author: Cullen, J.: Dykman, J.

text:
    William E. Russell and Another, Respondents, v. Sarah E. Buckhout, as Administratrix, etc., of Eckford Webb, Deceased, Appellant.

      ‘Owner of real estate and a contractor — not in the relation of master and servant — enforcement of performance of a contract of a decedent for the erection of a building.

    The relation of master and servant does not exist between the owner of real estate and a person with whom he contracts to erect a building thereon.

      Semble, that where a decedent contracts for the erection of a building on land, his heir at law can enforce the performance of the contract at the expense of the personal estate of the deceased.
    Dykman, J., dissenting.
    Appeal by the defendant, Sarah E. Buckhout, as administratrix, etc., of Eckford Webb, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of tlie county of Kings on the 24th day of December, 1894, upon the report of a referee.

      Louis O. Van Doren and Fred. J. Lancaster, for the appellant.

      C. & T. Perry, for the respondents.
   Cullen, J.:

There was nothing “ personal ” in this contract in suit. It was a mere contract to do certain work for a stipulated price. The plaintiffs were not to perform it personally, but at least in part through their workmen. No relation of master and servant existed between the parties.

It is true that upon the death of Webb the house went by devise to Mrs. Ranken, and his personal representatives had no interest in it. But this would be the case in every contract for work on real estate where the testator does not devise the realty to his executors, or direct an equitable conversion. In Lacy v. Getman (119 N. Y. 111) Judge Finch does state that the executor had no power to put plaintiff at work on the land, or interest in it. But I think the decision does not proceed on that ground, but on the ground that death would substitute a new master.

It has been held that where the deceased had contracted for the erection of a building on land, the heir at law could enforce the performance of the contract at the expense of the personal estate. .(3 Williams Executors, 1829.) '

Brown, P. J., concurred, but thought the plaintiffs should not have costs.

Dykman, J.

(dissenting):

The plaintiffs presented to the defendant, who is the administratrix of Eckford Webb, deceased, a claim for services and material performed and furnished in the reparation of a house belonging to Webb.

The claim was referred under tire statute, and the referee has found that the contract for the work was made by Webb in his lifetime, and that he agreed to pay the plaintiffs $676 therefor.

The referee has further found that the plaintiffs entered upon the performance of their contract and continued the work until September 27, 1893, when Mr. Webb died. Then the work was suspended, but -was afterwards resumed and completed in the month of December, 1893.

According to the testimony of one of the plaintiffs the value of the labor and materials furnished previous to the deatli of Webb was $150 or $175.

There is no material dispute about the facts, and the question involved is whether the plaintiffs can recover against the administratrix for work done and the materials furnished subsequent to the death of Webb.

• The house in winch the rejiairs were made by the plaintiffs was devised to Jessie Belknap Ranken by Webb, and she gave the order for the resumption of the work after the death of Webb.

The contentiop of the administratrix is that the estate is only liable for the work and material furnished previous to the death of her intestate, and that the owner of the property is liable to pay for all that was done by her order subsequent to the death of Webb.

The testimony respecting the original contract with Webb is quite unsatisfactory. It "was given by the plaintiff Russell and the witness Ranken, both of whom are deeply-interested and anxious to charge the estate with the claim. Independent of the consideration of such interest, however, it is impossible to gather from their testimony the fact that when the final estimate was submitted to Webb he gave the order to proceed with the work. In fact, our understanding of the evidence is, that Webb was then in an upper room sick and did not see Russell, and that Mrs. Ranken gave him the direction to proceed.

But the referee has found the fact according to the plaintiffs’ contention, and as we intend to place our decision upon a different ground we will pursue that subject no further.

As we have already said, the work under the contract was done upon a house which belonged to Mrs. Ranken after the death of Webb, and the work after his death was done by the order of Mrs. Rankin. The administratrix of Webb, therefore, had no control of the work and no authority over the property. She had no right to enter the house or give any direction to the plaintiffs, and the estate had no interest in the performance of the contract, and the defendant in her representative character could derive no benefit therefrom.

Subsequent to the death of Webb the labor was upon a house of Mrs. Ranken, under her direction and control, for her benefit and by her order. The law will imply a contract on her part to pay for such work, and justice requires her to do so.

The contract in this case was an undertaking which required the exercise of peculiar skill and knowledge, which the plaintiffs were supposed to possess, and in such cases there has been a general concurrence of authority that the contract relations of the parties are severed and dissolved by the death of the person employed.

The rule is well settled that the death of a servant terminates the contract of employment independent of the question whether the undertaking required the exercise of skill or the rendition of manual services, and now the rule is held applicable to the master.. (Lacy v. Getman, 119 N. Y. 112.)

The case of Lacy v. Getman (119 N. Y. 112) is much like this. The plaintiff there made a contract with the defendants’ testator to work upon his farm for one year for $200. He entered upon the service in March and worked until the middle of July, when his employer died. By his last will and testament the testator devised and bequeathed to his widow a life estate in the farm and all his personal property.

. The executrix did not employ the plaintiff, but he continued to work upon the farm under the direction of the widow until the end of the year, and then commenced an action against the executrix for his services during the entire year.

The Court of Appeals decided that the rule that the relation of master and servant is dissolved by the death of either party applies in cases where the relation may be deemed purely personal and involves neither property rights nor independent action, and further that the rule is applicable both to the contract of the master and that of the servant, and includes as well cases where the services are those of unskilled as those where the services are of skilled labor.

The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiffs consent to reduce the judgment to $175 and the disbursements subsequent to the order of reference. If such stipulation be made, then the judgment, so modified, is affirmed.

Judgment modified so as to allow plaintiffs’ disbursements, but no costs, and as so modified affirmed, without costs of appeal.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Valentine Cornwell, who Sues as Well for Himself as for the Other Heirs of John Cornwell, Deceased, Appellant, v. Charles H. Clement, Respondent.

      Champerty Act — when a deed is void thereunder —presumption in favor of a complaint demurred to — retaining benefits under a contmct and asserting Us invalidity.

    To render a deed void under the Champerty Act the land granted thereby must be in the actual possession of the person claiming the same under a title adverse to that of the grantor. The language of such act must be strictly construed on account of its severity; under it possession for a single day by a person claiming under a title adverse to that of the grantor, whether such possession be known or unknown, avoids the conveyance.
    On the argument of a demurrer to a complaint, the complaint is deemed to state every resultant fact which, by reasonable intendment, can be inferred from the allegations which it contains.
    If a person receives a deed void for champerty he is not authorized to use it for his own benefit and then set up its invalidity to enable him to retain the benefits he has derived from it, nor can a person be permitted to receive money under a contract and then refuse to account therefor on the ground that the arrangement under which he received the money was void in law.
    Appeal by the plaintiff, Yalentine Cornwell, who sues as well for himself as for the other heirs of John Cornwell, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens upon the decision of the court rendered at the Kings County Special Term on the 14th day of December, 1894, sustaining the defendant’s demurrer to the complaint, and dismissing the complaint unless the plaintiff serve an amended complaint and pay costs.

      E. F. & E. G. Bullard, for the appellant.

      Henry A. Monfort, for the respondent.
   Dykman, J.:

This is an appeal by the plaintiff from a judgment sustaining a demurrer to the complaint in the action, with leave to amend the isame on payment of costs.

The complaint alleges that on the 22d day of July, 1878, the heirs of John Cornwell, deceased, of whom the plaintiff is one, were the owners of certain lands in this State, but that none of the heirs were then in the actual possession of such premises, and the same were claimed by third parties adverse to such heirs.

That on or about the day named an agreement was made between such heirs and the defendant, whereby it was agreed that the heirs should convey the undivided half of the premises to the defendant, and in consideration thereof he would institute all proper suits and proceedings at law or in equity to recover said real property, and that he would employ, at his own expense, attorneys for that purpose.

That accordingly such conveyance was made by the heirs to the defendant, who accepted the same under the contract. That subsequently the defendant brought an action for the partition of the land, and fraudulently procured a part thereof to be sold for an inadequate price, and another part to be allotted to himself, which he subsequently sold for $9,500.

The complaint then charges that the defendant became the trustee for the heirs in procuring a portion of the promises to be allotted to himself, and that he held the title to such portion charged with a trust for their benefit. That the sale thereof was made in fraud of their rights -but to a Iona fide purchaser.

Then the complaint contains a statement of the number of the grantors in the deed to the defendant; that they all have a common interest with the plaintiff in the matter involved, and they are so numerous that it may be impracticable to bring them all before the court, and the plaintiff brings this action in his own name for the benefit of himself and all others of those grantors and their heirs who shall come in and pay their share of the expense of the action.

For relief the plaintiff, among other things, prays that the defendant may be compelled to account for all of his transactions under the contract with the heirs.

The defendant demurred to the complaint on the ground that it failed to state a cause of action and that there was a defect of parties.

In relation to the question of parties it is sufficient to say that the suit is properly brought in the name of the plaintiff, under the latter part of section 448 of the Code of Civil Procedure.

