author: Beady, J.:

text:
    MARY E. WITTY, Appellant, v. THOMAS C. ACTON and ALPHONSO S. SHERWOOD, Respondents.

      Landlord and tenant—right of a tenant, evicted for non-payment of a tax, to tender payment of the tax and he restored to possession under section 2256 of the Code.

      A tenant who has been removed from the demised premises, after a default in the payment, for sixty days after the same became payable, of any taxes or assessments upon the demised premises -which he had agreed to pay, cannot avail himself of the provisions of section 2256 of the Code of Civil Procedure, which allows the tenant, at any time within one year after the execution of the warrant, when the unexpired term of the lease exceeds five years, to pay or tender to the landlord all rent in arrear at the time of the payment or tender, 'with interest and the costs and charges incurred by the landlord, and thus restore himself to the possession of the premises and the advantage of his lease.
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of New York on tbe 3d day of April, 1890, witb notice of an intention to bring up for review, upon sucli appeal, an interlocutory judgment, entered in said clerk’s office on tbe 13tb day of March, 1890, sustaining tbe demurrer of tbe defendants to tbe plaintiff’s amended complaint, as further amended, nune pro tuno, as of December 5, 1889, by an order entered on February 26, 1890.
    Tbe action was brought to recover tbe possession of certain premises in tbe city of New York, and. damages for the witholding of the same.

      J. Sabine Smith, for the appellant.

      George JBlAss, for the respondents.

      The following opinion was delivered at Special Term:
      Ingraham, J. The complaint alleges the making of a lease of certain premises in the city of New York, on the 31st of March, 1881, by defendant Acton to plaintiff for a term of twenty-one years, whereby plaintiff was to pay certain rent in equal quarterly payments, and further promised and agreed to pay “ all duties, taxes and assessments” as should he imposed on the said premises.
      That plaintiff paid the rent until February 1, 1887, and that on the 9th of March, 1887, the agent of the defendant applied to one of the District Courts of the city of New York to remove the plaintiff, and presented his petition claiming that there was due to him from the plaintiff the sum of $275, balance of rent from February 1 to May 1, 1887, and that the taxes levied on said premises for the years 1881, 1884, 1885 and 1886, had not been paid by the plaintiff; that payment of said rent and taxes had been demanded of the plaintiff.
      That such proceedings were had that on or about the 21st day of March, 1889, a final order was made by the said District Court, awarding to the plaintiff the possession of the said premises; that subsequently a warrant was issued by the justice of said District Court for the removal of all persons from said demised premises, and to put the defendant Acton in possession thereof, which warrant was executed, and that subsequently plaintiff tendered to defendant Acton all rent of said premises in arrear under said lease at the time of such tender, with interest thereupon as well as taxes theretofore levied upon said premises at the time of such tender remaining unpaid, and all costs and charges incurred by defendant Acton, and the complaint demands judgment for the possession of the premises and damages for the detention thereof.
      The proceedings for the removal of the plaintiff from the demised premises were taken under section 2231 of the Code. This section provided for the removal of a tenant for five separate causes. Subdivision 2 provides for the removal of a tenant when he holds over and continues in possession of the demised premises without the consent of his landlord after a default in the payment of rent, and subdivision 3, for such removal when in any city in this State the tenant holds over after default, for sixty days after the same shall he payable, in the payment of any taxes or assessments levied on such demised premises which he has agreed in writing to pay.
      By section 2235 it is provided that the applicant must present to the judge or justice a written petition stating the facts which, according to the provisions of the Code, authorize the application by the petitioner and the removal of the person in possession.
      It is clear that the application set out in the complaint was founded on both the subdivisions of section 2231 of the Code, above cited, for the petition states facts which authorize the removal of the plaintiff from the possession of the premises under either of such subdivisions. If the defendant had failed to prove the allegations as to the rent, and did prove the allegation as to the taxes, there could be no doubt but that the justice would have been justified in issuing the warrant. The warrant was issued, and thereupon the lease was canceled, and the relation of landlord and tenant was synnulled (Code, § 2253), and this plaintiff’s interest in the premises and her right to possession thereof ended, and, on the facts alleged jn the complaint, plaintiff has no cause of action, unless she is entitled to the possession of the demised property, under the provisions of section 2250 of the Code. But I do not think that the terms of that section apply, for it is only where the special proceeding is founded upon an allegation that a lessee holds over after a default in the payment of the rent that the lessee may pay or tender all rent in arrear at the time of the payment or tender, and on atender of therent the tenant tobe allowed to resume possession of the premises. There is no provision for the tender of the amount due for taxes and assessments, and if plaintiff is entitled to the benefit of the section, she has it on a tender of the rent due and interest, and the costs and charges without a tender of the amount due for taxes and assessments.
      As before stated, this proceeding was founded upon the non-payment of the taxes as well as upon the non-payment of the rent, and it was not thereafter a proceeding “founded upon an allegation that a lessee holds over after a default in the payment of the rent.”
      Two causes to justify the removal were set forth in the petition, either of which ■would justify the relief granted, and in such a case it cannot be said that the proceeding is founded on either one.
      That the legislature did not intend that the tenant should be allowed to redeem when he had been removed for the non-payment of taxes and assessments, is apparent from a comparison of section 2234 with the sections above cited. It is iu section 2254 provided that a tenant may secure a stay of the execution of the warrant on payment of the amount of the rent due. or of such taxes or assessments and interest and penalty, or by giving an undertaking as therein provided. This section was amended to bring it into harmony with the amendment to section 2231, and the failure of the legislature to amend section 2253 at the same time is clear evidence that it was not intended that that section should apply when the tenant was removed for the non-payment of taxes and assessments.
      The plaintiffs seek to attack the constitutionality of the amendment to section 2231 of 18?5. The right of the plaintiffs to redeem is not at all affected by that amendment, Plaintiff has the same right to redeem now that she had before the passage of the act amending the Code. If the amendment authorizing the court to dispossess for non-payment of taxes was unconstitutional, that question should have been settled in the proceeding in which relief was asked because of such non-payment.
      By the issuance of the warrant in that proceeding it was adjudged that plaintiff was entitled to the relief granted, and it is now too late for plaintiff to claim that she could have successfully defended that proceeding.
      But it is clear that the act was not in conflict with any constitutional provision. It simply affected the remedy given to the landlord on a breach of the covenant in the lease. By the lease the landlord had a right to re-enter on breach of the covenant to pay taxes, etc. Whether he was to obtain that right of re-entry by an action of ejectment, or by proceedings under the provisions of the Code above cited, was a question within the control of the legislature. ■
      On the argument counsel for the defendant expressly waived the point as to the sufficiency of the allegation as to the tender, and I have, therefore, considered the right of the plaintiff to the relief asked for, and have come to the conclusion that plaintiff cannot, on the facts pleaded, obtain possession of the premises. The complaint does not, therefore, state facts sufficient to constitute a cause of action, and the demurrer must be sustained.

   Beady, J.:

The question presented by this appeal is whether a lessee removed from the demise, as a tenant holding over without the permission of the landlord, after default in the payment of the rent due pursuant to the agreement under which the demised premises are held and. a demand thereof, and who also holds over under like circumstances, after a default in the payment for sixty days from the time the same shall be payable of any taxes or assessments which the tenant has agreed to pay, can avail himself of the provisions of section 2256 of the Code, which allows the tenant at any time within one year after the execution of the warrant, when the unexpired term of the lease exceeds five years, to pay or tender the landlord all rent in arrear at the time of the payment or tender, with interest and the costs and charges incurred by the landlord, and thus restore to himself the possession of the premises and the advantage of his lease.

The learned justice in the court below has considered this subject fully, and has expressed his views in an elaborate opinion (note, ante, p. 552), which embraces and satisfactorily disposes of the whole controversy in that regard, and although additional views might be indulged, it is deemed unnecessary to employ them, but to leave the affirmance of the judgment upon the opinion which he has delivered.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment affirmed, wth costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    ROYAL E. DEANE and GEORGE G. BROOKS, Respondents, v. JOHN A. LOUCKS, Appellant.

      Opening a judgment entered by default — what proof of good faith required—a recovery for work done and materials furnished is a bar to a claim for defective work and materials.

