text:
    ELLEN BULLOCK, Appellant, v. THE MAYOR, &c., of the City of New York, Respondents.
    Negligence.—Sidewalks, unpaged.—Stepping stones.-—Duty of city as to.

    Assuming that the city is bound to treat an unpaved sidewalk as if it were a part of the highway, yet its allowing stepping stones placed therein by third persons to remain, they presenting the appearance of stepping stones, and there being no non-apparent danger in their form or their distance from each other, and there being nothing to lead to the antici-' pation of their being or becoming unsafe, violates no duty it owes to, and does not charge it with negligence as to, one who had used the stones with safety knowing their character.

      Decided, December 1, 1884.
    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal from a judgment dismissing the complaint: •
    In 1879, the grade of the Third avenue, in Hew York City, at and about One Hundred and Thirty-ninth street, was changed to an elevation higher than that of the intersecting streets, and subsequently the work of raising Third avenue to the new grade, and of making approaches to the avenue on both sides in the intersecting streets was undertaken. In order to make the approach to Third avenue through One Hundred and Thirty-ninth street, the street was filled in for about 300 feet easterly from Third avenue, and such flagging as was on the north side of the street was taken up in the course of the work. The work done upon One Hundred and Thirty-ninth street was only to make an easy approach for vehicles through that street to the avenue, but did not include the grading or paving of the street, which was left without sidewalks, and unflagged. When snow and rain came, the street was muddy, and pieces of flagging, which remained from the former sidewalk, were laid down by citizens and persons using the street at irregular distances as stepping stones. Such pieces of flag stones were put at the place in question to enable travelers thereby to get. over a very muddy place.
    On the night of June 18, 1881, the plaintiff started from her house at the corner of Alexander avenue and One Hundred and Thirty-ninth street to go to a shop on Third avenue. She passed safely along the sidewalk, until she came to that part in front of the fence, where she tripped on one of the stones and fell, and received the injuries to recover damages for which this action is brought.
    At the close of plaintiff’s case defendants’ counsel moved to dismiss the complaint on the ground that no negligence on the part of the city had been shown. The trial judge ruled: “There is no evidence in this case of any negligence on the part of the city, unless the mere fact that the city allowed those stepping stones to remain there, which the citizens had placed there for their own convenience, is evidence of such negligence. I think it is not,”—and dismissed the' complaint. From the judgment entered upon said dismissal plaintiff appeals.
    Other facts appear in the opinion.

      Charles P. Miller,

    attorney and of counsel for appellant, upon the points decided, urged :—A strong case of negligence against the defendant was made out (Saulsbury v. Ithaca, 94 N. Y. 27; Clemence v. Auburn, 66 Ib. 334; Evans v. Utica, 69 Ib. 166 ; Todd v. Troy, 61 Ib. 506 ; Driscoll v. Mayor, &c., 11 Hun, 101; Darling v. Mayor, &c., 18 Ib. 340 ; Thomas v. Mayor, &c., 28 Ib. 110).
    It is of no importance that the condition of the sidewalk resulted from a public improvement. The street was left open for travelers, and it was incumbent on the defendants to keep it safe. If the defendants did not want to have the sidewalk repaired until they should see fit to finish the projected improvements, they should have closed it up, and not left it as an avenue of public travel.
    The court, in dismissing the complaint, seems to have been misled by the fact that the “citizens ” had placed the stones in the sidewalk ‘ ‘ for their own convenience. ” That fact could only raise the question of notice, and the evidence shows that the condition of the sidewalk, above described, had existed for a long time before the accident, probably since 1879.

      E. Henry Lacombe,

    counsel to the corporation, and D. J. Dean, of counsel for respondents, as to the points decided, urged :—As to the plaintiff’s contention, that the city was negligent in allowing the flag stones to .remain on the walk, defendant argues : The stones in question served the purpose of enabling passers to keep out of the mud, and did not render the walk any less safe than it would have been if the stones had not been there. To allow a series of flat stones, placed upon the surface of an ungraded, unfinished street, by neighboring residents as stepping stones, to assist travelers to keep out of the mud, to remain in such a street while it remained unfinished, cannot be deemed to be negligence. It was not wrong for the neighboring residents thus to facilitate themselves in the use of the street, and therefore allowing the stones so placed in the street to remain cannot be deemed wrongful or negligent on the part of the city. In the unfinished state of the street, public travel therein was not invited, and was not ordinarily or reasonably to be expected. To use reasonable care for the safety of the ordinary and expected travel of the locality, is the measure of the defendant’s duty in relation to a finished street, where the public travel is invited (McMahon v. 2nd Ave. R. R. Co., 75 N. Y. 231; Ring v. Cohoes, 77 Ib. 86).
    Reasonable care for the expected travel upon an unfinished, unpaved street, clearly, will not require the city to remove flat stepping stones, which the neighboring residents have placed on its surface to enable them to cross a muddy place.
   By the Court.

Sedgwick, Ch. J.

The issue in this case does not concern the duty of the city towards the plaintiff to pave the sidewalk. It concerns the duty of the city to keep the highway reasonably safe for the use of the plaintiff. On the testimony, the sidewalk, before the stepping stones had been placed upon it, was not dangerous. At certain times it became muddy, and perhaps, it may be granted in a certain sense, impassable; that is, the shoes and feet of any one who passed over it then would be dirtied or wetted. In such case, the obligation of the city could not be extended further than to respond in damages, because the street was impassable as for the wetting and muddying of the feet. What I am now saying assumes that the city was bound to treat the sidewalk as if it were part of a public street or highway. Third persons, without the authority of the city, placed in the sidewalk pieces of flagging stone, one foot and a half a part, so as to allow persons who did not choose to walk in the wet part, to step from one of these stones to another, and thereby to avoid the muddy places. These had remained on the sidewalk long enough to give rise to a presumption of notice to the city of the facts, or of negligence in not taking observation of the facts. The immediate question is as to the duty of the city to remove them. The duty is of a relative kind, and to enable the plaintiff to recover she must show that it was a duty as to her. I am of opinion that the proof shows that the arrangement of the stepping stones was not dangerous to such persons as would know or see the character of the arrangement. They 'perhaps might be to another class, say of citizens generally, who might have no reason for believing that the stones were not a part of a regular pavement of the ordinary fashion. But stepping stones are not of themselves dangerous. They are a common device well known and safely used, if not unsafely placed. If they present the appearance of stepping stones, so that one approaching them will know what they are, it would not be imprudent to allow them to remain down for use, unless at least there was some non-apparent danger, in the form of the stones or then distance from each other. The plaintiff’s own experience is a practical test of these things. She had before, on several occasions, used these stones, knowing their character, and had safely passed. They presented the appearance of safety and in fact were safe. There was nothing that led to an anticipation of their becoming or being unsafe. The only thing to show that they did not present the appearance of safety, or were not safe, so far as plaintiff’s proof went, was, that in stepping from one stone to another, her foot did not reach the latter and so she fell. There is no proof to show that that was from any defect in the arrangement, for the proof is that they were but about eighteen inches apart, which is the length of but a short step. She affirmatively testifies that in stepping, or jumping as she called it, she miscalculated the distance between the stones. There was nothing to show that the city had notice of any thing that was likely to lead to such a miscalculation, or that the arrangement was likely to lead to it.

In another aspect of the case, if the defendant’s negligence is not denied, the facts that have been noticed would show that the plaintiff contributed to the injury by her own negligence. But for the reason given by the learned judge below, I am of opinion that the complaint should have-been, as it was, dismissed, and that the judgment should be affirmed, with costs.

Van Voest, J., concurred.


source: Caselaw Access Project

author: Sedgwick, Ch. J.

license: Public Domain

text:
    ELIZABETH SAUSE, Appellant, v. JOHN MORRIS, Respondent.

      Decided December 1, 1884.

      Trial conduct of—Exceptions to instructions in a charge based on an assumed position.

    An exception to instructions to the jury which legally flow from a position assumed by the judge to have been taken by the exceptor, and expressly stated in his charge to have been so taken (which was not at the time disputed), there being evidence on which such position might be based, will not entitle the exceptor to argue on appeal by him, either that the assumption was not justified, or that on a theory inconsistent with the position so assumed to have been taken, the instructions excepted to were erroneous, and to claim that, if the court should be of opinion that on such theory the instruction were erroneous, the judgment should be reversed.
    Hazewell *. Coursen (81 N. T. 630), distinguished. Same case below, 45 Super. Ot. 22.
    Before Sedgwick, Ch. J., Van Voest and Freedman, JJ.
    Appeal by plaintiff from judgment entered upon verdict for defendant, and from an order denying plaintiff’s motion for a new trial made upon the judge’s minutes.
    The facts sufficiently appear in the opinion.