The next and chief contention of the defendant is that the complaint states no cause of action against him, because the deed whicit he received from the heirs of John Cornwell was void under the Champerty Act since the premises described in the deed were held adversely at the time of its execution and delivery.

The statute which the defendant invokes is this: “Every grant of lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” (1 R. S. p. 739, § 147.)

To render a deed void under that statute, the land which it grants must be in the actual possession of a person claiming under a title adverse to that of the grantor, and that indispensable fact does not appear from this complaint. It is not stated in the complaint that the premises were, at the time of the delivery of the deed in the possession of any one, nor that any one claimed any title adverse to that of the grantors. It is simply stated that the premises were claimed by third parties adverse to the heirs. That statement may be true and yet the claim of such third parties may not be based upon a title adverse to that of the heirs. The statement is entirely insufficient to show that the premises were held adversely within this statute. (Clarke v. Hughes, 13 Barb. 151.) The language of this act is very significant and must be strictly construed by reason of its severity. Under it the possession for a single day by a person claiming under a title adverse to that of the grantor, whether such possession be known or unknown, avoids a conveyance. (Crary v. Goodman, 22 N. Y. 173.)

As the complaint will be deemed to state every resultant fact which by reasonable intendment can be inferred from the allegations which it contains (Zebley v. F. L. & T. Co., 139 N. Y. 467), it may be fairly implied from the complaint that the grantors in the deed owned the premises conveyed, and were entitled to the possession by reason of such ownership, but that they were claimed by third parties who were not in possession. At any rate the defendant cannot claim that such third parties were in possession because the complaint nowhere so states.

It follows, therefore, that the deed to the defendant does not fall under the condemnation of the Champerty Act, and is not void. Moreover, the deed was valid and operative and conveyed the title as between the grantors and the defendant, even though the premises were sold adversely within the meaning of the statute. It is only void as against those who have a right under the statute. (Pepper v. Haight, 20 Barb. 439 ; Livingston v. Proseus, 2 Hill, 528 ; Van Hoesen v. Benham, 15 Wend. 164; Poor v. Horton, 15 Barb. 497.) There was no difficulty in carrying out the arrangement made by the parties for the recovery of the land. The defendant could bring suits in the name of his grantors against those who held adversely, and in his own name against those who did not so hold. (Howard v. Howard, 17 Barb. 665 ; Poor v. Horton, 15 id. 497.)

It is the effort of the defendant to employ the statute to aid him in effectuating his purpose to perpetuate a fraud upon his grantors. He has received a deed of conveyance which constituted him a tenant in common with his grantors. If that deed was void he was not authorized to use it for his own benefit, and then set up its invalidity to enable him to retain the benefits he had derived from it, and thus cheat his grantors. He executed the contract and derived money from the .sale of the land, and a portion of that money belongs in equity to his grantors. He cannot be permitted to receive money under his contract, and then refuse to account therefor to his co-tenants, because the arrangement under which he received the money was void in law. That would enable him to take advantage of his own wrong, which is abhorrent to equity. The statute invoked was not made for the defendant. It was a re-enactment of the common law for the protection and security of persons in actual possession of land, claiming the same under a specific title to the end that such persons should not be disturbed and annoyed by the purchaser of pretended titles.

The defendant occupies no such position. He was not in possession of' the land and made no claim to it, and his deed of conveyance was valid and not void as between him and his grantors.

If it be necessary to the circumvention of the fraud, which the •defendant is endeavoring to practice upon his co-tenants, lie may be treated in equity as a trustee ex maleficio, and a trust may be impressed upon the property allotted to the defendant to subserve the purposes of justice. The procurement by the defendant of the ’ allotment of a portion of the premises to himself was a palpable fraud upon his grantors.

Obviously, therefore, the complaint contains allegations sufficient to enable the court to administer the relief which equity requires, and compel the defendant to account for the money he has received in the execution of the contract he made with Ms grantors.

The judgment should be reversed, with costs, and the demurrer should be overruled, with costs, with leave to the defendant to answer on payment of all the costs in twenty days after the service of the order of reversal.

Brown, P. J., concurred; Cullen, J., not sitting.

Judgment reversed, with costs, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.


text:
    In the Matter of the Petition of The City of Brooklyn, Respondent, for a Decree Compelling Charles Franz, Appellant, to Take Down and Remove a Certain Frame or Wooden Building Erected and Maintained Within the Fire Limits of Said City.

      Section 51 of title 14 of chapter 583 of 1888 is unconstitutional — deprivation of property without notice — due process of 1cm — chm'ter of Brooklyn — limitation oj the use of property.

    Deprivation of property without due process of law is inhibited by both tho Federal and State Constitutions.
    While the term “ due process of law ” may not be susceptible of a precise definition which will include all cases, yet it always requires an opportunity to be heal’d. Notice of some kind is essential, and, because there is no provision in section 51 of title 14 of the charter of the city of Brooklyn (Chap. 583 of 18881 for notice or an opportunity to be heard, it is violative of the constitutional provisions for the protection of property rights.
    The fact that in a particular case thereunder notice was given is insufficient to sustain the proceeding authorized thereby so as to answer the requirements of the Constitution; the statute itself must confer the right to notice.
    Semble, that where the State simply limits the use of property in furtherance of the public welfare, no notice to the owner is necessary.
    Appeal by Charles Franz from a decree of the City Court of Brooklyn in favor of the petitioner, entered in the office of the clerk of the county of -Kings on the 17th day of November, 1894, upon the decision of the court rendered after a trial at the Special Term, of the City Court of Brooklyn, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 30th day of June, 189d, denying his motion to dismiss the proceeding.

      John R. Kuhn, for the appellant.

      Albert G. McDonald and F. S. Angell, for the respondent.
   Dykman, J.:

This proceeding was instituted in the City Court of Brooklyn upon a petition for the removal of a frame building from the lot of the defendant in Kosciusko street in that city.

The charge against the defendant is that he has erected a frame structure within the fire limits of the city in violation of the city charter.

The statute upon which the prosecution is based is this: “-The Supreme Court of the State of New York, the County Court of the county of Kings and the City Court of Brooklyn shall, upon petition, respectively have power and jurisdiction to adjudge and decree that any store, storehouse, dwelling or other building that has or may hereafter become dangerous or insecure, or any building erected or altered, or in the course of erection or alteration, in violation of the provisions of this title shall be taken down and removed, or repaired and supported in a proper manner. Any owner, agent, lessee or occupant of any building against which a decree shall be made, as hereinbefore provided, who shall neglect, refuse or fail to comply with the terms of any such decree shall be deemed guilty of contempt, and be punished as now provided by law for the punishment of contempt.” (Laws of 1888, chap. 583, tit. Id, § 51, Brooklyn City Charter.)

The foregoing statute assumes to confer upon certain courts the power to order the destruction or removal of any building which has or may become dangerous in violation of the city charter, and the objection raised against it is that it makes no provision for any notice to the owner of such building, or for any opportunity to be heard in the proceedings for the destruction of his property.

We think the objection is well founded. The deprivation of property without due process of law is inhibited by both the Federal and State Constitutions. "While the term due process of law ” may not be susceptible of a precise definition which will include all cases, yet it has ever been held to require an opportunity to be heard. Notice of some kind is essential, and because there is no provision in this statute for a notice or an opportunity to be heard, it is violative of the constitutional provisions for the protection of property rights. (Stuart v. Palmer, 14 N. Y. 190.)

The fact that notice was given to the defendant of the proceedings in this case is insufficient to meet the difficulty. To answer the requirements of the Constitution the statute itself must confer the right to a notice.

We have not overlooked the fact that there are numerous statutes in this State which subject the owners of buildings, both public and private, to many limitations and requirements and entail upon them additional expense. In crowded cities buildings cannot be constructed, within certain districts, of inflammable materials. Fire escapes are required and water must be introduced upon each floor of certain houses. These are but examples, and under such statutory provisions the owner is entitled to no compensation for the increased expense to which he is subjected, and no provision is made for any notice or opportunity to be heard.

The distinction is this: Such statutes only regulate the use of property, while the statute under review provides for and contemplates its destruction without compensation. It actually devotes private property to the public. In its enforcement the State may destroy the property of a citizen without remuneration and without notice, and that is taking the property in the constitutional sense. It is much more than a circumscription and limitation of the use of property which may be justified under the police power of the State. .It is annihilation and destruction.

Under the police power the use of property may be subjected to restraints for the welfare of the public which will involve expense, without notice and without compensation, but property cannot be destroyed for such purpose without due process of law.

The decree should be reversed, with costs.

Brown, P. J., and Cullen, J\, concurred.

Decree reversed, with costs.


author: Cullen, J.:

text:
    In the Matter of the Petition of William H. Janes to Revoke the Probate of Certain Clauses of the Last Will and Testament of Eckford Webb, Deceased. William H. Janes, Petitioner and Appellant; Jessie Belknap Ranken, Respondent.

      Will — legatee under residuary oíame, a contestant —false statement made to a testator by a beneficia/ry as to her being unmarried, when immaterial.