    On an application to open a default the applicant must not only show a reasonable ground for opening the default, hut the burden is upon him to establish his good faith otherwise than simply by making an affidavit of merits.
    A judgment by default, in an action to recover for work, labor and services and for materials furnished, is a bar to any action by the defendant for damages because of defective work or materials.
    Appeal by the defendant John A. Loucks from an .order of the-Supreme Court, made at Special Term under date of June 16,1890, and entered in the office of the clerk of the county of New York,, wliicli order denied the defendant’s motion to open a default to appear or answer in the ahove-entitled action, which was commenced by the service of a summons upon him, and to set aside the judgment which had been entered against him by default.

      Brunnemer <& Bennett, for the appellant.

      B. G. Stone, for the respondents.
   Yan Brunt, P. J.:

Ye think that the learned counsel for the appellant is entirely ' mistaken in supposing that the doctrine has ever been established Jthat when an affidavit of merits is presented and there are no /suspicious circumstances connected with the application a default / will necessarily be opened. Although decisions to that effect may I be found, yet still the practice of the court has been against so f loose a procedure as this j and the applicant must not only show a j reasonable ground for opening the default, but the burden is upon him to establish his good faith otherwise than simply by an affidavit of merits.

If there were nothing but this in the case at bar, we would think that the order appealed from, was correct. But, upon an inspection of the record, it appears that the learned judge was influenced largely in coming to the conclusion at which he arrived, by the consideration that although the default was held, the defendant could maintain an action for the same cause desired to be set up in the counter-claim in the proposed answer. The action was brought to recover for work, labor and services and for material furnished which was alleged to be of the reasonable value of a certain sum. The defense sought to be interposed was that the work and labor was done and the materials furnished under a written agreement containing certain stipulations, and that sflch stipulations were not complied with, and in consequence of the defective workmanship and defective materials the defendant had suffered damage to a large amount.

It is well settled that a recovery upon a complaint of this description is a bar to any action for damages because of defective work or materials. See Gates v. Preston (41 N. Y., 113), in which it was held chat a judgment by default in favor of a physician for professional services is a bar to any action by the defendant against him for malpractice in the performance of such services. And the principle there laid down is recognized in Goebel v. Iffla (111 N. Y., 171). The reason of the rule is manifest, because a recovery by the plaintiff upon the ground that the services were worth the amount alleged in the complaint is absolutely inconsistent with the claim that the services were worthless and were detrimental to the defendant.

So in the case at bar, if the plaintiff’s work, labor and materials were worth the amount set out in the complaint, then the defendant could have no cause of action because of defective materials and workmanship.

We think, therefore, that the default should have been opened in order to enable the defendant to put in his counter-claim upon payment of the costs of all proceedings before notice of trial, the disbursements in the entry of judgment and ten dollars costs of the motion.

The order should, therefore, be reversed, with ten dollars costs and disbursements; and the default opened upon the conditions above mentioned, the costs to be offset against each other so far as practicable.

Bartlett and Barrett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements; and default opened on payment of costs of all proceedings before notice of trial, the disbursements in the entry of judgment, and ten dollars costs of motion, the costs to be offset against each other so far as practicable.


text:
    PANAMA RAILROAD COMPANY, Respondent, v. RICHARD L. JOHNSON, Appellant.

      Complaint for enibeedement and fraudulent misapplication of money —proof required of the plaintiff—exception to a charge to the jury bringing in a sealed verdict.

    In order to recover, in an action in which the defendant is charged to have embezzled and fraudulently misapplied the plaintiff’s money while acting as its agent, it is necessary for the plaintiff to establish, not only the receipt of the money by the defendant, but its embezzlement or fraudulent misapplication by him; and the burden of proof during the whole progress of the trial rests upon the plaintiff to establish those two propositions.

      An entirely different rule prevails in an action for money liad and received.
    A defendant has a right to take exceptions to the charge of the court, at the time when the jury bring in a sealed verdict, they having been allowed to separate.
    Appeal by tlie defendant from a judgment of the Supreme Court, entered in tlie office of the clerk of the county of New York on the 3d day of February, 1890, in favor of the plaintiff, for the sum of $2,319.30; and also from an order, entered in said clerk’s office on the 28th day of January, 1890, denying the defendant's motion for a new trial made upon the minutes of the court, after a trial at the New York Circuit before the court and a jury.

      H. G. Willeox, for the appellant.

      T. 8. Moore, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the sum of $5,200 alleged to have been received by the defendant as agent of the plaintiff, and to have been by him embezzled and fraudulently misapplied.

Upon the trial, evidence was introduced to show the receipt by the defendant of the sums of money referred to in the complaint. The defendant denied the embezzlement and misappropriation, and offered proof in support of such denial. The jury rendered a verdict showing that they found in favor of the defendant upon one item charged against him and in favor of the plaintiff upon two other items And from the judgment thereupon entered and from the order denying a motion for new trial this appeal is taken.

It seems to have been assumed upon the trial that the complaint was sufficient to justify proof, under section 549 of the Code, that the money received by the defendant had been embezzled and fraudulently misapplied while he was acting in a fiduciary capacity. Without in any way assenting to this proposition, we will consider some of the exceptions which were raised during the progress of the trial, assuming the complaint to have been sufficient to charge the defendant as above stated. There was no question raised upon the trial but that the defendant had received the sums of money charged in the complaint, and the question submitted to the jury was whether he had embezzled or fraudulently misapplied the same.

In order for the plaintiff to succeed it was necessary that it should establish, to the satisfaction of the jury, not only the receipt of the money, but its embezzlement or fraudulent misapplication by tbe defendant, and tbe burden of proof rested during tbe whole progress of the trial upon the plaintiff to establish these two propositions. If this had been an action for money had and received to the use of the plaintiff, and it had been tried upon that theory, then all thatthe plaintiff would have had to have done would be to show that the defendant had received the money, and the burden would then have been upon the defendant to have shown that he had either paid the money to the plaintiff or applied the same to its use.

¥e think the distinction between the two kinds of action was entirely lost sight of during the progress of the trial, and that the learned court erred when it charged the jury, that it having been shown that the defendant had received the two items for which they found a verdict in favor of the plaintiff, it was incumbent on the defendant to show by a preponderance of évidence that he had paid the money over to the benefit of the company. In order to charge an agent with embezzlement, it is necessary not only to show that he has received the money, but also that he has refused to pay the same upon demand or that he has misapplied the same; and the burden of establishing these propositions rests upon the plaintiff notwithstanding the admission of the defendant that he received the moneys claimed to have been embezzled. In other words, in an action for embezzlement or misapplication of money by an agent there is no such thing as a shifting of the burden of proof. The plaintiff must establish his whole case, and that case includes the establishment to the satisfaction of the jury of the embezzlement or misapplication of the money as well as its receipt. An entirely different rule prevails in an action for money had and received. There the same rule applies as in the case of every debtor, namely, that he is bound to show payment if he claims such a defense; an entirely different condition of circumstances from that which exists in an action like the present was assumed to be, namely, an action to recover for money embezzled by an agent acting in a fiduciary capacity.

The jury were erroneously instructed upon this point. It was an error which was of vital importance to the defendant. The importance of this question is shown by the verdict of the jury, where they find in favor of the defendant upon the third item, as to which the court charged that tbe burden of proof was all tbe time upon the plaintiff.

There was another question raised during the progress of the trial, and that was the right of the defendant to take exceptions when the jury brought in a sealed verdict, they having been allowed to separate. Such a right was claimed to be recognized by a provision of the Code, which is assumed to be a new provision enacted for the first time upon the adoption of the present Code.

It will, be seen that that provision has existed ever since the adoption of the Revised Statutes, and, in view of its terms, we do not see how a party can be prevented from taking an exception expressly authorized.

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

Brady and Daniels, JJ., concurred.

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


text:
    TEXAS STANDARD COTTON OIL COMPANY, Respondent, v. MUTUAL FIRE INSURANCE COMPANY, Appellant.

      Order that an answer be made more definite and certain—granted where the complaint alleges, generally, false representations to have been made by agents of a corporate plaintiff.

    In an action brought by a corporation to recover upon a policy of insurance against fire, the answer alleged that an agreement, mentioned in the complaint, fixing the amount of the loss, was entered into by the defendant on the strength of and in reliance on false and fraudulent representations upon the part of the plaintiff as to the amount of the loss, and that false and fraudulent statements had been made by the plaintiff and its authorized agents to the defendant and its authorized agents.

      Held, that the plaintiff was entitled to an order to have the answer made more definite and certain.
    Whatever the rule may be as between individuals in this regard, where one of the parties is a corporation and acts by its trustees, officers and agents, such relief will be granted, as such a plaintiff cannot be expected to have in court every agent, officer and trustee upon the trial of any case in which an allegation of fraud may have been asserted.