      C. Bainbridge Smith, attorney and of counsel for appellant.

      Benno Loewy, attorney and of counsel for respondent.
   By the Court.

Sedgwick, Ch. J.

The action was for damages from a breach of an alleged promise to marry. The judge in his charge said, “It is not a question of an implied promise. You cannot from the evidence in this case infer that the defendant promised to marry the plaintiff. You cannot infer that promise from any other act than the express words of the defendant. The plaintiff does not claim it.” At the end of "the charge the plaintiff’s counsel excepted to that part of' the charge which says, “the jury cannot infer there was a promise of marriage from the acts of the parties, but must find that there was an express promise.” If the plaintiff had not testified that the defendant expressly promised to marry her, and did not rely on such a promise, but on an inference to be drawn from certain acts and talk of the defendant, to which she testified, the learned judge would not have made the remark that was excepted to. If, in fact, the plaintiff did not claim upon an inference to be made from the circumstances, but preferred to stand upon her testimony that there was an express promise, the judge was not in error in confining the attention of the jury to the latter. The judge, as it has been shown, said that the plaintiff did not rest upon an implied promise. The counsel for plaintiff did not except to this, and by omitting to except to it, justified the judge in thinking that plaintiff’s claim did not extend to an implied promise. If that were the case, the judge’s instructions that were excepted to, were not erroneous.

In Hazewell v. Coursen (81 N. Y. 630), where the judge below declared to the jury that the plaintiff had not taken a certain position on the trial, and this was disputed at the time, it was held that certain parts of the charge, that could only be justified by the fact that plaintiff had not limited herself to the position specified, were erroneous, as it did not otherwise appear in the case, that the plaintiff had made the limited claim. In the present case, the plaintiff’s counsel did not declare to the judge that the plaintiff did not rely on the express promise only. The exception does not call for a new trial.

Other exceptions have been examined and the examination does not disclose matter that calls for a new trial. One was to the court, excluding the question, “Take it in 1882 and 1883, did you furnish any brief to the Bishop ?” The question inquired as to a time, for instance, the second half of 1883, when it was immaterial whether the subject of the question happened.

Judgment affirmed, with costs.

Van Vorst and Freedman, JJ., concurred.


text:
    THOMAS KENWORTHY, Respondent, v. JOHN F. PHILLIPS, Appellant.

      Decided December 1, 1884.

      Circumstantial evidence—Facts tearing on the main issue—Evidence as to, admissible.

    In an action on an account stated, there being conflicting evidence as to an express promise to pay, the facts that a large proportion of the account, as alleged to have been settled, had been, before the alleged settlement paid, and on the other hand, that since the settlement, defendant had expressed in a letter an inability to pay and a willingness to “settle if ho could ” may jrroperly be considered by the jury, as bearing on the issue of an express promise, as also on that of an implied one; consequently evidence bearing on the existence or non-existence of said facts is admissible.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from judgment against him entered on verdict of jury and from order denying motion for new trial made upon judge’s minutes.
    The facts sufficiently appear in the opinion.

      James M. Hunt,

    attorney, and of counsel for appellant, on the points decided, argued :—The judgment should be reversed on account of error, to which exception was taken, in the admission and exclusion of evidence.
    I. The evidence excluded tended to show that within two months previous to the time the account was sent, an item, amounting to more than one-half the balance claimed, was paid. This was a circumstance calculated to rebut the reference that the defendant consented to the balance claimed. This evidence was proper (Quincy v. White, 68 N. Y. 370 ; Manning v. Winter, 7 Hun, 482; Guerny v. Renford, 63 N. Y. 633; Lockwood v. Thorne, 18 N. Y. 29).
    Again, as the complaint alleged non-payment, and as in plaintiff’s testimony evidence had been given in this hire, this evidence should have been admitted (Knapp v. Roche, 94 N. Y. 329). In Clifford v. Dam (91 N. Y. 55), Ch. J. Church, at page 57 says, “ Whatever the plaintiff is required to prove to establish his cause of action, the defendant may disprove under a general denial—this is the general rule. ” The precise question was decided in Thomas v. Hawkes (8 Mee. & W. 140), where the Court of Exchequer held, that under the general issue the defendant could show that the account did not show him to be indebted, because it was not correct; and in Bouslong v. Garret (39 Ind. 340), where it was held that the stating of an account is not conclusive upon the parties, and that consequently errors therein may be shown and corrected under the general denial.
    II. The letter of defendant should not have been admitted in evidence over defendant’s objection. It requires little argument to show that a man financially embarrassed, as the defendant then was, would ordinarily reply to an attorney’s letter requesting settlement of a claim, just as defendant did reply. There was no admission there, and to take an extreme view, there can be construed therefrom no more than an admission of some indebtedness. It is fundamental that an admission of a smaller indebtedness, or even a promise to pay a less amount, if not accepted is no evidence against a defendant for a larger sum on an account stated. (See citations in vol. "VI. Jacob’s Fisher’s Digest, page 9193.) That the verdict was rendered on this letter the judge’s charge plainly shows.

      MacFarland, Reynolds & Harrison, attorneys, and Robert F. Harrison,

    of counsel for respondent, on the points decided, argued :—I. The answer alleges no facts which would warrant the re-opening of the account, and none of the testimony, given or offered, tends to show any such facts. An account stated can only be opened when the party objecting shows clearly that he has been misled by fraud, mistake or manifest error (Harley v. Eleventh Ward Nat. Bank, 76 N. Y. 618). The defendant has not alleged in his answer any of the facts which would enable the court to afford affirmative relief by correcting the account. Such relief is only given in equity upon specific allegations, in a plain case, and sparingly (1 Story’s Eq. Jur. § 523). By resorting to the general denial he has put in issue only the fact whether the account was stated or not.
    II. The trial judge committed no error in sustaining the objections to admissions of testimony. There being no allegation in the answer, of fraud or mistake, questions as to the correctness of items in the account, could not but be immaterial and inadmissible.
   By the Court.

Sedgwick, Ch. J.

The action was upon an account stated, as claimed by the complaint. The plaintiff relied upon it being proven that an account as to dealing between the parties had been sent to the defendant, and the latter had retained it, without objection, for such a length of time that it was a question for the jury, as to whether he had not assented to and impliedly promised to pay it, and also that the defendant had expressly promised to pay it. The defendant, as a witness, denied that he had made the express promise. He also relied upon the circumstances of the case to rebut a presumption or to prevent an inference, that he had tacitly assented to the correctness of the account. He, competently in form, asked questions tending to show that one item, set out in the account, which was the ground of the account stated and which was nearly one-half of the whole account, had been paid. These questions were excluded. So far as the implication of assent or promise, from retention of the account without objection is concerned, it seems to me, that the question tended to call for facts which the jury might consider, as to the probability of a man assenting to an account, a great part of which had been paid. The same is true as to the express promise on which the plaintiff in part relied. The defendant denied that he made it, and the jury might be aided in determining the credibility of the witnesses, after being satisfied that one half of the account had been paid.

On the other hand, and in respect of the same points, the letter of Lockwood & Co., saying that they had for collection a claim amounting to $408.66, assigned to the plaintiff, and with the defendant’s memorandum upon it, his answer : “I am utterly without the ability to pay the above, or any part of it, I would gladly settle if I could,” properly went to the jury, for them to say if the defendant by his memorandum admitted that he owed the amount, and to be considered as a circumstance relevant to the issue of implied or express promise.

The existence or non-existence of a fact, as to which there is a contradiction of testimony, may be shown, by circumstantial evidence, especially where the question refers to an implication from existing facts.

The refusal to dismiss the complaint was not erroneous. There were facts proven upon which the jury was to pass.

For the reasons first given, the judgment should be reversed, and a new trial ordered, with costs, to abide the event. Order denying motion for new trial reversed.

Tan Vorst and Freedman, JJ., concurred.


text:
    ALEXANDER V. DAVIDSON, as Sheriff, Respondent, v. JAMES SELIGMAN, et al., Appellants.

      Decided December 1, 1884.

      Pleading.—Motion to malee definite and certain.—Surplusage averments.

