author: BarNard, P. J.:

text:
    JOHN R. DRAKE, Respondent, v. WILLIAM L. WETMORE and Another, Appellants, Impleaded with THE NEW YORK IRON MINE.

      Statute of limitations — right of action to enforce the application of a stock dividend to the payment of a note already barred by the statute.

    A cause of action, in favor of tlie holder of an unpaid past-due promissory note, to enforce a claim upon a dividend, declared by a stock corporation after the maturity of the note and alleged to be applicable to the payment thereof, where the cause of action is created solely by the declaration of the dividend, dates from the declaring of the dividend, and is not barred by the statute of limitations, although the right to sue upon the note to which it is incidental is barred.

      Appeal by the defendants, William L. Wetmore and Matthew H. Maynard, as assignee in bankruptcy of William L. Wetmore, respectively, from an interlocutory judgment entered in the office of the clerk of Queens county on the 10th day of August, 1892, so far as it sustains the demurrer interposed by the plaintiff to the second separate and distinct defense contained in the amended answer of said defendant; with notice of an intention to bring up for review on such appeal the order of the Special Term, granted on the 1st day of August, 1892, and entered in the office of the clerk of this court and of the county of Queens on said day, so far as said order provides and orders that the said demurrer of the plaintiff to the said second separate and distinct defense contained in said amended answer of said defendant be sustained, and that an interlocutory judgment be entered accordingly.
    The action was in equity, and was begun in 1891, the complaint alleging, in substance, that the plaintiff, John R. Drake, holds, through a chain of assignments, three promissory notes of $5,000 each, dated, respectively, April 26, 1877, May 1, 1877, and May 6, 1877, payable each in sixty days, made by the defendant Wetmore in the name of the defendant, the New York Iron Mine, and discounted by the First National Bank of Negaunee, Michigan.
    That the defendant Wetmore had no authority to make said notes in the name of the New York Iron Mine, and was, therefore, per: sonally liable for the amount thereof. ■
    That said Wetmore was a stockholder in the New York Iron Mine, holding 5,333 shares of its capital stock, Samuel J. Tilden holding the remainder, to wit, 14,667 shares; that Wetmore made the notes and procured them to be discounted to enable hihi to realize certain interests in the surplus profits and dividends upon the capital stock of the New York Iron Mine then and thereafter earned and to be declared, and to so much thereof as should be apportioned to certain of said capital stock held by him, as above stated, and applied the proceeds of said notes, to his own use.
    That the defendant, the New York Iron Mine, is a foreign corporation, organized under the laws of Michigan.
    That, by an act of the legislature of the State of Michigan, approved February 5, 1853, the said New York Iron Mine had a lien upon the stock of the said Wetmore, and upon his property invested in said New York Iron Mine, for all debts due from Mm to it, tbe said company, and that in case he should charge himself with said notes as a debtor therefor to the said corporation, such indebtedness became and was, under said law, an offset against such dividends as should be declared upon his stock, which became thereby assigned for the payment of such indebtedness to the extent thereof.
    That the said Wetmore, on or about May 6,1877, did charge himself upon the books'of the said New York Iron Mine with said notes, and that he requested the said Tilden, who was then the president of said company, to apply the said dividends to the payment thereof.
    That on or about November 23, 1877, the said Wetinore became-bankrupt, and the defendant Maynard is his assignee in bankruptcy.
    That on March 1, 1889, the New York Iron Mine declared dividends on its capital stock from March 31, 1877, to April 1, 1882, and that the share of the defendant Wetmore on his said stock, after being applied to the extinguishment of the indebtedness of said Wetmore to said company and certain others, left a balance of $35,000.
    The prayer of the complaint is, that the plaintiff be decreéd to have a lien upon said $35,000, balance of dividends as aforesaid, to the extent of the amount of said notes, with interest, and that the New York Iron Mine be decreed to pay over to him such amount; and for such further relief as may be proper.
    The defendants, Wetmore and Maynard, interposed .separate answers, both containing the same defenses. The plaintiffs demurred generally to certain of the separate defenses. The demurrers were argued at Special Term and were sustained as to one of these separate defenses, which invoked the statutes of limitations of Michigan and New York, and, epitomized, is that the notes became due, respectively, on June 29, 1877, July 5, 1877, and July 9, 1877; that no action was ever brought upon said notes; that any action thereupon at the . time of the commencement of this action would have been barred, and that, therefore, the alleged cause of action stated in the complaint is also barred.

      George W. Werferibach, for the appellants.

      JRoger M. Sherman, for the respondent.
   BarNard, P. J.:

The plaintiff is the owner of three notes of $5,000 each, given by the New York Iron Mine to the First National Bank of Negaunee,. Michigan. The notes were all given in 1877, in April and May. The defendant Wetmore executed the notes in the name of the Iron Mine Corporation without authority. That corporation is a Michigan corporation. Wetmore applied the proceeds to his own use. The legislative act of Michigan gave the company a lien on Wetmore’s-stock in the corporation for his debts to the company. Wetmore charged himself with the payment of the notes upon the books of the company in May, 1877, and assigned the dividends upon his-capital stock, 1;333 shares, and authorized the president of the company to apply the dividends to the payment of the notes in question. Wetmore became a bankrupt in November of the same year. No payments have ever been made on the notes. On the 1st of March, 1889, the Iron Mine declared dividends upon the Wetmore stock to the amount of $35,000. The complaint alleges that the corporation either holds that sum or has paid it to the official assignee in bankruptcy. The relief sought by the plaintiff is that he be paid out of that fund. The defendants plead the statute of limitation both by the State of Michigan and New York, and both the six years’ and ten years’ limitation. The defense pleaded is not good. The cause of action, which is based upon an existing title in the notes, only dates from the declaring of the dividends. In the case of Butler v. Johnson (111 N. Y., 204), the right to enforce the claim on the part of the creditor existed. The cases holding that a mere form of the relief sought will not exclude the operation of the statute have no relevancy. The right to the relief in this case is created solely by the defendant, Iron Mine, declaring a dividend in 1889. This remedy is, indeed, incidental to the notes which may be barred by the statute, but the notes are not paid. The lien on the dividend is not impaired because the right to sue upon the notes is barred. (Hulbert v. Clark, 128 N. Y., 295.)

The part of the judgment appealed from is, therefore, affirmed, with costs.

Pratt, J., concurred.

Order sustaining plaintiff’s demurrer to second defense affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    In the Matter of the Application of SIMEON W. SMITH, Appellant, v. THE VILLAGE OF WHITE PLAINS, Respondent.

      Change in the grade of a street ■ damages to an abutting owner — recovery of, dependent on the statute — repeal of the statute — decision on motion of a question of constitutional law.

    An abutting owner has no vested interest in the grade of a street as established, and a change of grade does not constitute a taking of private property.
    The right of an abutting owner to recover damages for a change of grade in a street is dependent entirely upon the statute.
    Chapter 315 of the Laws of 1890, which empowers the board of trustees of the village of White Plains to change the grade of streets, and provides that the expense shall be assessed upon property benefited by three disinterested freeholders to be appointed by the board of trustees, and that the provisions of chapter 113 of the Laws of 1883, which give a right to an abutting owner to apply to the court for the appointment of commissioners to appraise damages by reason of a change of grade, shall not apply to a street changed, under the provisions of chapter 315 of 1890, is constitutional.
    The answer to a petition for the appointment, by the court, of commissioners to appraise the damages sustained by the petitioner by reason of the change of grade of a street in the village of White Plains, alleged that the statute under which the petitioner proceeded was inapplicable by reason of the enactment of chapter 315 of the Laws of 1890, which latter statute the petitioner thereupon claimed was unconstitutional.

      Held, that a dismissal of the petition on the above ground was, in effect, sustaining a demurrer, and was a trial of the legal question involving the constitutionality of the statute, and should be affirmed.
    Appeal by the petitioner, Simeon W. Smith, from an order made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester, on the 20th day of October, 1892, denying the application of the petitioner for the appointment of commissioners to ascertain and determine the amount of damage sustained by him by reason of a change in the grade of a street in the village of White Plains.
    The motion for the appointment of commissioners was based upon a petition which stated, in substance, that the village of White Plains was a municipal corporation and the petitioner was the owner of two parcels of land situate on both sides of a street of the village, the natural grade of which had been lately changed by the village authorities to a lower level and large quantities of soil and dirt removed from the street, whereby the petitioner’s premises, along the whole line of said street on both sides thereof, were left at an elevation of many feet above the new grade, which gjeatly damaged the premises and which could not be remedied without great expense, the damages to the property having been estimated at $3,000, and that a claim therefor had been presented to the village more than thirty days before the petition was made, which claim the village failed to adjust.
    Upon the motion the defendant filed an answer praying for the dissmissal of the petition on the following ground, after admitting certain allegations of the petition and denying others :