      Appeal by the defendant, the'Mutual Fire Insurance Company, from an order of the Supreme Court, made at Special Term in the city of New York, and entered in the office of the clerk of the county of New York on the 2Ith day of September, 1890.

      Stine da Oalmen, for the appellant.

      Benno Loewy, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the alleged loss of the plaintiff by fire on certain property insured by the defendant . The answer admits the issuing of the policies, denies the amount of the loss sustained, and alleged that the agreement mentioned in the complaint fixing the amount of the loss was entered into by the defendant on the strength of and in reliance upon false and fraudulent representations upon the part of the plaintiff as to the amount of the loss, and that false and fraudulent statements were made by the plaintiff and its authorized agents to the defendant and its authorized agents; and that all the agreements made were made in reliance upon such false and fraudulent statements. It also alleges that the fire by which the property of the plaintiff was destroyed or damaged was caused by the act, neglect or witli the connivance of the plaintiff, or of parties interested in said property. The plaintiff thereupon moved to have the answer made more definite and certain; and the court ordered that said answer be made more definite and certain by inserting what false representations were made as to the amount of its loss and damage, and where and when and by whom made, and in what respects such statements were false and untrue; and also when, where and by whom a certain alleged agreement mentioned in the answer was entered into, and what the fraud or false swearing alleged by the answer consisted of, and by whom committed, and in what the alleged neglect of the plaintiff to use means to preserve the property at and after the fire consisted of, and what.loss was sustained by reason thereof. And from such order this appeal is taken.

The ground upon which the appellant rests is, that the decisions of the courts of this State have been nearly unanimous (as he claims) that such a motion will not-be granted where the plaintiff has all the knowledge on the question at issue in as full a measure as the defendant.

However applicable such a rule may be as to individuals, its stringency must necessarily be relaxed where one of the parties is a corporation and acts by its trustees, officers and agents; because such a plaintiff cannot be expected to have in court every agent, officer and trustee upon the trial of any cause into which an allegation of fraud may have been injected.

The allegations alleged to have been fraudulently made are stated in the answer to have been made by the plaintiff or its authorized agents. The plaintiff was entitled to know, before going to trial, by whom and when and where such representations were made, in order that it should have the individual present upon the trial, or that it might examine him in case he should be a non-resident of the State, to meet any proof which might be offered by the defendant upon the trial. The allegations in regard to what the representations were is absolutely indefinite, and conveys no notice to the party as to what it is charged with, and the plaintiff is entitled to know, with a reasonable degree of definiteness, what is the claim which the defendant will urge upon the trial, in order that it may make proper preparation to meet it.

It is a familiar principle that, where a party is charged with making fraudulent representations, that he knows whether or not he did make such false representations. But when a corporation is charged with having made false representations, it is impossible for it to determine what may be the course of proof upon the trial, and thus have the proper parties in court to refute the charges made against it. It is needless to go through the various portions of this order as to which relief has been granted, because the principle which controls one controls all. "

We think that none of the objections to the order which have been urged before the court are well taken. But, in the affirmance of the order, we do not intend to support in its entirety the practice pursued upon this application, but simply to rule upon the questions which have been raised upon this appeal.

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

Bartlett and Barrett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements..


author: Brady, J.:

text:
    In the Matter of the Application of the METROPOLITAN ELEVATED RAILWAY COMPANY, Relative to Acquiring Title to Certain Real Estate in the City and County of New York. (In re WATSON and Others.)

      Mmineni domain—easement taken by an elevated railroad,—value thereof not conclusively determined, by a judgment granting an injunction, to become inoperative upon the payment of a specified sum.

    In proceedings to condemn, under the exercise of the right of eminent domain, the easements, necessary for fhe operation of an elevated railway, in front of certain premises in the city of New York, theownersof the easement sought to be .taken offered in evidence, before the commissioners appointed to make the appraisal of damages, judgments recovered in actions against the railroad by such owners to prevent the operation of the road. By these judgments an award of damages was made in each case, and the value of the easements was determined, and it was therein further provided, that upon payment of the sum mentioned in such judgments a conveyance should be executed by the owners thereof, and that the injunction, which was otherwise granted by such judgments, should in that event become inoperative.

      Held, that the judgments were not decisive between the parties, upon the question as to the value of the easements sought to be taken, in the proceedings to condemn them, and were properly rejected by the commissioners.
    Appeal by John H. Watson and Mary E. Hughes from the appraisal and report made by the commissioners in the above-entitled matter, and filed September 4, 1889, and confirmed by the court at Special Term by an order dated September 5, 1889, and also from such order confirming such appraisal and report.

      George Zabrislcie and Edwin M. Felt, for the appellants.

      Edward 8. Bajpallo and Alexander 8. lyman, for the respondent.
   Brady, J.:

These proceedings were commenced July 10,18S9, to condemn so much of the easements as were taken by the petitioner in the construction and operation of its road in West Fifty-third street, appurtenant to the premises known as 121 and 138 in that street, the former owned by John H. Watson and the latter by Mary E. Hughes, the appellants herein. The questions involved in each proceeding are the same.

In 1884 and 1887 actions were brought in the'Superior Court of this city to recover damages resulting from the unlawful use by the company and their lessee of the easements and privileges appurtenant to the property of tbe respective persons named, which had been taken from them without compensation, and seeking the equitable interference of the court by enjoining the further use of these easements and privileges and the recovery of damages for the loss sustained. ‘ The plaintiffs were successful. An award of damages was made in each case, and the value of the easements determined, and provision in the judgments made, which was independent of the award of damages,' that upon the payment of the sum mentioned in each judgment a conveyance of the easements and privileges should be executed, the- prototype of the judgments being found in the case of Henderson v. New York Central Railroad Company (78 N. Y., 423). The company in this proceeding invoked the provisions of the general railroad act of 1850 (chap. 140), which was their right, and the appellants insisted that the judgments mentioned, in which their premises, respectively, were the subject of contention, were res ad,judicata between them, and offered the judgments in evidence before the commissioners. They were rejected, and this was the proper disposition of them according to the decision in the case of Henderson already mentioned. It appears that damages were awarded in that case for an unauthorized appropriation of the property in question, and the value thereof having been ascertained the judgment also provided for the tender of .a conveyance by the plaintiffs of their interest in the property in controversy.

The court said in that case that, in view of the annoyance and the expense incident to the stoppage of its trains, it was just to open the doors of escape and to permit the defendant at once to acquire title to the land occupied, and thus avoid the delay incident to other proceedings for that purpose,-but that it was, noth withstanding, optional with the defendant to comply with the conditions; the plaintiff could not require it. And again, that if the company did not accept the conditions, and chose to- proceed under the statute, the record of the judgment would prevent the allowance of any damages for injury to the land not actually taken, or for any cause covered by its provisions, and leave the defendant liable only for those which may be assessed for the road-way. And this is a declaration that the provision in reference to the deeds contained in the judgments offered in evidence imposed no obligation whatever upon thercompany, and that they could accept those terms or not as they pleased. And the same doctrine seems to have been intimated, if not asserted, in Story v. New York Elevated Railroad Company (90 N. Y., 122). It may be further said that the right of the company to acquire the title to lands was not in issue in the actions mentioned, but was incidentally and equitably connected with the continuance Ur discontinuance of the injunction prayed for. The right to damages and the propriety of an injunction were the subjects litigated, and it may be the value, but only for the purpose of ascertaining the damages, and thus it was incidental. It was upon this theory, no doubt, that in the Henderson Case the suggestion of a deed was regarded as a proper exercise of equitable jurisdiction, though not compulsory upon the defendant, as a means of avoiding the necessity of proceedings to condemn the land under the statute^ and at the same time affording full protection to the owner. No error was committed, therefore, before the commissioners. The petitioner’s right to proceed under the railroad act mentioned was intact. The order below confirming the proceedings before the commissioners was, therefore, properly made and the appeal from it unavailing.

The order should be affirmed, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred.

Order affirmed, with ten dollars costs and the disbursements of the appeal.


text:
    ELIZABETH LAWTON and Another, as Executors, etc., of SAMUEL GREEN, Deceased, Respondents, v. SAMUEL G. CORLIES and Others, Appellants, THE WASHINGTON TRUST COMPANY, Respondent.

      Will, directing that the estate "be divided among my heirs-at-law"—who entitled thereto.

    A testator, by his will, provided as follows: “ Secondly. I order and direct that my estate be divided amongst my heirs-at-law, in accordance with the laws of the State of New York, applicable to persons who die intestate.”