    A motion to make more definite and certain, averments, which in themselves may be treated as surplusage, is properly denied.
    Where, in an action by a sheriff, to recover from defendant moneys alleged in the complaint to have been levied upon, in his hands, by the sheriff, under an attachment as property of the attachment debtor, further allegations in the complaint, that the money was deposited with the defendant in the name of a fraudulent assignee, it not appearing from the complaint that the moneys were equitable assets, may be treated as surplusage.
    Before Sedgwick, ch. J., Van Vorst and Freedman, JJ.
    Appeal from order.
    The complaint alleged that the plaintiff as sheriff, under sundry attachments (particularly set forth) levied on a sum of money in the possession of the defendant belonging to and being the property of the attachment debtors. It then averred “ That said levy was made by delivering to and leaving with this defendant, in whose possession said moneys were, certified copies of all of said warrants of attachment issued and delivered to this defendant in the before mentioned actions, and a notice, showing that said sum of $37,601.22 had been levied upon under and by virtue of said warrants of attachment.
    c XV. That said money, although the property of said Louis Siedenbach, Leon Schwab and Leon Siedenbach,” (the attachment debtors) was deposited with defendant, as plaintiff, is informed and believes in the name of one William Sulzbacher, a pretended assignee of said Louis Siedenbach, Leon Schwab and Leon Siedenbach, but plaintiff alleges, on information and belief, that said pretended assignment was made with the intent and only with the purpose of defrauding the creditors of said Louis Siedenbach, Leon Schwab and Leon Siedenbach of their just and lawful debts and demands against the said Louis Siedenbach, Leon Schwab and Leon Siedenbach, and that said William Sulzbacher, the pretended assignee of said Siedenbach, Schwab and Siedenbach, had full notice thereof.
    • “ XVI. That by reason of the fraudulent nature of the said assignment, the same is void and the said money levied upon as aforesaid by this plaintiff in the possession of this defendant, is not the money or property of William Sulzbacher, as assignee, &c., but is in truth and fact the property of the aforesaid Louis Siedenbach, Leon Schwab and Leon Siedenbach.
    “XVII. That, by reason of the said levy, and by reason of the facts before set forth, this plaintiff, as sheriff of the city and county of ¡New York, and by virtue of the statute in such case made and provided, became entitled to demand and receive from this defendant the said sum of $37,601.22, the sum levied upon as aforesaid.
    Defendants moved for an order that the complaint be made more definite .and certain :
    1. By stating who deposited the money referred to in Article XV. of the complaint.
    2. By stating what assignment is referred to in said article, and by either annexing a copy thereof to the complaint or by describing the same with reasonable certainty.
    3. By stating what is meant by the word “ pretended ” wherever it occurs in said article and substituting therefor the proper word.
    4. By alleging the grounds of the information and belief referred to in said article, that “ said assignment was made with the intent and only with the purpose of defrauding the creditors” of the parties named in that behalf; and that the word “pretended” wherever it occurs in Article XV. of the complaint be stricken out as irrelevant or redundant, and for such other and further relief as may be just.
    The motion was denied at special term. From the order entered on said denial an appeal was taken to the general term.

      Seligman & Seligman, attorneys, and Eugene Seligman,

    of counsel, for appellants, argued :—I. The authorities are overwhelming that the sheriff cannot levy on equitable assets ; that after the attachment debtors have assigned, a levy cannot be made on the funds in the hands of the assignee ; a judgment creditor’s action is necessary to remove the assignment (Anthony v. Wood, Daily Reg., Sep. 5,'84, court of appeals, June 3, 1884; S. C., Alb. L. J., Aug. 2, 1884, 93; Castle v. Lewis, 78 N. Y. 131; Thurber v. Blanck, 50 Ib. 80 ; Lawrence v. Bank of Republic, 35 Ib. 320 ; Smith v. Longmire, 24 Hun, 251). The plaintiff knows that under these decisions he cannot maintain the action if he sets forth the facts clearly and distinctly on the face of the complaint. His rights can then be decided by a demurrer. He cannot refuse to set out the facts on the face of his complaint, and thereby force the defendants into a trial of fact, with all its harassing and expensive incidents.
    II. The facts and circumstances constituting the fraud must be set forth (Heard Civil Pleading, 3, 4 ; Schilling v. Equitable Life Ins. Co., 32 Hun, 235 ; Janson v. Stuart, 2 Smith’s Ins. Co., 78 [7 Am. ed.]; Butler v. Viele, 44 Barb. 166 ; McMurray v. Giffords, 5 How. 14; Pomeroy on Remedies to Remedies rights, 2 ed. § 681: Hastings v. Thurston, 18 How. 350).
    III. The objection is properly taken by motion to make definite, etc. Motion, for indefiniteness, irrelevancy, &c., are the Code substitutes for special demurrers (Marie v. Garrison, 83 N. Y. 14).
    IV. It is no answer to say the defendants are asking for evidence ; they are seeking for the facts. This objection does not apply when the facts to be stated and the evidence are synonymous (Davenport Co. v. Taussig, 31 Hun, 563).

      W. Bourke Cockran, attorney,
    and of counsel for respondent, argued :—It seems now to be the settled practice, and it has been so held, that, if looking at the complaint the court can see with ordinary certainty the meaning of the different allegations, and the cause of action intended to be set up by them, the pleading is not objectionable under section 246 of the Code (Brownell v. Natl. Bk. of Gloversville, 13 Week. Dig. 371; Williamson v. Nat. Elec. Light and Power Co., 48 N. Y. Super. Ct. 541; Tilton v. Beecher, 58 N. Y. 177; Culver v. Hollerton, 17 Abb. 406 ; Pacific Mail Steamship Co. v. Irwin, 67 Barb. 278).
    The sole object in alleging the facts contained in the XVth paragraph of the complaint was to identify the sum of money levied upon which the sum defendants certify they are possessed of, but which, instead of standing to the credit of Siedenbach, Schwab & Co., stands to the credit of William Sulzbacher, as assignee of Siedenbach, Schwab & Co. Unless this paragraph was inserted showing to whom it was credited on defendant’s books, it would be impossible for plaintiff to identify on the trial of the action the money which he had previously levied upon.
   By the Court.

Sedgwick, Ch. J.

The complaint alleges that the plaintiff, as sheriff, under smidry attachments, levied upon a sum of money in the hands of the defendant, and proceeds to state the manner of the levy. It also states that the money was the property of the attachment debtor. It does not appear that these moneys are equitable assets, as nothing in the complaint shows that the money was not in coin or bank bills, upon which an actual levy might be made. If the property of the assignor were a chattel, and it had been fraudulently assigned to an assignee, who had left it with the defendant, the sheriff might levy on the chattel, proving the assignment to have been fraudulent as to the attachment creditor. There is nothing in the allegation as to the alleged fraudulent assignments which tend to show that the money levied upon was not in the same condition that it was in when in possession of the assignor. Such allegations may have been competently treated by the judge below, as surplusage, which did not injure the defendants. They, indeed, gave a little more light as to plaintiff’s claimed cause of action, than would have been given by the allegations that the sheriff levied upon property belonging to the debtor, in the hands of the defendants. Under this state of facts, the judge’s decision, in substance, that the defendants were not aggrieved by the matter in the complaint, that the motion aimed at, must be sustained.

Order affirmed, with $10 costs.

Van Vorst and Freedman, JJ., concurred.


author: Van Vorst, J.

text:
    FREDERICK ELLIOT v. SAMUEL LEWICKY.

      Decided December 1, 1884.
    Costs— When third party may not he charged with, under § 3247, Code. — Attorney and client.

      3. having sued E. to recover a just demand, E. delivered to J.’s attorney-in the action, divers claims, on the understanding between him (E.) and the attornej, that collections thereon were to be applied in satisfaction of J.’s claim, and the surplus to be paid to E. Of this, J. was aware. Thereafter the attorney brought action in E. s name on one of the claims, which resulted in a judgment for costs against E. Neither this, nor any action, was authorized by J., and he was ignorant of it, till a motion was made to charge him with such costs.

      Meld. That J. could not be made liable for the costs, under § 3247, Code Civ. Proc., as the party beneficially interested in the recovery, and that J.’s attorney had no implied authority to bring action on the claims for which J. might be made liable.
    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal from order charging a third party with costs.
    The facts sufficiently appear in the opinion.