    A legatee under the residuary clause of a will has sufficient interest to maintain a proceeding to revoke the probate of certain of its clauses beneficial to a housekeeper of the testator, upon allegations that they were procured by fraud and deceit.
    A provision made by a testator for a housekeeper, whom he believed to be unmarried, in a case where it appeared that the testator had no intention of marrying her, and only desired her care and her society, will not be avoided to her detriment by reason of her false statement to him that she was unmarried.
    Appeal by the petitioner, William H. Janes, from an order and decree of the Surrogate’s Court of the county of Kings, entered in said court on the 10th day of December, 1894, granting the motion of the respondent, Jessie Belknap Ranken, to dismiss a proceeding to revoke the probate of certain parts of the will of Eckford Webb, deceased, which made bequests to her.

      Louis O. Van Doren and H. B. Twombly, for the petitioner, appellant.

      A. H. Dailey, for the respondent.
   Cullen, J.:

This is an appeal from a decree of the surrogate of Kings county denying the petition of the appellant to revoke the probate of certain clauses of the will of the testator in favor of the respondent on the ground that they were procured by fraud and deceit practiced by the respondent in personating herself as a single woman, while as a matter of fact she was married. We have no doubt that this proceeding will lie and that the petitioner, as legatee under the residuary clause, has sufficient interest to maintain the proceeding. At the close of the petitioner’s case, without calling on the respondent for proof, the surrogate denied the application. On this appeal the matter comes before us substantially for a rehearing on the facts, and we must decide whether the case made by the petitioner established a fraud or imposition on the testator, and, secondly,, whether the deceit was such as to avoid the testamentary provisions-in respondent’s behalf.

The testator was over sixty-five years old. He had no immediate family, his wife and children having died many years before. He was excessively corpulent and required many attentions to his personal wants. He kept house and had had a housekeeper whom he had discharged in April, 1889, upon her announcement of her intention to marry. The proof, on the part of the petitioner,, showed the discharge of the previous housekeeper for the reason, stated, and also declarations of the deceased that he would not have a married woman in his service in that position, and that a married woman could not properly attend to his wants. Evidence was-given tending to show that the respondent, knowing the aversion of the deceased to the employment of a married woman, and expecting to share in his bounty, represented herself as single and obtained the position as housekeeper. She went into the employment of deceased in August, 1891, and remained with him in such employment till the death of the testator in August, 1893. By his will dated August 20, 1891, the deceased made the following provisions for the respondent:

Third. I give, devise and bequeath to Miss Jessie Belknap Ranken, provided she remains with me up to the time of my decease, the house and lot known as number seventy-eight (18) Rush street, in the nineteenth ward of the city of Brooklyn, together with the sum of five thousand dollars and all the pictures, piano and household furniture remaining in said house at the'time of my death, to have and to-hold the same to her, her heirs, executors, administrators and assigns-forever. The foregoing devise and bequest are made by me to the said Jessie Belknap Ranken out of respect for her and her services and kindness to me, and with the expectation that she will remain with, me as long as I live. If, however, the said Jessie Belknap Ranken shall not remain with me up to the time of my decease, then the said devise and bequest to her shall be void and of no effect,” and also-one-third of his residuary estate subject to the like conditions that-she should live with him till his decease. If the deceased was-deceived as to the fact of the respondent being married, we think that that fact itself, considering the circumstances and the relation of the parties, would not avoid the provisions of the will in her favor. The testator was not opposed to marriage in itself, nor did he contemplate any relation with the respondent to which her marriage would be a bar. He was not her suitor. His objection to having a married woman in his employ was based simply on his belief that a married woman could not give him the attention and service that he required. What dictated his bounty towards the-respondent he himself has stated, not love, not affection, but out of respect for her, and her services and kindness to me, and with the expectation that she will remain with me as long as I live.” He was careful to provide against her abandonment of him or his dissatisfaction with and discharge of her by the proviso that the legacy and devise should be void in case she did not remain with him until his death. Therefore, if deceived as to her marriage, that deception at most led to her employment; his bounty was due not to the fact that she was single, but that she served him well, and that she did serve him well appears not only in the evidence in the case but by the fact that he retained her till his death. The case, therefore, has no analogy to a gift to a supposed wife, or to a fiancée where a previous marriage would be a bar to the relationship, which relationship was the moving cause of the legacy. It is further to be borne in mind that the will in this respect is but a reproduction of similar provisions made in favor of a previous housekeeper.

But we do not believe that the deceased was deceived as to the fact of the respondent’s being a married woman. The evidence to establish this deception and imposture rests principally on the testimony of Mrs. Russel], whose story is full of contradictions and in many particulars wholly improbable. From her we learn that for six months before the occasion when the respondent and witness visited Mr. Webb to obtain respondent employment, the deceased had been taking the respondent out driving, though witness never saw Webb during this time at the residence of respondent and her husband. According to Mrs. Russell’s story, when the first visit to Webb was proposed, the respondent told witness what provisions Webb liad made in bis will for Ms former housekeeper and what provisions she would obtain for herself, and singularly in these statements the respondent seems to have been entirely accurate. If the story of this witness is true it is perfectly palpable that the whole subject had been discussed and the terms agreed upon between Webb and respondent before the latter ever spoke to the witness about the matter. Nor can it be doubted that during these meetings of Webb with the woman whom he took out driving, at whose house he was never seen, he had gained such information concerning her as he desired. It is not necessary to suspect any impropriety in the relations between the deceased and the respondent, though if there were such it would not invalidate the will. (In re Mondorf, 110 N. Y. 450.) The deceased, so far as domestic life, was practically alone in the world, and seems to have had but little resources within himself of amusement or enjoyment. Undoubtedly he required from his housekeeper far more than mere supervision of his household affairs. „ In his condition he may very well have wanted the company and kindness of a woman, as well as her services, but not her meretricious favors. Conscious that his age and physical infirmities precluded him from obtaining such coinpany by any personal attractions, he sought by the offer of compensation to obtain the kindly services of some woman during his declining years. This respondent seems to have discharged the requirements of deceased to his satisfaction, and we see nothing in the evidence in this case that compels us to reverse his judgment.

The decree appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Decree of surrogate affirmed, with costs.


text:
    Charles W. Denike, Respondent, v. Henry P. De Graaf, Appellant.

      Principal and agent — sealed instrument — an action for deceit, by one not namied in it, is based upon the contract and cannot be maintained.

    Where an agreement is executed under seal it cannot be shown that any of the parties thereto acted for a principal not named in the instrument.
    Where a person not named in an instrument brings an action to recover damages for alleged fraudulent representations inducing its execution, stating that one who executed the instrument was his agent, and that the plaintiff was induced by deceit to enter into the contract, such an action is based upon the contract, is an affirmance of it, and cannot be maintained by the alleged principal.
    The right to affirm and to disaffirm a contract must vest in the same person, and it is impossible to separate these rights.
    As the plaintiff, a stranger in law to the instrument, could not affirm or disaffirm the contract, he could not recover damages for deceit unless such cause of action was specially assigned to him by his agent who actually executed the instrument.
    Appeal by the defendant, Henry P. De Graaf, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of October, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 5th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      James R. Marvin, for the appellant.

      It. J. Morris, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff entered on the verdict of the jury at Circuit, and from an order denying defendant’s motion for a new trial.

The action is to recover damages for deceit in the contract for the exchange of lands. The complaint alleges that one Burnham, acting for the plaintiff, entered into an agreement with the defendant under their hands and seals for the exchange of certain lands, and that the plaintiff was induced to enter into such contract and carry it out by the false representation of the defendant that the land he agreed to convey had cost him $125,000 in trade. The written agreement produced on the trial was between Burnham individually and the defendant, and was under seal.

The first question presented is whether the plaintiff can maintain this action. That he could have maintained no action on the contract is unquestionable, because as to agreements under seal it is not permitted to show that any of the parties acted as agent for a principal not named in the instrument. (Briggs v. Partridge, 64 N. Y. 364 ; Schaefer v. Henkel, 75 id. 378.)

The plaintiff concedes this proposition, but contends that the rule only applies when the action is brought directly on the sealed instrument, and that this action is not on the contract, but for fraud in inducing him to enter into the contract. We are referred to no authority in support of this claim nor can we find any. The plaintiff was not in law a party to the contract. Though Burnham was his agent the plaintiff was no wise bound in the contract or liable for its non-performance. In Squier v. Norris (1 Lans. 282) the husband, with the authority of his wife, made a contract under seal in his own name for a sale of the wife’s land and she received a sum of money on account of the sale. Yet it was held that a performance of the contract by the wife could not be enforced. We cannot see how a party can be defrauded by the execution of a contract between strangers, and such in law were the parties to the contract to this plaintiff. Upon discovery of a fraud the party defrauded has two remedies. He may disaffirm the contract, and, tendering the return of what he has received under it, may compel the other party to restore what he has obtained from. it. Or he may affirm the contract, stand on his bargain and recover as damages the difference between the actual value of what he has received and what would have been its value had the fraudulent representations been proved. (Vail v. Reynolds, 118 N. Y. 297.)

