonged to Mrs. Rockwell in her lifetime, is based upon the averment that, the plaintiff transferred the certificate to her in her lifetime, and that her executor is entitled to the moneys deposited with it by virtue of the transfer of the certificate. No issue was tendered on the controlling fact which it offered to prove in support of its defense. For that reason, among others, as the bill of exceptions, shows, the court ruled out the offer. There was no request made by the defendant to amend the answer so as to permit the proofs to be made and without an amendment to that effect, the defendant could not give evidence in support of the fact stated in the offer. The-certificate did not bear interest and the plaintiff was permitted to prove that after the same was made out and handed to the plaintiff, at the cashier’s counter, he discovered that no rate of interest was mentioned in the certificate, and he called the attention of the cashier to the fact, who then promised to allow three per cent on the deposit if it remained for any length of time. As the certificate was payable on demand, the money could have been withdrawn any moment by the payee of the certificate. The promise was conditional and executory, and was -based upon a good consideration, as the payee allowed the money to remain with the bank for many years thereafter. No rule of evidence was violated in receiving proof of the defendant’s parol promise to pay interest after it had received the money and delivered the certificate into 'the hands of the plaintiff.

We have examined the other rulings made on the trial, to which exceptions were taken by the defendant, and fail to discover any error.

The judgment should be affirmed, with costs.

Dwight and Macomber, JJ., concurred.

Judgment affirmed.


author: Barnard, P. J.:

text:
    In the Matter of the Application of ROSWELL P. FLOWER for an Order Directing FREDERICK W. BLECKWENN, as Treasurer, etc., of Long Island City, to Cancel Certain Water Rates.

      Power of the legislature to itself relevy a tax, which was imposed under an unconstitu- ' tional statute which did not provide for notice to the parties assessed.

    Where water rales have been imposed upon property under an act, unconstitutional because of its affording no notice to the taxpayers of the assessment for the tax, the legislature has power to confirm the water taxes and levy them on the s'everal pieces of land on which they were theretofore assessed under such unconstitutional act.

      ■Stua/rt v. Palmer (74 N. Y., 183) distinguished.
    'The legislature may refer the question as to the sum to be raised and as to the district benefited, to commissioners; but it is not bound to do so, and may settle both questions for itself.
    Appeal by Frederick W. Bleckwenn, treasurer and receiver of taxes - •of Long Island City, from an order of July 19,1888, made at a Special Term held in Kings county, which directed the treasurer and receiver ■of taxes of Long Island City, within five days after the service of a copy of such order, to cancel, upon the rolls and records in his office, certain water rates then unpaid and of record upon certain lots of land'in the first ward in said city in said order, specified.
    This proceeding was instituted under the provisions of section 10 of -chapter 656 of the Laws of 1886, providing that where the invalidity or irregularity of any water rates'appears on tlie face of the proceedings, any party in interest may apply to any court of competent jurisdiction for an order canceling the same.
    It was claimed in this ease that title 10 of chapter 461 of the Laws of 1871, purporting to authorize the assessment of certain water rates, was unconstitutional.

      W. J. Foster, for the appellant Bleckwenn.

      J. Ralph Burnett and FMphalet Nott Anable for respondent Flower.
   Barnard, P. J.:

By the charter of Long Island City vacant lots were subject to rents for water. Title 10, section 9, subdivision 4 of chapter 461, Laws of 1871, seems to refer to lots which had buildings on them. The act, section 12, subdivision 1, title 10, required the rents to be assessed upon building “ or vacant lot” chargeable with water rent.. By chapter 415, Laws of 1875, and by chapter 100, Laws of 1879, and by chapter 684, Laws of 1881, the water rents are put upon lots, vacant or otherwise.

By the charter of 1871, a board of water commissioners was authorized to assess the water rents, and no notice was provided -for to the taxpayers. The list was made out and filed and notice given to the taxpayers, who were then bound to pay the assessment sto the city treasurer. The tax was invalid. (Remsen v. Wheeler, 105 N. Y., 573.)

The legislature confirmed the water taxes and levied them on. the several pieces of land on which they were heretofore assessed, or appeared of record to have been so assessed or charged. (Laws of 1882, chap. 383, §§ 1, 2; Laws of 1886, chap. 656, § 15.) The legislature had the power to impose a tax in this way. The question was directly presented in Matter of Van Antwerp (56 N. Y., 261). The court says: “ It is also objected that it is not competent for the legislature to validate a void assessment, and that it could only authorize a reassessment. The answer to this is that the legislature did not attempt to legalize the old assessments, but itself exercised the power of making new assessments. The old assessments are referred to, not for the purpose of adoption, but for the purpose of... fixing the specific amount by the proportion specified; and the act expressly levies that amount as a tax.”

This doctrine is not touched in the case of Stuart v. Palmer (74 N. Y., 183). The power of the legislature to tax is only limited by an apportionment of the burden. It is not denied that the legislature may not only tax, but apportion the burden among the property owners. In Remsen v. Wheeler (105 N. Y., 573), there was no act of the legislature validating the void tax. In Spencer v. Merchant (100 N. Y., 585), the Court of Appeals say : “ The act of 1881 determines absolutely and conclusively the amount of tax to be raised and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason.” * * *

The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but it is not bound to do so, and may settle both questions for itself; and when it does so, its action is necessarily conclusive and beyond review.”

These remarks were made in a case where the legislature had reassessed the tax originally imposed under a void law.

The order should, therefore, be reversed, with costs and disbursements.

Dykman, J., concurred.

Order reversed, with costs, and motion denied, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY LANZANDOEN, Appellant, v. FRANK G. SCHIRMER, Sheriff of Westchester County, Respondent.

      Disability or inability of a judge to act — what cases are covered, by it.