      Stephen B. Brague, for appellant.
    I. This case does not come within the meaning or intent of section 3247 of the Code (Peck v. Yorks, 75 N. Y. 421; Dowling v. Buckling, 58 Ib. 658 ; Wolcott v. Holcomb, 31 Ib. 125).
    Should it be claimed that Mr. Jackson acted through his attorney, the answer is, that the attorney was not retained for this purpose, and had no authority to take claims with ah the responsibihties, as to their validity or legahty, and it cannot be assumed that either Hr. Jackson or his attorney would have directly entered into any contract or agreement to prosecute, at his risk, the stale claims of Mr. Ehiot. Elhot was the plaintiff in this action, and a judgment debtor in another action ; he was desirous of paying- his judgment; he furnished a claim for services with the items, day and date ; it was prosecuted without the knowledge, request or consent of Mr. Jackson.

      Edward P. Wilder, for respondent.
    I. The appellant was a person “ beneficially interested ” in the claim in suit within the meaning of § 3247 of the Code.
    In order to be “beneficially interested” in the claim and collection thereof, a person need not be the possessor of a formal written assignment of a claim. A sufficient “interest ” to make him hable for the costs of an unsuccessful suit upon the claim may arise in various ways. Thus, for example, it may arise by virtue of an agreement resting wholly in parol between him and the plaintiff of record, that if the claim should be collected, he should receive one-half or other portion of the proceeds over and above the costs (Merceron v. Fowler, 46 Super. Ct. 351; Giles v. Halbert, 12 N. Y. 32). Or such interest may be created by a mere hen or mortgage upon the claim in suit, and without any formal assignment (Whitney v. Cooper, 1 Hill, 629 ; Colvard v. Oliver, 7 Wend. 497). In this case, the agreement made between plaintiff and Mr. Brague is not denied, and both Brague and the appellant agree that Brague’s subsequent proceedings thereunder were taken with the appellant’s knowledge and consent, and with a view of applying the proceeds towards the satisfaction of appehant’s judgment against the plaintiff (Application of Tyng, 17 W. Dig. 234; Slauson v. Watkins, 18 Ib. 551 ; S. C., 95 N. Y. 369).
    II. Even if an assignment were necessary it need not be formal, nor in writing, nor subscribed by the assignor.

      A chose in action may pass by parol or by any other act that indicates an intention to effect a transfer (Doremus v. Williams, 4 Hun, 458).
   By the Court.

Van Vorst, J.

This is an appeal from an order directing William H. Jackson to pay the costs secured by the defendant above named against the plaintiff, on the ground that Jackson was the person beneficially interested in the securing of any judgment herein.

Section 3247 of the Code of Civil Procedure provides that where an action is brought in the name of another by the transferee of the cause of action, or by any other person, who is beneficially interested therein, such transferee or other person, so .interested, is hable for costs, etc. The ground upon which the liability of Jackson was placed by the order was, as has been seen, that he was the person beneficially interested. It is not claimed that Jackson was the transferee of the cause of action. The fact seems to be that Jackson, through his attorney, was attempting to collect a just demand against Elliot, the plaintiff in this action, and was proceeding in a suit on the equity side of the court, to obtain satisfaction of his claim ; that Elliot, whilst Jackson’s suit was pending against him, delivered to the attorney of Jackson certain claims he had against others, for collection, among which was a demand against the defendant in this suit. The understanding between Elliot and the plaintiff’s attorney was, that if anything was collected on these claims, they should be credited on the demand of Jackson against him, which was then in course of prosecution, and any balance that might arise after payment of Jackson’s claim, was to be handed over to Elliot. The claim against the defendant was prosecuted in the name of Elliot, and the result was a judgment for the costs, which have been directed to be paid by Jackson.

Do these facts sustain the order made ?

Was the suit prosecuted by Jackson in the name of Elliot, and was he the party principally interested f Jackson has in effect sworn that he did not authorize the commencement of the suit against the defendant in favor of Elliot. He says “ that he never knew or heard of the defendant, or knew that an action had been brought against him by the plaintiff until the motion papers herein were served.” There is nothing in the papers to impair the truthfulness or break the force of this clear statement. He further says that he never requested or advised any action to be brought. He know, however, that certain claims had been furnished by Elliot to his attorney in the action against Elliot, but says they were collateral, to be accounted for if collected.

It is going a great way to hold that Jackson was prosecuting a suit in the name of Elliot, when he know nothing of the commencement or pendency of the action, until he was served with papers calling upon him to pay the costs thereof.

The action in favor of Elliot was commenced, it is true, by the person employed by Jackson to prosecute his suit against Elliot ; but such employment certainly did not justify the attorney, to whom the claims were delivered, to commence suits therein, for which Jackson might be made liable. The fact that the attorney held the claims for collection, the avails to be applied to the payment of his Ghent’s claim, did not authorize him to bring suits, for which Jackson should in any way be liable either to himself or others. In order to show such authority in an attorney to bring actions in the name of another, for which his chent shah be made hable, more must appear than is shown in these papers.

Not can it be said that Jackson was the person principally intrusted in a true sense. Elliot was seeking to pay a just debt. Whatever was collected went directly to diminish his liability, and the surplus, if any, was his property. He had made no assignment of the claim. He had delivered it for collection only. The action was properly brought in his name. He seemed to be the one chiefly interested, and attended upon the trial several days, and produced the evidence to sustain his claim.

The attorney in his affidavit in opposition to the motion says that there was no agreement between him and Elliot “ that Jackson should prosecute this action or pay the expenses thereof.”

In view of all the facts I cannot consider that Jackson was hable for these costs, as he did not direct the bringing of the action, nor did he countenance or adopt it in any way after its commencement. He was ignorant of the action of the attorney in its conduct, the attorney having-no authority from him, actual or constructive, to bring it for him in the name of another, or to charge him with its consequences. I have examined the several cases cited in the respondent’s brief, and find no case which would justify charging Jackson with these costs upon the facts appearing in the papers. The result reached is that the order appealed from is reversed, with costs and disbursements.

Sedgwick, Oh. J., concurred.


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    CATHERINE W. COOKE, Respondent, v. SPENCER C. PLATT, et al., Appellants.

      Administrator with will annexed—Discretionary power of sale.

    An administrator with the will annexed, cannot execute a discretionary power of sale of real estate with which the executors were invested by the terms of the testator’s will.
    The testator died in 1863, leaving four children. By his will he appointed his sons executors, and divided his real and personal estate equally among his children. The executors, as such, were to collect the rents until a sale and division or distribution of the whole estate should be made by them. They were also empowered to sell or mortgage real estate in their discretion. In the end they were directed to divide the whole estate real and personal among the devisees, and it was clearly the testator’s intent that his children should receive and enter into the enjoyment of their respective shares without unreasonable delay. The executors were removed from office before a sale or division of the property was made, and a receiver was appointed with all the powers of “ an administrator with the will annexed.”

      Decided December 1, 1884.

      Held, that the power of sale was an incident to the division of the estate, resting entirely in the discretion of the executors, and ended with the termination of their oficial relations to the estate, and cannot be exercised by the receiver.

      Further held, that this case is to be distinguished from Mott v. Ackerman (92 N. Y. 539), where a power of sale was given to executors for the purpose of paying debts and legacies, and where there was an equitable conversion of the land for such payment and distribution, growing out of an imperative power of sale.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from an order made at special term, authorizing and directing James M. Smith, Esq., the receiver appointed herein, to execute a power of sale contained in the will of Nathan 0. Platt, deceased, and to sell the premises Nos. 119 and 121 Nassau street, in this city, thereunder. Nathan 0. Platt, the elder, died leaving a will, by which, in terms, he devises and bequeaths all his estate, both real and personal, to his executors, “with full power to receive the rents, issues and profits thereof, and to contract to sell, mortgage and convey my said estate in their discretion, and good and sufficient deeds and instruments thereof to make, execute and deliver. Upon trust, nevertheless, to divide and distribute my said estate or its proce'eds, after the payment of my debts, to and among my four children . . . in equal proportions.” At the time of his death the testator had transferred all his real and personal property to his brother and partner, George W. Platt. The suit of Platt v. Platt'was instituted in the supreme court for the purpose of setting aside these transfers, and in 1813 resulted in a decree determining them to be wholly fraudulent, null and void. Having thus reinstated the testator’s title in the real estate, the decree went on to direct an accounting of the rents and profits thereof, and also of the partnership affairs and mutual accounts of the two brothers. The final result of this accounting was the ascertainment of a balance of about $10,000 due from George W. Platt, which has not yet been paid. Pending the accounting in Platt v. Platt, the petitioner brought the present action and obtained therein a decree whereby the executors of Nathan 0. Platt were removed, and James M. Smith, Esq., was appointed receiver. The decree provided that the receiver should “succeed to the trust of the administration of said estate, and to all the rights and remedies that would have been possessed by the said executors but for their removal, and that the said receiver be, and he hereby is invested with all the rights and powers of receivers according to law, and with all the rights and powers of an administrator with the will annexed of the estate of said Nathan 0. Platt, deceased.”