As Burnham was the only party who could have enforced the contract it would seem clear that he was the only person who could disaffirm it. The right to disaffirm could not well vest in one person and a right to recover damages in another. Further, as said in Vail v. Reynolds, the action for deceit is an affirmance of the contract ; the action is ip fact based on the contract. Practically the representation is a warranty which the law incorporates into the contract on account of tlie fraud of tlie defendant. It is impossible to separate tlie title to a right of action for such damages from the title to the contract itself, except by an assignment.

The judgment and order denying motion for a new trial should he reversed and the complaint dismissed, with costs.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment reversed and complaint dismissed, with costs.


text:
    The Village of Flushing, Respondent, v. Patrick Carraher, Appellant.

      Flushing board of health — cannot malee ordinances reserving a right to license a thing prohibited by the ordinance — the existence of a nuisance may be contested in the courts. *
    Tlie board of health of the village of Flushing, deriving its powers from section 21 of chapter 661 of the Laws of 1893, enacted the following ordinance: “No cows shall be kept within two hundred (200) feet of any dwelling in the village of Flushing without a special permit obtained from the Board of Health.”
    To recover a penalty imposed for a violation of this ordinance an action was brought, in which the plaintiff recovered.
    Meld, that the ordinance was invalid;
    That while under the powers given to the board by statute it would have been competent for it to have promulgated a general regulation forbidding the keeping of cows within 200 feet of a dwelling house, the board, by the use of the words “ without a special permit,” had taken to itself the power of licensing cow stables in certain cases, a power not conferred by the statute;
    That the only powers given by the statute were: First, the power of general regulation, or quasi legislation; and, second, the power to abate a particular nuisance, and that the board must confine itself to these methods.

      Jt seems, that where such a board makes an order for the suppression of a nuisance in a particular case the offender still has the right to contest in court the question of the existence of the nuisance.
    Appeal by the defendant, Patrick Oarraher, from a judgment of the County Court of Queens county in favor of tlie plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of September, 1894, upon the verdict of a jury rendered after a trial at the County Court of Queens county.

      C. A. S. Van Nostrand, for the appellant.

      Joseph Fitch, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court in favor of the plaintiff entered on a verdict directed by the court. The action is to recover fifty dollars as a penalty for violating the following section of the health ordinances enacted by the board of health of the village of Flushing: “No cows shall be kept within two hundred (200) feet of any dwelling in the village of Flushing without a special permit obtained from the Board of Health. Any violation of the provisions of this ordinance shall be punished by a fine of fifty dollars.” There is no doubt of the fact that the defendant did violate this ordinance. The defendant, however, claims that to subject him to the penalty prescribed it was necessary to show more than a mere violation of the ordinance; that it was incumbent on the plaintiff to establish by proof that the keeping of the cows was a nuisance, and, further, the defendant challenges the validity of the ordinance itself.

It is true that the declaration of a board of health that a particular thing is a nuisance will not make .it such, if in law it is not a nuisance, and that the question of nuisance is still open to determination in the courts. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.)

This case does not fall within that principle. The ordinance is in the nature of a general police regulation, which, if justly within the police power, can be enacted by the Legislature.itself, or committed by the Legislature to the boards of health. (Health Department v. Rector, etc., 145 N. Y. 37; Pelinsky v. People, 73 id. 70.)

That such an ordinance as the one under review should be valid it is necessary that it should be reasonable. There was no proof offered by defendant to show that the ordinance was unreasonable. Certainly the presence of cow stables may affect public health, and if the locality was densely populated might even justify their prohibition.

But there is one vice in this ordinance that renders it, in our judgment, invalid. The powers conferred upon the local boards of' health (§ 21, chap. 661, Laws 1893) are: “Every such local board shall make and publish, from time to time, all such orders and regulations as they may deem necessary and proper for the preservation of life and health and the execution and enforcement of the public health law in the municipality. It shall make, without publication thereof, such orders and regulations for the suppression of nuisances, and concerning all other matters in their judgment detrimental to the public health in special or individual cases, not of general application, and serve copies thereof.” The powers thus granted are of two distinct characters; the first, the power of general regulation or quasi legislation; the second, the power to abate a particular nuisance. A failure to obey any valid exercise by the health board of the first power would, under the case of Health Department v. Rector, per se, subject the offender to punishment. But on a violation of an order of the health board under the second power the party would, under the authority of People ex rel. Copcutt v. Board of Health (supra), still Have the right to contest in court the question of the existence of a nuisance. The board of health, by the ordinance under review, has not forbidden the keeping of cows within 200 feet of a dwelling house, but so keeping cows without a special permit. In other words, the board has taken to itself the power of licensing cow stables. No such power has been granted it by the Legislature. If the matter is such that a general ordinance can be passed upon the subject, then such an ordinance should be enacted, and all will be bound by it. If not susceptible of general regulation, then the board should proceed by special order in the particular case, when the person attacked may defend himself in the courts. The powers vested in boards of health are very great; probably necessarily so. But to give these boards the licensing power or power to dispense with their own general regulations in behalf of some favored individual might lead to the greatest abuse and jobbery. So a by-law providing that no person should keep a slaughter house without a special resolution of the council was held invalid as creating a monopoly. (In re Nash, 33 U. C. Q. B. 181.)

So, also, where the trustees of a village were authorized, to fix a fire district within which frame buildings should not be constructed, and an ordinance was passed fixing a district within which such buildings should not be erected without the consent of the trustees, we have intimated that the ordinance was bad. (Village of New Rochelle v. Lang, 75 Hun, 608.)

The judgment appealed from should be reversed and the complaint dismissed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment reversed and complaint dismissed, with costs.


text:
    Marie F. Fitzmahony (formerly Marie J. Cody), as Administratrix, etc., of Michael J. Cody, Deceased, Appellant, v. George Caulfield and Another, Respondents.

      Executors and administrators — admissions made before their appointment are not competent against the estate — •payment evidenced by.

    The declarations of an executor or administrator before the issuance of letters testamentary to him are not admissible in evidence against him in his representative capacity. The admissions of an executor or administrator become competent evidence only when made in the performance of the administration of the' estate.
    The defense of the payment of a bond and mortgage, held by a deceased person at the time of his death, is not made out by proof of the fact that before the widow of the mortgagee was appointed administratrix of her husband’s estate she surrendered the securities to the mortgagor.
    Her admission at the same time that she had found, from an examination of her husband’s papers, that there was nothing due upon the bond and mortgage, is not evidence against the husband’s estate.
    Appeal by the plaintiff, Marie J. Fitzmabony (formerly Marie J. Cody), as administratrix, etc., of Michael J. Cody, deceased, from a judgment of the Supreme Court in favor of the defendants, ■entered in the office of the clerk of the county of Westchester on the 11th day of September, 1894, dismissing the complaint after a trial at the Westchester Special Term.

      Geo. Finck, for the appellant.

      Thos. O’ Callaghan, Jr., for the respondents.
   Cullen, J.:

This is an appeal from a judgment of the Special Term in favor •of the defendants. The action is to foreclose a mortgage; the •defense, payment. The bond and mortgage were found by the plaintiff in the papers of her intestate shortly after his decease and before her appointment as administrator. She called the defendant George Caulfield’s attention to the fact that she had found these obligations. The said defendant, according to his testimony, responded that the bond and mortgage had been paid, and if plaintiff examined her husband’s papers she would find that to be the •case, and that after this conversation the plaintiff brought the bond and mortgage and delivered them to him. The plaintiff conceded the surrender of the bond and mortgage, but denied that she said that she had found they were paid. This is substantially all the •evidence to support the jilea of jiayment.

We thinlc the judgment below erroneous. The doctrine that the possession of the bond and mortgage by the mortgagor is jiresumptive evidence of their jiayment can have no ajijilication to this case, for it is conceded that the bond and mortgage were in the jiossession of plaintiff’s intestate at the time of his death, and there is no ■claim that payment has been made since that time. The defense of jiayment, therefore, rests solely on the act of the plaintiff in surren•dering the mortgage and her alleged admission that she had found .from her husband’s jiajiers that it had been jiaid.

Had the transaction between plaintiff and defendant George Caulfield occurred after the jilaintiff had been appointed administrator it may be that it would either have operated as a discharge of the mortgage or constituted sufficient evidence to ujihold the finding of jiayment. (Church v. Howard, 79 N. Y. 415.) Yet there is some doubt whether she could have bound the beneficiaries other than herself. (1 Phillips on Ev. [Cowen & Hill, Edwards’ ed.] 482.) Put at the dime of this transaction the jilaintiff was a mere meddler with the .assets of the deceased. She had no right to interfere with them otherwise than to preserve them, and she might never acquire such right. The delivery of the bond and mortgage to the defendant was simjily a tort on her part. Her admission made at that time was inadmissible .as evidence. To make the admission of an executor or administrador competent evidence it must be made in the performance of the administration of the estate. (Church v. Howard, supra.) The rule seems settled that the declaration of a trastee before he came into the trust, or of an executor before he became such, is not admissible against him in his representative capacity. (1 Phillips on Ev. [Cowen & Hill, Edwards’ ed.] 483.)