      Fifth. The said village further answering said petition and in opposition to the prayer of the same, respectfully shows to the court that the act or acts of the legislature, under which the said petition is prepared and under which the same will be presented, do not apply to the sribject-matter of this petition and are not controlling on this defendant, for the reason that by an act of the legislature of the State of New York, duly approved by the governor May 12, 1890, and designated as chapter 315 of the Laws of 1890, it was there provided that chapter 113 of the Laws of 1883, entitled “An act in relation to alterations of highways, streets or bridges in incorporated villages,” and the acts amendatory thereof shall not apply to a street, avenue or highway or bridge changed or altered by the board of trustees of the village of White Plains, under the provisions of chapter 315 of the Laws of 1890; and the said village further shows that any and all changes of grades of the streets, avenues or highways in the said village of White Plains, since the passage of the said last-mentioned act, have been made by the said board of trustees in pursuance of the power and authority vested in them by such act.
    At the hearing the petitioner claimed that chapter 315 of the Laws of 1890, was unconstitutional. The decision of the court was embodied in the order appealed from, which is as follows:
    Oh reading and filing the petition of Simeon W. Smith, and the notice of motion for the appointment of commissioners, and the answer of said village, then and there filed, and a motion having been made on behalf of said village te dismiss the petitioner’s proceedings, then and there, upon tbe statute referred to in the “ fifth ” subdivision of the answer, which statute the petitioner claimed was unconstitutional:
    Now, therefore, after hearing counsel for the respective parties, it is ordered that said application of the petitioner for the appointment of commissioner be and the same hereby is denied and said petition dismissed, without costs.
    On the appeal the petitioner insisted that the denial of his application and the dismissal of the petition on motion, after the question of the constitutionality of chapter 315 of Laws of 1890 had been raised, was error, for the reason that the question of whether or not a law is unconstitutional should not be decided on a motion, but should be the subject of a trial.
    Section 15 of chapter 315 of Laws of 1890, amending section 20 of the charter 'of the village of White Plains, relating to the change of grade of streets in the village, provides that the board of trustees of the village “ shall also have power to change or alter the grade of any street, avenue, highway or bridge in said village (laid out or accepted by said village), and to grade and regrade the same, and the expense of such changing, altering, grading or regrading, and all damages to adjoining property occasioned thereby or to the use thereof shall be assessed upon the real property fronting on said street or avenue benefited thereby in proportion to the amount of such benefit, by three disinterested resident freeholders of said village, to be appointed by the board of trustees; ” that notice of fifteen days shall be given of the assessment and of the day when it will be confirmed by the board, and that in the meantime any person interested may appeal to the board of trustees; and that “ the provisions of chapter one hundred and thirteen of the Laws of one thousand eight hundred and eighty-tliree, entitled ‘ An act in relation to alterations of highways, streets or bridges in incorporated villages,’ and the acts amendatory thereof shall not apply to the street, avenue, highway or bridge so changed or altered under the provisions of this section.”
    Section 1 of chapter 113 of Laws of 1883 is as follows: “ Whenever the grade of any street, highway or bridge in any incorporated village in this State shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the-real property adjoining such, highway so changed or altered, the owner or owners of such building or real estate may apply to the Supreme Court in the judicial district in which such property is situated for the appointment of three commissioners to ascertain and determine the amount of damage sustained thereby; due notice of such application shall be given to the person or persons having-competent authority to make such change or alteration.”

      Wilson Brown, Jr., for the appellant.

      H. T. JDykmam,, for the respondent.
   Pratt, J.:

The appellant’s contention is based upon the idea that an abutting owner has a vested interest in the grade of a street as established, and that a change of grade is a taking of private property. We believe this to be an error.

The right of an abutting owner to recover damages for a change of grade in a street depends upon statute, and in many, and, perhaps, most cities of the State, does not exist. The legislature had the-power to repeal the act of 1883 in whole or in part.

We do not see that a land owner in White Plains has any more right to complain that he has lost the benefit of the act of 1883, than a land owner in Brooklyn has that he has never been allowed such relief. The remedy provided for the White Plains land owner may be imperfect, but for similar injuries property holders-in other localities have no remedy whatever.

Dismissing the petition on the ground set forth' was, in effect, sustaining a demurrer. We think there was a trial of the legal question and the order must be affirmed, with costs.

Culuen and BrowN, JJ., concurred.

Order denying motion for the appointment of commissioners-affirmed, with costs and disbursements.


author: BakNAed, P. J.:

text:
    WILLIAM HARRIGAN, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Liability of a municipality for a defect in a street — opening in the curb, not on the sidewalk or m’oss-walk.

    A municipality is not liable for an injury suffered by a pedestrian crossing a street in tbe nigbt-time, caused by bis stepping into an opening some four inches wide at tbe top and three inches deep between tbe ends of two curb-stones, not on tbe sidewalk or at tbe termination of a cross-walk, which opening bad been made to .carry away water from tbe street, in a prudent exercise of tbe power of tbe municipality to make its streets and walks dry for tbe use of tbe public.
    Appeal by tbe plaintiff, William Harrigan, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Kings county on tbe 26th day of August, 1892, on tbe dismissal of tbe complaint at tbe close, of tbe plaintiff’s evidence on a trial at circuit, and from an order, entered in said office on tbe 3d of September, 1892, denying tbe plaintiff’s motion for a new trial on tbe minutes, in an action brought to recover damages arising from personal injuries sustained by tbe plaintiff in a public street of tbe defendant, tbe City of Brooklyn.

      James C. Church, for tbe appellant.

      Al/met F. Jenks, for tbe respondent.
   BakNAed, P. J.:

Hicks street is one of tbe public streets m tbe city of Brooklyn. Tbe street was graded and paved by tbe city, including tbe sidewalks, in 1860. Tbe street was paved with cobble-stones, and there was a good, unflagged sidewalk two or three inches below the top of tbe curb-stone level. On the 21st of July, 1888, about twelve o’clock at night, the plaintiff crossed Hicks street on tbe cross-walk, until be discovered a puddle of water, and be stepped aside, some three feet, to avoid tbe water. When be reached tbe sidewalk he put his foot upon tbe curb-stone, and there was an open space there some four inches at the top, and slanted down likp a wide-shaped Y where tbe curbs bad not come together. Tbe plaintiff put bis foot in tbe Y-shaped opening in tbe curb-line, fell and broke bis leg. The opening in the stone was not'at the termination of the cross-walk, and bad been made to carry the water from the street, which otherwise lay stagnant there, into the lot that carried the water away. There was no proof of negligence upon the part of the city. The case does not resemble Clemence v. City of Auburn (66 N. Y., 334). In that case a sidewalk was constructed on two grades. They were connected by a stone at a slope of six inches in about three and a half feet. The result was, a person was injured by stepping in the incline covered by a light snow. Neither is it like the case of Goodfellow v. The Mayor (100 N. Y., 15). There, a cross-walk was supposed to continue where a stone in it had one corner on a level with the grade and the opposite corner, eight inches below the level. The court held this case proper to go to the jury. The present case does not refer either to sidewalk or cross-walk. It was a failure to bring the top of the curbs close, and for a good reason. It was the duty of the city to free the street and walks from water, and this small aperture in the curb-line, four inches wide and some three inches deep, and not on the sidewalk and not on the cross-walkj but detached some feet therefrom, was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    In the Matter of the Petition of the THIRD METHODIST EPISCOPAL CHURCH, in the City of Brooklyn, to Dissolve the Corporation, etc.

      Ghapt&r 434 of Loads of 1873 — dissolution of religious soeieties, how accomplished.

    No meeting of the hoard of trustees of a religious society is necessary to authorize the application of a majority of the trustees for a dissolution of the society under chapter 434 of the Laws of 1873.
    Nor is it essential that there should be a meeting of the society to authorize such an application, except to show the court that a dissolution is favored by a majority of the society.

      It is no objection to an order made by the court for the dissolution of a religious society, authorized by statute, that it is contrary to, or not authorized by, the discipline of the church to which the society belongs.
    Appeal by Daniel I. Salt and William Jones from an order made at the Kings County Special Term and entered in the Kings county clerk’s office on the 31st day of August, 1892, in favor of the petitioners in a proceeding for the dissolution of a religious society.
    The proceeding, which was had under chapter 424 of the Laws of 1872, entitled “An act to provide for the dissolution of religious societies, except in the city and county of New York, and for the sale and disposition of the proceeds of the property of such societies,” was instituted in February, 1892, by a petition to the Supreme Court, made by a majority of the board of trustees of the Third Methodist Episcopal Church, in the city of Brooklyn, an incorporated religious society, praying for an order for a dissolution of the society, and for a sale and conveyance of all its property, and for a transfer of the balance of the proceeds, after the payment of debts and expenses, to the Brooklyn Church Society of the Methodist Episcopal Church, in pursuance of a resolution to that effect alleged to have been adopted at a meeting of members of the church, held on December 22, 1891.
    The proceeding was opposed by certain members of the church, including the pi’esent appellants, two members of the board of trustees.
    Among the specific objections urged by them to the regularity of the proceedings was the fact that the application was made by abare majority of the trustees, without a meeting of the board or notice to the other trustees; that the special meeting of church members at which the question of the dissolution of the society and the disposition to be made of its property was voted on was invalid, for the reason that the notice issued therefor contained no reference to the object of the meeting; and that the question of dissolution and disposition of the church property had not been submitted to the quarterly conference as required by section 334 of the Discipline of- the Methodist Episcopal Church.

      Horatio O. Kvng and Frank Moss, for the appellant./

      W. J. Groo, and George G. Reynolds, for the petitioners respondents.
   Pratt, J.:

It is not material to consider the motion to dismiss the appeal in this proceeding as the merits are before us, and a decision upon the merits will dispose of the motion.

The questions raised upon this appeal were thoroughly tried below, and we think the conclusions there reached were sustained by the proofs.

In fact there is scarcely any dispute about the facts, the only contention being upon the conclusions of law arising therefrom.

It clearly appeared that the society had ceased to act in its corporate capacity and to keep up religious services, and that the petition for dissolution was “signed by a majority of the trustees thereof” as required by law. (Laws of 1872.)

It is plain from a reading of the statute that the petition was in proper form to give the court jurisdiction. It does not say “ upon application of the board of trustees,” but upon application of a majority of the trustees. It is, therefore, clear that no meeting of the board was necessary in order to authorize such application. Neither was it essential that there should be a meeting of the society to authorize application except to show the court that a dissolution was favored by a majority of the society.

Much criticism has been expended upon the motives and conduct of the trustees making the application, but, as far as we can gather, they seem to have represented the views and feelings of a majority of the members of the society. Inasmuch, however, as no meeting of the society was necessary, it is not material as to the form of the notice calling for a meeting. Even if the meeting must be held for naught as approving the action of the trustee. If there was any great opposition to the dissolution and sale, an opportunity was offered for a hearing in court on the day the matter was tried, when it does appear that quite a number of the society were present, including leading Methodists from surrounding societies.

The objection that the order herein is contrary to or not authorized by section 334 of Church Discipline of the Methodist Episcopal Church is not well taken, as no church discipline can supersede the laws of the State.