      Marsh, Wilson & Wallace, for appellants.
    I. The will of Nathan 0. Platt conferred no estate in his lands upon his executors, but only a power in trust. The title of the lands vested in his four children subject to the execution of the power. The testator assumed to devise his lands to his executors and to empower them to receive the rents and profits; but the will failed to accomplish either result. The trust to receive rents and profits is void, because it is not a trust to receive them for any of the purposes specified in subdivisions 3 and 4 of § 55, 1 R. S. 728. And accordingly the devise to the executors is ineffectual by the terms of § 56, Ib. 729. “Under our statute of uses and trusts, when the estate is created by will, two things are necessary to vest an estate in the trustee : it must be an express trust, and a trust to receive the rents and profits of lands for certain specified purposes ” (Boynton v. Hoyt, 1 Den. 53 ; Hawley v. James, 16 Wend. 61).
    II. The power of sale given to the executors was not imperative, but discretionary; and there was no equitable conversion. To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon the trustees, to sell it in any event. Such conversion rests upon the principle that equity considers that to be done which ought to be done. A mere discretionary power of sale produces no such result (White v. Howard, 46 N. Y. 162 ; Greenway v. Greenway, 29 L. J., Ch. 601; Lucas v. Brandreth, 28 Beav. 473; Polly v. Seymour, 2 Younge & Collyer, 708). The present question reduces itself, thus, to this : Did the clear intention of Nathan 0. Platt, as indicated by his will, imperatively require for its fulfillment a sale of his real estate by his executors ? It is very difficult to find the indications of such an intention in the will. It contemplates, first, the payment of debts, and then an equal division of all the 'testator’s estate between his four children. This is all it seeks to accomplish. It empowers the executors “in their discretion ” to sell or to mortgage, and the final division is to be—after payment of' debts—of “my said estate, or its proceeds,” clearly contemplating a division, without sale, of so much as might then remain unsold. So far, then, as the power of sale had been exercised the executors were to divide the proceeds between the four children. So far as it had not been exercised, the legal title which, as we have already seen, vested in the four childred, remained undisturbed, and the equal division executed itself, by operation of law,—the four taking equally as tenants in common. It matters not whether they took as heirs at law, or as devisees by implication, for in either case their share and title would be precisely the same.
    III. No power of sale has passed to the receiver. The power of sale was a personal trust and discretion, vested, it is true, in the executors, but not one appertaining to the duties of the office of executor. For the purposes of that power they are as distinctively trustees as they would be if the executor were an altogether different person. It was confided to their personal discretion to determine whether-it was desirable to sell or not to sell, and that discretion must be exercised by them or by no one (Mott v. Ackerman, 92 N. Y. 553 ; Dunning v. Ocean Bank, 61 Ib. 501 ; Dominick v. Michael, 4 Sandf. 374).

      Payson Merrill, for respondent.
    I. The power given in the will is a trust power, the exercise of which can be controlled by a court of equity. It is a power in trust. Delaney v. McCormack (88 N. Y. 114), establishes that the power conferred on the executors is a power in trust, survived their removal, and may be executed by their successors, unless its execution or non-execution is made plainly to depend on the will of the executors. It has repeatedly been held that power given to executors over real estate, similar to that which the law gives them over the personalty, is not based on personal trust, and that it survives the executor, without reference to the question whether the will effects an equitable conversion or not (Paret v. Keneally, 30 Hun, 15 ; Bingham v. Jones, 25 Ib. 6 ; Fish v. Coster, 28 Ib. 64; Farrar v. McCue, 89 N. Y. 139 ; Lent v. Howard, 89 Ib. 169 ; Mott v. Ackerman, 92 Ib. 539). On the removal of the executors, this power in trust vested in the receiver. Mott v. Ackerman, holds that when a power is annexed to the office of executor, and is given to enable him the better to discharge the duties pertaining to that office, it may be exercised by an administrator with the will annexed. And a single glance at the will of Nathan C. Platt will show that the powers and duties therein prescribed in respect to the real estate are imposed on the office of the executor, and not on the individuals independent of the office.

      James M. Smith, receiver, William Allen, of counsel, and W. R. Martin, of counsel for W. H. Platt.
    I. A devise which by its terms vests the legal estate in the executors has that effect. Here the devise is to them with words of succession absolutely forever. When the terms of the devise are not explicit, with words which create a fee, and it is left for the courts to construe, they hold that the trustee takes that quantity of interest which the purpose of the trust requires ; and so long only as the trust requires ; that .then the estate vests in the beneficiaries (Nicoll v. Walworth, 4 Den. 385 ; Embury v. Sheldon, 68 N. Y. 227; Bennett v. Garlock, 79 Ib. 302).

      II. The statutory provision that a devise of lands “where the executors are not also empowered to receive the rents and profits shall vest no estate in the trustees,” is complied with in this will (1 R. S. 728, § 56). They are so empowered. The trust is, therefore, within the statute as an express trust (§55). The trust is to collect the rents and sell the lands, and apply the proceeds to the payment of the debts, and then to divide them between the devisees.
    TV". This legal estate, or if it be only a power, then the power passed to the receiver upon the grounds stated in the plaintiff’s points.
   By the Court.

Van Vorst, J.

This appeal involves the question as to the power of an administrator with the will annexed, to execute a power of sale of real estate, with which the executors were invested by the terms of the testator’s will.

As it was announced by the counsel upon the argument, that on account of the importance of the interests involved, the case would certainly be taken to the court of appeals, whatever might be the decision here, we will do no more than state the conclusions reached by us at the close of the argument, without an examination of the numerous cases cited.

The question has been already considered in the courts of this State, and some conflict in opinion exists.

Mott v. Ackerman (92 N. Y. 539), does not go to the length of sustaining the plaintiff’s contention.

The testator died in 1863, leaving four children. He appointed his three sons executors of his will, but gave-his estate in substance to his four children in equal proportions. By the terms of his will, he clothed his executors -with a temporary power and control over his whole estate, real and personal, and in the end directed them to divide it among the devisees. An inspection of the will shows clearly enough, that it was the intention of the testator, that his four children should, without unreasonable delay, receive and enter into the enjoyment of their respective shares of his estate. The executors, _ as such, were to collect the rents until a sale and division or distribution of the whole estate should be made by them. The executors were also empowered to sell or mortgage the real estate at their discretion.

In so far as concerns the power of mortgaging, selling and distributing the proceeds of the real estate, among the four children, the devisees thereof, the same did not necessarily belong to the office of the persons named as executors. This power was expressly conferred by the testator, in addition to the duty cast upon them by law, over his estate, as the executors thereof. The testator doubtless believed that the power would be discreetly, and to the interest of the devisees and of his estate, exercised. But the executors never exercised the power of sale, and their right to collect the rents has been taken away.

They have been removed from their office as executors, and Mr. Smith' has been appointed receiver of the estate with all the power of an administrator with the will annexed.” As such administrator he will perform such duties, belonging to the office of executor, as the executors left unexecuted, and will administer the personal estate. To the trust of administration he has succeeded by the order of this court, and to all the rights and powers of an administrator with the will annexed. The power of sale, as an incident to a division of the estate among the devisees, to be exercised in the discretion of the executors, must be regarded as ending with the termination of their official relation to the estate, and that the administrator with the will annexed cannot exercise it.

We know of no case, in which it has been decided that such power, the exercise of which depended upon the judgment and discretion of the executors named in a will, has passed to the administrator with the will annexed. Mott v. Ackerman (supra), does not so hold. That case is an authority for the proposition, that where there is a power of sale given to executors for the purpose of paying debts and legacies, and where there is an equitable conversion of the land for such payment and distribution, growing out of an imperative power of sale, such power may be exercised by the administrator with the will annexed. But such is not this case. Here no sale was imperatively directed by the testator. Had there been, the proceeds would have been assets in the hands of the executors, for which they would have been accountable.

Nor was the power of sale accompanied with a direction to pay debts and legacies. 'Whether a sale should be made or not, depended upon the decision of the executors, who were authorized to sell, mortgage, and convey in their discretion. They might mortgage and not sell, or sell without having mortgaged, as they should deem best. ,

But these powers were evidently to be exercised for the purpose of a division and distribution, with which executors, in so far as the real estate is concerned, have under the law no duty.