    The inability to act, specified in section 8 of title 3 of chapter 184 of the Laws of 1881, providing that it shall be the duty of the mayor of Yonkers to designate in writing one of the justices of the peace of that city, “who shall only in case of sickness, absence from the city, disability or inability of the city judge to act, exercise, in the place and stead of the city judge, criminal jurisdiction, such as is conferred by law upon the justices of the peace in towns during the time such sickness, absence, disability or inability shall continue,” does not mean physical inability alone.
    •Where the city judge was engaged in the removal of his family, consisting of twelve persons, from their summer resort to his home in Yonkers, but was at the time within the city:

      Held, that the justice of the peace was authorized to act in his place.
    Appeal by the relator, Henry Lanzandoen, from an order made by Hon. J. O. Dykman, in proceedings on habeas corpus, which was entered in the office of the clerk of Westchester county on October 26, 1889, dismissing such proceedings and remanding the relator to the custody of the defendant, the sheriff of Westchester county.
    On September 17, 1889, the relator was tried at the Court of Special Sessions in the city of Yonkers before William W. Scrugham, a justice of the peace, acting as city judge, having been duly designated to act as such. The relator was found guilty of the offense charged, assault and battery in the third degree, and sentenced to pay a fine of thirty dollars or stand committed to the common jail of the county of Westchester until the fine was paid, not exceeding thirty days. The trial was had at 3.15 o’clock in the afternoon. At noon of that day the city judge, who had been absent from the city on a vacation, returned, and was at his house from noon, to and during the trial. He plead as an excuse for not acting, that he was under a disability from so doing, in that he was engaged in the removal of his family of twelve persons from their summer resort at Fisher’s Island, Suffolk county, to their home in Yonkers, which is within a half mile of the city hall where relator’s trial took place. The acting city judge knew of the city judge’s arrival in the city at noon, but proceeded at 3.15 p. m. to try the relator. Relator was confined in the custody of defendant to serve out his sentence on September 18, 1889, on which day he petitioned Hon. J. O. Dykman, a justice of this court, for and obtained a writ of habeas corpus returnable before said justice at chambers at White Plains, N. Y., on September 21, 1889, on which day an inquiry was made into the cause of relator’s detention. A return to the writ was made by the defendant. The above facts were proved and the. justice took the papers and reserved his decision, relator remaining in defendant’s custody. ■ On September 30, 1889, he indorsed his decision on the papers and filed them in Westchester county, dismissing the proceedings and remanding the relator to the custody of defendant.

      Walter J. Donohue, for the appellant.

      Nelson R. Balcer, district attorney, for the respondent.
   Barnard, P. J.:

By the charter of the city of Yonkers the city judge has exclusive jurisdiction in all cases triable by Court of Special Sessions before justices of the peace in towns. (Chap. 181, Laws of 1881, tit. 3, § 7.) By section 8, of this title, it is made the duty of the mayor to designate, in writing, to be filed in the office of the city clerk, one of the justices of the peace of the city, “ who shall only in case of sickness, absence from the city, disability or inability of the city judge to act, exercise in the place and stead of the city judge, criminal jurisdiction such as is conferred by law upon justices of the peace in towns, during the time such sickness, absence, disability or inability shall continue.”

The mayor designated a justice of the peace under this section and he tried the relator. It appears that the city judge arrived home from his vacation at about noon of the day of trial. He did not go to the office, and although the justice of the peace knew of his arrival in the city, he held the court for the trial of relator for a criminal offense. It was proven that the city judge was unable to attend because of his engagement in attending to the removal of his family, which consisted of twelve persons, from their summer resort to his home in Yonkers. This was a sufficient inability of the city judge to justify the action of the justice of the peace. Inability to act, does not alone mean physical inability.

If there be a duty of paramount importance, such as sickness in his family or other contributory causes which prevent his attention to the official duty, a case is made for the action of his substitute.

The judgment should be affirmed, without costs.

Pratt, J., concurred; Dykman, J., not sitting.

Order dismissing writ affirmed, with costs and disbursements.


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    In the Matter of the Petition of the UNION ELEVATED RAILROAD COMPANY OF BROOKLYN, Appellant and Respondent, Relative to Acquiring Title to Certain Real Estate, or Interest therein, and Property of WILLIAM G. JUGHARDT, FREDERICK KOCH and CHRISTINA KOCH in said City, Respondents and Appellants.

      Eminent domain— the special suitableness of property to a particular business may be shown.

    In proceedings by a railroad company for tbe condemnation of a right of way along a public street, the abutting landowners may give evidence to show the particular suitableness of the property to any given business.
    It is a settled rule of practice not to allow costs in this special proceeding.
    Appeal by the Union Elevated Railroad Company of Brooklyn from the appraisal and report of commissioners appointed to ascertain and determine the compensation to be made to the owners of, or persons interested in the streets and premises described in the petition in this matter, and also from an order confirming the said appraisal and report, entered in the office of the clerk of the county of Kings on the 27th day of April, 1889.
    Appeal by William G. Jughardt and others from an order made in the above-entitled matter, and entered in the office of the clerk of the county of Kings on April 29, 1889, denying an award of costs to said appellants in said proceeding.
    The proceeding was brought by the Union Elevated Railroad Company of Brooklyn to condemn and take certain interests in real estate, or a right of way on Myrtle avenue in the city of Brooklyn. An appraisal and report of commissioners, appointed to determine the compensation to be made to the property owners for such of their privileges, easements and property in Myrtle avenue in front of and adjacent to their premises abutting thereon, as would be taken or affected by the construction and operation of the elevated railroad of the petitioner, was made and confirmed by the court,

      George W. Wingate, for the railroad.

      Phillips <& Avery, for the landowners..
   Barnard, P. J.:

This is an appeal from an order confirming the report of commissioners appointed to appraise and condemn a right of way along Myrtle avenue, in the city of Brooklyn, in front of two separate parcels of land owned by the respondents above named.

The damages awarded for injury to the easement was the sum of $1,500 in each case. It has been the settled practice of the courts in this State not to disturb and reverse the report of the commissioners appointed in such cases, unless an error in judgment can be shown which led to the awarding of excessive and exorbitant damages. (Matter of N. Y., L. and W. R. Co., 27 Hun, 116.) There is sufficient evidence in this case to support the award as found, and there is no basis for a claim that they have mistaken the principle upon which they should proceed in forming their opinion.