The court below found all the material allegations of the complaint to be true, and we think the proofs justify that finding am® that the conclusions of law, as found by the decision, are correct.

We have examined all tbe exceptions raised and find no error sufficient to warrant a reversal of the order. The opposition had an opportunity to put in any proper proof to the utmost limit of propriety, but failed to impeach in any material effect the allegations ■of the petition.

Order affirmed, with costs.

Barnard, P. J., concurred; Dyrman, J.,' not sitting.

Order dissolving corporation affirmed, with costs; motion to dismiss appeal denied, without costs.


text:
    BARCLAY HAVILAND, Plaintiff, v. MARTHA T. WILLETS and Another, as Administrators, etc., and Others, Defendants.

      Agreement between an executor and a legatee — fiduciary relation — mistake as to legal rights induced by fraud.

    An executor of a will sustains a relation of trust and confidence to a legatee and heir-at-law of the testator, and an agreement between them, whereby such trustee and his friends become substantially the donees of the property coming to such legatee and heir, falls within a class of agreements which courts always regard with just suspicion.
    An heir and legatee, who was an aged farmer, unused to the ways of business, was induced by the executor of a will, who was a shrewd and experienced man, to give an apparent assent to a division of the testator’s estate, including his share therein, upon a basis totally at variance with his legal rights, and was subsequently taken to the office of a lawyer selected by the executor, where the only remark made by such lawyer, in the presence of the legatee, which would tend to suggest his legal rights, was not addressed to him, but to the executor, and was in technical language.

      Held, that an instrument under seal, executed by the legatee, which was in form an assignment and release, and, in effect, a transfer, as an act of simple bounty, of the legatee’s share in the testator’s residuary estate to the executor and his relatives, was properly set aside as having been executed by the legatee under a mistaken notion of his rights.
    In such a case evidence of mutual mistake is not necessary; mistake on the one hand and fraud on the other being sufficient to set aside an instrument so made.
    Motion by the defendants, Martha T. Willets and others, for a new trial in an action in equity to set aside a sealed instrument, and for an accounting, in which a decree in favor of the plaintiff had been rendered at the Dutchess Special Term on the 21st day of September, 1891.
    The instrument in suit was signed, sealed and executed March 18, 1886, by the plaintiff, Barclay Haviland, and one Stephen Taber, individually, and as executor of the will of Isaac E. Haviland, deceased, and, after certain recitals, stated that, in consideration of the premises, and of the sum of one dollar paid by Stephen Taber, individually, and as executor of the last will and testament of Isaac E. Haviland, deceased, Barclay Haviland released, assigned and transferred to Stephen Taber, as such executor, all right and interest of said Barclay Haviland in and to all the personal property and estate of said Isaac E. Haviland, deceased, “ to have and to hold the same until the said Stephen Taber, as such executor, and his successors for the purpose of distribution between himself and Martha T. Millets and S. Phebe Taber Millets in manner and form ” as therein provided. The instrument further declared that Barclay Haviland thereby released Stephen Taber, both individually and as executor, from all demands growing out of the estate of said Isaac E. Haviland, except as to the balance due him of one-tenth of the estate • of $190,000, therein stated, which balance Stephen Taber, individually, and as executor, thereby agreed to pay over to Barclay Haviland.
    It was found by the trial judge that on or about the 29th day of November, 1885, one Isaac E. Haviland died, leaving a last will and testament bearing date March 15, 1855, and which was proved and admitted to probate by the surrogate of the county of Queens on the 8th day of December, 1885, and letters testamentary thereon issued to Stephen Taber as sole surviving executor thereof named in said will Isaac E. Haviland left him surviving no descendants and no widow^ father or mother or sister, and left him surviving the plaintiff herein^ his only brother, as sole heir-at-law and next of kin, and left an estate of the value of from between $160,000 to $190,000. In and by said will of Isaac E. Haviland, the testator, after bequeathing to various persons small legacies in money, amounting in all to about $3,300, and certain gold watches, books, tea-sets, etc., of inconsiderable value, bequeathed the sum of $2,000 to the plaintiff in this action, and directed that all the rest and residue of his property should be divided into two equal parts, one of which should go to Stephen Taber, a nephew of the deceased wife of the te¡ tator, and' one of which should go to Samuel T. Taber, also a nephew of the deceased wife of the testator. Samuel T. Taber named as one of the residuary legatees and devisees, died prior to the said Isaac E. Haviland, leaving him surviving two children, the defendants, Martha T. Willets and S. Phebe Taber Willets, as his sole heirs-at-law. Samuel T. Taber having died prior to the death of the testator, the legacy devised to him set forth in said will, being the one-half of the residue of the said estate after the payment of the debts and specific legacies before mentioned, lapsed and became null and inoperative, and the said one-half of said residuary estate upon the death of said Isaac E. Haviland became and was the property of the plaintiff in this action, as his only heir-at-law and next of kin. Shortly after making and executing the last will and testament aforesaid the said Isaac E. Haviland became insane, and in or about the year 1860 a committee was appointed of his person and estate. At that time his entire-estate was of the value of about $40,000. He remained insane until the time of his death, in the year 1885, and during the period of his insanity his estate increased and accumulated until at his death it amounted to the sum before named. Stephen Taber proceeded to administer upon the estate of Isaac E. Haviland and continued so to administer the same until his death, which occurred on or about the 23d day of April, 1886; he died leaving the estate of Isaac E. Haviland in part unadministered, and the defendants, Martha T. Willets and Thomas T. Taber, have been appointer1 'administrators, with the will annexed, of said Isaac E. Haviland an are still acting as such. At the time that plaintiff executed the instrument in suit he did not know that the provision made by the will of Isaac E. Haviland to Samuel T. Taber had lapsed or was inoperative, and he did not know that the one-half of the residuary estate bequeathed and devised by said will to Samuel T. Taber, by reason of said lapsing, belonged to or was the property of the plaintiff, and had no knowledge that he had any rights in the estate of Isaac E. Haviland, deceased, other than as a legatee named in his will, and did not become informed as to his rights under the will until after the execution of said instrument. Stephen Taber, one of the residuary devisees and legatees under the will of said Isaac E. Havi-land, and one of the executors thereof, was fully informed concerning the rights of the plaintiff in the estate of Isaac E. Haviland prior to the execution of said instrument, and he did not disclose such knowledge and the rights of said plaintiff to him, the plaintiff. At the time of the execution of said instrument and in the negotiations leading thereto the plaintiff was not accompanied nor was he advised by any attorney; at the time of the execution of said instrument the plaintiff was seventy-three years old; the said instrument was read to the plaintiff prior to his signing the same, but he did not understand its contents, and he did not understand that he had any right to the share left by said will to Samuel T. Taber, and during all of the negotiations leading to and down to the time of the execution1 of the instrument the plaintiff was ignorant of the fact that the legacy to Samuel T. Taber had lapsed and that he, the plaintiff, had any right or interest in the same; the plaintiff has never received from the estate of Isaac E. Haviland any further or other sum than $18,000, and as to such sum as was paid to the plaintiff over and above the specific sum bequeathed to him by said will, there is no evidence whether the same was paid out of the general estate or out of the share coming to the children of Samuel T. Taber, deceased; the plaintiff executed-such instrument without knowledge of his rights, and that he executed it under a mistake of fact and would not have executed such paper had he known of his rights in and to the estate of said Iaaac E. Haviland.
    It further appeared in the case that before executing the instrument in suit the plaintiff went with Stephen Taber to the office of a lawyer, who testified that he then stated in their presence that “ the legacy and share of Samuel T. Taber had lapsed.”
    And the court stated, among its conclusions of law, that the agreement referred to should be set aside and declared null and inoperative, as having been procured from the plaintiff through his mistake of fact and ignorance of his rights, and that said paper should be adjudged to be no bar to the prosecution of this action and to the recovery by the plaintiff of the amount of the lapsed legacy or devise, less such sum as has already been paid to him.

      Arnoux <& MaoArthur, for the appellants.

      Frank B. Loren, for the respondent.
   Pratt, J.:

We concur in tbe conclusions of the learned trial judge in this case. The agreement in question was made between Taber, who was the surviving executor of a will, and plaintiff, who was a legatee and sole heir-at-law of the testator. It is, therefore, apparent that the executor sustained a relation of trust and confidence to the plaintiff, and that, if the writing shall stand, the trustee and his friends thereby became substantially the donees of that which must have been regarded as quite a fortune by each of them — a fortune which belonged to plaintiff and which it was this trustee’s duty to preserve for and deliver over to him in due course of administration. The case, therefore, falls within a class which courts always regard with just suspicion. This one presents features which offend the moral sense. An aged man, living on and working a farm, unused to the ways of business, suddenly became entitled to afortune through events dependent somewhat upon questions of law which, although familiar to lawyers and, perhaps, to shrewd business men, were, nevertheless, quite abstruse, not to say intricate, to an old farmer like the plaintiff. It is conceded that the executor was a remarkably shrewd, experienced, and, as we judge by the result,' very thrifty person.

Plaintiff was somehow induced to give an apparent assent to a division of the testator’s estate, including his share therein, upon a basis totally at variance with his legal rights. He was subsequently taken to the office of a lawyer not of his own choice, but selected by the trustee. He was utterly without professional advice or assistance of his own selection. The only remark made in his presence which would even tend to suggest his legal rights, although intended as it is said for his benefit, was not even addressed to him, but to the trustee. It was couched in technical language which could have had but little meaning to this old farmer, then about seventy-four years of age. It is by no means clear that he even heard the remark or felt at liberty to inquire about its meaning since it was not addressed to him. The result was a long, carefully drawn and somewhat involved paper, covering five pages of the printed case, three and a half of which are occupied with recitals which become conspicuous chiefly because they fail to disclose the point upon which this old man’s rights depended, and which was the subject of the lawyer’s remark above referred to.