More than twenty years have elapsed since the testator’s death. It is difficult to discover any valid reason for investing the administrator with the will annexed, at this late day, with the title to, or power over the disposition of this real estate, or to cast upon him the duty of selling the same, and distributing the proceeds of the sale among the devisees.

It is more in accordance with law and reason, to hold that the children of the testator, his devisees under the will, are seized of the estate, and the power to sell and convey the same. And that, as the persons in whom the discretion to sell or mortgage have been removed from their trust, there remains no impediment to their enjoyment of the estate.

For these reasons we are of opinion that the order appealed from should be reversed, but without costs.

Sedgwick, Ch., J. and Freedman, J., concurred.


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    RICHARD P. RISDON, Respondent, v. LUTGARDA ANGARICA de la RUA, as Ex'r'x, &c., Appellant.

      Decided December 1, 1884.

      Money had and received—Nature of action— When maintainable.

    Plaintiff, the owner of a bond and mortgage, sold the same with the interest due and to become due thereon, to defendant’s testator, who as consideration therefor, paid to plaintiff the principal sum thereof, and agreed to pay the arrears of interest thereon, “ when the same should be collected.” After the testator’s death, defendant, as his executrix, received in full payment of the bond and mortgage, the principal sum and interest thereon, since the said assignment, and surrendered the bond and mortgage, and the same was satisfied and discharged of record. The mortgaged property was ample security for the whole demand, including interest accrued prior to the assignment.
    In an action for money had and received, brought by the assignor against the executrix, to recover the amount of said accrued interest,

      11eld, that though the general rule is that an action in such form is only maintainable for money actually received, an exception exists where property is received in lieu of money, or as its equivalent, as was done by the assignment in this case; that the action for money had and received is equitable as well as legal in its nature, and the defendant, being the only person who could collect said arrears, having voluntarily and in the most formal manner, viz., by the satisfaction of the mortgage, acknowledged the receipt of the whole amount, she must, for the purposes of this action, be taken at her word.

      Further held, that it is no defense that the parties obligated refused to pay said arrears, such refusal not having been communicated to plaintiff, and there being no valid excuse for non payment, and the satisfaction being voluntary.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by the defendant from a judgment for plaintiff, entered upon the report of a referee.
    This action is brought to recover from the defendant, as executrix of J. G-. Angarica, deceased, the sum of $182.24, the amount of interest which had accrued and was in arrear upon a bond and mortgage of $9,000 which the plaintiff assigned to the defendant’s testator, on November 10, 1877, for the face of the bond and mortgage, and a written agreement by the latter that he would pay such arrears of interest “ when collected.”
    The complaint alleged the sale and agreement to pay the arrears when collected, the appointment of defendant as executrix, etc., and contained the following clause :

      “Sixth. The plaintiff further alleges, upon information and belief, that the amount due upon said bond and secured by said mortgage was good and collectible, and that on or about the first day of June, 1878, the defendant, as such executrix, collected and received the same and satisfied and discharged the said bond, and, thereupon, without notice to the plaintiff, executed a satisfaction of said mortgage, and the same was thereupon satisfied and discharged of record.”
    Plaintiff failed to prove that defendant collected said arrears, and it affirmatively appeared that she had not done so.
    Further facts appear in the opinion.

      Coudert Brothers, and John H. Post, for appellant.
    I. The referee committed a fatal error in directing judgment for the plaintiff, because the plaintiff failed to prove the vitally material allegation of his complaint that the defendant “ collected and received ” the arrears of interest in question; and the defendant, by uncontradicted and conclusive evidence, proved that she did not collect or receive such arrears. Plaintiff must recover upon his allegations and proofs, taken together, and he cannot be allowed to recover upon proof of facts not pleaded. The referee wholly disregarded the material and vital allegation that the defendant “collected and received ” the arrears of interest in question, and based his decision upon the ground that by virtue of the assignment of the bond and mortgage to Angarica, and his stipulation respecting the alleged arrears of interest, “a relation of trust and confidence as to these arrears of interest was created between Angarica and plaintiff, . . . and it was a breach of the legal duty owing to plaintiff to destroy this claim, for interest arrears without Ms consent, and without payment.” But the plaintiff made no such claim as tMs, and afforded defendant no opportumty of defense to such a claim. On the contrary, he expressly based his actual claim upon the allegation that payment had been made to the defendant of the interest in question. Whether the alleged arrears of interest were, in fact, due, was disputed by the then owner of the mortgaged premises, who refused to pay them, although requested to do so. The undertaking of the defendant’s testator, as alleged in the complaint, and proved upon the trial, was to pay over the arrears of interest “when collected,” wMch words plamly mean “if collected” or “in the event of collection. ” There was no covenant or stipulation that the defendant’s testator would, collect, or take legal proceedings to collect, the alleged arrears of interest. The agreement shows upon its face that it was made upon the “ representations ” of the plamtiff that there were such arrears, and that Angarica neither had any knowledge on the subject, nor intended to enter into any engagement to collect; but only promised to pay over when, or if, the collection should actually be made. That is, when, or if, the owner of the fee should voluntarily, or without legal compulsion, pay the amount in question. The agreement of Angarica was without consideration, it was a nudum pactum, unenforceable except in the single event of the actual receipt of the moneys in question by him (1 Addison Contr. *2, *3, and note 2, p. *2, B. V. Abbott’s Ed.).

      Stilwell & Swain, for respondent.
    I. The agreement to pay these arrears of interest was a part of the consideration for the assignment of the bond and mortgage and accrued interest; and the amount of this interest was owing to the plaintiff upon the delivery of the assignment thereof, although the time of payment was postponed until its collection. The agreement to pay tMs interest was not conditional upon its collection, but was absolute. The defendant’s testator did not agree to pay it, if, or in case it could be collected, but simply when it was collected. By his assignment the plaintiff covenanted that it was due, and the security was ample. It was a first mortgage of §9,000 upon premises worth $20,000. The interest could not be collected after the principal was paid, and the bond canceled (Tenth Nat. Bank v. The Mayor, 4 Hun, 429 ; affirmed 80 N. Y. 660 ; Luddington v. Miller, 38 Super. Ct. 478). The assignee’s contract, therefore, was to pay it before the principal was paid, or the bond and mortgage discharged; or when it could have been, and ought to have been, collected by the assignee (Kier v. Tifte, 1 Cow. 98).
    When the defendant on the 1st of June, 1878, accepted and received the principal sum, in full satisfaction of the bond, and surrendered the same, and discharged the mortgage, the arrears of interest became due and payable to the plaintiff by the terms of the contract (Morgan v. Plumb, 9 Wend. 287).
    II. By the plaintiff’s assignment to the defendant’s testator of the bond and mortgage and these arrears of interest, upon the agreement of the latter to pay the interest to the plaintiff, when collected, the assignee became a naked trustee for the plaintiff as to these arrears, with power to collect the same for the benefit of the plaintiff, and to cancel and discharge the claim therefor, upon payment. Having canceled and discharged the plaintiff’s claim for these arrears of interest, the defendant must be held to have collected it, or to have- assumed it, and must be held liable to the plaintiff for the amount (Booth v. Farmer’s Bank, 50 N. Y. 396 ; Beers v. Hendrickson, 45 Ib. 665).
   By the Court.

Van Vorst, J.

The referee has found as facts that there was due and unpaid upon the bond and mortgage when it was assigned to the defendant’s testator, the principal sum of $9,000 with accrued interest to the amount of $782.25 ; that the plaintiff sold and assigned the bond and mortgage, and the interest so due and to grew due therein to the defendant’s testator, and that in consideration of such assignment, the defendant’s testator paid to the plaintiff the principal sum of $9,000, and agreed to pay the plaintiff the arrears of interest owing upon the bond and mortgage, “when the same should be collected.” He further finds that the defendant, after the death of the testator, accepted and received from the owners of the property covered by the mortgage, the principal sum of $9,000, with interest which had accrued subsequent to the assignment, in full satisfaction of the bond and mortgage, and surrendered the same and it was discharged and satisfied of record.

As the accrued interest passed to the defendant’s testator by virtue of the assignment, he in his life-time, and the defendant, as his executrix, after his death, were the only persons who could legally demand and compel payment. Having thus placed his claim in the hands of his assignee as the legal owner, plaintiff could thereafter look only to him for the amount; The consideration for the agreement to pay over the amount was received by the assignee in the assignment itself.