In regard to the objection to the admission of evidence tending to show damages to respondent’s property arising from the special use thereof, in our opinion, said objection is not supported by the law of this State. In showing the market-value, and the consequent impairment to the same by the taking of an easement, the owner is at liberty to show the particular suitableness of his property to any given business. (Matter of New York, etc., R. Co., 27 Hun, 116; Matter of Com'rs of State Reservation, 37 id., 537.) In the present case, the premises were used for a laundry, and the building of the railroad cut off the light which was highly needful in the conduct of the same, and the drippings from the structure ruined the clothing when it was being loaded in wagons. The owner had the right to carry on any lawful business, and the railroad, which took the easement without his consent, had no right to deprive him of any advantages which he might derive without paying for the same. The order appealed from should, therefore, be confirmed, with costs.

In reference to the appeal from the order denying the motion for costs, it has been the settled practice of the courts not to allow costs in these special proceedings. In the cases where costs have been allowed, the order appointing commissioners of appraisal has been reversed on appeal. (Rensselaer cmd S. R. R. Co. v. Davis, 55 N. Y., 147.) Even assuming that the court at Special Term had the power, if it so wished, to grant costs under Code of Civil Procedure, section 3240, yet, having exercised its discretion in the negative, its decision in regard to the matter will not be questioned by the appellate court unless we can see misuse or gross mistake in the exercise of the same. (Morrison v. Agate, 20 Hun, 25.)

The order denying costs appealed from should, therefore, be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Order affirmed, with costs.


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    In the Matter of the Petition of the BROOKLYN ELEVATED RAILROAD COMPANY, Respondent, Relative to Acquiring Title to Real Estate or a Right of Way on Lexington Avenue, in the City of Brooklyn, of EDGAR J. PHILLIPS and FRANK M. AVERY, Appellants.

      Measure of damages in proceedings to condemn rights, in a street, of abutting owners who do not own the fee of the street.

    In a proceeding by a railroad company to condemn the rights of parties in a public street, where the fee of the street is not vested in such parties, the basis of appraisement must be the difference in value between the abutting premises owned by such parties, before the construction of the railroad, and their value thereafter.
    AlPpeal by Edgar J. Phillips and Prank M. Avery, property owners, from the appraisal and report of commissioners, more particularly described in an order or judgment entered in the office of the clerk of Kings county March 23, 1889, and also from the said order and judgment.
    This proceeding was brought, under the statute, by the Brooklyn Elevated Railroad Company to condemn and take certain interest in real estate or a right of way on Lexington avenue in the city of Brooklyn.
    The Brooklyn Elevated Railroad Company was a corporation duly organized and existing under and by virtue of chapter 585 of the Laws of 1874; chapter 422 of the Laws of 1875 ; chapter 350 of the Laws of 1879; chapter 338 of the Laws of 1881, and chapter 539 of the Laws of 1885, and was thereby authorized and empowered to construct, maintain and operate an elevated railroad.
    The commissioners of appraisal appointed in this proceeding awarded only nominal damages, allowing six cents upon each house as compensation to the property owners for the interest condemned in the street in front thereof.

      Phillips do Avery, for the landowners, appellants.

      F. B. Minrath, for the railroad, respondent.
   Barnard, P. J.:

Section 16 of the general railroad act, chapter 140 of 1850, as amended by chapter 3S2 of 1883, in respect to damages to be paid by companies for lands taken for railroad purposes, does not give a plain rule in respect to the basis upon which the assessment is to be made.

By this section it is provided that a commission shall ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them; and in fixing the amount of such compensation, said commissioners shall not make any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad.” The courts have construed the section to mean, that the inquiry is to embrace the market-value of the premises before the taking, and what it will be worth after the railroad is built, and this, in a sense, involves a probable benefit from the railroad. This inquiry necessarily takes in the advantages from the railroad, when the extent of the injury is to be based upon the diminution of value by reason of its construction.

The true rule seems to be, after the examination of any case, to appraise the value of the land taken, and, in addition, to give the difference which results from the diminution of value to the whole tract from which the railroad strip is taken. (Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423.)

In this case, no land of the appellant’s was taken. The fee of the street is not in them so far as shown by the case. The basis of appraisement must then be the difference in value between the abutting house before the construction of the railroad and afterwards. Under this rule of assessment, the testimony objected to was'proper.

In determining the value of the property after the construction of the elevated road, its effect upon such value could not be excluded. The inquiry into the difference of value before and after the taking, could not be conducted without including the effect of the constructed road upon it. The rule followed does not conflict with the statutes. The land taken is to be paid for and also the damage to land not taken. On this question the effect of the railroad, in its evil and beneficial results, must be considered. The value of the land taken is not to be diminished, but the resulting damages to land not taken, must involve all things which enter into the subject of value.

The order should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Order affirmed, with costs and disbursements.


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    In the Matter of the Payment of Certain Legacies to Certain Legatees Named in the Last ’Will and Testament of FREDERICK HERR, Deceased.

      Collateral inheritance tax — a corporation (a house of industry) whose property is exempt from general tax is not subject to the inheritance tax.

    If money bequeathed by will, after it is obtained, and while it is in the possession of the institution to which it is given, is free from taxation, it is also exempt from the collateral inheritance tax.
    Although not exempt from taxation by its charter, a corporation, which is a house of industry, is entitled, under subdivision 4 of section 4 of chapter 18 of title 1 of part 1 of the Revised Statutes, to an exemption from taxation of personal property invested for its support and maintenance, and such exemption is not restricted to the furniture of the home or to articles contained therein.
    Appeal by The "Wartburg Orphan Farm School of the Evangelical Lutheran Church, a legatee of the last will and testament of Frederick Herr, from that part of the decree of the surrogate of the county of Kings, entered on April 23, 1889, which decrees that said appellant, under the name of the Orphan Asylum of Mt. Yernon, is subject to taxation within the meaning of and under section 1 of chapter 483 of the Laws of 1885, and section 1 of chapter 713 of the Laws of 1887, and fixing the amount of said tax.

      Jacob F. Miller, for the Wartburg Orphan Farm School, appellant.

      D. F. Meelcer, for the executors, respondents.
   Barnard, P. J.:

The testator, by his will, gave a legacy of $1,000 to the Orphan Asylum at .Mt. Vernon. The legislature by special act incorporated The Deaconess Institution of the Evangelical Lutheran Church by chapter 161, Laws of 1869. The object of the incorporation was to maintain an orphan farm school at Mt. Vernon.