The paper, though in the form of an assignment and release, in reality attests an act of simple bounty towards this trustee and his relatives. There was nothing in the relations between these donees and this old man which would naturally suggest such a disposition on his part.* He gave none of the instructions which led to the preparations of these carefully drawn recitals. Indeed, these recitals strike us rather as an apology, than as the true reason or consideration for the operative clauses which follow.

A case so striking could scarcely have failed to impress its details, or, at least, leading incidents upon the memory of the person who prepared this paper; and yet, the significant fact appears that the draughtsman was able to recall but little of anything important, save the single remark above alluded to.

We cannot detect, with exactness, the influences which led this old man to do this thing; nor is it necessary that we should do so. The rule to which we allude rests, in a great measure, upon the improbability that one thus situated should ever be able to prove to a court, or even explain to himself just what did induce the act in question. The court looks upon the relations and their results. (Story’s Eq. J., § 319; Fulton v. Whitney (66 N. Y., 548.)

We fully agree with the trial judge that this old man executed this paper under a mistaken notion of his rights. But it is said that there is no evidence of mutual mistake. The answer is, that mistake on the one hand, and fraud on the other, is quite sufficient to justify the conclusion reached in this case.

It is unnecessary to consume time in an effort to show the application of this observation; and we, therefore, without farther discussion, affirm the judgment, with costs.

DyKMAN, J., concurred; BabNAbd, P. J., not sitting.

Judgment affirmed, with costs.


author: Peatt, J.:

text:
    CHARLES M. ROWLEY, Respondent, v. THOMAS J. SWIFT, Appellant.

      Pleading — complaint based on an agreement “to malee good’’ an amount paid for stock.

    A complaint, which alleges tliat the plaintiff paid to the defendant a certain sum for shares of stock sold and delivered to plaintiff by defendant, and that as part of the transaction the defendant gave plaintiff a written agreement to “make good ” to the plaintiff the amount so paid at any time after one year therefrom, and which further alleges a tender of the stock to, and a demand of the said sum from, the defendant after the expiration of the year, and a refusal by the defendant to take the stock or repay the money, and demands judgment for the said sum, with interest from the date of the demand, states a cause of action good on demurrer.
    Appeal by the defendant, Thomas J. Swift, from a final judgment for $1,336.16, damages and costs, entered in the office of the clerk of Dutchess county on the 18th day of October, 1892, in favor of the plaintiff, Charles M. Rowley, on an order overruling a demurrer to the complaint.
    The complaint in the action is as follows :
    Charles M. Rowley, the plaintiff above named, by John H. Miller, his attorney, complains of Thomas J. Swift, the defendant above named, and states for cause of action the following facts:
    I. That on or about March 7, 1891, at the city of Poughkeepsie, the plaintiff paid and delivered to the defendant the sum of twelve hundred and fifty dollars for fifty shares of the capital stock of the Nichol Lubricator Company, then sold and delivered by the defendant to this plaintiff; and at the same time, and as a part of, and evidence of the same transaction, the defendant made, subscribed and delivered to the plaintiff an agreement in writing, of which the following is a true copy, to wit:
    “ Pougheeepsie, N. Y., March 7th, 1891.
    “ I have received this day from C. M. Rowley $1,250 for 50 shares stock of the Nichol Lubricator Company, and I hereby agree to make good to him that amount at any time after the expiration of one year from the date hereof.
    “THOMAS J. SWIET.”

      II. That-, after tlie expiration of one year from the date of said' agreement, plaintiff offered to release to and reconvey to defendant said stock, and requested defendant to make good to plaintiff said sum of twelve hundred and fifty dollars, as in said agreement provided, and particularly on or about May 13,1892, the plaintiff made such demand as last aforesaid in writing signed by plaintiff and bearing date on last said day; and plaintiff now has said stock and is still ready and willing and able and hereby offers to reconvey and to deliver the same to the defendant upon receiving from him the money aforesaid.
    III. That the defendant has hitherto refused and still refuses to receive said stock from plaintiff or to repay or make good the said twelve hundred and fifty dollars, or any part thereof, to the plaintiff, and the defendant is indebted to the plaintiff on said transaction in the sum of twelve hundred and fifty dollars, and interest thereon from May 13, 1892, no part of which has been paid.
    IY. Wherefore, the plaintiff demands judgment against the defendant for the said sum of twelve hundred and fifty dollars, and for interest thereon from the 13th day of May, 1892, or for such other and further judgment as shall be just, and for the cost of this action.
    To this complaint the defendant demurred on the ground that “ the complaint does not state facts sufficient to constitute a cause of action.”

      Sewry M. Taylor, for the appellant.

      John II. Miller and E. Wells, for the respondent.
   Peatt, J.:

This is an appeal from a judgment entered on an order overruling a demurrer to the complaint based upon the ground that no cause of action was stated therein.

The court below, in deciding the case, said: “ The complaint states that the plaintiff paid and advanced to the defendant $1,250 for certain stock. That as part of the transaction the defendant gave the plaintiff a written agreement that he would make good that amount to the plaintiff at any time after the date, one year from the transfer of the stock, and the receipt by him of the $1,250.

“ Whether tliis transaction was one for a reconveyance of the stock upon request after the year, or was a loan upon the stock payable at the end of the year, is immaterial. A good cause of action existed in either case.” This memorandum expresses the point in a nut shell.

It is clear that the agreement was to make good §1,250 after one year. What did the parties mean by the words “ make good,” unless they meant that defendant should pay that amount to the plaintiff. Nothing but that could have been intended.

The consideration was the advance to the defendant of the $1,250, and the note or memorandum refers specifically to that amount. If the transaction had been an absolute purchase and sale of the stock there would have been no agreement in writing to make good to the jdaintiff the money advanced. If the memorandum did not express the whole agreement between the parties, or any condition was attached to it, it was subject of proof upon the trial on the part of the defendant.

The plaintiff averred enough to make a prima facie cáse by counting upon the promise in writing to pay the §1,250 at the end of a year; the promise being absolute and referring solely to the money advanced. The promise does not refer to the stock at all.

The complaint possibly is inartificially drawn, but it is not necessary for a pleader to state the legal effect of the facts alleged, as the court will render such judgment as the facts, when proved, warrant. (Hemmingway v. Poucher, 98 N. Y., 281-287.) And the court is not precluded from giving such a judgment by the plaintiff averring an erroneous conclusion of law. (Chatfield v. Simonson, 92 N. Y., 218, and cases cited.) The advance of the money, the delivery of the stock and the promise to repay or make good the money after one year constituted one transaction.

These facts when analyzed mean that as a consideration for the advance of the money that fifty shares of stock should be delivered, and that after one year the defendant should make good to the plaintiff the money received; if there was any agreement outside of the memorandum that plaintiff should return the stock or its value be estimated, it was available as matter of defense.

It is true the agreement does not say how he shall “ make it good,” but admitting by demurrer that he made such a promise, the presumption is that be should make it good in the only practicable way by paying that amount of money.

The judgment must be affirmed, with costs.

DyKMAN, J., concurred; BabNabd, P. J., not sitting.

Judgment overruling defendant’s demurrer to plaintiff’s complaint affirmed, with costs.


author: Pbatt, J.:

text:
    THE VILLAGE OF PELHAM MANOR, Appellant, v. THE NEW ROCHELLE WATER COMPANY, Respondent.

      Water’companies — permit from an incorporated village under chapter 737 ofl873 — power to lay pipes in an adjoining Village under section 83 of chapter 566 of 1890.
    A water company having a permit, under chapter 737 of the Laws of 1873, from the trustees of an incorporated village, authorizing the formation of the company to supply such village with water, may, hy force of section 82 of chapter 566 of the Laws of 1890 (The Transportation Corporations’ Law, chapter 40 of the General Laws), lay its pipes in a public highway in an adjoining village, without having first obtained the consent of such adjoining village.
    Appeal by the plaintiff, the Tillage of Pelham Manor, from a judgment, rendered at the Westchester Special Term and entered in the office of the clerk of Westchester county on the 24th day of September, 1892, dismissing, upon the merits, with costs, the complaint in an action for injunction.
    Section 2 of chapter 131 of Laws of 1813, entitled “An act in relation to the creation and formation of water-works companies in towns and villages of the State of New York,” contains the following provision among others: “ Whenever any persons to the number of seven or more shall organize for the jmrpose o,f forming a waterworks company in any of the towns or villages in this State, they shall present to the town or village authorities an application * * * which-shall contain'a request that the said town or village authorities shall consider the application of said company to supply said town or village of this State, or the inhabitants thereof, with pure and wholesome water. Hpon the presentation of such application the authorities of any town or- village, which authorities are for the purposes of tbis act defined to consist for incorporated villages and towns, the board of trustees and supervisor * ■ * * shall, within thirty days of the presentation of said application, determine by a vote of a majority of the authorities of said town or village, whether said application shall be granted; and the authorities of any town or village in this State are hereby authorized and empowered to make such determination, and when the same shall be made, to sign a certificate to that effect, and immediately transmit the same to the persons making such application. * * * The persons named in such application shall thereupon meet and organize as a waterworks company.” * * *
    This act was repealed and superseded by chapter 566 of Laws of 1890 (The Transportation Corporations’ Law, chap. 40 of the General Laws), section 80 of which contains the following provisions, among others: “ At the time of fifing there shall be annexed to the certificate and as a part thereof, a permit signed and acknowledged by a majority of the board of trustees of the village, in case an incorporated village is to be supplied with water, * * , * authorizing the formation of such corporation for the purpose of supplying such village * * * with water.” Section 161 provides that the repeal of a law thereby shall not affect or impair any act done or right accruing, accrued or acquired prior to May 1, 1891, under or by virtue of any law so repealed.

      Jabish Holmes, Jr., for the appellant.

      Martin J. Keogh, for the respondent.
   Pbatt, J.:

This is an appeal from a judgment rendered by the court at Special Term, dismissing the complaint upon the merits, with costs.

The action is brought for an injunction to restrain defendant from laying its water mains in the Boston post road, being within the municipal limits of the plaintiff, the Tillage of Pelham Manor.