It is urged by the learned counsel for the defendant that this is an action for money had and received, and that, as the money has not been actually collected and received, the plaintiff must fail. The general rule is that an action in such form is only maintainable for money actually received. An exception to this rule however exists where property is received in lieu of money, or is regarded as its equivalent.

By the assignment in question, the assignee was put in possession of the plaintiff’s property, to the extent of the claim for arrears for which he was to account, and the amount of which he was to pay over in money when collected.

Strictly, the plaintiff, as a condition to assigning the mortgage, might have insisted that the assignee should at the time pay the whole amount, including the interest in arrear, in money. This he did not do, but relieved the assignee to the extent of accrued interest from immediate payment. It was clearly the interest of the assignee and his representatives to have collected this money. But she satisfied the mortgage without receiving it. In its nature, the action for money had and received is equitable as well as legal. And the defendant having in the most formal manner, by the satisfaction of the mortgage, acknowledged the receipt of the whole amount, she must, for the purposes of this action, be taken at her word, and must be regarded as having received it.

It is not a good answer to the plaintiff’s demand in this action, that the condition upon which she was to pay the amount has not been fulfilled, because the money has not been actually collected. The condition was substantially fulfilled when, without the plaintiff’s concurrence, she satisfied the mortgage, although she did not exact and receive the whole sum due. Under the evidence, the mortgaged property was an ample security for the whole demand. Nor is it an excuse that upon demand the mortgagor, or those obligated to pay, refused payment, and made some excuse for a failure to comply with the demand. Such refusal or excuse was not communicated to the plaintiff.

From the evidence taken in the case, there was no valid reason for the refusal to pay. The satisfaction was voluntary. By giving away part of the demand, defendant could not defeat her liability for the assigned claim, under her exclusive control, and for which she was accountable. The satisfaction was voluntary, and by it she made complete her liability to the plaintiff for money had and received, and removed the only obstacle in the way of its enforcement. In this view, none of the defendant’s exceptions are well taken, and the judgment is affirmed, with casts.

Sedgwick, Ch. J., and Freedman, J., concurred.


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    HENRY LEVY, et al., Appellants, v. CHARLES W. KIRBY, et al., Respondents.

      Decided December 1, 1884.

      Supplementary, proceedings.— Order for examination judgment debtor— When may be issued.

    Under § 2435 Code, an order in supplementary proceedings is justified by the return, unsatisfied, of a second execution, regularly issued on the judgment, though such order be issued more than ten years subsequent to the return of the first execution.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from an order setting aside an order for the examination of defendants in proceedings supplementary to execution.
    The facts appear in the opinion.

      Ritterband & Cohn, for appellants.
    The contention of the defendants is that the legislature in changing the words of section 292 of the old Code, “at any time after such return made,” to the words of section 2435, “within ten years after the return of an execution,” intended to limit the right of the judgment-creditor to examine his judgment-debtor within ten years after the return of the first execution. Such a construction would be manifestly unjust. Section 2435 expressly says, within ten years after the return of an execution—any execution—properly and regularly issued. If the legislature meant “the first execution,” it would have so enacted. Its language is, “of an execution,” and it clearly intends “ of an execution.”

      Edward M. Felt, for respondent.
    The order appealed from was properly granted. This proceeding was instituted under the provisions of section 2435 of the Code of Civil Procedure, which provides that: “At anytime within ten years after the return, wholly" or partly unsatisfied, of an execution against property issued upon a judgment, etc., the creditor is entitled to an order requiring the judgment debtor to appear and be examined, etc.” This judgment was obtained in August, 1870, and an execution was issued on the same day, and returned unsatisfied, and it is submitted that the ten years allowed by the statute within which the examination could be had, commenced running at the return of the execution issued August 13, 1870, and expired some four years ago. As the former statute, Code of Procedure, § 292, provided that the proceeding could be instituted at any time after the return of an execution wholly or partly unsatisfied, and the present statute provides that it can only be instituted within ten years after such return, it seems clear that the legislature intended to limit the time. We must assume that the legislature intended to limit the right to institute these proceedings within ten years after the return of the first execution, otherwise the amendment by the legislature accomplishes nothing. If the ten years commences to run after the return of any execution, then the creditor, by issuing executions seriatim, can - practically keep his remedy alive for more than ten years and thereby frustrate the plain intention of the statutes.
   By the Court.

Van Vorst, J.

The affidavit upon which the order for the examination of the defendant was founded stated in substance the recovery of the judgment on August 13, 1870 ; that an execution upon the judgment was issued on the same day and returned wholly unsatisfied ; and that fourteen years afterward, and on June 11, 1884, another execution was issued upon the judgment and returned unsatisfied. In August, 1884, the order for the examination of the defendant was made. This order was vacated by the court, upon the ground that it was not obtained within the time provided by section 2435 of the Code of Civil Procedure. The second execution was regularly issued (§ 1337), and its return unsatisfied, justified the order for the examination of the defendants. Section 2435 provides that at any time within ten years after the return of an execution unsatisfied the creditor is entitled to an order requiring the judgment debtor to attend and be examined. I find nothing in the statute which justifies the conclusion that the creditor was limited to the term of ten years from the return of the first execution, in which to assert his right to examine the judgment debtor. As he was right in issuing the second execution, so he was entitled to proceed under it for the examination of the defendant, at the time he instituted the proceedings. There is no hardship in the case. It is suggested by the respondent’s counsel that the plaintiff’s remedy was by a creditor’s bill after the return of the second execution. That could not have been the intention of the framers of the law. The summary proceedings are a substitute for the proceeding by suit in equity. The order appealed from is reversed, with costs and disbursements.

Freedman, J,, concurred.


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    CHARLES ENGEL, Appellant, v. J. A. FISCHER, Respondent.

      Statute of limitations—“ Return'" of foreign debtor to this country—Exceptions to rule.

    The word “ return” in § 401 Code Civ. Proc. containing exception to limitation of actions, applies as well to a person coming from abroad where he has resided, as to a citizen going abroad for a time, and then returning. But the return, in order to set the statute running, must be so public and under such circumstances, as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor.
    Accordingly, where defendant, in May, 1873, being then a resident of Austria, there accepted a draft and immediately absconded to this country, where he remained in hiding under an assumed name, for the purpose of concealing himself from his creditors, and the draft matured soon after his arrival, and plaintiff, in April, 1882, discovering defendant, brought suit thereon,—Held, that defendant was not entitled to the protection of the statute.

      Decided December 1, 1884.
    Before Van Vorst and Freedman, JJ.
    ' Appeal from a judgment entered at trial term, upon dismissal of the complaint by a single judge without a jury.
    The facts appear in the opinion.