The corporation was subjected to the restriction and was clothed with the privileges provided in the general law for the incorporation of religious and benevolent associations. No exemption from taxation was granted by the charter. The charter was amended by chapter 440, Laws of 1875, and was again amended by chapter 106, Laws of 1884, and the name was changed to the Wartburg Orphan Farm School of the Evangelical Lutheran Church. Neither of these amending acts gave an exemption from taxation. The Wartburg Orphan Farm School was intended to be the corporation to receive the legacy, and the question presented is, whether the legacy is subject to the collateral inheritance tax. There being no general exemption by the charter from taxation, the collateral tax is chargeable, unless there be a special exemption from the operation of the collateral tax law. (Catlin v. Trustees of Trinity College, 113 N. Y., 133.) This special exemption is clearly made in title 1, chapter 13, section 4, subdivision 4, part 1 of the Revised Statutes.

This section reads as follows: “ The following property shall be exempt from taxation: * * * 4. Every poor-house, alms-house, house of industry, and every house belonging to a company incorporated for the reformation of offenders, or to improve the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same.”

If this appellant, being clearly a house of industry, had personal property invested for the support and maintenance of this orphan home, it would be free from taxation under this subdivision. There is no reason why the general money or personal property used for the purposes of the incorporation should be restricted to the furniture of the home or to specific articles contained therein. The fact that the legislature in exempting schools and colleges only exempted “ the furniture belonging to each of them ” shows that a larger exemption was designed by this section 4. For a school, the building and its furniture is sufficient, but for a home for orphans, who were to be clothed and maintained, something more was needed, and the legislature met this need by the personal property used for the purposes of its support.

In the next subdivision, 5, a complete exemption of libraries is made by the use of the same language as that contained in subdivision 4. Subdivision 5 exempts “the real and personal property of every public library.”

If the money is free from taxation after it is obtained, then, under this collateral tax law, it is free from the collateral tax of five per cent, for the Orphan Home was exempted by law from taxation, under chapter 713, Laws of 1887. This seems to be the true construction of section 4, subdivision 4 of the title and chapter of the Revised Statues cited above.

The decree should, therefore, be reversed, with costs to each party out of the estate.

Dykman, J., concurred; Cullen, J., dissented.

Part of decree appealed from reversed, with costs to each party out of the estate:


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROSWELL P. FLOWER, Respondent, v. FREDERICK W. BLECKWENN, as Treasurer, etc., of Long Island City, Appellant.

      Power of the legislature to relevy a void, tan and add interest thereto.

    Where the assessors, in making an assessment-roll, fail to annex thereto the sworn statement required by law, whereby the tax is rendered void, the legislature has power to relevy the amount of the original tax, together with interest thereon, upon the several pieces of land originally assessed.
    The power to relevy the tax carries with it the power to levy the interest upon it.

      Spencer v. Merchant (100 N. Y., 585) followed.

      Appeal by tbe defendant from an order made at a Special Term, held in Westchester county, under date of October 33, 1S8S, and entered in the office of the clerk of the county of Queens, whereby it was directed that a peremptory writ of mandarmos issue commanding and requiring Frederick W. Bleckwenn, as treasurer and receiver of taxes of Long Island City, to accept the face of and to cancel certain taxes without interest.
    The proceeding was instituted by the petition of the relator, alleging a tender to the said treasurer and receiver of taxes of Long Island City of an amount charged upon certain lots of land for taxes for the year 1880.

      W. J. Foster, for Bleckwenn, appellant.

      J. Ralph Burnett and Eliphalet JSTott Enable, for Flower, ■ respondent.
   Barnard, P. J.:

The relator is the owner of certain lands in Long Island City. In 1880 the assessors in making up the assessment-roll failed to annex thereto the sworn statement as required by law. The tax was void for this omission, but the legislature, by chapter 656, Laws of 1S86, ratified and confirmed the tax, and levied the same, with interest, upon the several pieces of land and premises upon which the same was originally assessed or levied. The relator claims that the legislature had no power to assess and add the interest on the old tax, because it was invalid, and, therefox-e, did not dx’aw interest. This objection is not well founded. The assessors had jurisdiction of the sxxbject of taxation, and the omission to verify the roll was an omission which could be remedied by a healing act. The legislature could dispense with a cei'tificate entirely and still make a legal tax. (Ensign v. Barse, 107 N. Y., 329.) The power to relevy the tax earned with it the power to levy the interest upon it. This alone would be just to those who paid the tax on the irregular assessment, aixd the point is clearly decided in Spencer v. Merchant (100 N. Y., 585). The provision as to notice to be given to taxpayers when the assessment-roll is complete is not retroactive, but is to apply only to tax-rolls and levies subsequently made. ■

The order should, therefore, be reversed and the motion for a mandamus denied, with fifty, dollars costs of appeal and upon denial of motion.

Pratt, J., concurred; Dykman, J., not sitting.

Order reversed, with costs, and motion denied, with costs.


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    ALBERT A. BLIVEN, Appellant, v. SMITH LYDECKER and Others, Respondents.

      Usury — exacted by an agent — knowledge thereof or assent thereto by the principal must be shown to render the obligation void.

    In order to render an obligation for the payment of money, by way of mortgage or otherwise, void on tbe ground of usury, it must be clearly shown that the party loaning the money had knowledge of the usury or assented thereto.
    No usurious payment exacted by the agent of the borrower will invalidate the obligation, unless knowledge thereof or assent thereto on behalf of his principal is shown beyond a reasonable doubt. Proof of knowledge thereof subsequent to the loan is not sufficient.
    Appeal by the plaintiff from a judgment, dismissing the complaint bn the merits, entered, after a trial at a Special Term held in "Westchester county, in the office of the clerk of the county of Rockland on the 1st day of July, 1889.

      Garret Z. Snider, for the appellant.