Plaintiff contends that before defendant can lawfully lay its mains in a public highway in said village, it must first secure the consent of the plaintiff. That, not having secured said consent, defendant’s acts, in attempting to so lay its mains, were unlawful, and could be restrained by injunction.

The facts in the case are as follows: The plaintiff is a village and municipal corporation located within the town of Pelham, adjoining the village of New Rochelle, The defendant is a domestic corporation, authorized to supply the village of New Rochelle and said town of New Rochelle with water for domestic purposes and public use.

The rights and powers of defendant are defined by chapter 56(1, article 7, section 82 of the Laws of 1890, known as the Transportation Corporations’ Law.” Section 82 of said law declares that every corporation existing under said act, in addition to its ordinary powers, shall also have power “to lay their water pipes in any streets or menúes, or public places of an adjoining town or village to the town, or village where such perm.it (a permit authorizing the formation of the corporation referred to in section 80 of the act of 1890), has been obtained,.”

The defendant obtained the permit referred to in section 80 of chapter 566 of the Laws of 1890, from the trustees of the village of New Rochelle, which adjoins the village of Pelham Manor. The permit must be signed by a majority of the trustees of the village, and must authorize the formation of the corporation for the purpose of supplying such village with water.

This permit bears date December 8,1884, but it is to be observed that this permit was granted under the Law of 1873, chapter 737, the provisions of which, so far as material to this inquiry, are embraced in chapter 566 of the act of 1890. Thereupon the-defendant must be regarded as existing under the Laws of 1890, and under that act, among its provisions, is the following: “ To lay their water pipes in any streets or avenues, or public places of an adjoining town or village to the town or village where such permit has been- obtained.”

The defendant, having obtained the permit of, and entered into-an agreement with the village of New Rochelle to supply it-with water, brings itself within the statute quoted above, and no permit is required from the authorities of the plaintiff.

In exercising the franchises possessed by the defendants, they are-performing quasi public functions, and cannot be restrained by courts of equity unless they are exceeding their powers.

It is not claimed that the statute of 1890 is invalid, neither did it appear that tbe acts sought to be restrained would result in irreparable injury to the plaintiff. (Village of Tarrytown v. Pocontico Water-works Co., 1 N. Y. Supp., 394; S. C., 15 N. Y. St. Rep., 816.)

It is not material in what point of the compass the plaintiff is located from New Rochelle, as the court below has found, Seventh, That it is necessary for the defendant, in order to carry out its contract with the town of New Rochelle, to lay and connect its mains through and under the Boston Railroad in the village of Pelham Manor,” and such finding is fully sustained by the evidence.

We have examined the exceptions taken upon the trial, and find none of sufficient merit to warrant a reversal of the judgment.

I may add, in conclusion, that the construction of the statute claimed by the plaintiff cannot prevail, for the reason that if the right to lay a pipe in an adjoining town or village depended entirely upon a consent to be given by such village, then no water company could supply water to any village unless its source of supply was located in the village to be supplied. We think the construction given by the court below, under the facts proved, was reasonable and just, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    CHARLES BEARDSLEY, Respondent, v. GEORGE H. COOK, Appellant.

      Order drawn by building contractors on an owner, in fa/eor of a sub-contractor, and accepted — effect thereof.

    An order drawn by building contractors on tbe owner, in favor of a sub-contractor for materials, was in the following words:
    “ Retain and pay to Charles Beardsley, of Poughkeepsie, N. Y., from the last payment to be made by you to us on account of your contract for building houses in Dean St., Brooklyn, the sum of eleven hundred and seventy-five ($1,175.00) dollars, according to the terms of our contract with Mr. Beardsley,”
    And was accepted by the owner.

      Held, that such order operated, -when given, as an assignment of any fund due the drawers at that time, and also to assign any funds as fast as they became due.

      That such assignment would take precedence of any mechanics’ liens filed after that date, and a payment thereunder would he a payment pro tanto on the contract.
    That after such order had been given, and the delivery of materials under it, no arrangement that the owner might make with the contractors could affect the rights of the payee.
    That the form of the order that the owner should pay the sub-contractor out of the last payment to be made on account of the contract, did not mean that the payee must take the risk of the last payment under the contract ever becoming due, but referred to the last payment to be made by the owner to the contractor, or, in other words, meant that the owner should always keep enough back to pay the sub-contractor his claim.
    Appeal by the defendant, George H. Cook, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 8th day of July, 1892, in favor of the plaintiff, Charles Beardsley, for the sum of $1,061 damages, besides costs, on a trial before the court without a jury.
    The action was brought by Charles Beardsley, a sub-contractor, against George H. Cook, the owner of certain premises in Brooklyn, on the following order, drawn by Davis & Fay, contractors, for the erection of buildings for Cook:
    “ Mr. Geoboe II. Coom, 50 JBroadwcvy, J¥. Y. City:

    “ Retain and pay to Charles Beardsley, of Poughkeepsie, N. Y., from the last payment to be made by you to us on account of our contract for building houses in Dean ■ St., Brooklyn, the sum of eleven hundred and seventy-five ($1,175.00) dollars, according to the terms of our contract with Mr. Beardsley.
    “ DAYIS & FAY.
    “Dated New Yoke, Deo. 11, 1890.”
    This order was accepted by the defendant by writing upon its face — “Accepted. Eleven hundred seventy-five dollars. George H. Cook.”
    The following facts appeared from the findings of the trial judge:
    On or about the 1st of August, 1890, Davis & Fay entered into a contract with the defendant Cook to furnish material and labor for two buildings in Dean street, Brooklyn, N. Y. This contract provided for the payment of $6,381 to Davis (fe'* Fay, in certain specified installments as the work progressed, with a final payment of $2,181 “ when all complete.”

      The trial court found substantially as follows: That Davis & Fay sub-contracted a portion of the material and work on said building to others, among whom was the plaintiff, Charles Beardsley. The sub-contract with Beardsley was made on the 29th day of August, 1890, and signed by Davis & Fay on the one part and Charles Beardsley on the other. By this contract Beardsley was to furnish material and trim for buildings on Dean street, Brooklyn, in process of erection for defendant Cook. Beardsley entered upon said sub-contract and furnished material and trim to the satisfaction of all parties up to about the 11th day of December, 1890, at which date there were several payments due Beardsley from Davis & Fay by the sub-contract. Davis & Fay executed and delivered to said Beardsley the order in suit, which was duly accepted by the defendant. At the time of the acceptance of the order the plaintiff had delivered, and the same was accepted by the defendant Cook and put in the buildingSj about $600 worth of material and trim. About $400 worth of material and trim was delivered afterwards and put in the buildings, being in all about $1,000 worth.
    Subsequently the defendant Cook took charge of the building and agreed to finish the same by a contract between himself and Davis & Fay, to which the plaintiff was not a party. Under this contract the buildings in Dean street were actually finished. No demand had been made on the plaintiff Beardsley for the balance of the material and trim. The part undelivered was burned in Beardsley’s factory, and Davis & Fay got the articles not delivered elsewhere without objection, and the contract was finished. The plaintiff has not received any sum whatever for the material and trim furnished by him, and which was used up in the buildings of defendant.
    The court found, as conclusions of law, that plaintiff was entitled to compensation for the materials furnished under his contract with Davis and Fay, and for which the defendant accepted the order ; that the order accepted by the defendant became a lien on all moneys due Davis & Fay thereafter and ahead of all mechanic’s liens filed; and that the defendant was justly indebted to the plaintiff in the sum of $1,000, with interest thereon from the date of the demand for the payment of said order of defendant, viz., the 1st day of July, 1891, for which, with costs, the plaintiff was entitled to judgment.

      John H. Glapp, for the appellant.

      Edward Orummy, for the respondent.
   Pbatt, J.:

This is an appeal from a judgment entered upon a trial before a judge of this court, without a jury. The defendant in his brief makes no point that the findings are not warranted by the evidence. The only question, therefore, to be considered is whether the conclusions of law are proper from the facts found.

Ve have, however, examined the exceptions filed to the findings of fact and find that each of said findings are supported by the evidence in the case. The order in question was given in consideration of the sum of between $400 and $700, then due and more, to receive for materials furnished upon a certain building contract made between the owner and certain contractors. The plaintiff continued to furnish material up to about the sum of $100, which were received and were without objection.

The court found facts sufficient to constitute a waiver of the obligation on the part of plaintiff to furnish materials to the full extent of the order, so that no point can .be made that the plaintiff did not carry out his contract. The order, when it was given, operated as an assignment of any fund due the drawer at that time, and also to assign any funds as fast they became due. (Gurnee v. Hutton, 63 Hun, 197; Gibson v. Lenane, 94 N. Y., 183; Manchester v. Braedner, 107 id., 346.)

Such assignment would take precedence of any mechanics’ liens filed after that date, and such assignment would have been regarded as a payment pro tanto on the contract. (Stevens v. Ogden, 130 N. Y., 182; Young Stone Dressing Co. v. St. James Church, 61 Barb., 489, and Gibson v. Lenane, supra.)

After the order or assignment and the delivery of the materials under it no arrangement that the defendant might make with his contractors could affect the rights of the plaintiff. (Home Bank v. Drumgoole, 109 N. Y., 63.)

The form of the order that the drawee should pay the plaintiff out of the last payment did not mean that plaintiff must take the risk whether the last payment under the contract should ever become due, but referred to the last payment to be made by the defendant to the contractor, or, in other words, the defendant should always keep enough back to pay the plaintiff his claim.

The judgment is right and must be affirmed, with costs.

Dyk&ian, J., concurred; Baenaed, P. J., not sitting.

Judgment affirmed, with costs.


text:
    JOSHUA C. SANDERS, Appellant, v. JAMES L. PARSHALL, Respondent.

      Pleading — Code of Civil Procedure, sec, 1503 — ejectment—cloud on title.

