author: Mayiiam, P. J.:

text:
    Mary M. Perkins, as Administratrix, etc., of Philip Snyder, Deceased, Respondent, v. Henry W. Slocum, Individually, and as Receiver of the Personal Property in the Waverly Hotel, Appellant.

      Action against a person individually and in a representative capacity under Code of Civil Procedure, § 1815 — complaint demurrable under section 484 thereof— joinder of inconsistent causes of action.
    By the authority of section 1815 of the Code of Civil Procedure, an action under certain conditions may be maintained against a receiver, both as an individual and in his representative capacity.
    A demurrer to a complaint is proper, irrespective of the fact whether the causes of action therein alleged are separately stated or commingled, if such causes of action are improperly united.
    Although section 484 of the Code of Civil Procedure allows two or more causes of" action to be united in the same complaint when they arise out of the same transaction, it must appear that they all belong to one of the subdivisions of that section and that they are consistent with each other.
    The complaint in an action in the first count charged the defendant personally with a wrongful conversion of certain personal property belonging to the plaintiff, to the immediate possession of which she was entitled. In the second count it charged the defendant as receiver appointed by the court with such conversion, alleging in substance that the defendant, as receiver, took possession of the same property described in the first count of such complaint, and after demand therefor by the plaintiff, wrongfully refused to deliver the same to the plaintiff, hut, as such receiver, converted it to his own use, and that the plaintiff, by leave of the court, brought the action against him as receiver as well as against him individually.

      Held, that the complaint was demurrable on the ground that two inconsistent causes of action were joined in it.
    Appeal by the defendant, Henry W. Slocum, individually, and as receiver of the personal property in the Waverly Hotel, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 1st day of November, 1893, overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal said judgment and the order upon which it was granted.

      Aljpheus T. BuHceley, for the appellant.

      Edgar T. Braclcett, for the respondent.
   Mayiiam, P. J.:

The complaint in the first count charges the defendant personally with a wrongful conversion of certain personal property belonging to the plaintiff and to the immediate possession of which she is entitled. The second count charges the defendant, as receiver, appointed by the court in an action in the Supreme Court, in substance, that the defendant, as receiver, took possession of the same property described in the first count in such complaint, and after demand by the plaintiff of him wrongfully refused to deliver said property to the plaintiff, but as such receiver converted the same to his own use, and the plaintiff, by leave of the court, brings this action against him as receiver, as well as individually.

To this complaint the defendant demurs on the ground of an improper joinder of two causes of action, and that several causes of action have been improperly united, one against Iienry W. Slocum individually, and one against him as receiver of the personal property in the 'Waverly Hotel.

This demurrer was overruled by the trial court and an interlocutory judgment entered against the defendant, from which the defendant appeals to this court. The only question on this appeal is whether the plaintiff, by his complaint, has improperly united two inconsistent causes of action. Subdivision 7 of section 488 of the Code of Civil Procedure specifies, as a ground of demurrer, “ that causes of action have been improperly united.” Prior to the enactment of section 1815 of the Code of Civil Procedure an action could not be maintained against an executor or administrator as an individual and in his representative capacity (Clark v. Coles, 50 How. Pr. 178), and a complaint charging him in such double capacity was held bad on demurrer. By that section actions under certain conditions can be maintained against such individual charging him in the double capacity ; but it is only by the authority of that section that he may be sued in the same action as an individual and in his representative capacity.

In a complaint like the one in the case at bar, a judgment against defendant would furnish no guide in determining whether the defendant was personally liable, or liable as receiver; and yet in one case he would be personally charged as a wrongdoer, while in the other he would seem to be only liable as a trustee acting under the order of the court. But whether that be so or not, it apjiears well settled by authority that the causes of action in this case are improperly joined. In Wiles et al. v. Suydam (64 N. Y. 177) it was held that a complaint setting forth facts sufficient and seeking to charge the defendant as a stockholder of a manufacturing corporation organized under general laws (Chap. 10, Laws of 1818) with a‘ debt of the corporation, because of a failure to make and record a certificate required by section 10 of that act, and also alleging the requisite facts and seeking to charge him as trustee with the debt, because of failure to file an annual report under section 12 of the same act, constitutes two separate and distinct causes of action which cannot properly be united in the same complaint, and the Court of Appeals sustained a demurrer for that reason.

And it seems that a demurrer is proper irrespective of whether the causes of action are separately stated or commingled. (Harris v. Eldridge, 5 Abb. N. C. 278.)

It is true that section 181 of the Code of Civil Procedure allows two or more causes of action, to be united in the same complaint when they arise out of the same transaction, but it must appear that they all belong to one of the subdivisions of that section and that they are consistent with each other.

As we have seen, the causes of action in this case are not consistent with each other, as they would require different forms of judgment and different forms of final process for their enforcement. (Clark v. Coles, 50 How. Pr. 178; Landau v. Levy, 1 Abb. Pr. 376.)

The interlocutory judgment should be reversed and judgment for the defendant ordered, on demurrer, with leave to the plaintiff to amend on payment of the costs and disbursements of this appeal.

Putnam and Herrick, JJ., concurred.

Interlocutory judgment reversed and judgment for the defendant ordered upon the demurrer, with leave to the plaintiff to amend upon payment of costs and disbursements of this appeal.


source: Caselaw Access Project

author: Mayham, P. J.: Putnam, J.:

license: Public Domain

text:
    Martha L. Sanford, Appellant, v. Amelia B. Goodell and Others, Respondents and C. Ralph Sanford, by Erasmus J. Sanford, his Guardian ad Litem, Appellant.

      Devise of real estate — suspension of the power of alienation — lohen a complaint in an action of partition will be dismissed under rule 65 — when an entire will is vitiated by an invalid provision — an action to declare a devise invalid and to partition the real estate devised.

    tinder the provisions of the Revised Statutes, if the condition or limitation appurtenant to a devise of real estate contained in a will is such that it may, by any possibility, limit the power of alienation or suspend it for a period of more than two lives in being at the time of the creation of the estate, the grant of the estate sought to be limited is wholly inoperative and void.
    A devise of the use of land to the testator’s three daughters for their lives, and to the survivor of them and after their deaths in fee to another, in case he survived them, but in case of his death before that of the last survivor of the testator’s three daughters, then in fee to such last survivor, is void, as being in violation of the statute in restraint of alienation.
    Where the plaintiff in an action of partition fails to embrace in his action all the lands held by the parties in common, the complaint will be dismissed under the provisions of rule 65 of the General Rules of Practice.
    When, by declaring one provision of a will void, the whole scheme thereof is broken up, so that no part of it can be carried out without a clear violation of the scheme and intention of the testator, the whole will is tainted and vitiated; but when the testator has in his will made independent devises or bequests, in no way connected with or dependent upon the void or ineffectual provisions, the court will not declare such independent provisions void, the policy of the law being to uphold and not defeat a testamentary disposition of property if it can be done without violating settled principles of law.
    An action was brought on the theory that certain land, devised under the provisions of a testator’s will, did'not pass to the devisees therein named, and that such clause of the will was void on the ground that it suspended the power of alienation of real estate for a period of more than -two lives in being, the relief asked being that such clause be adjudged void, and that it be adjudged that as to such real estate the testator died intestate, and that the same be partitioned in such action.

      Held, that where no objection was made in behalf of the defendants, on the ground of a misjoinder of causes of action, the action might be tried in the form in which it was brought by the plaintiff.
    Herrick, J., dissenting.
    Appeal by tlie plaintiff, Martha L. Sanford, and by tbe defendant, C. Ralph Sanford, by Erasmus J. Sanford, his guardian
      ■ad litem, from a judgment of the Supreme Court in favor of the -defendants, Amelia B. Goodell and others, entered in the office of the clerk of the county of St. Lawrence on the 18th day of April, 1894, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, dismissing the plaintiff’s complaint upon the merits.

      Charles A. Kellogg, for the plaintiff, appellant.

      George B. Staey, for guardian ad litem of defendant 0. Ralph Sanford, appellant.

      Chernies 0. Tappa/n, for the respondents.
   Mayham, P. J.:

Joel Goodell died intestate, leaving him surviving Martha L. Sanford and Amelia B., Eliza M.- and Mary E. Goodell, being all of his children and heirs at law.

In and by the first clause of his will he devised eighty and one-half acres of land to his daughter Martha L. Sanford, “ for and during the term of her natural life, and at her death the same shall be the property of her heirs, who would take the same by the statute of descent.”

By the second clause of his will he devised “All the rest, residue and remainder of my real estate which I may own at the time of my death, excepting the starch factory lot (should I die seized of the same), I give, devise and bequeath unto my daughters Amelia B., Eliza M. and Mary E. Goodell, to have and enjoy the same as long as they or the survivor or survivors of them shall live, and at the decease of the said Amelia B., Eliza M. and Mary E., the balance of such real estate not above devised or excepted shall be the property of Ernest Danforth, now making his home with 0. A. Sanford, but in case of his death, prior to the decease of all the three persons, daughters mentioned in this provision, the surwivors or survivor of them shall have full title to such real estate.”