      Held, that, under this provision of the will, the real property left by the deceased passed to his heirs, in accordance with the statute of descent, and the personalty was to be distributed among the next of kin in accordance with the statute of distributions.
    . Appeal by the defendants, Clara W. Corlies, Anne W. Corlies, Howard W. Corlies and Edmee A. Corlies, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of June, 1890, except so much thereof as orders, adjudges and decrees that the costs of the several parties to the above-entitled action be paid by the plaintiffs out of the estate of the said Samuel Green, deceased.
    The action was brought to obtain a construction of the will of Samuel Green, the second item of which, in regard to which the uncertainty arose, is set forth in the following opinion:

      Rufus I. Scott, for the infant defendants, appellants.

      Wilson M. Powell, for the plaintiffs, respondents.

      Chernies H. Russell, for the Washington Trust Company, as committee, etc., defendant and respondent.
   Brady, J.:

The uncertainty which presents itself to the plaintiffs in the contemplated discharge of their duties arises upon the following clause in the will involved herein :

“Secondly. I order and direct that my estate be divided amongst my heirs-at-law in accordance with the laws of the State of New York, apjfficable to persons who die intestate, and that no bond or security whatever be required of my executors hereinafter named, in the settlement and distribution of my estate, real or personal.”

The will itself contains three clauses, the first the direction for his executors to pay his debts and funeral charges as soon as may conveniently be done; the second, the one already mentioned, and from which the uncertainty springs, and the last the one nominating and appointing his executors. There is nothing, therefore, in its contents, which throws light upon the intention of the testator, and his meaning must be determined from the form and substance of the will.

The learned justice in the court below thought there was no difficulty whatever in ascertaining the intention of the testator as expressed in the clause mentioned. He was of opinion that the design was to dispose of the property as if the deceased had died intestate both as to realty and personalty, and that the sole object in view in the making of the will was to secure the appointment of executors. It will have been observed that the direction, of the intestate was that his whole estate should be divided, in accordance with the laws of the State of New York applicable to persons who die intestate, among his heirs-at-law, and the learned justice, upon a consideration of the subject presented, thought the natural and reasonable view to be that he meant his estate to be divided and distributed, according to its nature, as the law provided, in case he made no will, that is to say, that the realty, if any should follow the statute of descents as it exists in this State, and the personalty the statute of distributions, by the latter of which representation in collaterals would not extend beyond brothers’ and sisters’ children. Although many cases have been referred to, and the subject is susceptible of a considerable display of adjudications, it is nevertheless thought that the decision in the case of Woodward v. James (115 N. Y., 346) substantially disposes of this appeal. There the words considered were “legal heirs,” and the court was required to determine whether by that class the testator intended to designate the individuals merely who should take, or to fix also the quantity of interest which should devolve upon each; and the determination was that the plaintiffs took no interest in the personal estate, inasmuch as under the statute of distributions representation extends no further than brothers and sisters’children; and the rule of intestacy applying as to the quantity of interest to be taken, it resulted that the statute deprived the plaintiff, who was a grandchild of a brother, of all interest in the personal estate.

The interpretation placed upon the clause in question by the learned justice in the court below seems to be unassailable, if we give expression to the plain import of the language used by the testator. He directed that his whole estate should be divided, in accordance with the laws of the State applicable to persons who die intestate, among his heirs-at-law. The language which seems at once to suggest this view is the words “'lieirs-at-law.” Who, it may lie asked, would be embraced, however, within that term if he had died intestate ? The answer to this query is that it would include those named by the statute of distributions existing in this State which designates the persons who should receive his personal estate and in what proportions, and also those, if any, to whom his real estate would descend. And giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the State, would seem to be such a division of his property as he contemplated when he made his will. As already suggested, there is nothing to indicate any other purpose. It is precisely as if the testator had said, I do not intend that there shall be any dispute over my estate. I mean to declare that the persons who are recognized by the law of the State of New York as entitled to a portion of it shall have it to the extent the law declares. My real estate 'shall be divided amongst those to whom it would descend, and my personal estate shall be distributed to those who would be entitled to it just as if no will had been made. And I make this will only for the purpose of securing the co-operation of the executors whom I have named to take charge of my estate and protect it.

For these reasons the judgment appealed from should bo affirmed.

Van Brunt, P. J., and Daniels, -I -, concurred

Judgment affirmed.


author: Bartlett, J.:

text:
    LOUISE DUDLEY CARTER, Appellant, v. WILLIAM J. FERGUSON, Respondent.

      Actor agreeing to render exclusive service to one—whenrestrainedby injunction from acting for another.

    A preliminary injunction to restrain an actor from breaking a contract, by which, he has agreed to perform services exclusively for the plaintiff, will not be granted, except in cases where the artistic abilities of the defendant are exceptional, so that his place cannot readily be supplied.
    It is only under such circumstances that irreparable damages can result to the plaintiff from a breach of the contract.
    Appeal by the plaintiff Louise Dudley Carter from an order of the Supreme Court, entered in the above-entitled action on the 20th day of October, 1890, in the office of the clerk of the county of New York, denying the plaintiff’s motion for an injunction enjoining and restraining the defendant from performing or rendering services for any persons other than the plaintiff until a certain contract, made by the defendant with the plaintiff, should have been performed.

      Abe JI. Hummel, for the appellant.

      A. J. Dittenhoefer, for the respondent.
   Bartlett, J.:

In order to warrant the granting of a preliminary injunction to restrain the violation of a contract, it should be made to appear that the plaintiff has no adequate remedy at law. The inadequacy of the legal remedy is the test as to whether the defendant should or should not be restrained in the class of cases to which the present suit belongs. The English courts and our own have frequently granted injunctions, penclente lite, to prevent actors from performing for other parties when they have undertaken to play only for the plaintiff; but the exercise of this jurisdiction has usually been confined, and ought, in our judgment, always to be limited, to cases where the artistic abilities of the defendant are exceptional, so that his place cannot readily be supplied, for it would seem to be only under such circumstances that irreparable damage can be occasioned to the plaintiff. As is well said by Mr. Pomeroy: “ Where a contract stipulates for special, unique or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique and extraordinary qualifications, as, for example, by an eminent actor, singer, artist and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might enable him to obtain the same or the same kind of services or acts elsewhere, or by employing any other person.” (3 Pomeroy’s Eq. Jur., § 1343.) The General Term of the third department, commenting upon this passage, points out that the jurisdiction to interfere by injunction approved therein is confined to- cases of special, unique and extraordinary qualifications on the part of the defendant, and Learned, P. J., remarks: It can readily be seen that the court might restrain by injunction a great actor from playing at another theater in violation of his contract, while it would not restrain a salesman from quitting his employ before his contract had expired, even though, under the contract, he were to be paid a percentage on sales.” (Bronk v. Riley, 50 Hun, 489.)

Now, it is in no wise derogatory to the defendant in this case to say that he is not shown to be an actor of special, unique or-extraordinary qualifications. His own counsel on this appeal expressly asserts that the defendant is not a star or attraction of the company, or even a prominent member thereof.

However capable an actor the defendant may be, he has not yet achieved distinction. He does not seem to have been engaged to perform what is known as the part of the leading man in the plaintiff’s company, his name appearing only third in the published list of the performers who were to act with Mrs. Carter. The affidavits do not satisfy us that his failure to keep his contract with her, or his appearance, in violation of that contract, at another theater has done or will do her any irreparable injury, or any damage incapable of being ascertained in an action at law.

For these reasons, without considering the others urged by counsel, or referred to by the court below, we think the application for an injunction was properly denied.

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

Yan Brunt, P. J., and Barrett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES H. SCHAD, Appellant.

      Appeal from an order denying a motion for a new trial, unnecessary in a criminal action—misconduct on the partof the jury requiring that anew triaibe granted.

    In a criminal action it is not necessary to state in the notice of appeal that it is-taken from the order denying the defendant’s motion for a new trial, as sections 485 and 517 of the Code of Criminal Procedure provide that, upon an appeal from a judgment, the decision of the court on a motion for a new trial may he reviewed.
    After the jury had retired to deliberate on their verdict in a criminal case the officer having them in charge, without leave of the court, took them to dinner at a hotel, and before dinner one of the jurors separated himself from his fellows and entered the public bar-room where he called for and drank brandy at the-bar; and on the same occasion another juror, after dinner, went alone to the water-closet in the basement of the hotel, and followed, but did not overtake, until they arrived at the court-house, the other jurors, who had preceded him on their return.
    Afterwards, when, by leave of the court, the jury, not having agreed upon the verdict, were taken to the hotel for supper, the juror who had taken brandy before dinner went alone to the bar-room and drank there again.