      B. Lewinson, for appellant.
    I. “The word return,’ as applicable to a debtor, it has been held, applies as well to persons coming from abroad, as to citizens of the country going abroad for a temporary purpose and then returning ” (Angel on Limitations, § 206 ; 3 Parsons Contr. 6th Ed. [105]; Ruggles v. Keeler, 3 Johns. 261; Carpenter v. Wells, 21 Bar. 594 ; Bulger v. Roche, 11 Pick. 36 ; Cole v. Jessup, 2 Bar. 313 ; Dwight v. Clark, 7 Mass. 515).
    II. Such an effect should be given, if possible, to the provisions of the statute of limitations as will not impute to the legislature an intention to do an injustice, especially as to clauses in the statute which purport to save demands, where there has been no opportunity of suing the defendant, by reason of his non-residence, absence or otherwise (Crosier v. Tamlinson, 2 Mod. 71; Forbes v. Smith, 30 Eng. Law & Eq. 602; Chandler v. Villett, 2 Saund. 120 ; Sage v. Hawley, 16 Conn. 114 ; Swayn v. Stephens, Cro. Charles, 245 ; Lafonde v. Ruddock, 24 Eng. Law & Eq. 239 ; See opinion of Maule, J.; William v. Jones, 13 East, 440 ; Gilman v. Cutts, 3 Foster [N. H] 384 ; Smith v. Bond, 8 Ala. 386). The intent plainly expressed is, that every creditor shall have six full years to sue in the courts of this State, and that he shall not lose his demand except by such an omission to sue as the law deems voluntary and negligent (2 R. S. 295-299, § 18, 24, 26, 27, 32-37 ; and Code, §§ 380-412 ; Ford v. Babcock, 2 Sand. 519 ; Cole v. Jessup, 10 How. Pr. 515 ; Gilman v. Cutts, supra; Smith v. Bond, 8 Ala. 386 ; Vanlandingham v, Huston, 9 Ill. 125 ; Harden v. Palmer, 2 E. D. S. 172 ; Richards v. Maryland Ins. Co., 8 Cranch, 92 ; Olcott v.
      Tioga R. R. Co., 20 N. Y. 223). It has been repeatedly held that a defendant who is simply out of the State is beyond seas, so as to bring the demand within the saving clause of statutes, using that phraseology (1 Shower, 91, anon.; Ruckmaboye v. Mettichund, 32 Eng. Law & Eq. 85 ; Lane v. Bennett, 1 Mees. & W. 70 ; Murray v. Baker, 3 Wheat. 341 ; Bank of Alexandria v. Dyer, 14 Peters, 141; Pancoast v. Addison, 1 Har. & Johns. 350). And these clauses have been applied to foreigners who never were in the state until the suit was brought, and who could not “return,” within the literal or ordinary sense of that term (Ruggles v. Keeler, 3 Johns. 267 ; Dwight v. Clark, 7Mass. 515 ; Bulger v. Roche, 11 Pick. 39 ; Van Hemert v. Porter, 11 Metc. 210 ; Graves v. Week, 19 Verm. 179 ; Forbes v. Smith, 30 Eng. Law 6 Eq. 602). So the phrase out of the state embraces all defendants who are beyond its jurisdiction, so as to disable their creditors from commencing actions against them, even though they are within its territory (Sleight v. Kane, 1 Johns. Cas. 76 ; Smith v. Bond, supra). So though their condition was such when the demand fell due that they could neither return, nor even come into the State afterwards ; e. g. where they have died abroad, never having been here (Davis v. Garr, 2 Seld. 124 ; Douglass v. Forrest, 4 Bing. 686 ; Benjamin v. Degroot, 1 Der. 151 ; Lafonde v. Ruddock, 24 Eng. Law & Eq. 239). The above and similar phrases, even when used in saving clauses relating to the absence of the creditor, have been uniformly applied in the same extensive and liberal sense to save the demand (Lafonde v. Ruddock, 24 Eng. Law & Eq. 239; Townsend v. Deacon, 3 Excheq. 706 ; Strithorst v. Graeme, 2 Wm. Bl. 723 ; Williams v. Jones, 13 East, 439). So the word “ person ” in such and like clauses is sufficiently comprehensive to embrace foreign corporations as well as natural persons (Olcott v. Tioga R. R. Co., 20 N. Y. 223 ; Louisville v. Letson, 2 How. U. S. 497).
    III. By similar reasoning, and by like rules of construction, the courts have established the principle, that in order to set the statute in operation and to take a case out of the exceptions created by section 401, the debtor’s return to (i.e., “ coming into ”) the state must be public and notorious (Smith v. Bond, 8 Ala. 386 ; 3 Pars. Contr. *96 ; Angell Lim. § 206 ; Ford v. Babcock, 2 Sand. 518 ; Cole v. Jessup, 19 N. Y. 96 ; 3 Bar. 309 ; Fowler v. Bailey, 3 Mass. 201; Little v. Blunt, 33 Ib. 359 ; Randall v. Wilkins, 4 Ben. 577 ; Fowler v. Hunt, 10 Johns. 464). The answer to the defense of the statute in the cases above cited, as well as the reasoning which overrules such defense on the ground that a clandestine return (“coming”) does not set the statute running, applies with equal if not greater force to one whose intent in coming into the state, just before his debt matures, is for the purpose of concealment and thereby to get the benefit of the statute. Such a “coming” into the state is, in legal effect, no “coming” at all until brought to the knowledge of the creditor. This is a case in which the defense has its origin in a perpetrated fraud. It is a fundamental rule of law that no defense can arise out of fraud, and nó such defense can be sustained (Upton v. McLaughlin, 105 U. S. 640; Rosenthal v. Walker, 111 Ib. 191; Bailey v. Glover, 21 Wall. 349 ; Poillon v. Lawrence, 77 N. Y. 211).

      W. & S. W. Fullerton, and C. E. Rushmore, for respondent.
    I. The defendant having been in this state when the cause of the action accrued, and having remained in it until the commencement of this action, a period of ten years, the statute of hmitations has run against the claim (Code Civ. Proc. §§ 380, 382). The only exceptions to the above sections are found in § 401 of the Code. They are : 1st. When the cause of action accrues against the person, and he is without the state; 2nd. After a cause of action has accrued against a person, and he departs from and resides without the state, or remains continuously absent therefrom for the space of one year, &c., &c.
    In this case the cause of action accrued against the defendant, not when he was “without the state ” but when he was within it. Neither has the defendant departed from or resided out of the state. He has remained and resided within it for ten years.
    II. That fraud which it is claimed was practiced by the defendant in concealing himself by a change of name does not prevent the running of the statute (Troup v. Smith, 20 Johns. 32; Allen v. Mille, 17 Wend. 202 ; Humbert v. Rector, &c., of Trinity Church, 24 Wend. 587; Foot v. Farrington, 41 N. Y. 164).
   By the Court.

Van Vorst, J.

The defendant, residing in Austria, in the month of May, 1873, incurred the obligation, as acceptor of the draft which is the subject of this action.

In July, 1873, the defendant absconded from Austria, and came to the city of New York, and “for the purpose of concealing himself from his creditors, assumed a fictitious name, and has ever since borne, and been hiding, under such fictitious name.” The draft matured after the defendant took up lfis residence in New York. In April, 1882, the plaintiff, the owner of the draft, discovered defendant in the city of New York, living under his fictitious name, and demanded payment, which being refused, he commenced this action.

Upon the trial, the plaintiff’s complaint was dismissed upon the ground that the action not having been commenced within six years after the cause thereof accrued, the same is barred by the statute of limitations. The question arises whether the defendant was withmtMs state durmg the period in question, in the sense contemplated by the statute. It has been said that the statute of hmitations “is a shield, and not a weapon of offense.” I am qrnte sure that it was not designed to defeat justice. It should not shelter a man, who, designmg to defeat the vigilance of Ms creditors, comes into tMs state, and conceals himself under a fictitious name, thus domg all in his power to prevent his creditors from reaching and prosecuting him witMn the time limited.

In the construction of statutes, the judge is vested with authority to disregard the letter, in order, in a given case, to attain the ends of justice. This power has been repeatedly asserted, and practiced upon by the highest authority (Lieber’s Hermeneutics, 3 ed., note by the editor, page 285, and cases cited).

If this defendant is shielded by the strict letter of the statute, he is certainly not by its true spirit and intent (Code, § 401).

In decisions with respect to the former statute of limitation, the word “ return,” found in the section above cited, has been held to apply as well to a person coming from abroad, where he had resided, as to a citizen of this state going abroad for a time, and then returning (Fowler v. Hunt, 10 Johns. 464).

It has also been decided that the “return” must not be clandestine and with the intent to defraud creditors, The “return” must be so public and under such circumstances as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor (Cole v. Jessup, 10 N. Y. 96, 103 ; Randall v. Wilkins, 4 Den. 577; Ford v. Babcock, 2 Sand. 518 ; Fowler v. Bailey, 3 Mass. 201; Little v. Blunt, 33 Ib. 359).

A coming into this state with the design of continuing therein concealed under a fictitious name, to avoid the pursuit of creditors, is in legal effect no coming at all, until the day that he is discovered. The construction contended for by the respondent would make this statute, which was designed to prevent fraud, “the means by which it is made successful and secure.”

The case of Poillon v. Lawrence (77 N. Y. 201), which arose under the bankrupt law, has some analogy. In that case, the bankrupt contracted a debt in one name, and obtained a discharge in a different name, designedly omitting in his proceedings reference to any fact which would disclose that he was the same person who was debtor to the plaintiff. Rapallo, J., said, “It can hardly be supposed that any court would willingly sanction a fraud of that description.” Practically this defendant perpetrated a fraud equally obnoxious. Contracting a debt in a foreign country under his true name, he then comes to this country and lives under an assumed name, in this way to conceal himself from his creditors. Under such circumstances he cannot claim the protection of the statute of limitations.

Troup v. Smith (20 Johns. 33), and other cases cited by the respondent’s counsel, involve the question of a fraudulent concealment of the cause of action, but not of the person of the defendant. That is a wholly different question. The judgment below is reversed, and a new trial ordered, with costs to abide the event.

Freedman, J., concurred.