By the third clause in his will the testator directed the payment of his debts and funeral expenses out of his personal estate, and bequeathed the surplus of the same, if any, to Ernest Danforth and his three daughters Amelia B., Eliza M. and Mary E. Goodell, or to the survivors of them at the time of his death.

By tbe fourth clause he empowered his executors to sell all of his real estate except the eighty and one-half acres devised to the plaintiff, the home farm and fifty acres pasture lot.

By the fifth clause he nominated and appointed executors of his will. The will was duly admitted to probate by the proper surrogate, and the case shows that the personal estate of the testator was sufficient to pay his debts and funeral expenses.

After testator’s death this plaintiff gave birth to a son, 0. Ralph Sanford, who was made defendant, and for whom a guardian ad Utem was duly appointed, and appeared in the action.

The action is prosecuted on the theory that the land devised under the provisions of the second subdivision of the will of the testator did not pass to the devisees therein named, and that that clause or provision of the will was and is void on the ground that it suspended alienation for a period of more than two lives in being. The relief asked is that the second clause in the will be adjudged void, and that as to the real estate of the testator covered by the provisions of that clause, the testator died intestate, and that the same be partitioned in this action between the plaintiff and her three sisters named as defendants herein.

If the question of the validity of the second clause of this will is properly before this court for adjudication in this action, which we shall discuss later, we see little difficulty in disposing of that question.

First. Because the parties to this controversy substantially agree upon that question; and, secondly, because the question is one of easy solution under the well-settled law of this State.

By 3 Revised Statutes (Birdseye ed. 2527, § 82) it is enacted as follows: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section.” The next section prohibits the suspension of alienation beyond the period of two lives in being. Under that section it has uniformly been held that if the condition or limitation is such that it may by any possibility limit the power of alienation or suspend it for a period of more than two lives in being at the time of the creation of the estate, the grant of the estate sought to be limited is wholly inoperative and void. Such is the doctrine of an unbroken series of scores of decisions in this State from Coster v. Lorillard (14 Wend. 265) to Lee v. Tower (124 N. Y. 370), and this doctrine is held by the learned justice who tried this case.

The second subdivision of this will devising the home farm and pasture lot clearly comes within the condemnation of this rule.

The devise of the- use of the land was to testator’s three daughters for- their lives.then in being and to the survivor of them, and after their death in fee to Ernest Danforth in case he survived them, but in case of his death before the last survivor of the three daughters, then in fee to such last survivor. A more clear and palpable violation of the law in restraint of alienation could not well be devised. It is clear that, as this second clause in the testator’s will was vQid, the testator died intestate as to the jiroperty attempted to be devised under and by virtue of that clause, and it is contended by the respondents that, as that clause related to the largest part of the testator’s real estate, it so far affected the whole scheme of the will as to render it void, and that the testator, therefore, died intestate as to his whole estate, and the trial court so held.

If this contention is sound then the entire real estate of which the testator died seized descended at once to his four daughters, and the eighty and one-half acres devised to the plaintiff for life, as well as the homestead farm and fifty aeres of pasture land, would be the subject of partition, and by rule 65 of the General Rules of Practice in this court, as the plaintiff failed to embrace in this action all of the lands held by the parties in common, the complaint was properly dismissed.

But before that conclusion can be reached it must be determined that the illegal suspension in the second clause of the will vitiated the whole will, and that the testator died intestate as to the whole of his estate.

The rule upon that subject seems to be that when by declaring one provision of a will void, the whole scheme of the testator in his will is broken up, so that no part of the same can be carried out without a clear violation of the scheme and intention of the testator, the whole will is tainted and vitiated. (McSorley v. Wilson, 4 Sandf. Ch. 549-559; Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 16 Wend. 61; Van Beuren v. Dash, 30 N. Y. 426; Harris v. Clark, 7 id. 242.)

But the converse of that proposition seems equally true, that when the testator has in his will made independent devises or bequests, in no way connected with or dependent upon the void or ineffectual provisions, the court will not declare such independent provisions void, the policy of the courts being to uphold and not defeat testamentary disposition of property, if it can be done without violating settled principles of law.

In Oxley v. Lane (35 N. Y. 349) the court say: “ It is a settled mile of construction that if effect cannot consistently with the rules of law be given to the entire will, or an entire provision in a- will, any part of it may be sustained which is conformable to the rules of law and which can be separated from the 'residue without doing violence to the testator’s general intentien,” citing in support of that doctrine Kane v. Gott (24 Wend. 644-646). (Parks v. Parks, 9 Paige, 107-117; DeKay v. Irving, 5 Den. 646; Lang v. Ropke, 5 Sandf. 363-371; Williams v. Williams, 4 Seld. 535-539; Savage v. Burnham, 17 N. Y. 561-572.)

These authorities seem to carry out the doctrine there enunciated. In Kennedy v. Hoy (105 N. Y. 137) it was determined that some of the trusts created by the will of Ella Nora Hoy were void, and it was urged that such void trusts vitiated all the trusts created by the will. Earl, J., in writing the opinion of the court, uses this language: “ That is a separate trust created by a separate paragraph in the will, is complete in itself, and is not connected with the trust intended to take effect after his death, and can be permitted to stand alone.” The learned judge, after referring to a class of trusts created in a will which are so connected as to be dependent upon each other, so that one cannot be defeated without breaking up the entire testamentary scheme of the testator and vitiating the whole will, proceeds: “ But when several trusts are created and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal, and upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand, and thus the intention of the testator be effectuated so far as the law will permit.”

In Van Schuyver v. Mulford (59 N. Y. 426) the testator, by an independent devise, gave to his wife the use of his estate for her life, and charged the corpus of the estate with the payment of any deficiency of the income for her support.' In a sejiarate devise he gave the remainder of the income of his estate to his two daughters for their lives, and the remainder in fee to the issue of his daughters. In that case the court held the clause of the will for the benefit of the wife valid, and set aside the devise to the daughters as void for illegal suspension of alienation. Applying the principles settled in the cases to which we have referred to the case at bar, it would seem to follow that the first and third clauses of this will can be upheld, while the second clause is void and inoperative.

The first clause devises the use of the eighty and one-half acres-to the plaintiff for life, and the remainder to her heirs; that remainder vested in her child at its birth, and from that time became a vested remainder in fee in C. Ralph Sanford. Thus, under the operation of this will, the property devised to the plaintiff was carved out of the bulk of the estate, leaving the balance of the testator’s estate in no way affected by it.

The property embraced in or affected by the second clause of the will was in no way affected by the disposition of that embraced in the first. If the second clause had been valid it'could have been carried into effect without regard to the provisions of the first.

The same may be said of the third clause of the will, which was-an independent provision giving the remainder of testator’s personal property, after the payment of debts and funeral expenses, to-his three unmarried daughters. Within the authorities, can these-independent provisions of this will be stricken down aDd the beneficiaries under them deprived of the property conferred upon them because the second provision of the will fails and turns into an estate_in fee in these defendants three-fourths of the real estate in which, under the will, they were only tenants for life ?

Such a construction would nullify four independent paragraphs, each dealing with independent subjects in no way directly connected with the second paragraph, which is illegal because of the illegality of that paragraph.

It is quite apparent from this will that the testator instead of attempting to make an equal division of his property, sought to dispose of it in items ; no argument can, therefore, be drawn from any supposed inequality resulting from the failure of the second paragraph in this will. The right of the plaintiff to a life estate in the eighty and one-half acres, with remainder over to her children, was fixed by an independent provision of the will. The rights of the defendants were also fixed by the will to the surplus of the personal estate.

As to the home farm and fifty acres pasture lot, the testator died intestate, and, so far as its legal effect goes, the same as if the testator had omitted it from his will. As we have said, it is the duty of the court to uphold so much of the 'will as is legal. (Henderson v. Henderson, 113 N. Y. 1-15.) If we had reached a conclusion that the whole will’was void by reason of the invalidity of the second clause, so that the eighty and one-half acres had fallen into the bulk of the real estate to have descended to the heirs at law of the testator, then we should agree with the trial judge that this action was not properly brought, as in that event it would not partition all the real estate of the parties owned in common. As no objection was made by the defendant under the pleadings, on the ground of a.misjoinder of causes of action, we see no objection to trying the action in the form in which the plaintiff has seen fit to bring and prosecute the same.

"We think the trial court erred in dismissing the complaint.

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

Herrick, J., dissented.