    "While a complaint, which alleges that the plaintiff owns title to the land described therein, and demands judgment for the surrender of possession, cannot be upheld as a complaint in ejectment, in the absence of an averment that the defendant is in actual possession, or that the property is vacant and the defendant claims title thereto (Code of Civil Pro., § 1503), it may be upheld as a complaint to remove a cloud on title, where it avers facts showing that the defendant’s title is apparently good, but is, in fact, totally bad, as, e. g., that the defendant claims the land under a tax sale, and that the tax was invalid and the sale illegal, though valid in appearance, and asks for a cancellation of the papers given on the tax sale.
    Appeal by the plaintiff, Joshua C. Sanders, from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 23d day of July, 1892, on a decision rendered at the Westchester Special Term dismissing the complaint, with costs.
    The complaint, omitting the description of the land referred to, was as follows:
    The complaint of the plaintiff respectfully shows to the court:
    1. That the plaintiff is the owner in fee absolute of all that certain lot of land, situate, lying and being in the town and county of Westchester and State of New York, laid down on a certain map on file in the office of the register of "the county of Westchester, entitled “ Map of Olinville,” and known and distinguished thereon by the number forty-two (42), and bounded as follows: * * *
    2. That the defendant unlawfully claims possession of said lot of land and right of possession by and through a lease thereof or right to a lease thereof for tlie term of 1,000 years, made, or right to have made to Mm by tire treasurer of Westchester county, pursuant to a sale thereof by the treasurer of Westchester county, made on the 23d day of February, 1870, to the defendant for alleged unpaid taxes thereon for the year 1868 ; the said alleged taxes were invalid, and said sale was without authority of law and void, though apparently valid.
    Wherefore, the plaintiff demands judgment that he be adjudged entitled to the immediate possession of said premises, and that the defendant be adjudged to surrender the possession thereof to the plaintiff, and the lease or certificate for a lease issued to him by the county treasurer of Westchester county, pursuant to said tax sale of said premises, for cancellation, and that the plaintiff have such other and further relief as to the court may seen just, with costs of this action.
    The answer denied all the allegations of the complaint.

      George JT. Pettit, for the appellant.

      Jacob Fromme, for the respondent.
   BarNard, P. J.:

The complaint is not clearly drawn as a complaint for the recovery of the possession of land. The plaintiff avei’s plainly that he owns the title to a lot 100 feet square. He avers that the defendant claims an interest in or a title to the same, but he does not aver that the defendant is in actual possession, or that the lot is a vacant lot, and that the defendant claims title thereto as provided by section 1502 of the Code. (Banyer v. Empie, 5 Hill, 48.)

By the demand for judgment the plaintiff asks that the defendant be adjudged to surrender the possession thereof to the plaintiff, but a demand for judgment will not supply an omission to state a fact which is essential to sustain such a demand under the rules of pleading. As a 'complaint in ejectment, the plaintiff’s complaint was properly dismissed. ■ There is, however, a cause of action stated to remove a cloud in the plaintiff’s title. The complaint shows that he owns the land and that the defendant claims it by virtue of a sale thereof made by the county treasurer of Westchester county in 1870 for the unpaid taxes of 1868 thereon. That the tax was invalid, the sale illegal and without authority of law, though valid in appearance. The answer denies the plaintiffs title and all the allegations in respect to the claim of the defendant thereto and in respect to the invalidity of the tax, the void sale and the apparent lien. The plaintiff asks for a cancellation of the papers given by the county treasurer. If the complaint of the plaintiff is proven he is entitled to such judgment. (Bockes v. Lansing, 74 N. Y., 437; Lockwood v. Gehlert, 127 id., 241; Remington Paper Co. v. O' Dougherty, 81 id., 474.) The defendant’s title is apparently good; but is, in fact, totally bad.

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

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

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


author: BaeNArd, P. J.:

text:
    In the Matter of the Claim of WILLIAM LANG, an Executor, Appellant, Against the Estate of ELIZA STRINGER, Deceased, CECILIA A. HOWELL and Others, Respondents.

      Final accounting of an executor who is also a creditor — allowance of the claim on a new trial after its rejection on an original accounting — delivery of property, in the meantime, to a co-executor, a legatee.

    The fact that, under a decree of the surrogate upon the final accounting of one of two executors, rejecting a claim of such executor, as a creditor of the estate, the property of the estate has been delivered to the co-executor, who is also the residuary legatee, does not deprive the surrogate of the power to compel restitution, and the payment out of such property, to the creditor (executor) of the amount of his claim on its subsequent allowance on a new trial.
    Appeal by William Lang, executor and claimant, from that part of a decree and judgment of the Surrogate’s Court of the county of Westchester, made and entered on the 24th day of October, 1892, which states: “ That said William Lang, as executor, delivered to Cecilia A. Howell, legatee, under the will of said testatrix, bankbooks representing, in value, $6,092.51.

      “ That this court lias no. power to compel said Cecilia A. Howell to pay over to said William Lang said deficiency of $54, said commission of $93.75, said costs, $421.50, and said claim of $1,445.72, or either of them. That said William Lang be paid said amounts out of any assets remaining in his hands as executor, or which may hereafter be received by him as executor.”
    The decree and judgment appealed from were made on a new trial in the Surrogate’s Court of a claim presented by William Lang, executor, against the estate of Eliza Stringer, deceased. The claim was rejected by the surrogate on the original hearing, and, on appeal from the decree then entered, the General Term of the Supreme Court, in May, 1891, revei’sed such original decree and remitted the proceedings to the surrogate for a rehearing.

      ArbTvwr T. Hoffman, for the appellant.

      H. T. Dylcman, for Cecilia A. Howell, legatee, respondents.
   BaeNArd, P. J.:

William Lang and Cecilia A. Howell were, on the 20th of July, 1888, duly qualified as executors of Eliza Stringer, deceased. Both continued to act as such until September, 1889. Lang was a creditor of the estate and Cecilia A. Howell was the general residuary legatee. In September, 1889, Lang filed his petition for a final settlement. All parties were cited. On the return day, September 23, 1889, Lang presented his bill. It was objected to and rejected. A new trial was granted, and upon the new trial the claim was allowed; but the court held that the delivery of the property under the first decree deprived the surrogate of all power to compel restitution to the claimant Lang. This is a hard rule. Lang had enough property to pay his claim until he was compelled to surrender it under an erroneous decree. The legatee was also executor and could not finally take as legatee until the., judgment on the distribution and final settlement was sustained. When the case went back to the surrogate it stood in law as if the claim had been allowed in the first instance. There is no evidence in the case that Lang paid his co-executor or legatee. She had as much right to the possession of the assets as her co-executor, and neither she or her co-executor could give away to a legatee the assets until the debts ■were paid. Lang’s debt was from the estate and not from Ms co-executor, even if sbe was a legatee.

The judgment, so far as appealed from, should be reversed, with costs out of the estate, and Lang be decreed entitled thereto out of the property on hand when he presented his claim.

PRAtt, J., concurred; Dykmah, J., not sitting.

Part of decree appealed from reversed and petitioner decreed to be entitled to his claim out of estate existing when he presented his claim.


author: Barnard, P. J.:

text:
    HOWARD S. JONES, Respondent, v. ROBERT L. MOORES and Another, Appellants.

      Mechanic’s lien — acceptance of a note for labor and materials.

    The acceptance from the owner of a building of his promissory note for labor and material does not deprive the material-man and mechanic of his lien, where the debt becomes due and the lien is filed within the ninety days given by the statute.
    Appeal by the defendants, Robert L. Moores and Charles A. Le Quesne, from a judgment of the Supreme Court, entered in the office of the clerk of Rings county on the Jth day of September, 1892, on a decision at Special Term in favor of the plaintiff, in an action to foreclose a mechanic’s lien for $625, and from an order denying a motion for a new trial.

      George F. Alexander, for the appellants.

      Salter 8. Olarh, for the respondent.
   Barnard, P. J.:

The plaintiff agreed with the defendants to furnish embossed, cut and ground glass to be set and furnished in the defendants’ houses. By the terms of the agreement, when the work and materials were properly set and furnished, the defendants were to give their promissory note for the same three months from the date thereof. On the 20th of January, 1891, the work was completed to the satisfaction of defendants, and was accepted by them. On the 12th of January, 1891, the defendants gave the plaintiff a note for $500 at three months from date, and on the 21st of January, 1891, they gave the plaintiff another note for $125, being for the balance due on the contract. Both notes were protested. On the 17th day of April, 1891, the plaintiff filed a lien on the-premises. The only question presented is whether the giving and acceptance of the notes by the terms of the contract destroyed the lien. It was held by the Court of Appeals in Happy v. Mosher (48 N. Y., 313),'that the taking of notes of a third person did not affect the lien, except to defer its enforcement. It was held by the same court in the case of Mott v. Lansing (57 N. Y., 112), that work done upon a vessel upon the personal credit of the owner, does not affect the right to a lien. That a lienor might give credit, provided the lien was filed within the statute time. Both these cases were approved in King v. Greenway (71 N. Y., 413). In this case the lien was filed within the ninety days given by statute, and the debt became due within that time.

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

Pratt, J., concurred.

Judgment affirmed, with costs.


author: BarNAed, P. J.:

text:
    CAROLINE STEHLIN, Individually and as Executrix of JOSEPH STEHLIN, Deceased, Appellant, v. CHARLES V. STEHLIN and JOHN SUTTER, Co-executors of said JOSEPH STEHLIN, Deceased, and MARY STEHLIN and Others, Infants, etc., Respondents.
    Will— suspension of the power of alienation dwring minoe'ity — power of sale to executors, one of whom is a tenant in common of testator’s real estate.

    A will contained the following provisions:
    " “ (1.) I give and bequeath unto my beloved wife all the real and personal property I may die seized and possessed of, nevertheless, until my youngest child may become the age of majority.
    “(3.) I hereby direct that my executors hereinafter mentioned shall, at the time when any of my child or children shall marry, to give to such child or children the sum of $5,000; and I direct that when, in the discretion of my executors hereinafter named, they deemed it is necessary, they shall give to any such child or children the sum of $5,000, hut when the estate shall he divided the sum that any such child or children may have received shall he deducted, and the balance or residue shall he divided equally, share and share alike, among my said children, except one-third of the entire estate shall be given to my wife as her right of dower.
    “ (4.) But, in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife as her interest and for the support of my children the sum of $1,800 a year and the possession of the premises she now occupies, rent free.”