      Irving Brown, for the respondents.
   Barnard, P. J.:

The action in this case is one for foreclosure of a mortgage, and the defense to the same is based upon the usury exacted from the borrower by John W. Schuler, acting as agent for his wife Margaretta Schuler. The mortgage in this case was executed March 25, 1879, and dated February 1, 1879, and has been transferred by a subsequent assignment to the plaintiff Bliven. The testimony on behalf of the defendant, tends to show that the mortgage, amounting to $4,000, was made up of the following items:

Note dated December 12, 1878..................... $1, 000 00

Interest three months and thirteen days.............. 20 03

Note dated February 15, 1879...................... 1, 800 00

Interest one month and ten days.................... 14 00

Note dated January 18, 1879....................... 200 00

Interest two months and seven days................ 259

Ten per cent on $4,000................'........... 400 00

Cash from Mr. Schuler............................ 563 38

Total sum included in mortgage................ $4,000 00

There is no evidence in this case bringing the details of the loan home to Mrs. Schuler, or showing that she took any part, active or passive, in effecting the same. The testimony of Smith Lydecker, for the defense, expressly states that he never heard her name mentioned in connection with the transaction until John W. Schuler said that he wished the mortgage to be made out in her name. In order to render an obligation by way of mortgage or otherwise void on account of usury, the recent decisions in this State seem to demonstrate that it is necessary to clearly establish knowledge and assent on the part of the lender, and that no usury on the part of an agent is fatal to the validity of an obligation unless such assent is shown beyond a reasonable doubt. In the case under consideration, there is nothing in the evidence to justify the finding in support of such assent. (Stillman v. Northrup, 109 N. Y., 473, cited and approved in Baldwin v. Doying, 114 id., 453; Phillips v. Mackellar, 92 id., 34.)

In Stillman v. Northrup, cited above, the court says: “It was not sufficient for the defendants merely to show that plaintiff’s agent took and exacted the fifty dollars as a condition of the loan. But it was incumbent upon them to show that he took the fifty dollars with the knowledge and assent of the plaintiff, so that she/ at least, by acquiescence, became a party to the usurious exaction.”

The tendency and spirit of the cases above referred to, seem to overrule the decision in Wyeth v. Braniff (84 N. Y., 627) and to establish a more just and equitable rule than that there laid down. In Stillman v. Northrup, tbe court further decides that any subsequent knowledge, after tbe date of tbe making of tbe loan by tbe lender in regard to usury on tbe part of tbe agent in connection with tbe making thereof, even if proved, makes no fatal objection to tbe force and validity of tbe obligation.

Tbe judgment, therefore, should be reversed, with costs.

Pratt, J., concurred; Dykman, J'., not sitting.

Judgment reversed and new trial granted, costs to abide event.


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    THOMAS NELSON, Respondent, v. SARAH E. LODER, Appellant, and Others.

      Tender by a junior mortgagee to the holder of a prior lien with a demand for its assignment— the tender must be kept good.

    Pending an action to foreclose a first mortgage, a junior mortgagee tendered an amount sufficient to cover the mortgage debt and costs, and demanded an assignment of said mortgage. After the tender, he mingled the money so tendered with other money belonging to him and used it as his own.
    Held, that the first mortgage continued to draw interest.
    Appeal by tbe defendant Sarah E. Loder from a judgment, entered, after a trial at a Special Term held in "Westchester county, in tbe office of tbe clerk of tbe county of Westchester on April 9, 1889, whereby it was adjudged that tbe plaintiff have judgment against said Sarah E. Loder; that be, said plaintiff, be subrogated to the rights of tbe said Sarah E. Loder in and to tbe bond and mortgage held by her as assignee, and particularly mentioned in tbe complaint and decision in this case, upon tbe payment by tbe said plaintiff of tbe sum of $4,050. That said Sarah E. Loder bp required, within thirty days after tbe service of a copy of tbe judgment, and upon being furnished with a proper instrument for tbe purpose, to execute and deliver to tbe plaintiff an assignment of tbe bond and mortgage given by Josiab Gr. Clark and wife to the Manhattan Life Insurance Company on tbe 3d day of April, 1876, and now held by her as assignee thereof under tbe assignment made to her by Charles F. Brown, and dated tbe 3d day of June, 1879, upon being paid by said plaintiff the sum of $4,050, and also that she or her attorney give to the plaintiff a consent for the substitution of the said plaintiff as plaintiff and attorney in proper person in the action of foreclosure brought by her, and referred to in the complaint. That the plaintiff recover of said Sarah E. Loder his costs and disbursements in the action.
    The court found that a tender was made to the said Sarah E. Loder in redemption of the mortgage which she held, and which was a prior lien upon the premises to the one held by the plaintiff, and that the plaintiff has since been ready and willing to pay Sarah E. Loder the amount due on the mortgage, with interest and costs; but further found that, after the-tender was so made, the plaintiff deposited the money to his own credit in the bank in which he transacted his banking business, and in which, from time to time, he made deposits, gave checks thereon, and mingled the same with his other funds, and that he never kept the same separate and distinct from his other moneys.

      A. & & W. F. Cassedy, for the appellant.

      M. V. B. Travis, for the respondent.
   Barnard, P. J.:

The tender made in this ease was not one which was intended to discharge the lien and leave outstanding the debt secured by the lien security. It is not a case, therefore, which falls within Kortright v. Cady (21 N. Y., 343), or Tuthill v. Morris (81 id., 94), or Cass v. Higeribotam (100 id., 248). The facts in this case are that the plaintiff held a second mortgage on said estate, and the tender was made after foreclosure was instituted upon the first mortgage, and while the foreclosure action was proceeding to judgment, and was accompanied by a demand for an assignment of the security. The costs had not been adjusted, but an amount was tendered sufficient to cover the mortgage debt and costs. The plaintiff, after the tender, mingled the money so tendered with his own other money. He deposited it in his bank account and it was used by him as his own. The question is whether the tender stopped the interest. ¥e think it did not. The plaintiff had the use of his own money after the tender, and, legally, is chargeable with the interest upon it. He comes into a court of equity to compel the defendant Loder to assign the mortgage which he seeks to hold for all the interest due upon it, while he has received the interest on the tender since it was made. The Court of Appeals, in Tuthill v. Morris (81 N. Y., 94), held that when a party affirmatively asked to extinguish a lien by reason of a tender, the tender must be kept good. As between debtor and creditor, when, upon payment, the debtor is entitled to the possession of his property, a tender need not be kept good. (Cass v. Higenbotam, 100 N. Y., 248.) In the present case there was, as has been stated, no wish to discharge the lien, and no injury has resulted to the plaintiff by reason of the tender. Tie had his money in use after the tender for his own benefit. The costs of the foreclosure were not adjusted, and are not yet, and a tender without the means of determining the amount due which should destroy a lien, “would be in the highest degree unreasonable.” (Tuthill v. Morris, supra.)