If the widow alone was to receive the proceeds of a recovery in this action it may be that she would be estopped from maintaining it despite the fact that the settlement with defendant was made by her personally, and that she now sues in her representative capacity. But in this case there is not only the widow but also a. minor child of plaintiff’s intestate. It is possible that' if there are no creditors any equity against the widow arising out of her settlement with the defendant may be considered upon a new trial. This, however, we do not now pass upon.

The judgment appealed from should be reversed and a new trial ordered, costs to' abide event.

Brown, P. J., concurred; Dykman, J., not sitting. .

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


author: Dykman, J.: Cullen, J.:

text:
    Emma Bryan, Appellant, v. Louis J. Grant and Others, Respondents.

      Supplementary proceedings — receiver appointed and substituted for the judgment debtor as the plaintiff in another action for tort — proceeding not sustained.

    In 1892 Emma Bryan commenced an action against Louis J. Grant and others for a tort and recovered a judgment against Grant, the other defendants recovering judgment against the plaintiff. The recovery against Grant was set aside, and upon a new trial the plaintiff again recovered a judgment against Grant upon a'n inquest. A motion to set aside the inquest remains undetermined.
    In 1894 Emma Bryan was examined in supplementary proceedings, taken upon the judgment recovered upon the first trial by the defendants who succeeded in that action, and she then stated that she had no other property ..except her claim against Grant. A receiver having been appointed, who, under an order of the court, sold this claim at public auction, the purchaser moved to be substituted as plaintiff in the action in place of Emma Bryan, and the motion having been granted Emma Bryan appealed.

      Held, that the substitution was improper;

      That the record showed a method of procedure which the court could not sanction, there being a plain intent to deprive the plaintiff of the power to prosecute her claim against Grant;
    That Emma Bryan must be allowed to prosecute her action, and that in case of her final recovery proper directions could be given to pay from it the judgment obtained by the successful defendants.

      Semble, that a cause of action arising out of a claim for damages for a tort, is property which will pass to a receiver appointed in proceedings supplementary to execution.
    Appeal by tbe plaintiff, Emma Bryan, from an order of the Supreme Court, made at the Kings County Special Term on the 5th day of March, 1894, substituting Sterling Wallace as plaintiff in “the action, and substituting William A. Sweetser as attorney for the plaintiff in the place and stead of Alfred C. Cowan.

      Alfred C. Cowan, for the appellant.

      Wm. A. Sweetser and James C. Church, for the respondents.
   Dykman, J.:

This is an appeal from an order substituting Sterling Wallace as plaintiff in this action in the place and stead of Emma Bryan.

A brief historical recitation will facilitate our approach to the questions involved in the appeal.

In the forepart of the year 1892 the plaintiff commenced an action in the Supreme Court against Louis J. Grant, 'Townsend N. Shotwell, Thomas P. Payne and Mary E. Payne for conspiracy, fraud and deceit in relation to the exchange of certain real property in the city of Brooklyn, and claimed damages therefor in the sum of .$8,000.

The cause was tried at the Circuit before a jury and a verdict was rendered in favor of the plaintiff against the defendant Grant, and .against the plaintiff in favor of the other defendants.

A judgment has been entered against the plaintiff in favor of the defendants who succeeded against her at the trial for the sum of $538.31, and the verdict in her favor against Grant has been set .aside by the court.

Thereafter the cause was again placed upon the calendar for trial, and an inquest was taken against the defendant Grant in favor of the plaintiff for $6,000.

A motion'subsequently made to set aside the inquest remains undetermined so far as the appeal papers show.

' On the 10th day of January, 1891, the plaintiff was examined in proceedings supplementary to execution, which had been .issued against the property of the plaintiff upon the judgment against her in this action in favor of some of the defendants, as already stated.

IJpon that examination the plaintiff said she had this claim of $8,000 against Grant, and that the claim was then in suit. She stated further that she had no other property.

Thereupon a receiver of the property of the plaintiff was-appointed, who was authorized by an order of the court to sell at public auction the claim of the plaintiff against the defendant Grant.

In accordance with such order of sale the claim was sold at public auction to Sterling Wallace, who made a motion to be substituted as plaintiff in this action in the place of Emma Bryan, and his-motion was granted.

The appeal is from that order, as already stated.

Such is the record before us, and it manifests an unmistakable design to perpetrate a fraud upon the law and a fraud upon the-court. The evident purpose of the proceeding for the appointment-of a receiver was to circumvent the plaintiff and deprive her of the power to prosecute her claim against Grant, and it is not too much to say that the success of the scheme would be a reproach upon the administration of justice.

Fortunately, however, the effort must terminate in failure. In the first place the facts disclosed upon the examination of the plaintiff were entirely insufficient to authorize the appointment of a receiver.

The claim of the plaintiff for unliquidated damages is not property in any sense, and no order for the appointment of a receiver-can be made until property applicable to the payment of the judgment has been discovered. (Hancock v. Sears, 93 N. Y. 81.)

Indeed, these defendants, instead of being entitled to an order appointing a receiver, were liable to pay the plaintiff costs of the proceeding for a failure to discover property applicable to the payment,of their judgment. (Code Civ. Proc. § 2156.)

In the second place, if the claim is property in any sense it is neither in the possession nor under the control of the plaintiff, and it is substantially disputed.

Supplementary proceedings were inaugurated and regulated by the original Code of Procedure as a substitute for a creditor’s bill in the old Court of Chancery. They are in the nature of an equitable action based upon a judgment, and new facts in addition thereto. They furnish a simple and summary method for the collection of a judgment from property which cannot be reached by execution.. (Griffin v. Dominguez, 2 Duer, 658; Allen v. Starring, 26 How. Pr. 59 ; Lynch v. Johnson, 48 N. Y. 27.)

But neither these proceedings nor the old judgment creditor’s suit were designed to reach a cause of action for a tort. They authorize the pursuit of nothing but property.

The affidavit upon which the proceedings are based must state that the judgment debtor has “property ” which he refuses to apply to the satisfaction of the judgment. How can that allegation be predicated upon a mere claim for damages ? Then, if it appears that" the judgment debtor has such “property,” a judge may make an order requiring him to appear and answer respecting his “ property.” Then, if “property” is discovered, a receiver may be appointed of such “property.” Therefore, nothing but property can be affected in these proceedings, and a claim for damages for a tort may not be even a cause of action. In no view is it property within the meaning of the statute relating to proceedings supplementary to execution. (10 Abb. Dig. [N. S.] 717, No. 134, and cases cited.)

Moreover, as we have seen, these supplemental proceedings are in the nature of .an equitable action, and, therefore, nothing inequitable should be permitted therein.

Yet, it would be not only inequitable but unjust to deprive the plaintiff of her right to prosecute her action for damages against the defendant. She claims $8,000, and she has secured a recovery twice.

The record before us discloses the perpetration of a gross fraud upon the plaintiff, and her recovery must not be jeopardized or her proceedings embarrassed.

She must proceed with her suit untrammeled by interference.

There will be ample time and opportunity for the court to direct the payment of the judgment against the plaintiff from the judgment in this action when it is recovered. Justice can thus be wrought to all parties.

.The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Cullen, J.:

I dissent from so much of the opinion of my associate as holds that the claim in this action for a tort to her estate is not property that would pass to a receiver. But I am clear that a fraud on plaintiffs rights has been effected here. Her claims for damages should not have been sold out, but have been prosecuted and the debt paid out of any recovery. This was held to be the duty of a pledgee of promissory notes ( Wheeler v. Newbould, 16 N. Y. 392) and justice requires the application of a similar rule in this case.

It was discretionary in the court whether to grant the substitution.

I think the order should be reversed and motion denied, in order that plaintiff may have an opportunity to apply to vacate both the order directing the receiver to sell, and also the sale made under the order, without costs to either party, and with leave to petitioner to renew the application in case plaintiff fails to obtain such relief.

Bbown, P. J., concurred with Cullen, J.

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


author: Dykman, J.: ■Cullen, J.:

text:
    Lizzie J. Canda, Respondent, v. John Totten, Appellant, Impleaded with Another.

      Specific performance— verbal agreement for the sale of lands — principal and agent — consideration — part performance — resulting trust — the time when payment by the cestui que trust must be made — R. S. pt. 2, chap. 7, title 1, sections 6 and 8 (2 R. S. 134, 135).
    'The partners in the firm of Canda & Kane made for the benefit of their creditors a general assignment of their joroperty, including certain real estate, in which Lizzie Canda, the wife of the partner John M. Canda, had a right of dower.
    The assignee being about to sell the realty, John Totten agreed with John M. Canda, who was acting in the matter as agent for his wife, that he would attend the sale, buy the property for the wife, take the title in his own name and subsequently convey it to Mrs. Canda. This agreement was verbal and no money with which he could make the purchase was furnished to Totten, who, however, bought the property with his own money and received a deed. On the following day he was handed hy John M. Canda the amount of his hid and ten dollars in addition. Totten took the money, which he did not, however, consent to accept, and put it in his hank, and having refused to convey to Mrs. Canda, she brought this action to compel him to do so.