Putnam, J.:

Assuming that the second clause of the will of Joel Goodell, deceased, was void as suspending the absolute power of alienation for over two lives in being, as both the plaintiff and defendants claim, I concur in the result reached in the foregoing opinion.

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


author: Putnam, J.:

text:
    James R. Duncan, Plaintiff, v. The George C. Treadwell Company and Others, Respondents. Francis Theodore Herx and Others, Apjiellants.

      Receivership of a corporation — when it should not be continued to enable it to raise money to pay its debts.

    A receiver oí a corporation was appointed in an action brought by a stockholder thereof against the corporation and two of its directors, in which the complaint alleged that there had been waste of the assets of the corporation in consequence of the wrongdoing and mismanagement of such directors and others confederating with them, and also set forth a scheme of said persons to wreck the corporation, and demanded judgment for an accounting by said directors, that the corporation and its officers be restrained from exercising any corporate rights, and that a receiver be appointed.

      Held, that as the dissolution of the corporation and the distribution of its assets was not sought, the receivership would not be continued for the purpose of giving the corporation time to raise money to pay its debts, where, after the commencement of such action, a new election of directors of the corporation had been held, the two malfeasant directors removed and the plaintiff in the action and others in accord with him had been placed in control of the corporation.
    Appeal by the petitioners, Francis Theodore Herx and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of. Albany on the 27th day of June, 1894, denying the petitioners’ motion for an order either directing the temporary receiver or custodian of the corporation’s property to pay over to the sheriff the amounts due under certain executions, or permitting the sheriff to proceed with the sale of the corporation’s property, pursuant to law, notwithstanding such receivership.

      Louis Werner, for the appellants.

      Zeb A. Dyer, for the respondents.
   Putnam, J.:

If the receiver had been appointed in an action for the dissolution of the George 0. Treadwell Company, and the distribution of its assets among creditors, brought by the Attorney-General or a judgment creditor after an execution had been returned unsatisfied, or in a proceeding for tlie voluntary dissolution of tlie corporation, the order from which the appeal is taken would not be disturbed. (Attorney-General v. The Continental L. Ins. Co., 23 Hun, 360; Woerishoffer v. North River Constructian Co., 99 N. Y. 398.)

But this was an action by a stockholder against the corporation and two of its directors. Plaintiff alleged waste of assets in consequence of the wrongdoing and mismanagement of said directors and others confederating with them, and a scheme of said persons to wreck the corporation, and asked for an accounting by said directors, that the corporation and its officers be restrained from exercising any of the corporate rights, and for tlie appointment of a receiver.

Plaintiff did not ask to dissolve the corporation or distribute its assets, but commenced the action on the ground of the wrongdoing of said directors and their confederates, and, hence, the waste of assets and mismanagement of the corporate business.

Since the commencement of tlie action a new election of directors of the corporation has been had, and the two malfeasant directors removed, and the plaintiff and those in accord with him are in control of the corporation.

It is, hence, difficult to see on what ground the receivership continues. Directors against whom no charge is made are in control of the corporation, and, although the action may be continued for the purpose of a judgment against the malfeasant directors, there can be no object in continuing such receivership. The object for which plaintiff obtained the appointment of the receiver has been attained by the voluntary action of the corporation and its stockholders.

We are riot aware of any statute or law which justifies the continuance of the receivership for the purpose of giving the corporation time to raise money to pay its debts. There seems to be no other reason why there should continue to be a receiver of the George 0. Treadwell Company. If the corporation is insolvent and unable to meet its obligations it should make the application for a voluntary dissolution under the provisions of the statute.

We think the papers before us clearly show, assuming that the appointment of the receiver in this action was originally authorized, that the continuance of the receivership is unnecessary and improper. However much we might desire to, under the peculiar circumstances of this case, we cannot properly make use of such receivership for the purpose of giving time to the corporation to meet its obligations. It follows that the petitioners who have obtained judgment against the corporation should not be delayed in the collection thereof by an unnecessary receivership which should not continue.

Eor reasons unnecessary to state, we also think that the prayer of the petitioners should have been granted, although it had not been made to appear at that time that the two malfeasant directors had been removed. (See Webster v. Lawrence, 47 Hun, 565.)

The order should be reversed, with costs, and the motion granted, without costs, permitting the sheriff to proceed and sell the corporate property.

Mayham, P. J., concurred; Herrick, J., not acting.

Order reversed, with ten dollars costs and printing and other disbursements.


text:
    Elizabeth F. Cagger and Others, Plaintiffs, v. Rhoda Sholtes and Others, Appellants. Henrietta Church, Respondent.

      Parties — made defendants, in a fending suit, against their will.

    The court should not direct that persons, against their will, be made parties defendant to an action brought to recover real property and the appurtenances thereto, after the commencement of the action, without some satisfactory proof showing that they are proper parties to the action, especially where they positively deny the facts alleged upon information and belief by the plaintiff seeking to make them parties.
    Appeal by the defendants, Rhoda Sholtes and others, from an order of the Supreme Court, made at the Albany Sjiecial Term and entered in the office of the clerk of the county of Albany on the 7th day of May, 1894, granting the motion of Henrietta Church to revive the action, and substituting Henrietta Church as the plaintiff therein, without prejudice to the order of reference made in the action, and directing that Cyrus S. and Pkilena Sholtes be made parties defendant to the action.
    This action was brought to recover certain real estate and the appurtenances thereto.

      William Woumcms, for the appellants.

      JRussell M. Johnston, for the respondent.
   Putnam, J.:

The petition states, upon information and belief, that since the commencement of the action Cyrus S. Sholtes and Philena Sholtes have acquired rights in the premises in the complaint in the action described, and are now in possession of said premises or some part thereof. No other proof appears in'the papers that said parties or either of them have any interest in the premises in question or are in occupation thereof. The case contains tbe affidavits of the said Cyrus S. and Philena Sholtes in which they each positively deny that they or either of them are the owners or have any interest in or are in possession of the premises described in the complaint.

The allegations in the petition thus made on information a/ncl belief being positively denied by the affidavits of Cyrus S. and Philena Shultes, I do not think the court should have granted an order making said persons defendants in the action. Without some satisfactory proof showing that they are proper parties, they should not, against their will, be made defendants in the action, and thus subjected to the expense and trouble of the litigation.

Under all the facts and circumstances of the case, I see no reason, to doubt that the discretion vested in the Special Term was properly exercised in directing the substitution of Henrietta Church as. plaintiff in the action. If new defendants are not brought in, there can be no objection to allowing the order of reference granted by consent of the parties to stand.

The order should be modified by striking out the clause directing “ that Cyrus S. Sholtes and Philena Sholtes be and they are hereby made parties defendant herein, and that the plaintiff, Henrietta Church, be and is hereby authorized to issue a supplemental summons in this action directed to the said Cyrus S. Sholtes and Philena Sholtes, so made defendants herein,” and as so modified affirmed, without costs to either party.

Mayham, P. J., concurred; Herrick, J., not acting.

Order modified, and as modified affirmed, without costs to either party.


author: Rutnam, J.:

text:
    William H. Gray, Appellant, v. The Guardian Assurance Company, Respondent.

      ■Fire insurance policy — forfeiture thei'eof — how revived —waiver of the forfeiture, how. established.

      A fire insurance policy, covering personal property, contained a provision that the policy should be void if the subject of the insurance should be or become incumbered by a chattel mortgage.

      field, that the execution of a chattel mortgage upon the insured property rendered the policy void; that being void, it could not subsequently acquire validity or force unless revived by some act, or with the consent, of the insurer.
    To establish a waiver of a forfeiture of a fire insurance policy, the proof must show a distinct recognition of the validity of the policy, after a knowledge of the forfeiture by the person who it is claimed has waived the forfeiture.
    Appeal by tlie plaintiff, William TI. Gray, from a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Franklin on the 22d day of January, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on the 13th day of December, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action ’was brought to recover under a policy of fire insurance the amount of a loss resulting from a ffre which took jilace January 10, 1893. The claiip of Davis Brothers, the insured under Such policy, was assigned -to the plaintiff in this action on or about the 28th day of June, 1893.

      John P. Pellas, for the appellant.

      A. H. Sawyer, for the respondent.
   Rutnam, J.:

The defendant, by its policy of insurance dated March 31, 1892, insured Davis Brothers to an amount not exceeding $1,000 on their stock of merchandise contained in their store at Malone, N. Y., for the period of one year. On the 18th of June, 1892, Davis Brothers executed a chattel mortgage on the property insured to one Henrietta'Briggs to secure the payment of $500. The policy provided that “ this entire policy shall be void if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.”

It requires no citation of authorities to show that on the execution of the chattel mortgage in question the policy under which plaintiff seeks to recover in this case at once became void. Being void, it could not subsequently acquire validity so as to cover merchandise thereafter placed in the store of Davis Brothers. On the execution of the mortgage the policy, by its terms, ceased and could not thereafter have any force unless revived by some act or by consent of the defendant. (Mead v. Northwestern Ins. Co., 1 N. Y. 530.)