The judgment should be modified by giving the relief asked for, but with the interest due to the date of the assignment, without costs of this action, and without costs of this appeal to either party.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment modified. Judgment to be settled by Justice Barnard.


author: Barnard, P. J.: Pratt, J. :

text:
    ANN C. CLARK, Respondent, v. ISABELLA E. SIMMONS and JAMES A. SIMMONS, Appellants, and Others.

      Foreclosure of a second mortgage covering land in New York and New Jersey — a sale ordered of land in New York already sold under a prior mortgage — a judgment for deficiency may be entered without selling the New Jersey lands.

    The holder of a second mortgage which covered lands, part of which was in the State of New York and part of which was in the State of New Jersey, obtained a judgment of foreclosure and sale directing the lands in each State to be sold, but before the sale, one of the defendants obtained an order modifying the judgment so as to exclude the lands in the State of New Jersey from the pro. visions of the judgment directing a sale. The judgment also provided that the mortgagee should have a judgment for any deficiency arising on the sale. The premises in the State of New York had already, prior to this time, been ■purchased by this second mortgagee upon a sale had under the foreclosure of a prior mortgage.

      Held, that the provision of the judgment directing a sale of the lands in the State of New York, although they had already been sold under a prior mortgage, was not objectionable.

    That the mortgagee was not bound to sell the land in the State of New Jersey before he could obtain a judgment on the bond against the mortgagor for the deficiency arising on the sale of the New York property.
    The provisions of the Revised Statutes and of section 1627 of the Code of Civil Procedure, relating to a judgment for a deficiency arising upon a sale, refers to such a sale as the courts in this State are authorized to order.
    Appeal by the defendants Isabella F. Simmons and James A. Simmons from an order of September 22,1888, entered in Orange county, which amended a judgment of foreclosure and sale by adding at the end of the description of the premises adjudged to be sold the following words: “ About one hundred and sixty acres of the premises herein firstly described are situated in New Jersey and cannot be included in the sale in this action,” and further directed that the referee herein, exclude said lands in New Jersey from the sale under said judgment.
    The appeal was also from an order of January 11, 1889, entered January 23,1889, in the office of the clerk of the county of Orange, denying a motion to resettle said order of September 22, 1888.

      WilUam FT. Dyhmcm, for the appellants.

      Foster <& Stephens, for the respondent.
   Barnard, P. J.:

The plaintiff held a second mortgage on land partly in this State and partly in New Jersey. The judgment of foreclosure and sale in this action directed the land in both States to be sold. Before the sale the defendant Simmons applied at Special Term to have the judgment modified so as to exclude the sale of the New Jersey land. This order was made. The premises in the State of New York had then been sold under the first mortgage and been purchased by one Conkey.

Conkey owned the second mortgage. The defendant Simmons also asked at the Special Term, that the judgment be vacated because the judgment had become merged in the fee so acquired by Conkey. This part of the ruling was denied. The judgment in this action provided that the plaintiff recover a judgment for the deficiency after the sale of the New York land. This part of the judgment was consented to when the judgment was entered, and no motion was made to change the decree in this respect.

The condition on the second sale, that it should be subject to Conkey’s rights acquired on the first sale, would manifestly convey a title subject to the payment of the amount due on the first mortgage. Conkey was the purchaser at the first sale and owned the second mortgage, and made the condition. No wrong was done and none intended. The entire bond was due on the second mortgage loan, and its reduction by a void sale did not injure those who weré bound to pay the entire bond. The plaintiff was not bound to sell the land in New Jersey before obtaining a judgment for the deficiency on the bond. Under the old practice an action at law on the bond and a foreclosure in equity could go on together. (Dunkley v. Van Buren, 3 Johns. Ch., 330.)

The object of the Revised Statutes and of the Code, section 1627, was to have one remedy by providing a judgment for a deficiency after sale. This means a sale that the courts of this State can order. The bond given to the plaintiff could be sued after the second sale, without going through a foreclosure as to the land in New Jersey.

The order should, therefore, be affirmed, with costs and disbursements as of one appeal.

Pratt, J., concurred; Dykman, J., not sitting.

Pratt, J. :

"We discover no irregularity in the proceedings of the plaintiff. The second mortgage was at all times subordinate to the first mortgage and to the rights acquired under it. Had the sale been first made under the second mortgage, no irregularity would have been claimed; yet the final result would have been the same. In that case, the sale would have been made subject to the first mortgage. In the present case, the purchaser occupies the place of the first mortgagee and has succeeded to his rights. The sale under the second mortgage was made subject to such rights.

The practice was proper and the appellant cannot be allowed the relief demanded.

The several orders appealed from affirmed, with costs.


text:
    STEPHEN B. M. STOKES, as Sole Trustee for the Benefit of MARY A. HEWETT, under the Last Will and Testament of CAROLINE L. STOKES, Respondent, v. RICHARD AMERMAN and Others, Appellants, Impleaded with the EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.

      Substituted trustee — authority of, to enforce ajudgment recovered by his predecessor — right of a creditor to recover the proportion of a premium of insurance, which exceeds $500, paid on a policy for the benefit of Ms dditor’s wife.

    A party appointed trustee under a will, in the place of a trustee hy whom a judgment has been recovered against his co-trustee for waste of the trust funds, becomes, by virtue of his appointment, vested with the legal title to such judgment and a judgment-creditor of the defaulting trustee. (
    Where a debtor applies for a policy of insurance upon his own life for the benefit of his wife, the annual premium paid for which policy amounts to over five hundred dollars a year, his creditor may, during the lifetime of the assured, maintain an action to recover so much of the premium paid hy the debtor, as exceeds five hundred dollars.