      Meld, that there was no consideration for Totten’s promise; no consideration of benefit having moved to the promisor nor any of detriment to the promisee; That the verbal agreement for the sale of lands -was in direct violation of the Statute of Frauds;
    That there was no part performance to take the contract out of the operation of the statute;
    That a mere tender of the purchase money by Mrs. Canda after the sale, not accepted by the defendant, did not constitute part performance;
    That if, in any view of the facts, they could be assumed to raise a resulting trust in favor of Mrs. Canda, the payment attempted to be made by her was insufficient to create such a trust, because it was essayed after the purchase by the defendant was completed.
    Appeal by the defendant, John Totten, from a judgment of the .'Supreme Court in favor of the plaintiff, entered in the office of the «clerk of the county of Kings on the 16th day of October, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the specific performance of a verbal agreement for the sale of certain lands, and also from a decision of the justice who tried the action, filed in said clerk’s office on the 23d ■day of August, 1894.
    The plaintiff was the wife of John M. Canda, a partner in the firm of Canda & Kane. She did not join in the assignment for the benefit of creditors made by that firm and was entitled to dower in the premises in question.

      Julius H. Seymour, for the appellant.

      George V. Brower and Wm. C. Davidson, for the respondent.
   Dykman, J.:

It is the object of this action to obtain a judgment which shall require the defendant to convey to the plaintiff four lots of land in the city of Brooklyn.

The cause has been tried before a judge of this court without a jury and decided in favor of the plaintiff, and the defendant John 'Totten has appealed from the judgment entered upon such decision.

According to the claim of the plaintiff the facts of the case are these : The defendant John Totten made a parol agreement with the husband of the plaintiff, who was acting for her, that he, the defendant, would attend a sale of real property which was to be made by the assignee of Canda & Kane, and buy the same for her; take the title therefor in his own name, and then convey the same to the plaintiff. There was no written agreement, and the defendant was furnished with no money with which to make the purchase.

The defendant attended the sale, which was a public auction, and bought four parcels of real property for $540. lie paid the auctioneer’s fee of $20 on each lot, and twenty-five per cent upon the-amount of his purchase with his own checks; one for $80 and the-other for $135. That was on the 15th day of February, 1894, and on the twenty-seventh day of -the same month the defendant paid the balance of the purchase money and received deeds of conveyance for the lots in his own name.

On the following day the husband of the plaintiff went to the office of the defendant and handed him an envelope containing-$620, and gave him $10 besides. There is no proof that the defendant John Totten consented to accept the money, and he says he did not consent to do so. He took the money and placed it in his bank. The husband says he then requested the defendant to-make a deed to the plaintiff.

We have taken the version of the parol agreement, and of this-last transaction respecting the money left with the defendant from the testimony of the plaintiff’s husband, because it is the most-favorable to her, although the defendant in his testimony gives a very different version of both. In respect to the other facts which, we have stated there is no 'dispute.

It is to be observed preliminarily that there is no consideration, shown for the agreement. There was neither loss nor harm to the plaintiff nor benefit to the defendant. The plaintiff surrendered no right and the defendant John Totten acquired no privilege thereby. The plaintiff was at liberty to attend the sale and buy the property after the agreement, and it was the right and privilege of the defendant to attend the sale and buy the property without the agreement.

There is no proof that the plaintiff omitted to attend the sale or to procure the attendance of others in reliance upon the agreement.

There was no allegation in the complaint, and no proof upon the-trial, of any fraud practiced upon the plaintiff by the defendant.

The question presented for solution under the foregoing facts is-whether a court of equity will enforce the performance of a parol agreement between these parties whereby the defendant John Totten undertook to attend the public sale of the land in question, buy the, same thereat, pay for it with his own money, take the title in his own. name for the benefit of the plaintiff, and then convey the property to the plaintiff.

The answer to the question depends primarily upon the contract.If that be valid the answer will be in the affirmative. If invalid in. the negative.

The contract must be tested by the statutes relating to fraudulent conveyances and contracts in relation to lands.

The particular sections applicable to this case ai-e these: “ Section 6. No estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power, over or concerning' lands, on in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring' the same, or by his lawful agent thereunto authorized by writing.”

“ Section 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing and be subscribed, by the party by whom the lease or sale is to be made.” (2 R. S. 134, 135.)

As we have already seen, the agreement was that the defendant-should convey the land in question to the plaintiff, after he had-bought it, and that contract falls directly under the condemnation of section 8 of the statute, which declares, that such contracts shall be void unless the contract or a note or memorandtim thereof, be in writing.

The agreement between the parties was, therefore, void, and the defendant was under no legal obligation for its performance. Neither can it be successfully claimed that the agreement created a trust which the defendant John Totten was bound to execute, because the 6th section of the statute condemns parol trust in land, and no such agreement relating to such trusts will ever be enforced in equity. (Sturtevant v. Sturtevant, 20 N. Y. 39.)

Even where courts of equity intervene to enforce the performance on the ground of fraud, such intervention is • not for the purpose of upholding or enforcing the parol trust, but for the purpose of relieving against fraud. That end is attained by treating the perpetz'ator of the fz’aizd as a trustee ex maleficio, and zzot a trustee by virtue of the parol agreement. A breach of such a contract for the sale does not create a trust, and a party comznits zio fraud by refusing to pez-fonn a void contract, because in a legal sezzse he has made no contract.

It is to be observed further that the plaintiff here makes no complaint of the conduct of the defendant John Totten in making the purchase of the property. That was in accordance with her version of the agreement. The defendant John. Totten, therefore, committed no wrong at the sale. It is the subsequent breach of the contract of which the plaintiff complains, but it caiznot be successfully contended that a breach of the proznise will impress a trust or create any obligation which the contract itself was insufficient to impose. The foregoing views are sustained and the pzinciples laid down in the cases of Lathrop v. Hoyt (7 Barb. 59); Levy v. Brush (45 N. Y. 590); Wheeler v. Reynolds (66 id. 229) and the cases cited in the opinion in the last case. (Bauman v. Holzhausen, 26 Hun, 505.)

In relation to the case of Ryan v. Dox (34 N. Y. 307), which is invoked by the plaintiff in this ease, it is sufficient to say that the case is so unlike the present one as to be incapable of application here. It is trae there was in that case,-as in this, an offer of perforznance, bzzt if the statute can be avoided in that way it is practically a nullity. (Levy v. Brush, 45 N. Y. 597.)

It is further insisted that the cozztract has beezz paz’tially performed, azzd, therefore, the court should decree its specific perfoz’znazzce.

We must, therefore, see whether there has been any performance of the agreement.

There has been zzo payment of the purchase znoney, for although the husband of the plaintiff left the money with the defendant, he never agreed to accept it. There can be no payment without an acceptance of the money. The very term implies a concurrence of two minds. The mere tender of payment constitutes an offer only, and all that distinguishes a payment from a tender is acceptance.

What money the plaintiff has paid was without the assent of the defendant John Totten; she was a volunteer in the matter, and we suppose the term “part performance” in the statute requires action with the assent of both parties; especially must that be so in relation to expenditures upon the property. (Freeman v. Freeman, 43 N. Y. 39.) In any view, however, if there was a payment after the purchase of the defendant John Totten was completed, it would be of no avail. (Botsford v. Burr, 2 Johns. Ch. 405.)

After a most thorough examination we are unable to affirm this judgment. In no view has the plaintiff any cause of action against the defendant. lie has not induced the plaintiff to do one single act, and lie lias not placed himself under any legal obligation to her. He has not induced her to pay any money or make any expenditures in any way or for any purpose.

In short, the plaintiff has lost no money and has .been placed in no disadvantageous position by reason of any act or inducement of the defendant.

. It is claimed on behalf of the plaintiff that the retention of the property by the defendant and his refusal to convey the same to the plaintiff was the result of a change of his original purpose, but if it was and he did change his design he had a legal right to do so. Courts speak for the law and not for morals.

This case is a good illustration of the wisdom of the Statute of Frauds. We have adopted the plaintiff’s version of the contract, but the defendant denied in positive terms that he made such an agreement, and his testimony is quite as natural and quite as consistent with the motives which actuate men in affairs of business as that of the plaintiff’s husband.

So far as our researches have extended, the decisions of the courts in cases analogous to this have been uniformly in accordance with our conclusion. In the case of Lathrop v. Hoyt (7 Barb. 59), where the defendant, at the plaintiff’s request, agreed by ]3arol that he would go and attend a sale of the plaintiff’s farm under a decree of foreclosure; that he would bid off the premises and take a deed in his own name; that he would give the plaintiff an opportunity to repay liim the amount of his bid, and have a reconveyance of the premises, and that the plaintiff should have two weeks’ notice to pay •the amount, and the defendant accordingly'bid off the farm and took a deed in his own name, it was held that the agreement was void as being within the Statute of Frauds, and would not support an action.