      Held, that the suspension of alienation during the minority of the testator’s youngest child, created by the first clause, was valid.
    That the gift, by the second clause, to each child on marriage, was not intended to he postponed until the majority of the youngest child, but was receivable on the marriage of any child during the minority of the youngest.
    That the effect of the first and fourth clauses was to give the widow, in case she did not remarry, the use of the entire estate during the minority of the youngest child, subject to the right of each child to receive, under the second clause, an advancement of $5,000 on marriage, but in case the widow remarried during the minority of the youngest child, then she was to have $1,800 a year for herself and for the children’s support during such minority, with the use of the house.
    That, by the second clause, the widow was given one-third of the estate absolutely on its final division at the end of the minority of the youngest child, this gift not being affected by the direction of the fourth clause in case of her remarriage, which only applied to the provision made for her during the minority of the youngest child.
    •The will empowered the executors to sell and convey all the testator’s real estate, a part of which consisted of an undivided one-half share of land held by the testator and one of the executors as tenants in common.

      Held, that such executor could join with the other executors in a deed in execution of the power of sale.
    Appeal by the plaintiff, Caroline Stehlin, individually, and as executrix, from a judgment and decree rendered at the Westchester Special Term and entered in the office of the clerk of the county of "Westchester on the 21st day of May, 1892, in an action brought for the construction of the will of Joseph Stehlin, deceased, adjudging the will to be void, and to have made no valid disposition of the decedent’s property.

      Cornelius E. Kene, for the appellant.

      Moses Weinman, for the respondent, Charles Y. Stehlin.

      P. McKmlay Power, guardiam adUtem, for the infant children, respondents.
   BarNAed, P. J.:

Joseph Steblin, a resident of Westchester county, died in September, 1890, leaving a last will and testament of which this a copy:

“Lsr the Name oe God, AmeN. — -I, Joseph Stehlin, of New Rochelle, Westchester county, being of sound mind and memory,, and knowing the uncertainty of this life, do make, publish and declare this to be my last will and testament as follows, viz.:
“First. After all my just and lawful debts are paid, I give and bequeath unto my beloved wife all the real and personal property I may die seized and possessed of, nevertheless, until my youngest child may become the age of majority.
“Second. I hereby direct that my executors hereinafter mentioned shall at the time when any of my child or children shall marry, to give to such child or children the sum of five thousand dollars, and I direct that when, in the discretion of my executors hereinafter named, they deemed it necessary they shall give to any such child or children the sum of five thousand dollai’S, but when the estate shall be divided the sum that any such child or children may have received shall be deducted and the balance or residue shall be divided equally, share and. share alike, among my said children, except one-third of the entire estate, shall be given to my wife as her right of dower.
“ Third. Should any of my said child or children marry and leave issue then such interest that such child or children may be entitled to shall be divided among such issue, share and share alike.
“Fourth. But in case my wife shall remarry, I direct that my executors hereinafter named shall give unto my wife, as her interest and for the support of my children, the sum of eighteen hundred dollars a year and the possession of the premises she now occupies,, rent free.
"Fifth. ,1 direct that all the paintings and engravings that are now mine shall be, after my death, put up at private or public sale, at any time within five years from the time of my death and when my executors, who are hereinafter named, shall be so advised 'by some expert.
“Sixth. I hereby appoint my beloved wife, Caroline Stehlin,. executrix of this my last will and testament and John Sutter and Charles Y. Stehlin to be the executors of this my last will and testament, giving and granting unto my said executors full power to sell and convey any and all my real estate or personal property, and to execute all necessary papers and conveyances, revoking all former wills by me made.
“ In witness whereof, I have hereunto subscribed my name, the 21st day of July, A. D. 1890.
“JOSEPH STEHLIN.”

The deceased left a widow and six children who were, at the time of his death, and still are, minors. A very considerable portion of his property was and is an equal undivided one-half share of land held by him and his brother, Charles V. Stehlin, as tenants in common. Charles Y. Stehlin is one of the executors of the will. The entire estate is stated to be nearly $100,000. The question presented is, what is the true construction of the will ? The bequest in the first clause standing alone is good. The suspension of the power of alienation to a period of time described as “ until my youngest child may become the age of majority,” is only a suspension during the minority of the youngest child, Georgina Stehlin, who was seven months old at testator’s death. (Roe v. Vingut, 117 N. Y., 204.)

This first clause is not, however, absolute. By the second clause each of the children were entitled to $5,000 on their marriage, and this when they married during the minority of this infant child, Georgina. The testator meant to give something by the second section, and it is not reasonable to hold that he intended to compel his children to wait for the $5,000 until after so long a ^period expired, especially as his oldest daughter was seventeen years old at his death. In case the youngest child lived to his majority she would get nothing if she married until she was thirty-eight years old. By the second clause the widow is entitled to one-third of the estate, real and personal, as her right of dower, but she is entiled to it absolutely if she remains unmarried. By the fourth clause a change is made in case she remarry, and this, to me, is the most uncertain of all the other parts of the will. If she remarry her interest and for the support of my children ” is cut down to $1,800 yearly, and the use of the family residence, rent free. Is this to be a possession for life in lieu of dower, and extending beyond the period when the youngest child became of age, or is it only intended to operate in case the wife marry again during the existence of such minority and which is to end when the minority ceases ? The most reasonable construction is that this clause was only designed to provide for a remarriage while the period mentioned in the first clause was running during the minority of the child. At the end of the minority she took absolutely the one-third of the estate and there is nothing in this fourth clause which takes that away. At the end of the minority the estate will be wholly divided; one-third to the' widow and the other two-thirds among the children equally. If the clause was designed to cut down the widow’s right under the second clause some provision would be made to reserve the $1,800 a year until the widow died, so as to be on hand in case she married after the minority ceased. The will, therefore, gave the use of the entire estate to the widow during the minority of the youngest child subject to a right in each child upon his or her marriage to get $5,000 advancement, and in case the widow marries during the minority of this youngest child she is to have $1,800 a year for herself and childrens’ support with the use of the house. At the end of the minority the estate is wholly free. Thei’e seems to be no good reason why the executor who owns one equal half of the real estate is disqualified from joining in a deed with the other executors if the two hold in common or in severalty the one-half of the deceased therein. He could certainly be appointed an attorney or agent for that purpose in testator’s life, and he certainly can give the same power by will.

The decree should be modified accordingly, with costs to appellant out of the estate.

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

Decree modified in accordance with opinion; order to be settled by Justice BaeNAbd.


text:
    LOUIS RAPPS and Another, Respondents, v. HENRY GOTTLIEB and BETTIE STERN, Defendants; BETTIE STERN, Appellant.

      Assignment cf mortgage — the assignee takes subject to all equities — a mortgage void by reason of non-delivery.

    A bona fde purchaser of a mortgage takes it subject to all equities and stands in the place of the assignor.
    Hence, where the owner of real estate applied to one G. for a loan of $1,000 thereon, and executed a bond and mortgage for that amount and left them with G. (who demanded seventy-five dollars for searching the title and examining the property), taking a receipt therefor from G., who promised to pay $925 if everything was correct, or to return the papers (it being further agreed that the bond and mortgage were to be of no effect without such payment), and G. thereupon put the mortgage on record, and thereafter sold it to an innocent purchaser for $1,000.'

      Held, in an action by the maker to cancel the bond and mortgage, that, as there was no delivery to G., the mortgage never had life in his hands and he had nothing to sell, and the purchaser from him stood in no better position.
    Appeal by tbe defendant, Bettie Stern, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 17th day of November, 1892, on a decision rendered at the Kings County Special Term in favor of the plaintiff in an action for the cancellation of a bond and mortgage and of the record of the mortgage.

      Alfred SteoMer, for the appellant.

      Jacob Manheim, for the respondents.
   Barnard, P. J.:

The plaintiffs, being the owners of certain real estate in Kings county, applied to the defendant Gottlieb for a loan thereon for $1,000. The mortgage was a third mortgage on the property, and Gottlieb demanded seventy-five dollars for making the search and examining the property. This was the 25th of May, 1892. On the next day plaintiffs gave Gottlieb their deed, and he drew a mortgage to himself for the $1,000. This was executed the same day, and Gottlieb requested the plaintiffs to leave the bond and mortgage with him without payment. They objected to that, and Gottlieb gave them a receipt for the bond and mortgage, and promising to pay $925 “ if everything was correct,” or to return the mortgage. It was expressly agreed that the bond and mortgage were to be of no effect without payment. Gottlieb put the mortgage oh record, and on the 24th of June, 1892, sold the same to the defendant Sterns for $1,000. She was an innocent purchaser, and bought without notice of the fraud committed by Gottlieb. There was no delivery of the bond and mortgage to Gottlieb. It, therefore, never had life in Gottlieb’s hands. A purchaser of a mortgage takes it subject to all equities, and stands in the place of the assignor. (Briggs v. Langford, 107 N. Y., 680 ; Hill v. Hoole, 116 id., 299 ; Trustees of Union College v. Wheeler, 61 id., 88.)

The evidence as to the good faith of the defendant Stern is not very clear from a careful examination of the testimony in respect to her purchase. The rule, however, that if she was a bona fide purchaser, she stands in no better position than her assignor, Gott. lieb, renders a discussion upon this point unnecessary. The mortgage was never delivered, and Gottlieb never had anything to sell. The judgment should, therefore, be affirmed, with costs.

Pbatt, J„ concurred.

Judgment affirmed, with costs.


author: BabNakd, P. J.:

text:
    GOTTLOB GUNTHER, Plaintiff, v. RUDOLPH MAYER and Others, Defendants, THE HOLLAND TRUST COMPANY and THE TWELFTH WARD BANK OF THE CITY OF NEW YORK, Appellants, and Others, Respondents.