      Baron v. Brummer (100 N. Y., 373) distinguished.
    Appeal by tbe defendants, Richard Amerman, Eleanor Amerman and Frances H. Walker, from an interlocutory judgment, entered in tbe office of tbe clerk of tbe county of Kings on tbe 19tb day of July, 1889, overruling tbe demurrers interposed by said defendants to tbe plaintiff’s complaint, and adjudging that tbe plaintiff recover of the defendants tbe sum of sixty-nine dollars and ninety-nine cents, tbe costs of this action, and have judgment against tbe aforesaid defendants, unless 'the said defendants withdraw their said demurrer and answer the complaint herein within twenty days after the service of a copy of this judgment and notice of tbe entry thereof.
    Tbe action was brought to recover certain sums of money paid in tbe form of premiums of insurance upon a policy of‘insurance for tbe benefit of Eleanor Amerman, tbe wife of tbe assured, if she survived him, and, if not, for her child, Frances H. Walker, issued upon tbe life of her husband, Richard Amerman, and to obtain an adjudication that tbe plaintiff bad a lien on said policy and tbe benefits thereof to the extent of bis interest therein, and that such provision be made for the due enforcement and protection of his rights as may be just.

      Dmicl Willpox and L. E. OpchjTce, for the appellants.

      Charles J. Patterson, for the respondent,
   Barnard, P. J.:

The complaint states facts which make a good cause of action. The plaintiff is now the sole trustee under the last will and testament of Caroline L..Stokes, deceased.

The defendant Richard Amerman was once one of the trustees under that will, but for waste of the funds was permitted to resign, ■and the remaining trustees recovered a judgment against him for the amount of such waste and misappropriation of the trust funds.

This judgment was recovered on the 5th of November, 1886, and filed on the same day in the clerk’s office of the city of New York. Execution was at once issued, but was returned unsatisfied. The amount of the judgment was $1,537.58/ with interest from February 1, 1873.

The plaintiff was appointed sole trustee in 1881, and not only took the trust estate by force of the appointment, but took an assignment of the estate from the old trustee.

The plaintiff has the legal title to the judgment with power to sue upon it in his own name as trustee, and this makes him a judgment-creditor of the defendant in legal signification. In 1871, the defendant Eleanor Amerman caused her husband, the judgment-debtor, to be insured in the Equitable Life Assurance Society for $20,000 for her benefit if she survived her husband. The application was made by the debtor, and he has paid out of his property and funds ■over $500 in yearly premiums for each year. The husband and wife are still living. It is not necessary that the husband be dead, and that the wife survive to give- the creditor a right of action for the excess. The debtor’s money has been put into the policy. Chapter 80 of Laws of 1810, and the amendatory acts (Laws of 1858, chap. 187; Laws of 1870, chap. 277) make the loss payable to the wife, free of creditors’ claims in ease she survives her husband. Then follow the words which permit this action: “ But when the premium paid in any year out of the property or funds of the husband shall exceed five hundred dollars, such exemption from such claims, shall not apply to so much of said premium so paid as shall be in excess of five hundred dollars, but such excess, with the interest, thereon, shall inure to the benefit of his creditors.” Under this law the premium paid would all be subject to claim of creditors. The law only exempts $500 of yearly premium. In Baron v. Brummer (100 N. Y., 312), which was a precisely similar action to this one, the Court of Appeals held that payments in excess of $500 could not be reached by a creditor whose debt was contracted after the payment of the premiums sought to be reached. The court apparently saw no objection to the action itself being brought while both husband and wife were living.

Assuming a right of action, it is immaterial to discuss objections-which go merely to the form of the decree.

The judgment should, therefore, be affirmed with costs.

Dykman, J., concurred; Pratt, J., not sitting.


author: Dykman, J.:

text:
    JOHN R. LENT and HENRY M. TAYLOR, Special Guardian of JOHN R. LENT, Respondents, v. NEW YORK AND MASSACHUSETTS RAILWAY COMPANY, Appellant.

      Eminent domain — on confirmation of the report of the commissioners of appraisaV the relation of vendor and, purchaser ao'ises.

    Wliere a railroad corporation, in proceedings for the condemnation of land by the exercise of the right of eminent domain, proceeds so far as to procure the confirmation of the report of the commissioners of appraisal, the relation of vendor and vendee becomes thereby established between the parties whose land is taken, and the corporation, and the latter is bound to pay the award to the former under the provisions of section 18 of chapter 140 of the Laws of 1850, as amended by chapter 198 of the Laws of 1876.
    Appeal by the defendant from a final judgment, entered after a. trial at a Special Term held in Dutchess county, iu the office of the clerk of the county of Dutchess on the 1st day of May, 1889, in favor of the plaintiffs and against the defendant for the sum of $15,192.31, with fifty dollars costs; and also from an interlocutory-order made in such action on April 6, 1889, and entered in said clerk’s office on the same day, directing that the demurrer 4o the complaint be overruled and that judgment be entered in favor of the plaintiffs, with leave to the défendant to withdraw ■the demurrer and answer the complaint within twenty days on payment of costs, and that in default of its so doing, that final judgment be entered for the plaintiff.
    The complaint alleged that proceedings were had in the Supreme Court to acquire certain lands in the city of Poughkeepsie, of which the plaintiff John R. Lent was in part an owner; that the plaintiff Henry M. Taylor was appointed special guardian of John R. Lent by the court to attend to his interests in the proceedings in the premises; that the commissioners fixed the value of the interest of the said John R. Lent in said lands at $14,270.79, and determined that the sum of $300 was the amount which should be paid to said Henry M. Taylor as special guardian for his costs, -expenses and counsel fees in said matter, which report of such commissioners was confirmed by an order made on the 13th day of August, 1888, upon a motion made by the defendant therefor.

      Homer A. Nelson and O. JD. M. Baker, for the appellant.

      Henry H. Taylor, for the respondents.
   Dykman, J.:

This is an action upon the award of commissioners appointed to 'determine the compensation to be made to John R. Lent for certain lands and premises belonging to him and proposed to be taken by the defendant for the purposes of its incorporation in addition to certain other lands already condemned for such purpose.