We think the only serious question in the case is whether there was a waiver by defendant after the loss of the clause in the policy rendering it void if the merchandise insured became incumbered by a chattel mortgage. It is urged by the learned counsel for the plaintiff that, after the fire by which the property insured was destroyed, Congdon, the adjuster of defendant, with full knowledge of the execution of the chattel mortgage, directed the plaintiff to prepare proofs of loss and send the same to the defendant, and that in pursuance of his direction Davis Brothers afterwards did prepare and send such proofs at an expense of two dollars.

We think the evidence in the case fails to establish any waiver by defendant. To establish a waiver of a forfeiture the proof must show a distinct recognition of the validity of the policy after a knowledge of the forfeiture by the person by whom it is claimed the forfeiture was waived.” (Weed v. London & Lancashire Fire Ins. Co., 116 N. Y. 106-118.)

Assuming that there was testimony given from which the jury could have properly found that, at the interview between Davis Brothers and Congdon, the adjuster of defendant, after the loss, the latter told the former to make out proofs of loss, it was shown by the testimony of four witnesses that at the interview at which Congdon made that remark, after he learned that the injured property was covered by a chattel mortgage, he denied the liability of the company, and claimed that the policy became void because of said mortgage. lie did not recognize the validity of the policy after he found out the fact of its existence, but, on the contrary, asserted its invalidity. Davis, as a witness, did not deny that Congdon made such a statement. He only said, “ I don’t remember any such statement; that is all I will say about it.” On this testimony the tric.1 judge was justified in assuming, as clearly proved, that Congdon, defendant’s adjuster, on learning of the existence of the chattel mortgage, denied the liability of the company, and refused to proceed further in the matter of the adjustment. Under the circumstances, if he did at the same time tell the plaintiff to make out proofs of loss, such remark should be deemed rather advisory than as a request on his part on behalf of the company. In any event Congdon, after learning of the chattel mortgage, made no distinct recognition of the validity of the policy, as held necessary in all the cases, but, on the contrary, asserted that it had become void, and declined to proceed further with the adjustment.

Under all the circumstances, we think the plaintiff failed to establish a waiver on the part of the defendant’s adjuster. (See Ronold v. Mutual Reserve Fimd Life Assn., 132 N. Y. 378.)

But it is not shown that Congdon was a general agent or officer of the defendant; he was a special agent and adjuster. At the time of his interview with Davis Brothers the policy under which plaintiff claimed was forfeited ; it was by its terms void. Congdon, as special agent and adjuster, was not shown to have had power to waive the forfeiture. (Weed v. London & Lancashire F. Ins. Co., 116 N. Y. 106.)

We'conclude that the trial judge properly nonsuited the plaintiff, and hence that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


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    Martin C. Van Alstyne, Respondent, v. Christopher Smith, Individually and as Administrator, etc., of William H. Smith, Deceased, Appellant, Impleaded with Others.

      Attorney and client— testimony of the attorney, when not incompetent under Code of Oiml Procedure, § 835 — assumption of a mortgage by a grantee of mortgaged premises — fraud in reducing a contract to writing — pa/rol proof admissible.

    Upon the trial of an action brought to foreclose a mortgage, a deficiency judgment was demanded against the grantees of the mortgagor, who had agreed, in the conveyance to them of the mortgaged premises, to assume and pay the mortgage; the defense was interposed that such clause was fraudulently inserted in such deed without the knowledge of the grantees.

      Held, that the testimony of the attorney who drew the deed as to the instructions given him when the instrument was prepared was not incompetent under the provisions of section 835 of the Code of Civil Procedure.
    "Whether a clause by which the grantees named in a deed agreed to assume and pay a mortgage upon the premises thereby conveyed was properly inserted therein, depends upon the oral contract, actually made between the parties, attempted to be reduced to writing in the deed.
    On questions of fraud in the reducing of a contract to writing, the whole of it is open to parol proof, and the court will disregard the writing, and treat the whole transaction as a verbal contract.
    Appeal by tlie defendant, Christopher Smith, individually and as administrator of William II. Smith, deceased, from that portion of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 1st day of August, 1891, upon the report of a referee, charging the appellant with a deficiency judgment arising upon the sale of the mortgaged premises described in the complaint, and refusing to set aside that portion of the report of the referee charging the appellant with such deficiency judgment.

      E. S. Harder, for the appellant.

      O. 8. Oollier and A. Frank JB. Ghaoe, for the respondent.
   Putnam, J.:

The action was brought for the foreclosure of a mortgage dated January 21, 1871, made by Anne E. Moore to plaintiff to secure the payment of the sum of $1,650, with interest. After the execution of the mortgage Anne E. Moore conveyed the mortgaged premises to Christopher Smith and William II. ' Smith, brothers, the amount of the mortgage being deducted from the purchase price agreed to he paid said grantor, and said deed containing the following clause immediately after the warranty therein : “ Except a certain indenture of mortgage given to secure the payment of $1,650, which mortgage the said parties of the second part hereby assume to pay as apart of the purchase money of this conveyance, and the principal sum thereof, with the interest, is to be deducted therefrom.” When this action was commenced William II. Smith had died, ■Christopher Smith being his only heir and administrator. The latter was made defendant in person and as administrator, and the usual judgment for a deficiency was asked for against him. lie interposed an answer, alleging tliat the above-quoted clause was inserted in the deed without his knowledge or consent. That no contract or agreement was ever made between him and his brother and Anne E. Moore for the assumption by them in the deed of the payment of the mortgage. That said provision was fraudulently inserted in the deed, and his first knowledge thereof was when this action was commenced.

The issues raised by the pleadings were tried before a referee, who found in favor of the plaintiff, and judgment was entered for the foreclosure of the mortgage, the sale of the mortgaged premises, and against the defendant, Christopher Smith, individually and as administrator, for the deficiency, if any, on the sale. From said judgment the defendant Smith appeals.

We think the evidence on the trial sufficient to sustain the conclusions reached by the learned referee on the questions of fact submitted to him. We are unable to believe that his finding that the assumption clause in the deed was inserted therein with the consent of defendant, Christopher Smith, and his brother, was erroneous. This provision was written in the deed which the Smith brothers had accepted, put on record, and under which they had held the title of the land in question for many 3rears. The amount of the mortgage debt was deducted from the purchase price paid by the Smiths to Anne E. Moore. The presumption created by these admitted facts, with the testimonjr of the witness Silvernail, who drew the deed, and of Moore, who made the contract with the Smith brothers, we think justified the conclusion reached b3r the referee.

We should, hence, be of the opinion that his findings could not, under the evidence, be disturbed, and that the judgment rendered on his report should be affirmed, were it not for some rulings on the trial which, we think, were erroneous.

The referee did not err in overruling the defendant’s objections to the testimony of the witness Silvernail, the attorney who drew the deed, as to the instructions given him when the instrument was prepared. Such evidence was not incompetent under the provisions of section 835 of the Code of Civil Procedure. (Hebbard v. Haughian et al., 70 N. Y. 54; Root v. Wright, 84 id. 72; Greer v. Greer, 58 Hun, 251.)

There were other rulings of the referee, however, sustaining objections to questions asked by defendant to witnesses upon the tria] that, we think, were erroneous.

The defendant, Smith, in his answer claimed that the clause in the deed from Anne E. Moore to him and his brother above quoted was fraudulently inserted therein without his knowledge or consent and not in pursuance of any contract or agreement between the parties, and that he first learned of its insertion in the deed when this action was commenced. If, on the trial, he could have maintained the truth of the allegations he would have been entitled to succeed in the action. (DeyErmand v. Chamberlin, 88 N. Y. 658; Kilmer v. Smith et al., 77 id. 226.)

Whether the assumption clause was properly inserted in the deed or not depended upon the oral contract actually made between the parties attempted to be reduced to writing in the deed. If it were in fact agreed that the grantees should personally assume the payment of the mortgage, then a provision to that effect was properly put in the deed. But if no such agreement was made, then the insertion in the deed of such a provision was fraud on defendant unless at the time of the execution thereof he knew of such insertion and consented thereto.

It is well settled that, on questions of fraud in the reducing of a contract to writing, the whole of it is open to parol proof, the court disregarding the writing and treating the whole transaction as a. verbal contract. (Phyfe v. Wardell, 2 Edw. Ch. 47; Rosboro v. Peck, 48 Barb. 92; Kooj v. Handy, 41 id. 454.)

Here defendant claimed that a provision in the deed which he did not know of until this action was commenced was inserted therein fraudulently and was not called for by the actual agreement of the parties. On the issues raised by his answer it is clear that he should have been allowed to show just what the verbal. contract was between the parties; all that was said between them prior to the execution of the deed. The question was whether the verbal contract was earned out in the deed, and, hence, what the verbal contract was.