That decision was approved in the case of Wheeler v. Reynolds (supra) more than twenty-five years after it was made, and ten years after the decision of the case of Ryan v. Dox in the same court.

Judge Story, in his erudite and exhaustive work on Equity Jurisprudence, promulgated the same rule in the following language: “ Where a man employs another person by parol as an agent to buy .an estate for him, and the latter buys it accordingly in his own name and no part of the purchase money is paid by the principal, there, if the agent denies the trust, and there is no written agreement or document establishing it, he cannot, by a suit in equity, .compel the agent to convey the estate to him, for * * * that •would be decidedly in the teeth of the Statute of Frauds.” (2 Story’s Eq. Juris. § 1201a.)

The same doctrine was laid down by Chancellor Kent more than ¡seventy-five years ago, in the case of Botsford v. Burr (2 Johns. Ch. 405.)

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

Brown, P. J., concurred.

■Cullen, J.:

I concur. The principle of Ryan v. Dox (34 N. Y. 307) and Carr v. Carr (52 id. 251) has no application to this case. In the cases cited the party in whose favor the agreement to purchase was made had an interest to protect at the sale, and the purchaser under this agreement became merely a mortgagee. This distinction is well pointed out in Bauman v. Holzhausen (26 Hun, 505), decided by the General Term of this department. Here the plaintiff had no interest in the property sold. She had not joined in the assignment, and her dower could not be divested by the sale. To justify a decree in her favor she was bound to show such a part performance as would take the case out of the Statute of Frauds. This has not been found by the trial court, the decision being based solely on the original contract. The judgment, therefore, should be reversed .and a new trial had.

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


text:
    Theodore V. Smalley, Appellant, v. The Fulton Bank, Respondent.

      Mébtor and creditor — credibility of testimony, a question for the jury — ratification and acquiescence, when questions of fact.

    Although the testimony of a party may seem improbable the question of his credibility is to be decided by the jury.
    'The check of a depositor in a bank was used by it to make good a defalcation of its teller; the customer, who supposed that the check was to be applied to the payment for silver delivered by the bank to him, after learning of the use to which the check had been put, sought to indemnify himself against loss by procuring the note of the teller’s father for a like sum, which note was not paid.

      Meld, that this act was not in itself a ratification by the depositor of the disposition of the check made by the bank.
    It appeared that the bank held a large amount of the securities of the depositor, so that he was to a certain extent in its x>ower, and, after the transaction complained of, the depositor (his account having been overdrawn by the check in question) obtained further loans from the bank which made the account good, and subsequently he permitted the account to be closed upon the basis of the payment of the cheek.

      Meld, that while these transactions tended to show a ratification of the acts of the bank in the premises they were not conclusive and presented questions of fact for the jury.
    Appeal by the plaintiff, Theodore V. Smalley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2otli day of May, 1894, as amended by an order of said court, made at the Kings County Special Term and entered in said cleric’s office on the 12th day of September, 1894, dismissing the complaint upon the merits after a trial at-the Kings County Circuit before the court and a jury, and also from so much of said order as amended the minutes of the action and said judgment so as to make the dismissal of the complaint to be “ upon the meiits.”

      Salter S. Clark, for the appellant.

      William N. Dykman, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the defendant entered on a dismissal of the complaint on the merits at Circuit.

The action is to recover $10,000, an alleged balance of deposit with the defendant, and the sole dispute is whether a check for that amount, dated August 31, 1888, was. properly charged to the plaintiff’s account. The complaint was dismissed at the close of the plaintiff’s testimony; so we have only his version of the matter, and the question is whether he made out a claim which should have been submitted to the jury.

The plaintiff testified that he was not only a depositor with defendant, but acted as a broker selling for the bank its silver coin. The course of business between the parties was, that each week the plaintiff would give the defendant a check signed by him, but blank in other respects; that' at times during the week he would take from the bank its silver, and the amounts taken be written on the back of this check; at the commencement of the next week he would give the defendant a check on a New York bank to pay for the silver taken the previous week, and at the same time the blank check with the indorsement thereon would be destroyed and a new blank check given by him. liis account of the giving of the check in dispute is that it was one of the old memorandum checks which should have been destroyed; that it was produced to him on this occasion with indorsements on it to an aggregate of' $10,000 ; that he disputed his. receipt of that amount during the past week, but, on being urged by the president and cashier, signed the check; he then left the bank with the paying teller; was told that it was not to pay for silver but to pay the amount of the teller’s defalcation that the check was needed. lie then went to the teller’s father, who gave him a note for the sum, payable at another bank the next day. The note was not paid. Within the next week he went to the bank several times and protested that the check was improperly charged to him, and, finally, on September seventh, closed his account by drawing out the balance that appeared to his credit on the books of the bank. The defendant’s answer alleged that the check was given to make good the deficiency or debt of the teller.

The story told by the plaintiff is certainly a singular one, but its credibility was for the jury. If believed, it showed that the check was given by him under a mistake of fact, not in payment of the teller’s defalcation, but upon the claim that lie was indebted to the bank for silver. The answer of the defendant narrowed the issue between the parties to the claim that this check was given for the teller’s debt, for it admitted all the deposits alleged in the complaint, and also the credits therein given to the defendant. It was, therefore, not necessary for the plaintiff to go further than to disprove the allegation of the answer in this respect and show under what circumstances the check was given. But if further evidence than the allegation of the answer were necessary to show that there was no debt from the - plaintiff to defendant on account of silver, we think such fact appeared on the trial. The plaintiff testified that he appeared before the president and directors with reference to his claim. That the president told him that when he (plaintiff) took the teller’s father’s note he discharged the bank. The failure of the defendant to make any claim at that time for silver given plaintiff is sufficient to show that such claim did not exist. Therefore, the plaintiff was entitled to go to the jury despite the improbability of his story, unless it appeared that he subsequently ratified the appropriation of the check to payment of the teller’s debt.

The first act which it is claimed is a ratification is the receipt by the plaintiff of the note of the father of the teller payable the next day. This did not conclusively establish the assumption of the teller’s debt. The plaintiff had, according to his story, unknowingly given the check which was used for that purpose. lie had a good defense to the check, but still he had executed an instrument which prima facie constituted an obligation against him. lie might be justified in obtaining indemnity against the danger of liability on the instrument without estopping himself from denying his liability.

The second claim of ratification is based upon the dealings between the plaintiff and defendant after the former knew of the object to which his check had been appropriated. The disputed check overdrew the plaintiff’s account almost to its face amount. lie then obtained loans from the defendant which made liis account good. These loans he afterwards paid. His pass book was balanced on September seventh, with the charge of the disputed check, and he drew out this balance, thus closing his account. These transactions doubtless tended to prove a ratification and acquiescence by the plaintiff in the appropriation of his check, but still they merely presented a question of fact for the jury, and, in the light of other testimony by the plaintiff, were not conclusive. He testified that during this period he continuously denied his liability on the check, and, further, that during the whole time the defendant held his securities to the extent of $31,000. If this was the fact he was, to a certain extent, in the power of the defendant. There was a duress of goods. As to the notes given by the defendant, they were not for this particular claim, but applied on his general account. The plaintiff could undoubtedly, in an action on those notes, have counterclaimed for his deposit balance or the misappropriation of his check, but he was not bound to do so. He could pay the notes and retain his affirmative cause of action against the defendant.

The judgment appealed from should be reversed and a new trial ■ordered, costs to abide event.

Brown, P. J., concurred; Dykman, J., not sitting.

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


author:
Dykman, J.:
     Cullen, J.:

text:
    John Sutherland, Respondent, v. The City of Brooklyn, Appellant, Impleaded with Others.

      Tam sale in Brooklyn — surplus realized thereon — relative rights of the purchaser and of a mortgagee in possession to the surplus — Laws of 1888, chap. 583, title VIII, §§ 5 and 6.
    The charter of the city of Brooklyn provides that where lands in that city are sold for taxes any person having an estate in them or a mortgage upon them may, at any time before the expiration of one year after notice shall have been .given to him of such sale by the purchaser or his assigns in a manner therein provided, or before a deed from the registrar of arrears shall have been delivered to the purchaser, upon his compliance with certain conditions stated, redeem the premises from the sale. It also provides that the registrar of arrears shall deposit all moneys paid upon such sales with the city treasurer, and the surplus, if any remains after deducting the tax and expenses “ shall be held for the use of, and paid over to, the person legally entitled, upon his establishing his rights thereto.”
    Certain lands in Brooklyn were in the occupation of a mortgagee in possession when they were sold for taxes, producing a sum largely in excess of the amount due for the taxes. They were subsequently redeemed by and in the interest of the purchaser at the tax sale, or in that of his assignee, and on the same day the city paid the whole surplus to the assignee as “the person legally entitled” thereto. No deed was delivered to the purchaser by the registrar of arrears. Subsequently the mortgagee in possession brought this action to recover from the city this payment of the surplus realized on the tax sale, upon the ground that the surplus was his property, and that the statute did not in any manner authorize a redemption to be made by the, purchaser at a tax sale or in his interest.