The complaint alleged the incorporation of the defendant; the presentation of a petition by the company praying for the appointment of commissioners of appraisal for the land of John R. Lent; ■the appointment of three commissioners for that purpose and the appointment of Henry M. Taylor, one of the plaintiffs, as special guardian of John R. Lent, the other plaintiff in this action, in such proceedings. Then the complaint stated the hearing before the ■commissioners; the making of their report on the 14th day of July, 1888, of $14,270.79 in favor -of John R. Lent, and of $300 to H. M. Taylor as such special guardian; the confirmation of such report, on motion of the defendant, by an order of the court duly entered in the office of the county clerk of Dutchess county, which directed the defendant to pay to Henry M. Taylor, as such special guardian, the award of $14,270.79 as well as the sum of $300 so-awarded to him as special guardian. The complaint finally set up-the appeal hy the defendant to the General Term of the Supreme. Court from the report of the commissioners, and the order confirming the same, and the affirmance of both, and then demanded judgment for both sums so awarded by the commissioners. To this-complaint the defendant objected by demurrer upon five specified grounds.

First. That plaintiffs have no legal capacity to sue.

Second. That there is a misjoinder of parties plaintiff, and,

Third. That there is a defect of parties plaintiff.

Fourth. That causes of action have been improperly united. That a cause of action in favor of John R. Lent, and a cause of action in favor of Henry M. Taylor, as special guardian of John R. Lent,, have been united in one complaint.

Fifth. That the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was overruled at Special Term and the defendant, has appealed from the final judgment, awarding to the plaintiffs the-relief demanded in the complaint, and also from the interlocutory order and judgment entered upon the decision of the Special Term. After a most thorough and careful examination we have failed to-discover any merit in the defendant’s demurrer, or in the questions-of law presented thereby. We can find no reason why the plaintiffs-have not legal capacity to sue, and the defendant has pointed out. none, as he is required to do by section 490 of the Code of Civil Procedure.

The second and third specification of grounds in the demurrer present the same question respecting the parties plaintiff, and in relation thereto we deem it sufficient to say that, under the order of' affirmance of the General Term, the whole amount was made payable to the plaintiff, Henry M. Taylor, and he could, therefore,, maintain this action in his own name alone. But the whole amount did not belong to him, and when he received the same, he would. hold the great part of the same for John R. Lent, to whom it belonged. While, therefore, Mr. Taylor might maintain the action alone under section' 449 of the Code, yet, as John R. Lent had an interest in the subject of the action and in obtaining the judgment demanded, it was proper to join him as plaintiff. (Code, § 446; Hubbell v. Medbury, 53 N. Y., 102.)

In relation to the fifth ground specified by the demurrer, it is deemed sufficient to say that the complaint, after alleging the facts in relation to the petition for the appointment of commissioners and their appointment, and the report which they made, then states that such report was presented to the court, and on motion of the defendant it was in all things confirmed.

The rule seems to be now that if the company, in proceedings like these, elect to proceed and procure the confirmation of the report of the commissioners of appraisal, the relation of vendor and vendee becomes thus established between the parties, and the corpo" ration is bound to pay the award. (Matter of Rhinebeck and Connecticut R. R. Co., 67 N. Y., 242.

In our view, this salutary principle has not been abrogated or affected by the amendment of May 6, 1876 (chap. 198), and our conclusion is that the judgments and order, from which this appeal was taken, should be affirmed, with one bill of costs on this appeal.

Pratt, J., concurred in the result.

Order overruling demurrer to complaint and judgment thereon affirmed, with costs.


text:
    MARGARET RUPPEL, Appellant, v. MARY E. SCHLEGEL, Individually and as Executrix of the Last Will and Testament of ADAM SCHLEGEL, Deceased, and the ROMAN CATHOLIC CHURCH OF THE MOST HOLY TRINITY, in Montrose Avenue, Brooklyn, E. D.

      Who may not maintain an action for the construction of a will.

    An action was brought by the sister of a testator, alleging that she and certain other parties defendants in the action became seized, in fee simple absolute, of the title to certain land, of which the said testator died seized, and asking judgment for the construction of the meaning and validity of the will in that respect.

      Held, that the plaintiff occupied no such position as authorized the bringing of such an action by her.

      Appeal by the plaintiff from a judgment dismissing the com-' plaint, entered in the office of the clerk of Kings county on the 23d day of March, 1889.
    The action was brought by the surviving sister of a decedent, who claimed that, upon his death, the plaintiff and certain of the defendants became seized, in fee simple absolute, of the title of certain lands, of which the decedent died seized and possessed as tenants in common, subject only to a life estate therein of the widow, Mary E. Schlegel, one of the defendants in the action. This claim was made under the fifth residuary clause of the will of the decedent, which was in the words and language following :
    ' “ After the" death of my said wife, Mary Elizabeth Schlegel, all the rest, residue and remainder of the estate by her left, I give and bequeath to the Roman Catholic Church of the Most Holy Trinity, in Montrose Ave., Brooklyn, E. IX, but under the following ordination: A. That in each and every year one High Mass shall be celebrated for my poor soul; and, also, after the decease of my said wife one High Mass shall be celebrated every year for the soul of my wife. B. And a part of the said estate shall be used for to pay for poor students intending to become a Catholic priest of Catholic teacher. C. And a part of said estate I ordain shall be used for starting a newspaper for the interest of the Catholic people.”
    It was claimed by the plaintiff that this claus.e of the will was void, and that the trust therein deemed to be created, together with the devise, limitation and remainder therein given, was invalid, inoperative and of no effect as a testamentary disposition of the lands and real estate in question.

      D. Nemiers, for the appellant.

      Thomas Young, for the respondents.
   Dykman, J.:

The judgment from which this appeal is taken, is right and should be affirmed.

Courts of equity entertain jurisdiction over actions for the construction of doubtful provisions in last wills and testaments in behalf of beneficiaries, executors and trustees, but the plaintiff occupiés no such position or relation.

If it be our duty to examine the merits, we concur iu the reasons -assigned by the surrogate and the court at Special Term.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Péatt, J., not sitting.

Decree affirmed, with costs.