The following question was asked by defendant of the witness McDowell, viz.: “ Q. What was said between yourself and John H. Moore and Ms wife, Anne E. Moore, about buying that hotel property on behalf of the Smiths on or about November, 1814?” This question was objected to by the plaintiff and the objection sustained. McDowell, as agent of the Smith brothers, made the bargain with Anne E. Moore and her husband. The defendant, by the question, sought in the proper way to show what the verbal contract was, and, we think, was entitled to an answer to the question.

On the cross-examination of John IT. Moore, a witness called by the plaintiff, and who acted for Anne E. Moore in making the bargain with McDowell and the Smith brothers for the sale of the premises to the latter, he was asked the following question: Q. "Will you swear that there was anything said in any of your negotiations for the sale of this property, either with McDowell or either of the Smiths, about putting a clause in the deed requiring the defendants Smith to assume and pay this mortgage ? ” The referee sustained the plaintiff’s objections to such question. We think the question was proper and that the defendant was clearly entitled to an answer thereto.,

The following question was asked of the witness Christopher Smith: Q. In the negotiations this year between your brother, yourself and Mrs. Moore, in regard to the purchase of this property, was there anything said about your brother and yourself assuming and promising to pay this mortgage ? ” The question was objected to by the plaintiff and the objection sustained by the referee.

In consequence of the referee’s ruling in sustaining the objections to the questions as above specified, and many other similar questions propounded by defendant to witnesses, he was prevented from showing what the parol contract between Anne E. Moore and himself and brother was. With that view he sought to show what was said between the parties during the negotiations, and also that nothing was said in reference to the Smith brothers assuming the payment of the mortgage. But the evidence he offered with this view was excluded by the referee. We think the exclusion of this testimony was erroneous. Defendant should have been allowed to show what the entire parol contract was, and everything that was said between the parties prior to the execution of the deed, tending to show the actual agreement made. The referee on the trial did allow some questions asked by defendant of witnesses, similar to those so excluded to,( be answered, and thus the error above' adverted to in such exclusion was to some extent, but not entirely (as a careful examination of the testimony will show), cured.

It is suggested that no error was committed in excluding the evidence offered by defendant in relation to the parol contract, because it was shown that there was a written contract between the parties, executed prior to the delivery of the deed, and, hence, all previous oral negotiations were merged in such contract. But it is not proved that there was a written contract obligatory on the defendant, Christopher Smith. He testified that he never saw such a contract. And the witness Moore does not testify that the written agreement was signed by Christopher Smith, or seen by him, or show that William H. Smith, who he said executed it, was authorized to do so for the defendant, or in fact assumed to. The alleged contract was not introduced in evidence or its contents shown, nor did the testimony of the witness Moore show that any contract was ever executed to which defendant was a party.

Hence, the testimony in the case failed to show, at least as against the defendant, Christopher Smith, that there was any contract. The action was against him individually and as administrator of William H,, Smith. He testified that he had never seen any contract. If he had been allowed to show, and could have proved, that under the actual agreement made it was not understood or agreed that he and his brother should assume the payment of the plaintiff’s mortgage, and that the provision for such assumption was put in the deed without his knowledge or consent, the referee could have properly found that the provision was fraudulently inserted, notwithstanding the unauthorized contract which defendant had never seen and which was executed without his knowledge.

We conclude, therefore, that on account of the exclusion of the evidence above referred to by the referee the judgment should be reversed, and a new trial granted, with costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

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


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    Robert T. Skelton, an Infant, by his Guardian ad Litem, Respondent, v. Matthew Larkin, Jr., Appellant.

      Negligence — the slipping of a stone placed without a/uthority in a public street — nuisance — playing of a child in the? street is not per se negligence — ordinance of a city, competent evidence.

    The slipping of a stone placed in a public street, by 'which injury is caused to a person on the street, is evidence tending to show negligence on the part of the person who may be responsible for the position of the stone and renders proper, in an action brought against him to recover damages for the injuries thus sustained, the submission to a jury of the question as to the negligence of such person.
    It is not per se negligence for parents to allow their children non sui juris to play in the streets; it may or may not be negligence, according to the circumstances of each case.

      A stone placed in one of the public streets of a city in violation of an ordinance of such city, if not so placed by the permission of the municipal authorities, is a nuisance, and the person who is responsible for such location of the stone is liable for the damages resulting from its being put where it was, although it was so placed by a contractor under him.
    An ordinance of a city is, if relevant, competent evidence on the question of the negligence of the defendant, upon the trial of an action brought to recover damages for personal injuries sustained by the plaintiff by reason of such alleged negligence.
    Appeal by the defendant, Matthew Larkin, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 27th day of December, 1892, upon the verdict of a jury, rendered after a trial at the Ulster Circuit, and also from an order, entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      A. T. Olearwater, for the appellant.

      D. M. De Witt, for the resj)ondent.
   Putnam, J.:

¥e think the question of defendant’s negligence was properly submitted to the jury. It was said in Kunz v. City of Troy (104 N. Y. 344-348): The death of the plaintiff’s intestate, caused by the falling of the counter, demonstrates that it was a dangerous obstruction on the sidewalk.” So, in this case, the slipping of the stone and the injury to plaintiff was evidence tending to show defendant’s negligence proper to be submitted to the jury.

So, also, the question of contributory negligence was for the jury. The plaintiff was non sui juris. In tlie case last cited it was held that it was not per se negligence for a parent to allow children to play in the street. “ It may or may not be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate, was guilty of negligence.” (Kunz v. City of Troy, supra, citing McGuire v. Spence, 91 N. Y. 303.) So in this case.

It is claimed, however, by the defendant that the stone which caused the injury was placed where it was by an independent contractor under defendant a few days before the accident, and, hence, defendant was not liable.

But there was evidence tending to show that the stone had remained in the position in which it was at the time of plaintiff’s injury for over a year. The jury, from the testimony, could have found that such was the case. If this obstruction in the street, although placed there in 1883 by McLaughlin, a contractor under defendant, was allowed to remain by the latter, after the completion of the contract, over a year, no doubt could be entertained as to his liability if the stone was- negligently placed.

If we were to assume the fact to be as the witness Purvis testified, that the latter placed the stone which caused the injury to plaintiff only two or three days before the accident, such assumption would not call for a reversal of the judgment. The obstruction was in one of the public streets of the city of Kingston, in violation of a city ordinance, and it was not claimed that it was so placed by permission of the municipal authorities or that defendant was authorized by the city to disturb the street. Hence, it was, in fact, a nuisance in the street, and defendant was liable for damages in consequence of its being put where it was, although so placed by a contractor under him. (Creed v. Hartmann, 29 N. Y. 591; Storrs v. City of Utica, 17 id. 104; Turner v. City of Newburgh, 109 id. 301-306 ; Brusso v. City of Buffalo, 90 id. 679.)

The ordinance of the city of Kingston was competent evidence on the question of defendant’s negligence. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488.)

We think the case was properly disposed of by the learned trial court, and can discover no errors that should cause a reversal of the judgment. The various questions raised on this appeal are so old and have been so often considered by the courts that we do not deem it necessary or desirable to write at length in the case.

Judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred:

Judgment affirmed, with costs.


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    George H. Fleetham, Respondent, v. George C. Reddick, Appellant.

      Action for conversion — when maintainable — mortgage of growing crops — rights of the mortgagee when the landlord and when not the landlord, in crops thereafter coming into existence.

    To maintain an action for conversion the plaintiff is bound to show that he was the owner of the property alleged to have been converted by the defendant at the time of the alleged conversion thereof.
    Growing crops may be sold or mortgaged, and a lessee of lands can give to his landlord, to secure the amount of rent due to him, a mortgage on crops not yet planted ; in such case, the title to the crops when grown vests at once in the landlord and not in the lessee.
    Ordinarily, however, the legal title to property not in existence, actually or potentially, cannot be transferred by way of a mortgage, and at law a mortgage upon property not yet acquired is only a license until a new act intervenes.
    Where a person gives to another a chattel mortgage upon a crop of grain to be planted in the future, not for the purpose of securing rent due to the mortgagee, the mortgagee acquires thereby no legal title to the crop thereafter planted or raised by the mortgagor; the mortgage, however, confers on the mortgagee a license to take such crop, and if he seizes it before the sale thereof by the mortgagor, the title to such property then vests in him, but if prior to any such seizure by the mortgagee the mortgagor sells the property, the mortgagee, never having had legal title thereto, cannot maintain an action for the conversion thereof.
    Appeal by the defendant, George C. Reddick, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 12th day of March, 1894, upon the decision of the court affirming the judgment of a justice of the peace of the town of Oswegatchie, St. Lawrence county.