      Meld, that the action could not be maintained.
    Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of November, 1891, upon the decision of the court rendered after'a trial at the Kings County Special Term.
    The charter of the city of Brooklyn, under which the sale in question in this case took place, provided, among other things, by section 5 of title Till, chapter 583 of 1888, as follows :.
    “ Any person or persons having an estate in or any mortgagee of any of the lands and premises sold in pursuance of the third section of this title, whose estate or lien appears of record in the county of Kings, may, at any time before the expiration of one year after notice shall have been given to him of such sale, by the purchaser or his assigns in the manner hereinafter provided, or before a deed of said premises shall have been delivered as provided in section four of this title, redeem said lands and premises by paying to the registrar of arrears for the use of the purchaser or his assigns the sum paid by him on such sale, and ten per centum on the same, with interest on the aggregate ainóunt at the rate of fifteen per centum per annum from the date of said sale. * * * ”
    Section 6, among other things, provides as follows :
    “ All moneys paid to the registrar of arrears upon sales in pursuance of any of the provisions of this title, shall be deposited by him with the treasurer of the city of Brooklyn, and the surplus, if any, remaining in any case after deducting the amount of the tax, assessment and lien and interest and expenses of sale, and any costs and disbursements allowed by any judgment under which said sale shall have been made, shall be held for the use of and paid over to the person legally entitled, upon his establishing his rights thereto.”

      Albert G. McDonald and Howard O. Wood, for the appellant.

      A. J. Perry, for the respondent.
   Dykman, J.:

This suit was brought to recover surplus money arising from a sale of a lot of land in the city of Brooklyn.

The cause was tried before a judge without a jury. His decision was in favor of the plaintiff, and the defendant has appealed from the judgment entered thereon.

The facts essential to an understanding of the case are these : On the 11th day of April, 1876, Eliza Richardson was the owner of the lot which produced the surplus involved, and on that day she executed a mortgage thereon, in conjunction with her husband, to the plaintiff to secure the payment of $4,200. Both of the mortgagors are now dead, and nothing has ever been paid on the mortgage.

On the 11th day of July, 1888, the premises were sold for arrears of taxes to John G. Byrne for $3,500. That sum was $3,407.47 above the amount due to the city for taxes, the sum so due for taxes being $92.53.

A certificate of such sale was thereirpon issued to John G. Byrne, who afterwards assigned the same to John McNamara.

Notice of such sale was served upon the plaintiff on the 2d day of November, 1888.

Thereafter, and on the 19th day of August, 1889, the property was redeemed from such sale for taxes by S. J. Tormey for John G. Byrne by the payment to the registrar of arrears for the use of John McNamara the sum of $1,082.98, that being the amount paid by the purchaser Byrne at the sale and ten per cent thereon, with interest on the aggregate amount at the rate of fifteen per cent and the expenses of the notice served upon the plaintiff, minus the amount of surplus money received upon the sale for taxes, which was then in the hands of the treasurer. That sum of $3,407.47 was allowed and credited to the person redeeming in pursuance of the statute.

Then on the same day, August 19, 1889, all the money remaining in the hands o'f the treasurer or in the possession of the city to the credit of such tax sale was paid over to John McNamara.

The statement in figures is-this:

The property sold for...... ,500 00
Ten per cent on that sum.. 350 00
Interest at fifteen per cent. 638 45
Service of notice......... 2 00
Total........................................ $4,490 45
Amount paid to redeem................. $1,082 98
Surplus............................... 3,401 41
4,490 45

The plaintiff has been in possession of the premises as mortgagee for many years, and on the 21st day of October, 1889, he made a demand upon the city for the payment to him of the surplus arising from the sale for taxes. The demand did not receive compliance, and this suit was brought for the recovery of the money.

The action is prosecuted upon the assumption of the illegality of the redemption, because it was in the interest of the purchaser or his assignee, who had no right to receive credit for the amount of the surplus.

Then, upon that theory, the plaintiff builds his claim, that the surplus should have remained in the possession of the city to his credit, and for his benefit as mortgagee.

The plaintiff can claim no other or greater rights in the premises in question than such as pertain to a mortgagee in possession. He had no attribute of ownership in the land, and no title or estate therein whatever. He has the right to remain in possession until the amount due upon his mortgage is paid.

The following extract from the opinion of the Commission of Appeals in the case of Trimm v. Marsh (54 N. Y. 606) states the law upon the subject with great force and perspicuity : “ Before taking possession the mortgagee has no title jn the lands. How can the mere possession change the title from the mortgagor to the mortgagee, or in any way diminish the estate of the one or enlarge the estate of the other ? Before taking possession the mortgagee had a mere lien upon the real estate pledged for the security of his debt. After possession he has in his possession the property pledged as his security, the title remaining as it was before. The mortgagor’s title is still a legal one, with all the incidents of a legal title, subject to the pledge, and the mortgagee’s interest is still a mere debt, secured by the pledge. If the mortgagee should die in possession the debt would still go to his personal representatives, to be administered as personal estate, and the mortgagor’s title would go to his heirs. Payment, or even tender, would destroy the mortgagee’s right to retain possession, and would enable the mortgagor to maintain ejectment to recover possession. The mortgagee in such case, so far from having any title, holds the land as the land of the mortgagor,, and is liable to account to him for the rents and profits.”

If, therefore, we assume that the redemption of the premises was invalid, the assumption will not benefit the plaintiff.

If he had no title in the land it is difficult to see how he acquired or had any title tp the surplus arising from the sale of the land.

The claim of the plaintiff is that he owned the surplus, and that it was held in trust for him by the ¿ity, and he must recover upon that theory or fail.

The provision of the statute is that all moneys paid to the registrar of arrears upon sales for taxes shall be deposited by him with the treasurer of the city of Brooklyn, and the surplus, if any, “ shall be held for the use of, and paid over to the person legally entitled, upon his establishing his rights thereto.” (Laws of 1888, chap. 583, tit. 8, § 6.)

It thus appears that the surplus in this case was held for the use of the person entitled thereto, and the plaintiff must establish his right to the money before he is entitled to recover it.

We have already seen that he had no title to the land, and it must follow that he had no estate or property in the surplus which was the proceeds of the land. He never had any right or interest in tbe land except such as was secured by his mortgage, and that gave him a lien only.

The most favorable position, therefore, which the plaintiff can claim to occupy is that of mortgagee; and, as he could not recover the property covered by his mortgage, it is difficult to see how he can recover the proceeds of a sale thereof.

There is another reason why the plaintiff cannot recover upon the case presented by this appeal.

As mortgagee in possession the plaintiff can retain the premises until his mortgage debt has been j>aid and no longer, and he is liable to account for the rents and profits. He has been in possession for twenty years, and the rents and profits during that period may have been sufficient to discharge the mortgage. At all events it does not appear that they were insufficient; and, therefore, it is not proven that there is anything due upon the plaintiff’s mortgage.

Moreover, this suit was unnecessary; the statute has furnished the plaintiff with a remedy which will protect him and the city also. There has been no deed delivered to the purchaser at the sale of the premises, and the plaintiff, as mortgagee, has the right to redeem the land at any time before a deed has been delivered. (§ 5, title 8, chap. 583, Laws of 1888.)

That is upon the theory that there has been no redemption; and if there has been a regular redemption, of course the plaintiff cannot recover in any view.

In any view, the judgment works injustice, for under it the plaintiff receives the money upon his mortgage from the city, and also holds it for the full amount against the property.

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

Cullen, J.:

This case is a peculiar one. It could not arise except where the tax purchaser discovered that he bought the property at too high a price. I am not prepared to say that in such a case the owner or parties interested in the land may not insist that the sale should stand, and take the surplus arising on the sale instead of redeeming the property. If this view be correct, the owner’s right to an election could not be defeated by an unauthorized redemption by a stranger.

I dissent from so much of the opinion of Justice Dykman as holds that the plaintiff, being only a mortgagee, is not a person legally entitled to the surplus under the charter provisions. The taxes were paramount to the lien of his mortgage. In Brooklyn, where a sale is made of the fee, a tax sale would divest the plaintiff of his lien on the land, but such lien would as plainly attach to the surplus arising on the sale as in the case of a sale under a prior mortgage.

But I concur in the result reached by my associate on two grounds: First. The sale has not yet become absolute and may never become such. It appears from the complaint that some of the owners of the fee are infants. They have not been served with notice of the sale and have no guardian. Under section 1, title VIII, charter of 1888, even had notice been served, their right to redeem would not expire till one month after arriving at age or the appointment of a guardian of their estate. The plaintiff cannot defeat their right to redeem, and until the time for redemption lias expired the surplus must be retained by the city, to be credited upon a redemption, as prescribed by the charter.

Second. Even if all parties interested in the land had affirmed the sale, a recovery could not be had against the city for the surplus except on condition of a conveyance to the city of the land sold. The action to recover the proceeds ■ of the sale of the land would plainly be inconsistent with any claim to the land itself.

The judgment should be reversed and a new trial ordered, costs to abide event.

Brown, P. J., concurred in the result.

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