      Held, that, this constituted misconduct on the part of the jury which vitiated the verdict, and because of which a new trial should be granted.
    Appeal by tbe defendant from a judgment, entered, in tbe above-entitled action, in the office of tbe clerk of the county of Niagara on tbe 20th day of April, 18S9, and from an order denying a motion for a new trial, after a trial before .the county judge of Niagara county, and justices of sessions of said county and a jury, at the Court of General Sessions of that county, on the 25th day of March, 1889.
    The defendant was convicted of forgery, and was sentenced to be confined in the' State prison at Auburn for the term of five years and eight months at hard labor.

      John T. Murray, for the appellant.

      P. F. King, district attorney, for the respondent.
   Dwight, P. J.:

The specification in the notice of appeal, of the order denying the defendant’s motion for a new trial, was unnecessary, since the statute provides that upon an appeal from the judgment the decision of the court on the motion for a new trial may be reviewed. (Code of Criminal Pro., §§ 485, 517.) The conviction was of a felony and the judgment pronounced was of imprisonment in the State prison for the term of five years and eight months.

The motion for a new trial was on the ground of misbehavior of the jury. The facts, in this respect conceded to be true, are that after the jury had retired to' deliberate on their verdict the officer having them in charge — without leave of the court—took them to dinner at a hotel a quarter of a mile distant from the court-house ; that before dinner one of the jurors separated himself from his fellows and entered the public bar-room of the hotel where he called for and. drank brandy at the bar; that on the same occasion another juror, after dinner, went alone to the water-closet in the basement of the hotel, and the jury having, in the meantime, set out to return to the court-house he followed, but did not overtake them until they arrived at the court-house; that when, by leave of the court, the jury, not having yet agreed upon a verdict, were taken to the hotel for supper, the same juryman who had taken brandy before his dinner repeated the indulgence before eating his supper, going alone as before to the bar-room for that purpose.

"We have no hesitation in saying that this narrative discloses misconduct on the part of the jury which vitiated the verdict and for which a new trial should have been granted. The conduct of the officer in taking the jury to dinner without leave of the court, and permitting two of the jurors to separate from their fellows, was in violation of his oath to keep the jury together in some private and convenient place without meat or drink, water excepted; ” and, by express provision of the statute, it was in the power of the court in which the trial was had to set aside the verdict for the sole cause of the separation of the jury. (Code of Criminal Procedure, § 465, sub. 3.) The provision cited specifies, among other cases in which the trial court may grant a new trial, the case “ when the jury have separated without leave of the court after retiring to deliberate upon their verdict.” The concluding clause of the subdivision, viz., “ or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented,” is disjunctive in effect as it is in form, and relates to acts of misconduct other than that particularly specified. In this case, in the absence of evidence that either of the jurors, while separated from his fellows, conversed with any person on the subject of the trial, we should, no doubt, support the trial court in the exercise of its discretion not to grant a new trial for the sole cause of the separation of the jury. But the conceded fact that, during the time devoted to the deliberations of the jury, one of their number twice indulged in the. use of intoxicating liquor, we regard as fatal to the verdict. The last clause of subdivision 3 of section 465, above quoted, must be regarded as including all acts of misconduct on the part of the jury or of a juror, which either are shown or may be presumed to have interfered with the due and proper consideration of the case submitted to them. It is apparent that there are few cases in which actual prejudice can be affirmatively shown to have resulted from any misconduct of a juror. Even though it were shown that a juror has been subjected, outside the jury-room, to direct personal efforts to influence .his action, it would be easy for him to affirm, and impossible to deny, that his mind was already made up,.and that his action was wholly unaffected by the attempt to influence it. But no one will contend that in such a case the verdict should stand, or that it would be in the discretion of the trial court to refuse to set it aside. So in respect to the use of intoxicating liquor, it is impossible for the court to measure or estimate the effect of an alcoholic stimulant, which varies with the susceptibility of the person by whom it is taken; it is enough, that its well-known tendency is to produce an abnormal elevation, and, in the reaction, a corresponding depression of mind and a consequent disturbance, in a greater or less degree, of the reasoning powers. It is for this reason that the use of intoxicating liquor by jurors while deliberating on their verdict is not permitted except as a necessary medicine, and its unauthorized use at such time by one or more jurors has usually been regarded in this country as furnishing ground for setting aside a verdict in a case of felony.

In the early and leading case of Commonwealth v. McCaul (Virginia Cases, 271), the report of which is reproduced in a note to the case of Smith v. Thompson (1 Cowen, 221, note on 235-237), Mr. William Wirt challenged the prosecution to cite a case in which a verdict of felony, procured under such circumstances, had been allowed to stand. It was with reference to that case that Mr. John C. Spencer, for the prisoner, in the case of the People v. Douglass (4 Cowen, 26), said : “ The great principle decided by this case is that the door to abuse is not to be opened.” In the case of the People v. Lee Chuck (reported in 39 Alb. Law Jour., 354), the Supreme Court of California reviewed the cases on this subject in all the States, and reached the conclusion “ that where the proof of the drinking is clear and undisputed, and that it was done while the jury was actually deliberating upon their verdict in a capital case, a verdict of conviction should not be allowed to stand.” There can be no valid distinction in this respect between the case of a capital and that of any other felony. It is instructive to note that the decision in California was made under a provision of the Penal Code of that State, which is a transcript of subdivision 3 of section 465 (supra) of our Criminal Code. The fact that in the California case the use of wine with their dinner was indulged in by all, or most of the jurors, is unimportant; the defendant on trial has the right to the exercise of the cool, clear and undisturbed judgment of every member of the jury, and whether it be the intellect of one or more of the twelve which has been clouded or unbalanced by the use of alcoholic stimulants, the effect, in either case, must be equally fatal to the verdict rendered,

We think the Court of Sessions in this case failed to attach due importance to the facts bearing upon the question here discussed, and erred in not granting defendant’s motion for a new trial.

Tlie judgment appealed from should be reversed and a new trial granted.

Macomber and Corbett, JJ., concurred,

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


text:
    FRED P. WILCOX, as Executor of the Last Will and Testament of OTIS N. WILCOX, Deceased, Respondent, v. QUINCY VAN VOORHIS and FRANCES A. VAN VOORHIS, Appellants, and Others.

      Interest on a bond and mortgage—at what rate chargeable—voluntary payment.

    In an action brought for the foreclosure of a mortgage, which provided that it was “intended as security for the payment of the sum of twelve hundred dollars in one year after the date hereof, with interest thereon at the rate of seven per cent per annum, to be paid half-yearly on the first days of January and July in each year, and also at the time the principal shall be paid,” it appeared that, up to January, 1889, interest had been paid thereon at the rate of seven per cent per annum.

      Held, that such payments of interest, in excess of the amount legally collectible, having been voluntarily made with a full knowledge of the facts, that the owner of the mortgaged premises was not entitled to have the excess thereof, over and above legal interest, applied on the principal of the debt.
    That, by the terms of the bond and mortgage in this case, the plaintiff was entitled to collect interest, at the rate of seven per cent per annum, down to the time of actual payment, or until the contract was merged in a judgment.
    Appeal by the defendants, Quincy Yan Yoorhis and Frances A. Yan Yoorhis, from a judgment of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 12th day of June, 1890.

      Eugene Van VoorMs and Wile ds Goff, for the appellants.

      E. F. Wellington, for the respondent.
   Dwight, P. J.:

The action was to foreclose a mortgage of real estate. The only question litigated was of the sufficiency of a tender made before the commencement of the action, and that turned wholly upon the question whether interest had been paid in excess of the rate legally chargeable, and whether the defendants were entitled to have such excess applied in reduction of the principal sum due on the mortgage.