      Joseph George, for the appellant.

      G. W. JTurlbut, for the respondent.
   Putnam, J.:

This is an appeal from the judgment of the County Court of St. Lawrence county. On the 2Yth day of February, 1893, defendant gave plaintiff a chattel mortgage on all grain raised on the farm that he worked for said Fleetham in the year 1893. When the mortgage was executed the grain was not in existence, nor in the ground. After the grain was raised on the farm it was sold by the defendant and subsequently demanded by plaintiff; an action was brought in J ustice’s Court for the conversion of the oats raised on said farm, and judgment was rendered in said court against the defendant for $113.10. The debt secured by the mortgage was not for the rent of the farm.

To maintain the action plaintiff was bound to show that he was the owner of the grain in question. If he had title to such property at the time the defendant sold it, such title was derived from the chattel mortgage executed February 28, 1893, long before the grain was sown. It has been deemed established that growing crops may be sold or mortgaged,'but, under the authorities, it is doubtful whether the owner or lessee of land can give a mortgage on crops not yet planted, which shall have the effect of conveying the legal title thereto. That the lessee could convey such crops to his landlord to secure the rent has been decided, under such a contract it being deemed, that the title to the future crops when grown vested at once in the landlord, and not in the lessee. (Van Hoozer v. Cory, 34 Barb. 9; Conderman v. Smith, 41 id. 404; Smith v. Taber, 46 Hun, 313 ; Rochester Distilling Co. v. Rasey, 142 N. Y. 570-576.)

Ordinarily, however, legal title to property not in existehce, actually or fotentiall/y, cannot be transferred by way of a mortgage. (Deeley et al. v. Dwight et al., 132 N. Y. 59; Rochester Distilling Co. v. Rasey, 142 id. 570.)

In the authority last above cited it was held, in the case of a mortgage given by the lessee of land on crops not planted, that crops which are the annual product of labor and of the cultivation of the earth have no actual or potential existence before planting. It would seem to be established by the authorities above cited that the mortgage under which the plaintiff claimed, being given upon crops not having any actual or potential existence at the time the instrument was executed, and not made to secure rent, no legal title to said crops was ever in plaintiff, and, hence, that the action should not have been sustained in a Justice’s Court.

¥e think the proper doctrine in regard to such a mortgage of crops to be planted, as that under which plaintiff claimed in this action, is well stated in McCaffrey v. Woodin (65 N. Y. 459-464): At law a mortgage upon property not yet acquired is, according to the authorities, only a license until a new act intervenes. In that case the mortgagee, pursuant to the license contained in the mortgage, had seized the property, and it was held that such seizure was lawful, and that after seizure title to the property vested in the mortgagee. In Williams v. Briggs (16 Alb. L. J. 387), which was, like this, an action of trover by the mortgagee against the voluntary assignee of the mortgagor, it was held that a mortgage of personal property to be subsequently acquired conveys no title to such property when acquired which is valid against the mortgagor or his voluntary assignee, unless after acquisition by the mortgagor possession of such property is given to the mortgagee or taken by him under the mortgage.

• We conclude that plaintiff, under his chattel mortgage, took no legal title to the crops thereafter planted or raised by the defendant. His mortgage conferred on him a license to take such crops, and had he seized them before the sale by the defendant, the title to such property would have then vested in him, but, as prior to any such seizure, the defendant sold the property, plaintiff never had such a legal title thereto as enabled him to maintain an action of trover in Justice’s Court. (See Page v. Larrowe, 51 N. Y. St. Repr. 35; Cressey v. Sabre, 17 Hun, 120; Rochester Distilling Co. v. Rasey, 65 id. 512; Milliman v. Neher, 20 Barb. 37.)

We do not think it necessary to discuss the question whether the mortgage, by its terms, conveyed grain to be planted a/nd ra/ised after the date of its execution.

The judgment should be reversed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, with costs.


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    James Lever, Respondent, v. Buel L. Foote, Appellant.

      Recovery of the possession of real estate — disputed questions of fact for the jury — ■ direction of a verdict thereon, erroneous.

    Upon the trial of an action brought to recover the possession of certain real property, it was shown that the plaintiff, as tenant of the defendant, occupied the land in question from October 22 (or 19), 1892, for one year. The plaintiff testified that in a conversation with the defendant in September, 1893, he made an agreement with him to lease the same premises for a second year, which testimony was corroborated by that of another witness. The defendant, on October 20, 1893, took possession of a part of the demised premises, and on the same day the present action was commenced.
    The defendant denied that at the conversation in September, 1893, he rented the premises to the plaintiff for one year, and testified that he, the plaintiff, only wanted the premises until spring; and a witness sworn in behalf of the defendant, in narrating what was said at that conversation, testified that the plaintiff said he wanted the house until the next spring, and that the defendant did not say yes or no. The court directed a verdict in favor of the plaintiff for the recovery of the possession of the premises in question.

      Reid, that the direction of such verdict was erroneous;
    'That under the evidence a question of fact was presented for the determination of the jury, as to whether the lease was extended until the spring of 1894, or for one year;
    That if the lease was only extended until spring, the action being tried on March 14, 1894, the plaintiff was not entitled to a judgment for the possession of the premises, but to the verdict and judgment as provided for in section 1520 of the Code of Civil Procedure;
    That in any event the judgment should have determined the duration of the term for which the plaintiff could hold the premises;
    That it was a question of fact for the jury to determine whether the minds of the parties met, and whether or not any new lease was created.
    Appeal by tbe defendant, Buel L. Foote, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the lYth day of March, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the Franklin Circuit awarding the plaintiff the possession of ■certain real estate, and also from an order made at the Franklin Circuit on the 12th day of March, 1894, and entered in said clerk's office, denying the defendant’s motion for a new trial made upon the minutes.

      John I. Gilbert, for the appellant.

      John P. Pellas, for the respondent.
   Putnam, J.:

From the evidence it appears that plaintiff, as tenant of defendant, occupied the land, to recover possession of which the action was brought, from October 22 (or 19), 1892, for one year. Plaintiff testified that in a conversation with defendant in September, 1893, he made an agreement with him to lease the same premises for a second year. He is corroborated in this regard by another witness. The defendant, on October 20,1893, took possession of a part of the demised premises, and on the same day this action was brought.

The defendant denied that at the conversation in 1893 he rented the premises to plaintiff for a year, testifying that plaintiff only wanted the house until spring, and his witness Ring, in narrating what transpired at said conversation in September, '1893, testifies that plaintiff said he wanted the house until next spring, and that defendant did not say yes or no.

The trial court directed a verdict for the plaintiff for the recovery of the possession of the premises in question.

We think he erred in his disposition of the case. It was under the evidence a question of fact for the jury whether the lease was-extended until the spring of 1894 or for one year. If for one year the verdict and judgment were right as to awarding possession of' the premises to plaintiff. If the lease was only extended imtil spring, the action being tried on the 14th of March, 1894, plaintiff was not entitled to a judgment for the possession of the premises, but to the verdict and judgment as provided for in section 1520 of the Code of Civil Procedure. In any event the judgment should have determined the duration of the term for which plaintiff could hold the premises. (Civil Code, § 1519.)

The error in the disposition of the case above pointed out was. material. Under the judgment plaintiff could properly have held possession of the premises until October, 1894, while, if the question of fact had been submitted to the jury, they might have found that the lease terminated on or before the 1st of March, 1894.

We are doubtful whether, in any view, the court should have directed a verdict. According to the plaintiff’s statement, he rented on October 22, 1892, the premises for one year at the monthly rent, of six dollars, payable at the end of each month, and occupied until the last of September, 1893, when he had a conversation with defendant and arranged for another year’s occupancy. Fie then paid defendant six dollars, presumably the rent due for the month ending in September, 1893. If plaintiff’s statement was true, he was legally in occupation of the premises as tenant until October, 22, 1893, under 9he first year’s lease, and defendant unlawfully evicted him on October twentieth, two days before the term expired, and hence he was entitled to maintain the action either as tenant under the first lease or under the extended tenancy. On the other hand, defendant’s witness IFing swears that when plaintiff proposed to rent the premises until spring defendant made no answer. It was then a question of fact for the jury whether the minds of the parties met, and whether any lease was created. While, from all the facts and testimony, it is probable that it was understood that plaintiff was to occupy the premises after the end of his first tenancy, it was not so certain that the court could determine the question as one of law. The rent paid in October was presumably the rent due under the first tenancy.