      Mortgage by an insolvent corporation to secure bonds previously issued in accordance with an agreement made before insolvency — 1 R. 8., p. 603, sec. 4.

    Where a domestic corporation, by the requisite vote of its stockholders, agreed to-issue bonds, to be held as collateral security by a bank for an existing debt and future advances, and to give a mortgage to a trust company to secure such bonds, and thereupon made and issued the bonds, and some months thereafter became insolvent, and the mortgage was not made until after the company became insolvent:

      12eld, that, by reason of the mortgage being given under an agreement to execute it, made long prior to the insolvency, and of the fact that money had been acquired by the corporation under such agreement, the mortgage was not obnoxious to the statute (1 K. S., p. 608, § 4), which forbids transfers by a corporation in contemplation of insolvency, and declares such transfers void.
    That it was immaterial whether the money represented by the bonds was to be raised by selling the bonds by the bank and so paying the debt or not.
    That the agreement to give a mortgage to a trust company, as a naked trustee, was an agreement in equity to give the mortgage for the security of the persons who held the debt.
    The bonds referred to the mortgage security, and each bond stated that it would not become valid until authenticated by the signature of the trustee.

      Reid, that the trustee’s signature was not vital under the circumstances; that the bonds having been delivered by the obligor as good bonds, the approval of the trustee could be indorsed upon them at any time thereafter.
    Appeals by tbe Holland Trust Company and the Twelfth "Ward Bank of the City of New York, respectively, from an order of the Kings County Special Term, entered in the office of the clerk of Queens county on the 3d day of November, 1892, confirming the report of a referee in proceedings to acquire surplus money arising on the foreclosure of a mortgage.
    The Revised Statutes (vol. 1, p. 603, § 4), provide that, “ whenever any incorporated company shall have refused the payment of any of its notes or other evidences of debt, in specie or lawful money of the United States, it shall not be lawful for such company, or any of its officers, to assign or transfer any of the property or choses in action of such company, to any officer or stockholder of such company, directly or indirectly, for the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of the insolvency of such company, to any person or persons whatever; and every such transfer and assignment to such officer, stockholder or other person, or in trust for them or their benefit, shall be utterly void.”
    Each of the bonds referred to in the following opinion, stated that “ the payment of the said series of bonds, with the interest thereon, is equally and ratably secured by a Deed of Trust or Mortgage, made and delivered by the said, The Yertical Tube Boiler Company to Holland Trust Company, as trustee. * * * This bond shall not become valid until authenticated by the signature of ■ the Trustee aforesaid.”

      WilUam FT. Dyhnan, for tbe appellant, tbe Holland Trust Company.

      Frederic J. Swift, for tbe appellant, tbe Twelfth "Ward Bank.

      P. Q. FcJeerson, for tbe respondents.
   BabNakd, P. J.:

Tbe Yertical Tube Boiler Company, a domestic corporation, executed a mortgage to tbe Holland Trust Company upon its lands in Queens county to secure $75,000. Tbis amount was represented by seventy-five bonds of $1,000 eacb. Tbe Holland Company was simply a trustee. Tbe mortgage is a first record ben on tbe surplus money in question, but it was given when tbe Tube Company was insolvent and in contemplation of insolvency and is, therefore, void. Tbe Trust Company and a creditor bolding some of tbe bonds seek to escape tbis result by proof that tbe mortgage was given under an agreement to execute tbe same at a time long prior to tbe insolvency; that money was acquired under tbe agreement and that thereupon tbe mortgage was not in contravention of tbe statue. (Paulding v. Chrome Steel Co., 94 N. Y., 334.)

Tbe referee has found against the agreement and tbe only question is whether tbe finding is supported by tbe evidence. It appears that tbe Steel Company, in April, 1888, bad an account with tbe Twelfth "Ward Bank, in tbe city of New York. That then tbe Steel Company borrowed money of tbe bank. During the year 1888 notes were given and renewed, and in March or April, 1889, it was agreed by the president and treasurer of the Tube Company and tbe president of tbe bank that security must or should be given to secure the existing debt and all future advances, and that a meeting of tbe Tube Company should be called to consider the subject, which meeting met on April 5,1889. Tbe meeting resolved to give a mortgage for $75,000 to a trust company to secure bonds in that amount. Tbe bonds were soon thereafter drawn, but the drawing of tbe mortgage was delayed by the attorney until October, 1890, when tbe company was insolvent. Tbe bonds were not signed by tbe treasurer of tbe Steel Company until September or October, 1889. Tbe whole issues were delivered as collateral security to tbe Twelfth "Ward Bank. Forty-five thousand of these are still held by tbe bank and 30,000 by tbe Trust Company. No question can be made as to tbe authority of tbe parties wbo contracted for the security in tbe spring of 1889. Tbe president and secretary represented tbe Steel Company and tbe president, Steers, represented tbe bank. Tbe negotiations were initiatory only and the Steel Company voted tbe security, and tbe requisite number of stockholders approved the vote. Tbe bank received tbe bonds with the official approval of the Steel Company written thereon, and received them at once when printed, long before tbe mortgage was given. It is immaterial whether tbe money in them was to be raised by selling tbe bonds by tbe bank and paying their debt out of it or not. Tbe security was voted to pay the bank debt and the bond which recites tbe agreement was at once delivered to tbe bank, and an agreement to give a mortgage to a naked trustee was an agreement in equity to give tbe mortgage for tbe security of tbe persons wbo held tbe debt. The trustees’ signature was not at all vital under the circumstances presented by the case. The Steel Company delivered tbe bonds as good bonds and tbe approval of tbe trustee could cover at any time thereafter.

The order should be reversed and the motion to confirm referee’s report denied, and tbe surplus ordered to be paid to tbe Holland Trust Company, with costs to appellant out of fund.

Pbatt, J., concurred; DteMAN, L, not sitting.

Order reversed and surplus ordered to be paid tbe Holland Trust Company, with costs to appellant out of tbe fund.


author: DyemaN, J.:

text:
    THOMAS FARMER, Respondent, v. THE NATIONAL LIFE ASSOCIATION (of Hartford, Connecticut) Appellant.

      Foreign insurance company — service of process against, by mail, on the State supm'in-tendent of insurance — 1884, chap. 346, sec. 1.

    Where the superintendent of the insurance department of the State of New York has been appointed attorney to receive service of process in actions against a foreign insurance company, as provided by section 1 of chapter 346 of the Laws of 1884, his written admission of service of á summons in such an action, sent to him by mail, constitutes a sufficient service on the company.

      Appeal by the defendant, the National Life Association, of Hartford, Connecticut, from an order of the Kings County Special Term, entered in the office of the clerk of Kings county on the 3d day of November, 1892, denying a motion of the defendant to set aside “ the service of a paper purporting to be a summons herein.”
    It appeared by the moving papers that the defendant is a foreign life insurance company, organized under the laws of the State of Connecticut, and having its principal office at Hartford, in that State, which, however, did business in the State of New York, and had given the superintendent of the insurance department of this State a power of attorney, as required by section 1 of chapter 346 of the Laws of 1884. Sections 1 and 2 of that act are as follows:
    Sec. 1. No fire, fire-marine, life or casualty insurance company or association organized or incorporated under the laws of any other State of the Hnited States, or of any foreign government, shall, directly or indirectly issue policies, take risks or transact business in this State until it has complied with the insurance laws, and having first appointed, in writing, the superintendent of the insurance department of the State to be the true and lawful attorney of such company in and for this State, upon whom all lawful process in any action or proceeding against the company may be served with the same effect as if the company or association existed in the State. * * * Service upon such attorney shall thereafter be deemed a service uj>on the conrpany or association.
    Sec. 2. 'Whenever lawful process against an insurance company or association shall be served upon the superintendent of the insurance department under the provisions of this act, he shall forthwith forward a copy of the process served on him by mail, prepaid, and directed to the secretary of the company or association, or, in the case of foreign companies or associations, to the resident manager or last-appointed general agent in this country. For each copy of process the superintendent shall collect the sum of two dollars, which shall be paid by the plaintiff at the time of such service, the same to be recovered by him as part of the taxable disbursements if he succeeds in the suit.”
    It appeared that the original summons, together with a copy thereof, was mailed by the plaintiff’s attorneys to the superintendent of the insurance department of the State of New York, at Albany, accompanied with a request that he would admit service. The papers were received by the superintendent, who thereupon mailed the copy of the summons to the defendant company at Hartford, as required by section 2 of said act of 188é, and sent the plaintiff’s attorney the following in writing :
    INSURANCE DEPARTMENT.
    AlbaNy, December 3, 1891.
    Messrs. Judge & DueacK, 3J3 Fulton St., Broohlyn, If. Y. :

    Sib.— I admit the service of process on me as attorney for the National Life Association of Hartford, Connecticut, made by you in behalf of Thomas Farmer of-pursuant to chapter 346, Laws of 1884. I have sent to said company, by registered mail, to-day, copy of the papers served on me. Fee $2, receipt of which is hereby acknowledged.
    Your obedient servant,
    JAMES F. PIERCE,

      Superintendent

    The motion to set aside the service of the summons was based principally upon the ground “that said paper purporting to be a summons was attempted to be served by mail, and was not served personally upon any agent or attorney of the defendant, or personally upon the Superintendent of the Insurance Department of the State of New York.”

      Roger Foster, for the appellant.

      James P. Judge, for the respondent.
   DyemaN, J.:

This is an appeal from an order denying a motion to set aside the service of the summons in this action.

The summons was sent to the superintendent of the insurance department at Albany, and he gave an admission of due service of the same in pursuance of a power of attorney which had been executed to him for, that purpose under the provisions of the statute requiring the same.

Our conclusion is that the service was valid and sufficient, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard,' P. J., and Peatt, J., concurred.

Order denying motion to set aside service of summons affirmed, with costs.