The facts were as follows: The mortgage was for $1,200, and was made in 1873 by the defendant Frances A. Yan Yoorhis to the Monroe County Savings Bank, and assigned by the latter in 1879 to the plaintiffs’ testator. The mortgage was, by its terms, “ intended as security for the payment of the sum of $1,200 in one year after the date hereof, with interest thereon at the rate of seven per cent per annum, to be paid half yearly on the first days of January and July in each year, and also at the time the principal shall be paid * * * according to the conditions of a bond,” etc., and the conditions of the bond were to the same effect. In July, 1881, the mortgagor conveyed the mortgaged premises to the defendant Qumcy Yan Yoorhis, who thereupon, as part of the purchase-price, assumed and agreed to pay the mortgage. ITp to the date of such conveyance the mortgagor had paid the interest at the fate of seven per cent per annum. After the conveyance the defendant Quincy Yan Yoorhis continued to pay the interest at the same rate, namely, the sum of forty-two dollars semi-annually, up to and including the first payment in the year 1889, taking receipts therefor, which, in most instances, specified that the same was received as interest. On the 1st of July, 1889, he tendered to the plaintiff the sum of $1,181.59 as in full o E the amount due on the mortgage. The plaintiff declined to receive the tender as not being sufficient in amount, and subsequently commenced this action.

The tender was sufficient m amount only upon the theory that there had been an over-payment of interest by the difference between six and seven per cent from the 1st day of July, 1881, and that the defendant was entitled to have the excess applied as payment on the principal of the mortgage. The learned county judge held and found that the payments of interest in question were in excess of the amount legally collectible, but that such payments were voluntarily made by the defendant with full knowledge of the facts, and that for that reason he was not entitled to have the excess' applied on the principal debt secured. We think that, upon the authorities cited by him, the county judge was clearly right in his final conclusion as to the effect of a voluntary payment, even though in excess of the rate of interest collectible under the terms of the security. (New York Life Ins. and Trust Co. v. Manning, 3 Sandf. Ch., 63; Ritter v. Phillips, 53 N. Y., 588; Bennett v. Bates, 94 id., 355.) But we are also of the opinion that, by the terms of the bond .and mortgage in this case, the plaintiff was entitled to collect interest at the rate of seven per cent down to the time of actual payment, or until the contract was merged in a judgment. Seven per cent was the legal rate of interest at the time the contract was made. It is true the mortgage was payable in one year from its date, but we think the condition, taken as a whole, clearly implies that interest was to be paid at the same rate until the principal should be paid. The language of the condition is • “ This grant is intended as security for the payment of the sum of $1,200 in one year after the date hereof, with interest thereon at the rate of seven per cent per annum, to be paid half yearly on the first days of January and July m each year, and also at the time the principal shall be paid.” It is well known to be the custom of savings banks to require mortgages taken by them to be made payable in one year, but to suffer them to run for a series of years so long as the interest is promptly paid. Seven per cent was the legal rate of interest at the time the mortgage was made, and it was entirely unnecessary to specify that rate of interest in respect to the time for which, by its terms, the mortgage was to run. Such specification could have no effect, except in contemplation of an indefinite extension of the time of payment of the mortgage and of a possible change in the legal rate of interest during such extension; and the particular terms employed in this condition, we think, point to the same contingencies as within the contemplation and intention of the parties at the time this contract was made.

If it be the proper interpretation of this contract that the parties understood and intended that interest should be paid at the rate specified until the principal should be paid, then no subsequent change of the statute could affect the rate of. interest payable on this mortgage down to that time, or until the contract is merged in a judgment. (O’Brien v. Young, 95 N. Y., 428, 430; Taylor v. Wing, 84 id., 477.)

Upon this ground, as well as upon that indicated in the opinion of the county judge, we agree with him that the defendant was not entitled to any credit on the principal debt of the mortgage by reason of excess of interest paid, and, consequently, that the ténder made by him was insufficient in amount to affect the lien of the mortgage.

The judgment appealed from should be affirmed.

Macombeb and Cornett, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    HENRY SLINGERLAND, Respondent, v. WILLIAM H. NORTON, Appellant.

      Evidence —proposals for a settlement — admission of a fact— offer to settle —proof of a settlement made with another person.

    ■Negotiations or proposals looking towards the settlement of a controversy without action, cannot be received in evidence as admissions of liability. This rule, however, does not extend to an admission of a disputed fact, even though made in the course of such negotiations.
    An oiler or consent or expression of willingness to settle cannot be considered as an admission of liability; nor is evidence of the fact of the settlement, without litigation, of the claim of another party arising out of the same transaction, competent against the party efEecting the settlement.
    Appeal by the defendant, William H. Norton, from a judgment of the Ontario County Court, entered in the office of the clerk of the county of Ontario on the 13th day of January, 1890, in favor of the plaintiff for $236 damages and costs, and affirming the judgment of a justice of the peace rendered on June 5, 1888.

      G. J. JBissell, for the appellant.

      W. W. Clark, for the respondent.
   Dwight, P. J.:

The action was for the alleged negligent burning of the plaintiff’s timber by fire allowed to escape from the defendant’s fallow. The defendant controverted the allegation of negligence in the setting and management of the fire on his own land, and sought to avoid liability on the ground that the negligence, if any, was not that of himself, his agents or servants, but of a third person who had taken the contract to clear his land, fit for the harrow, at an agreed price per acre, and that the means and time of accomplishing that result were not in the defendant’s control. The justice who tried the case, without a jury, gives the reasons for his judgment in his return, from which it appears that he decided the question of fact last above suggested against the defendant’s contention, and found that the person who did the work and set the fire was not an independent contractor, but the servant of the defendant, and that the latter was responsible for his negligence. The evidence bearing upon this question was conflicting, and, unfortunately, it embraced two items of testimony in behalf of the plaintiff objected to by the defendant which were improperly admitted. The first was in violation of the familiar rule that negotiations or propositions looking to the settlement of a controversy without action cannot be given in evidence as admissions of liability. (1 Greenleaf on Evidence, § 192; Stephens Dig. of the Law of Evidence [Chase’s ed.] 52, note, and the cases cited.)

The rule is well founded in reason. The law is willing to encourage the compromise and settlement of controversies without litigation, and holds communications looking to that end as privileged in their character, and not to be used to the prejudice of the party making them. It is true the privilege does not extend to an admission of a disputed fact, even though made in the course of such negotiations; but this does not detract from the force of the rule. The principle is that an offer or consent, or expression of willingness to settle, is not to be taken as an admission of liability, and is, therefore, not evidence of the fact. The testimony objected to was within the rule. There was in' it no admission of any fact in controversy, but only the expression of a desire that the matter might be settled without paying money to the lawyers.

The same rule should, a fortiori, have excluded the testimony objected to, of the fact of a settlement, without litigation, of the claim of another neighbor for damage done by the same fire. What motives or considerations may have influenced tjie defendant to> make that settlement does not appear. The fact that he did settle with a third person was not to be taken as an admission of his liability, for the same reason that his proposition to settle with the plaintiff was not to have that effect.

The reasons for his judgment given by the justice in his return are pertinent and forcible, and we should probably have no hesitation to affirm that judgment had the conclusion of fact upon which it was based been reached upon evidence all of which was relevant and admissible on the issue involved.

For the error indicated the judgment of the County Court and of the justice must be reversed.

Macomber and Corbett, JJ., concurred.

Judgment of County Court and of the justice of the peace reversed, with costs.


author: Dwight, P. J. :

text:
    AUGUSTUS FRANK and EBEN O. McNAIR, Appellants and Respondents, v. CHARLES L. BINGHAM, Respondent and Appellant.

      Proceeds of a note sent to a bank for collection—when recoverable from thé receiver of the bank.

    In an action brought to recover from the receiver of a bank the avails of a note which had been sent to it for collection, and had been collected by the bank, which . failed immediately after such collection, it is necessary'that the plaintiff should show that the avails of the note came into the hands of the receiver.
    In case the proceeds of the note have been used by the bank prior to-the appointment of the receiver, and are not represented in the assets in the hands of the receiver, the plaintiff is not entitled to a preference in the payment of his claim over other creditors of the bank.
    Appeal by tbe plaintiffs from a judgment, entered in tbe office of tbe clerk of the county of Livingston on tbe 3d day of July, 1890, in favor of the plaintiffs and. against the defendant, for tbe sum of $270.04, including costs, so far as tbe justice before whom tbe action was tried, and who directed tbe entry of such judgment, refused to direct judgment for tbe further sum of $530.42 and interest, and by tbe defendant Charles L. Bingham, from so much of tbe said judgment as orders and adjudges “ that the plaintiffs recover judgment against tbe defendant for the amount of ‡140.40, with interest thereon from tbe 18th day of August, 1887.*’'

      J. A. Yanderbvp, for the plaintiffs.

      M. 3. Briggs, for the defendant.
   Dwight, P. J. :

The action was to recover the avails of certain commercial paper forwarded by the plaintiffs to the First National Bank of Dansville for collection, and collected by the bank shortly before its failure in 1887. The defendant is the receiver of the bank, though sued in his individual name, and the complaint demands judgment against him, to “ be paid by the defendant out of any moneys in his hands as such receiver, before making any distribution of the money or property of the said First National Bank of Dansville, to the general creditors of the said bank and in preference thereto.”