The first lease, according to plaintiff, ceased on October 22,1893. But defendant testifies that the agreement was that the rent (which was equivalent to saying tenancy) was to commence on the nineteenth. If the plaintiff’s tenancy commenced on October 19, 1892, and terminated October 19, 1893, and the tenancy was not extended for another term, the occupation of the premises in question by defendant, for which this action was brought, may have been on the day after the expiration of the lease. It is not improbable that on the trial the jury may take another view of the testimony and conclude that plaintiff was legally in occupation of the premises at the time of the intrusion of defendant thereon, either under the first lease or a renewal thereof. We think, however, that the evidence was not so clear and certain that the court could take the questions involved in the case from the jury.

It follows that the judgment should be reversed and a new trial granted, with the costs of the appeal to the appellant to abide the event.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, new trial granted, with costs of the appeal to the appellant to abide the event.


author: Putnam:, J.:

text:
    Samuel S. Evans, Jr., who Sues in Behalf of Himself and All Other Judgment Creditors of Edward H. Sims, Similarly Situated, who Shall Hereafter Join in This Action, Respondent, v. Edward H. Sims and Others, Appellants.

      Bale of property by an insolvent debtor for long-time notes — when fraudulent as to his creditors — it does not per se establish fraud — error in receiving evidence in an equity action disregarded.

    An insolvent debtor, for the avowed purpose of securing certain of his creditors to a greater extent than was lawful under the provisions of chapter 503 of the Laws of 1887 (declining to make a general assignment), transferred all his property to assignees of insufficient responsibility, substantially on credit, and for all the purchase price thereof took the notes of the assignees on long time.

      Seld, that such sale might be found to have been made with an intent on the part of the vendor to hinder, delay and defraud his creditors;
    That as the notes given in payment of the purchase price of such property were made payable in from one to four years, the necessary efEect of such sale was to delay and defraud the creditors of the assignor.
    The mere sale of property by an insolvent debtor upon credit to one having knowledge of his circumstances does not per se establish fraud.
    In an equity action a new trial will not be granted for errors in the admission or exclusion of testimony, if the case has been rightly decided upon sufficient and competent evidence.
    Appeal by the defendants, Edward H. Sims and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 28th day of November, 1893, upon the report of a referee, with notice of an intention to bring up -for review upon such appeal the interlocutory judgment entered in said clerk’s office on the 25th day of July, 1893.

      Williann W. Morrill, for the appellants Sims and Young.

      Merritt dé Rycm, for Her, assignee, appellant.

      Matthew Male, for the respondent.
   Putnam:, J.:

On the 1st day of August, 1891, the defendant Edward H. Sims was insolvent. He owned property consisting of goods, accounts and assets in his store in Troy, N. Y., of the value of over $70,000, and was indebted to an amount exceeding $123,000. Shortly before the date above mentioned, being unable to meet his obligations, he had a consultation with his brother, Calvin B. Sims, his bookkeeper, Bred H. Young, and one McNutt, his attorney. At that interview a general assignment was suggested to said Edward, but he wished to prefer debts to the amount of $50,000 (over one-third of his property), which he could not do in an assignment, and, therefore, the following plan was adopted and carried out on the 1st day of August, 1891:

A partnership was formed between said Calvin B. Sims and Fred H. Young under the name of “ Sims & Co.” Edward, by a bill of sale, thereafter transferred his property to the said firm for the following* consideration, viz.: An alleged debt of $17,874.51 due Calvin B. Sims; the assumption by the firm of Sims & Co. of debts which Edward wished to secure to the amount of $33,293.60, and the notes of said firm for $22,569.07, payable in twelve, eighteen, twenty-four, thirty, thirty-six, forty-two and forty-eight months.

The referee finds, on sufficient evidence, that Calvin B. Sims was of very little pecuniary responsibility, and Fred H. Young of none, at the time of the assignment. It was only claimed that Calvin was worth about $7,500, and, hence, he was of insufficient responsibility to meet the large claims assumed in the bill of sale.

Of the alleged debt of $17,874.51 due Calvin B. Sims, mentioned in the bill of sale, $10,000 was for a note made by Edward IT. and indorsed by Calvin B., and which the latter had not paid. Hence, the referee could properly find on the evidence that Edward H. Sims, being hopelessly insolvent and unable to meet his obligations, and wishing to prefer creditors to a greater amount than could be done by a general assignment, made the bill of sale in question, wherein he transferred all his property to irresponsible parties for an alleged consideration of $74,737.18, of which $65,862.67 consisted of the unsecured obligations of such irresponsible assignees to pay the $10,000 bank note, the $33,293.60 of assumed claims and the $22,569.07 of notes, such notes, which were the only property of Edward remaining after the execution of the bill of sale, being payable in equal semi-annual installments running from one to four years.

After a careful reading of the voluminous testimony contained in the appeal book we are satisfied that it sustains the findings of the referee, that “ the said bill of sale by Edward H. Sims to said Calvin 33. Sims and Ered H. Young furnished no protection or assurance, or guaranty of payment, to the creditors of said Edward 33. Sims, or of the application of the proceeds of the property therein mentioned, to the payment or liquidation of their claims, * * * and

it was executed and accepted with intent to hinder and delay the creditors of said Edward II. Sims, and with intent of dividing the property of said Edward II. Sims among his creditors in violation of chapter 503 of the Laws of 1887.”

A statement of the facts of the case seems to be all that is necessary to be said. Such a sale, by which an insolvent debtor, for the avowed purpose of securing creditors to a greater extent than is lawful under the provisions of chapter 503 of the Laws of 1887 (declining to make a general assignment), transfers all his property to assignees of insufficient responsibility, substantially on credit, and for all the purchase price he is to receive takes the notes of the assignees on long time, the referee could properly find was made with an intent to hinder and defraud creditors. As all the property Edward H. Sims received in the transaction consisted of notes payable in from one to four years, the necessary effect of it was to delay and defraud creditors.

It has been held that the mere sale by an insolvent debtor upon credit to one having knowledge of his circumstances, does not per se establish fraud. (Loeschigk v. Bridge, 42 N. Y. 421.) In the case cited the vendee was a person of responsibility, fully able to meet his obligations for the purchase price of the goods he bought. Under such a state of facts, however, as was shown in this case, we have no doubt that the referee was justified in his above finding. It is difficult to see how he could have reached any other conclusion. (See Hendricks v. Robinson, 2 Johns. Ch. 287, 299, 300.)

In Hendricks v. Robinson (supra), at page 299, Chancellor Kent remarked: “ The whole of this immense debt created by the sale of the real estate at its fair value was thus left to rest upon the personal promise of II. E. without any other security, real or personal.

I cannot resist the impression that this sale carries on the very face of it strong indications of fraud, or, in the words of the statute, of a purpose and intent to delay, hinder or defraud creditors.’ ”

The above-quoted remarks of Chancellor Kent may be applied to this case. But here there was a sale on credit to ¡parties of insufficient responsibility of all the property of the insolvent debtor. After the bill of sale, the only resource of creditors of Edward was in the notes and obligations of parties who, in said instruments, have become obligated to pay over $65,000, and, together, were at the time of its execution worth $1,500.

We are of the opinion that these facts, together with other circumstances shown on the trial indicating fraud, and which we will not attempt to discuss, justified the foregoing finding of the referee.

We also think the referee did not err in his conclusion that “the execution and delivery of said bill of sale and assignment and notes constituted and were parts of a single transaction, scheme or purpose for disposing of the property of said Edward H. Sims, and with intent thereby to hinder, delay and defraud his creditors, and to evade the provisions of chapter 503 of the Laws of 1881, and the defendant William E. Iler, at the time of the execution of the said assignment, had knowledge of such purpose and intent.”

There was testimony given tending to show that the assignee, Iler, knew before the assignment that the bill of sale was in fraud of the rights of the creditors, and made with intent to hinder and defraud them. On the day of the execution of the bill of sale a circular was sent to the creditors of Edward II. Sims with a view of inducing a compromise. After the execution of the assignment Iler, the assignee, and Young were actively engaged in an effort on behalf of Edward to bring about a compromise with his creditors, and Sims & Co. paid their expenses, amounting to over' $1,600. The referee finds that the assignee, Iler, after the assignment, commenced a collusive action against Edward II. Sims, Calvin B. Sims and Fred II. Young to set aside the bill of sale, but that the action was never proceeded with.

It appeared that the defendant Edward, after the execution of the assignment, left the State and remained outside of its limits so that his creditors could not serve process upon him. The evidence also tended to show that he afterwards voluntarily came within the State to allow the summons in the action commenced by Iler to set aside the bill of sale to be served on him, and that such action was collusive. Had it been commenced in good faith by Iler he would have proceeded with it and would at once have applied for an injunction and receiver to protect the property attempted to be transferred by the bill of sale. On the contrary, Iler took no steps to preserve the property in question during the litigation and failed to prosecute the action. These were most significant facts, and tended to show, with other circumstances appearing in the case, that Edward, the members of the firm of “ Sims & Co.” and Iler were acting together to prevent creditors from attacking the bill of sale to bring about a compromise, and hence to show that the assignment was a supplement to and part of the scheme to hinder and defraud creditors which commenced with the execution of the bill of sale and ended with the said assignment.