The plaintiffs were'private bankers at Warsaw, in the county of Wyoming; the First National Bank of Dansville was, as its name imports, a banking corporation organized under the laws of the United States, doing business at the village of Dansville, in Livingston county. The plaintiffs were accustomed -to send commercial paper held or received for collection by them and payable at Dansville, to the bank mentioned, for collection and it was the custom of the bank to remit the avails of such collections, less commissions, by drafts drawn by it on its correspondent in the city of New York. On the 16th day of August, 1887, the plaintiffs mailed to the bank at Dansville, for collection' and remittance, four checks drawn on that bank by depositors therein, aggregating $435.84, and a note of one Beyer for $140.40, payable at the same bank on the eighteenth day of the same month. The paper was received at the bank on the seventeenth, the checlis were charged to the several accounts of the drawers, which were good for the amounts, and on the same day the bank remitted to the plaintiffs its draft on New York for the aggregate amount of the checks, less fees for the collection. The note of Beyer was paid in cash on the eighteenth. The money was not kept separate from, but was mingled with other cash on hand, of which about $2,000 was received, and much more than the amount of the note was paid out the same day. On the same day the bank sent to the plaintiffs its draft as usual, for the amount of the note, less fees for collection. On the twentieth of the same month the plaintiff sent to the bank at Dansville two more checks drawn upon it by its customers, aggregating ninety-four dollars and eighteen cents. These were received on the twenty-second, and, as before, charged to the several accounts of the drawers, which were- good for the amounts. On the twenty-third the bank closed its doors on account of insolvency, having received and paid out money in the usual course of its business down to and including that day. Neither of the drafts remitted to the plaintiffs was paid. Soon afterwards the defendant was duly appointed receiver of the bank under the laws of the United States. He immediately qualified as such and took possession of the assets of the bank. He found among those assets the sum of $189.19 in cash, which he turned over as required by law, to the comptroller of the currency of the United States.- Since that time, and including that amount, he has collected from the assets of the bank about $11,000. Some time after his appointment as receiver, but how long after does not appear, except that it was before the commencement of this action, the plaintiffs demanded of him the avails of the six checks and the note above described, and payment being refused they brought this action.

The theory of the action is, distinctly, that of a trust impressed upon the avails of the several collections 'in the hands of the bank, and accompanying those avails into the hands of the receiver. The court, at Special Term, sustained that theory in respect to the avails of the note of Beyer, but found it not applicable to the case of the checks, and gave judgment against the defendant for the amount of the note, with interest, and for costs. We think the theory fails of application to any portion of the plaintiff’s demand, for the reason that it is not shown that any portion of the funds in question came into the hands of the receiver.

No principle seems to be better established than that, “ in order to follow trust funds and subject them to the operation of the trust, they must be identified.” The rule is stated in those terms by Andrews, J., in Cavin v. Gleason (105 N. Y., 256). Of course, it is not intended that, in the case of money, the particular coin or bank-notes must be found to be, or shown to have been, in the hands of the person sought to be charged with the trust. On the contrary, the opinion from which we quote recognizes and formulates the rule in equity “ that, as between eestui que trust and trustee and all parties claiming under the trustee, otherwise than by purchase for a valuable consideration, without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character,- and all the fruit of such property, whether in its original or altered-state, continues to be subject to or affected by the trust; ” and further on the same learned judge says: “A court of equity, in pursuing the-inquiry and in administering relief, is less hampered by technical difficulties than a court of law; and it may be sufficient, to entitle a party' to equitable preference in the distribution of a fund in insolvency,, that it appears that the fund or property of the insolvent remaining for distribution includes the proceeds of the trust estate, although it may be impossible to point out the precise thing in which the trust fund has been invested, or the precise time when the conversion took place.”

In this case, as we have seen, the court found in favor of the: plaintiffs for the amount .of the Beyer note, but there was no' finding that the avails of the note ever came- into the hands of the-receiver, nor that they were not wholly paid out on other demands against the bank before it closed its doors. Such a finding could not have been sustained upon the evidence in the case; the almost necessary inference therefrom being to the contrary. The bank did business on what must have been a very narrow margin of cash for five days after the $140 was received in payment of the note, and at the end of’ that time had only $189 of cash on hand. In the nature of -things it was impossible to identify any portion of the avails of the note with any portion of the scarcely larger amount of cash which came into the hands of the receiver; the latter was as likely to be the avails of any other collection made at about the same time, as of the Beyer note. And in this connection it is interesting to learn from the report of the case of Arnot v. Bingham (29 N. Y. St. Rep., 878), that the same small residue of cash which came into the hands of the receiver, had, when this action was tried, already been adjudged to be the property of the plaintiffs in that action, upon facts almost precisely similar to those presented by the record before us. That judgment was rendered at Special Term in the sixth district, and was affirmed, with hesitation, by the General Term in the fourth department. The case, though fully sustaining the legal contention of counsel for the plaintiffs, was naturally, perhaps, not cited by him in his argument here, but our attention was called to it by counsel for the defendant as curiously illustrating the necessity of an actual identification of some portion of the fund which passed to the receiver with the particular trust fund sought to be recovered in the action. Should both of these Special Term judgments be finally affirmed, ,we should have the same small balance of cash which came into the hands of the receiver judicially determined to belong to two different parties, by reason of its being held to be the same money received in trust for both; and if one should be finally affirmed, and not the other, we are at a loss to see upon what principle the preference would be given. The General Term in the fourth department, in an opinion by Martin, J., admits “ that the question whether the fund recovered in this (that) action, was, in fact, the property of the plaintiffs, or so far impressed with a trust in- their favor as to constitute them equitable owners thereof, is not free from doubt; ” but that court was inclined to the opinion that the doctrine of the case of the People v. The City Bank of Rochester (96 N. Y., 32), justified the holding of the trial court.

The case thus referred to is also the authority chiefly relied upon by counsel for the plaintiffs in this action. We are unable to give to it the same effect as our brethren in the fourth department, especially in view of the explanation and qualification given to it by the court in the later case of Cavin v. Gleason (supra). In the latter case the court say: “ The case of the People v. The City Bank of Rochester (96 N. Y., 32) seems to have been misunderstood. The question in this case was not raised there, and it was not claimed in that case that the proceeds of the cheeks of Sartwell, Hough & Co., the petitioners, had not gone 'into the general funds of the bank, or that they had not passed in some form to the receiver. The court did not decide, nor intend to decide, that the petitioners would have been entitled to a preference in case the proceeds of the check had been used by the bank and were not represented In its assets in the hands of the receiver.”

Thus explained and qualified, the case of the City Bank of Rochester is saved from conflict with the doctrine so clearly expounded in our previous quotations from the opinion in Gamin v. Gleason.

We think that doctrine is fatal to the plaintiffs’ contention in this case, and, accordingly, that the judgment of the Special Term, so far as it awards a recovery to the plaintiffs, should be reversed and judgment absolute ordered for the defendant.

Macomber and Corlett, JL, concurred.

That portion of the judgment appealed from by the defendant reversed; in other respects judgment affirmed and the complaint dismissed, with costs of this appeal and of the Special Term to the defendant.


author: Macomber, J.:

text:
    THOMAS L. HULBURT, Appellant, v. FLETCHER A. DEFENDORF, as Supervisor, etc., Respondent WILLIAM P. CHASE, Appellant, v. SAME, Respondent.

      Supervisor — right to compromise an action although the judgment thereinis cha/rgeable to the town — right of the town to order an appeal to be talcen.

    An action having been brought against the supervisor oí a town to recover for professional services rendered by the plaintiff, as an attorney and eounselor-atlaw, to the predecessor of such supervisor, judgment was entered in favor of the plaintiff for $804.80, and was appealed from by the supervisor, after which negotiations were carried on between the plaintiff and the supervisor, resulting in a stipulation, whereby it was agreed by the plaintiff that upon the payment of $400 and the costs, as entered in the judgment, with interest, and upon consideration that no appeal should be taken from such judgment by the defendant, the judgment should be satisfied and the action be discontinued, provided such payment should be made before the 15th day of February, 1891. The supervisor thereupon withdrew the notice of appeal from the judgment, which had been theretofore served, and leave was obtained from the Special Term to withdraw such notice of appeal, and on application to the General Term such appeal was dismissed, prior to which, however, a town meeting had been held, at which a resolution was passed directing the supervisor to appeal from the judgment.