It is urged in behalf of the appellants that an error was committed by the referee on the trial in overruling objections on the part of defendants to the reading of the deposition of Edward H. Sims taken on supplemental proceedings; that this deposition was competent as against Edward IT. Sims, but not against the other defendants, and the objections made on behalf of the latter should have been sustained. (Scofield v. Spcouldwig, 54 Hun, 523; Petrie v. Williams, 68 id. 589.)

Assuming that the referee erred in overruling the objection of appellants to the reading of the deposition and objections to other depositions which were .read by the plaintiff, we think such assumption does not necessitate a reversal of the judgment. The same witnesses whose depositions were so read were afterwards examined on the trial, and substantially the same facts as those proved by the depositions were shown by the oral testimony of such witnesses.

It is well settled that “ In an equity action a new trial will not be granted for errors in the admission or exclusion of testimony if the case has been rightly decided upon sufficient and competent evidence.” (Code Civ. Proc. § 1003; Marsh v. Pierce, 21 Wkly. Dig. 51; Wright v. Dugan, 15 Abb. N. C. 107; Baldwin v. Short et al., 125 N. Y. 553, 557, 558.) The findings of the referee were clearly sustained by competent oral testimony produced on the trial.

Other exceptions were taken by the appellants upon the trial, which have been carefully considered. It will not be necessary to discuss those exceptions, and we tbink that none of them require a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayi-iam, P. J., concurred ; Herrick, J., not acting.

Judgment affirmed, with costs.


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    Eliza Sands, Respondent, v. Derrick W. Sparling and Another, Administrators, etc., of Hannah Hassis, Deceased, Appellants.

      Action to recover the value of board- — -maintainable by a man'ried woman- — -testimony of the husband admissible unden' Code of Civil Procedure, § 829 — waiver <rf the objection that a question is not hypothetical.

    Ordinarily, when a wife lives with her husband and has no separate business, a claim for board in the family would belong to the husband, yet an agreement between a husband and his wife, by which he allows her to board a party and receive compensation therefor, is valid, and in such case the wife may recover the amount due by a person for board furnished to him.
    In an action brought by a wife living with her husband to recover the amount claimed to be due to her for board furnished at her own home to the defendants’ intestate, the testimony of her husband as to personal transactions had by him with the deceased is not incompetent under the provisions of section 829 of the Code of Civil Procedure, if the witness is not the assignor - of the claim against the deceased upon which the action is brought, and never had any legal interest therein.
    Upon the trial of an action brought to recover the value of board furnished the defendants’ intestate, a witness for the plaintiff, in answer to the question, “What kind of board was furnished for that period ?” answered, “Beefsteak, ham and eggs, pie and cake, vegetables, and sometimes something extra, coffee, tea, bread and butter, and ordinary table board.” On cross-examination he was asked, “In speaking of board, you have said milk, potatoes, and ordinary board?” To which the witness answered “Yes, and beefsteak.” This was the only evidence given on the trial descriptive of the kind of board furnished, and it was not contradicted. Immediately after the giving of such testimony the plaintiff produced two witnesses who testified that five dollars per week was the value of ordinary board, and that the board furnished the deceased, as testified to by the preceding witness, was ordinary board.

      Held, that although the proper way to have proved the value of the board would, have been to have proposed a hypothetical question in which the board furnished would have been described, as stated by the witness, yet, under the circumstances, the reception of the testimony of such two witnesses was not erroneous, inasmuch, as the testimony upon which their estimate was based was given by but one witness, consisted of but one sentence, and was uncontradicted;
    That if it was improper for the referee to allow such two witnesses to express an opinion based on what they had just heard the previous witness testify, a specific objection that the question was not hypothetical should have been interposed.
    Appeal by tbe defendants, Derrick "W. Sparling and another, as administrators, etc., of Hannah Hassis, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 30th day of July, 1894, upon the report of a referee.

      William Lounsbery, for the appellants.

      Oha/rles Irwin, for the respondent."
   Putnam, J.:

This action was brought for board furnished by plaintiff to defendants’ intestate for forty-seven weeks, from 1884 to 1890. The claim was presented to defendants, as administrators, disputed by them and referred under the statute. On the trial it appeared that the board was furnished by plaintiff at her. home, where she lived with her husband. She carried on no separate business. A witness testified, without objection, that deceased boarded with plaintiff during the time mentioned and to conversations between deceased and plaintiff indicating that deceased expected to pay plaintiff for her board, and plaintiff’s husband testified that at the time 'of the first conversation between plaintiff and deceased in reference to board he told his wife if she did the work she should have the pay; that he had no interest in it whatever. The referee held that plaintiff was entitled to recover for thirty-five weeks’ board,, and on his report judgment was entered accordingly.

While, ordinarily, when the wife lives with her husband and has no separate business, a claim for board in the family would belong to the husband, yet it has been determined that a contract between the husband and wife, by which he allows her to board a party and receive compensation therefor, is valid. (Matter of Kinmer & Gay, 14 N. Y. St. Repr. 618; Burley v. Barnhard, 9 id. 587; Bowers v. Smith et al., 28 id. 346 ; see Birkbeck v. Ackroyd, 74 N. Y. 356.)

"We tliink, under the evidence in the case, the referee was justified in determining that the plaintiff was the owner of the claim for the board and services for which the action was brought.

It is urged by the learned counsel for appellants that the referee erred in overruling the objections to testimony of plaintiff’s husband as to personal transactions had by him with deceased; that such testimony was incompetent under the provisions of section 829 of the Code of Civil Procedure. But the witness was not the assignor •of the claim against deceased under which the action was brought. He never had any legal interest in such claim. Under the evidence in the case the plaintiff was the only person who ever had any demand against the deceased; hence, the provisions of section 829 of the Code of Civil Procedure did not apply. (Burley v. Barnhard, 9 N. Y. St. Repr. 587; Porter v. Dunn, Executor, 43 id. 193.)

It is further urged by the defendants that the court erred in receiving testimony as to the value of the board furnished the deceased. On the trial Austin Sands, the husband of plaintiff, in .answer to the question, “ What kind of board was furnished for that period ? ” answered, Beefsteak, ham and eggs, pie and cake, vegetables, and sometimes something extra, coffee, tea, bread and butter, and ordinary table board.” On cross-examination by defendants’ counsel the following question was asked: “ In speaking of board you have said milk, potatoes and ordinary board ? ” to which the witness answered, “Yes, and beefsteak.” This is the only evidence given on the trial descriptive of the kind of board furnished, and it was not contradicted. The plaintiff, immediately after the giving of such testimony, produced two witnesses avIio testified that fi^e dollars per week was the value of ordinary board; that the board furnished deceased as testified by Austin Sands was ordinary board, which is another way of stating that the kind of board which Austin Sands had testified was furnished deceased was worth five dollars per week. Doubtless the more proper way to have shown the value of the board would have been to have proposed a hypothetical question in which the board furnished would have been described, as sworn by the witness. (Reynolds v. Robinson, 64 N. Y. 589; Link v. Sheldon, 136 id. 1; People v. McElvaine, 121 id. 250.)

Put in a peculiar case like this, where a description of the board furnished was given only by one witness, was uncontradicted, and consisted of but one sentence, we do not think that the referee erred in the ruling he made. We are of opinion that in this case the doctrine laid down by Danforth, J., in Seymour v. Fellows (77 N. Y. 181) applies. The learned judge in delivering the opinion of the court used the following language : “ In Reynolds v. Robinson, (64 N. Y. 595) the question was subject to the same objection. The witness had heard the testimony of two physicians and had heard read the evidence of another; he was then asked for his opinion. It is obvious that it must be made up, if at all, upon the weight of evidence, the comparison of testimony, and his estimate of the accuracy and reliability of the witnesses from whose narration he was to form an opinion. lie was required to consider the evidence detailed by a group of witnesses, and eliminate what toq him seemed material from the irrelevant. But none of these objections exist in this case. The question directed the attention of the witness to the testimony of a single witness upon a single subject, and was not other in effect than it would have been if the counsel had recited the statement of services rendered by the party, and on that statement asked an opinion of their value. As was held in McCollum v. Seward (supra), ‘ this was equivalent to a question, assuming that the services rendered were as described by the witness, what were they worth.”’ (See, also, McCollum v. Seward et al., 62 N. Y. 316.)

We are also inclined to believe now that if it was improper for the referee to allow the witness to express an opinion based on what he had just heard the witness testify, the specific objection that the question was not a hypothetical one should have been interposed. (Winters, by Guardian, v. McMahon, 23 Wkly. Dig. 119, 120.)

We conclude that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.