      Held, that, as there was no evidence that the compromise was not honestly made, the supervisor was not bound by the action of the town board, although, by the provision of the statute, the amount of the judgment was payable by the town after its audit by the town board.
    That, in the absence of fraud, the supervisor had the power to settle the matter in dispute.
    That although in certain actions, which may be maintained by parties against the town in its municipal name, it is made, by statute, the duty of the supervisor of the town to place before the electors of the town a full statement of such suit or proceeding for their direction in regard to the defense thereof, the statute has no application, nor is the supervisor bound to accept the instructions of the town board, in an action brought against him in his individual name.
    Appeal by tbe plaintiff Thomas L. Hulburt from an order of the Supreme Court, granted at Special Term on the 31st day of March, 1890, and entered in the office of the clerk of the county of Monroe on the 22d day of April, 1890; and by William P. Chase from an order of the Supreme Court, granted at Special Term on the 22d day of April, 1890, and entered in the office of the clerk of the county of Monroe on the same day.
    The order appealed from by Thomas L. Hulburt provided as follows:

      Ordered, That Fletcher A. Def endorf, newly-elected supervisor of the town of Perinton, county of Monroe and State of New York, be, and he hereby is substituted in the place and stead of Thompson G. Jones as the defendant in this action; and it is further

      Ordered, That the order entered in this action on the 5th day of March, 1890, dismissing and setting aside a notice of appeal duly filed herein with the clerk of Monroe county on the 29th day of January, 1890, be, and the same hereby is vacated and set aside, and the defendant may perfect his appeal from the judgment recovered by the plaintiff in this action, the notice of appeal already served upon the plaintiff on or about the 29th day of January, 1890, to be and continue the notice of appeal herein, the same being a copy of the notice of appeal filed in the clerk’s office on the said 29th day of January, 1890; and it is further
    Ordered, That the defendant may file and serve exceptions to the report of the referee within ten days from the entry of this order, nunc pro tunc, and may make and serve a case upon appeal with exceptions to the General Term, fifth department, from said judgment, and that he may have thirty days from the entry of this order in which to make and serve such case and exceptions, with ten dollars costs of this motion to be paid by the defendant to the plaintiff herein.

      Walter S. Hubbell, for the appellant.

      James L. Angle and W. Martin Jones, for the respondent.
   Macomber, J.:

This action was begun in the month of May, 1889, against one Thompson G. Jones, supervisor of the town of Perinton, in the county of Monroe, to recover for professional services as an attorney and counselor-at-law, rendered to the predecessor of Jones, supervisor of such town, in an action in which such supervisor defended in behalf of the town. An answer was interposed and the case was referred to a referee to hear and determine the same. The amount claimed in the complaint by the plaintiff was the sum of $550, but at the trial, upon application, the complaint was amended in the amount of the claim, made so as to conform to the proof, and, in pursuance thereof, the referee reported a recovery, in the sum of $804.30, for the plaintiff.

Shortly after the entry of the judgment, in pursuance of such report, negotiations were begun by the then defendant with the plaintiff for a compromise of such judgment, in pursuance of what was then believed to be the public sentiment of a majority of the taxpayers of the town that it would be well to pay one-half of the recovery, besides costs, rather than further to litigate the matter. Accordingly a stipulation was entered into between the plaintiff and the supervisor of the town, by which, upon the payment of such sum of $400 and the costs, as entered in the judgment, with interest thereon from the time of the entry of the judgment, and upon a further- consideration that no appeal should be prosecuted from such judgment by which the plaintiff should be put to further costs and expenses in collecting- his claim, and the said sum of $400, besides costs, paid on or before the 15th day of February, 1891, then the judgment, as entered, should be satisfied and the action discontinued. Thereupon the defendant withdrew his notice of appeal to the General Term from the judgment which had theretofore been entered and served.

Accordingly, upon an application to the Special Term by both parties, leave was granted to the defendant to withdraw the notice of appeal, and in pursuance of the same agreement an application was made to the General Term on the 25th day of March, 1890, for the dismissal of such appeal, which was accordingly granted. Prior to this time a town meeting had been held at which a resolution was passed directing the supervisor to appeal from such judgment.

There is not in the papers before us any evidence that the compromise of the judgment was not honestly made and the agreement entered into for the best interest of all parties to the litigation. It is true that the moving papers allege, in a general way, that the compromise and the dismissal of the appeal were in pursuance of a conspiracy, yet no fact is stated on which such a conclusion can reasonably be based. The high character of the referee, upon whose report the judgment was entered, adds strength to the presumption of law that the judgment was correct. So, also, the characters of the attorneys of record preclude any assumption that the agreement by which this litigation was ended was not in all respects just and fair. It follows, therefore, that the order of the Special Term by which the notice of appeal was withdrawn, followed by the order of the General Term dismissing such appeal, both done in pursuance of the terms of the written agreement, must be deemed to be valid and unassailable by motion unless the same was made contrary to some statutory regulation.

The learned judge, at the Special Term, in his opinion, has held that the special town meeting directing that an appeal be taken was binding upon the defendant, and inasmuch as the plaintiff knew of such meeting and of the passage of such resolution, he is bound by it as well as the defendant. It is true that any judgment which was recovered against Jones, as supervisor of the town of Perinton, was, under the Revised Statutes (2 R. S., 474, §§ 102, 103), payable by the town, after the same had been audited by the town board, or that failing after it had been reported to the board of supervisors under whose direction a provision might be made for levying the same by tax upon the town. But it by no means follows, from these provisions of the statute, that the defendant had not full control over the management of the case within the ordinary rules governing the rights of parties to actions. If, in making the settlement, the defendant was guilty of any corrupt misconduct in office, by which the rights of the town were impaired, an action would lie in behalf of the town against him. Furthermore, had any fact been disclosed upon the motion as contained in the appeal papers, showing that such settlement was in fraud of the rights of the town or accomplished by means of deception practiced upon the supervisor or upon the court, an entirely different question would arise. In the absence of such evidence we see no reason why the defendant should not have the power to settle the case in the manner above disclosed. The only objection that can be made to it is contained in 1 Revised Statutes (357, § 3), which is as follows • “ In all legal proceedings against towns by name, the first process, and all other proceedings required to be served, shall be served on the supervisor of the town; and whenever any such suit or proceeding shall be commenced, it shall be the duty of the_ supervisor to attend to the defense thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding for their direction in regard to the defense thereof.”

It will be seen, however, that the duty to lay before the electors of the town, at the town meeting, a statement of the suit or proceeding, so as to receive the direction of the town in regard to the defense thereof, is limited by the words of the statute to legal proceedings taken against the town by name. There is a class of actions, not necessary to refer to in detail, which may be maintained by the parties against the town in its municipal name. The processes in such eases are required to be served upon the supervisor, and he in turn is required to report the same to the town meeting. But there is no statutory requirement for him to lay before the town meeting, or to accept their instructions in actions against him in his individual name, and consequently an honest settlement of any litigation made by him ought to be deemed to be conclusive in behalf of the other side to the controversy. It was suggested in the opinion below that if the contention made in behalf of the plaintiff, that an actual majority of the electors of the town of Perinton were in favor of this compromise and settlement of the action and dismissal of the appeal was true, such fact might be ascertained at the next town meeting. But it seems to us that the decision of the courts ought not to be required to hang upon the votes of the electors of the town in such a matter as this. Six hundred taxpayers, being a majority, or at .least half of the whole electors, had signed a petition for the settlement of the suit in pursuance of the action of the supervisor. A mere handful of electors assembled at the town meeting, under political manipulation, have passed a resolution asking that the order permitting such settlement be set aside, and the appeal from the judgment be prosecuted. Tet, as pointed out above, the decision of two courts had been taken upon agreement of the parties to the action, honestly made without any pretense of deceit or overreaching by either side. Should we sustain this order, we might again, after the next March town meeting, with a different result of the annual voting of the town, be called upon to revise our present action and restore the order originally made.

The case of William P. Chase against the same defendant, which was argued with this case and upon the same facts, must, under the stipulation, abide the result- of our determination in this action.

It follows, therefore, that the order appealed from should, in each case, be reversed, with ten dollars costs and disbursements; also, that the original motion made and heard at the time of the hearing of this appeal to vacate our order of March 25, 1890, must be denied, with ten dollars costs.

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

Order appealed from in each case reversed, with ten dollars costs and disbursements, and the motion denied.